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127 Cards in this Set

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What does it mean to "chill" speech?
Speakers self-censoring
the publication of material that would tend to hold one up to hatred, ridicule, contempt or spite
Supreme court constitutionalized libel law in 1964 w what case?
NY Times v Sullivan
To win damages, a libel plaintiff must establish what?
1-a false AND defamatory statement of fact concerning the plaintiff was published to a third party
2-the publication was not privileged and was made with fault on the part of the publisher
3-the publication caused actual injury
What four types of reputational harm are cause by defamation (and thus protected by libel law)?
1-interfere with the plaintiff's existing relationships with other people
2-interfere with future relationships
3-destroy a favorable public image
4-create a negative public image for a person who previously had no public image at all
What other societal interests does libel law serve (beyond the libeled person's individual interests)?
It attempts to compensate for economic and emotional injury and promotes human dignity by providing a civilized forum in which a dispute is settled.
Are reputation rights explicitly recognized by the wording of the constitution?
Does society have a strong interest in preventing and redressing attacks on reputation?
Do state constitutions and common laws play a role in protecting both press rights and individual reputation?
In general, does the principle that prior restraint is presumptively unconstitutional apply to attempts to restrain defamatory material?
Who must prove falsity?
Libel plaintiffs.
In addition to being false, offending material must be what?
What categories of words are likely to be found defamatory?
-impute to another a loathsome disease
-accuse another of serious sexual misconduct
-impugn another's honesty or integrity
-accuse another of committing a crime or of being arrested or indicted
-allege racial, ethnic or religious bigotry
-impugn another's financial health or credit-worthiness
-accuse another of associating with criminals or others of unsavory character
-assert incompetence or lack of ability in one's trade, business, profession or office
Whose understanding of a defamatory statement is used in establishing the defamatory nature of the statement?
Defamation hinges on how the language is interpreted by its recipients.
Most states use the reasonable construction rule. What is it?
That which the recipient correctly, or mistakenly but reasonably, understands it was intended to express.
A few states use the innocent construction rule. What is it?
statement must be considered in context, with the words and the implications there from given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se
What is the single instance rule?
provides that a charge of ignorance or a mistake on a single occasion is not actionable unless special damages can be shown.
What is defamation by implication?
occurs when false impressions arise from truthful statements. It demonstrates the larger problem of determining the meaning of an allegedly defamatory communication by examining the words in context.
In what three contexts does defamation by implication usually arise?
1-when a writer tries to guide a reader to a conclusion without stating the conclusion
2-when a writer is ambiguous, offering multiple meanings, at least one of which is defamatory
3-when a writer juxtaposes one messages with another, creating an implication that is not necessarily intended
What has the California supreme court said about "reasonable implication" of a defamatory meaning?
a false and defamatory meaning cannot be based on the fact that some person might, with extra sensitive perception, understand such a meaning...Rather, the whether by reasonable implication a defamatory meaning may be found in the communication.
What is a statement that is libelous per se? Libelous per quod?
per se: defamitory on its face (apparent in the statement)
per quod:if additional information is required before a statement is defamatory, the statement is libelous per quod, and a plaintiff must prove special damages--that there was, in fact, a loss of money--before the plaintiff can recover.
For an allegedly defamatory statement to be actionable, the statement must be one of fact rather than of what? Why?
rather than of opinion. for an statement to be actionable it must be provably false.
What does it mean that a plaintiff was "identified"?
plaintiff was identified, that is, that the defamation was "of and concerning" the plaintiff.
Is the test of identification to establish the intent of the publisher? How does the audience figure into the element of identification?
No. They don't have to prove that anyone understood it to be them.
Must the plaintiff be named to be identified? Can photos identify?
No. Yes.
Can being a member of a race or a large group constitute individual identification? What is the cut-off point for a group? Beyond what size of a group is an individual not identified by a group libel?
NO. 25-100 ish
Can family members be defamed by reports of the activities of other family members?
Which is probably the easiest element of a libel case for a plaintiff to prove?
What is the single publication rule?
The rule requires a plaintiff to recover all damages suffered from a libel published in any one edition of a magazine or newspaper in one action.
What is a statute of limitations?
Limit of time. For libel actions in most states is one or two years.
What level of fault must public figures and public officials prove?
Actual malice--knowledge of falsity or reckless disregard for the truth
What is the definition of actual malice? What does it not mean?
knowledge of actual falsity or reckless disregard for the truth
injure through knowing or reckless falsehood. is subjective, not objective. It does not mean hatred, ill-will or spite, which is the definition of common law malice.
What level of fault must private persons usually prove to win a libel suit? What must they usually prove to win punitive damages?
Negligence, although must prove actual malice to win punitive damages.
What is one way a plaintiff can prevail in a libel action?
demonstrate that there was knowledge of falsity or reckless disregard for the truth.
Under what conditions can a public official win a libel action?
based upon criticism of official conduct only if the official could prove actual malice, defined as knowledge of falsity or reckless disregard for truth or falsity.
The standard reflects an attempt by a publisher to do what?
an attempt to injure through knowing or reckless falsehood.
In short, what must a publisher be able to demonstrate?
adequate investigation of potentially libelous charges.
Most states have ruled that what is the standard of fault for private-person libel plaintiffs?
negligence is the standard of fault for private-person libel plaintiffs.
How is negligence defined?
a failure to act as a reasonably or ordinarily careful person would have operated in a way significantly different from that of the defendant.
What three general negligence rules have been identified by W. Wat Hopkins?
1)If there is a discrepancy between what a reporter says he was told by a source and what the source said he told the reporter, the court is more likely to believe the source and find that negligence is likely
2)courts are likely to rule that negligence could be established if media representatives make little or no effort to contact a person against whom accusations are made or if a medium bases a story later found to be false upon a single source
3)Courts are likely to rule that negligence could be established if media fail to get all the info they should
Why is knowledge of falsity hard to prove? The "determination of knowledge of falsity rests on" what?
Rarely will a libel defendant admit knowledge of falsity, so, most often, plaintiffs must use objective evidence. Rests on what the libel defendant knew at the time of publication.
What does it mean that state of mind is central to actual malice?
There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.
Is ill will toward the plaintiff sufficient to demonstrate actual malice? However, can evidence of malice be shown in court as a motive for actual malice?
No, but evidence because it may be introduced to demonstrate a defendant's motive for lying or publishing with reckless disregard for the truth.
Can headlines be evidence of actual malice?
Can pre-conceiving a story line be evidence of actual malice?
How does newsroom pressure contribute to defamation and actual malice?
Pressure exerted by newsroom supervisors to produce high-impact stories may also be construed as a predisposition toward certain kinds of stories with specific plot lines. Such pressure may contribute to reporters skewing facts to fit such predilections.
What did the Supreme Court say about misquoting sources in Masson v. New Yorker Magazine, Inc., (1991)?
Even the deliberate misquotation of a public figure cannot be libelous unless the wording materially changes the meaning of what was really said.
Nominal Damages
warded to plaintiffs who have not suffered from provable injury to their reputations. They are granted in very small amounts, usually $1, and are awarded where a plaintiff does not seek compensation for loss, but a vindication of reputation in the form of a declaration that a published statement is false.
Compensatory damages
awarded for actual injury. They compensate, not for out-of-pocket loss, but for harm to reputation, humiliation, suffering and mental anguish. Awards of compensatory damages must be based upon the evidence, but if the damages are not outrageous, a jury can award damages in its own discretion. Compensatory damages are sometimes called "general damages."
Special damages
Special damages are designed to compensate for actual pecuniary loss. Evidence of of special damages will demonstrate an actual amount of money the plaintiff lost as a result of the defamation.
Punitive or exemplary damages
designed to punish the defendant for outrageous and willful defamation. They are desigend to deter the defendant and others from repeating similar actions. Actual malice must be proved for recovery of punitive damages.
What categories of libel plaintiffs must prove actual malice in order to win libel actions?
public officials and public figures.
Who is a public official?
are persons in government who are in or appear to be in policy-making roles. have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs
Who determines whether a plaintiff is a public official?
The trial judge
Who is a public figure?
people who are intimately involved in the resolution of important public questions, or, by reason of the fame, shape events in areas of concern to society at large.
How did the Supreme Court in Gertz v. Welch (1974) distinguish between public and private persons? What was their rationale?
Public officials/figures usually enjoy significantly greater access to the channesl of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater.
Can states determine the fault standard for private-person libel plaintiffs?
What is "the place of wrong"?
The place where the alleged injury occurred.
What is "the place with the most significant relationship to the case"?
The jurisdiction in which the plaintiff lives or works
What are "choice of law issues"?
the determination of which law should govern in multi-state or multi-nation lawsuits.
Generally, when a libel by a U.S.-based defendant affects a plaintiff in another country, does the First Amendment apply (if the case is tried in the U.S.)?
What is the difference in what a plaintiff must prove between a non-media libel defendant and a media libel defendant?
non-media: prove that he/she was identified in a statement that was published to a third person, and that the statement was defamatory
media: two additional elements--1)the publication resulted from fault on the part of the defendent, 2)the plaintiff suffered actual injury from publication of the defamatory statement
Is falsity essential to a libel claim? Can falsity be the basis of a libel claim arising from a statement of opinion?
Yes. No.
What does truth mean in libel law?
Means that the substance of the quoted statement is factually verifiable.
What rights are weighed against each other in libel law?
the rights of individuals to be secure in ther reptuations are weighed against the rights of publishers to be heared on issues important to self-government.
Thanks to Times v. Sullivan (1964), libel cases may be defended now not only based on common law, but on what?
constitutional grounds
The plaintiff must prove every element of libel (publication, identification, defamation, falsity, fault, and harm), but the defendant needs only to refute how many elements?
What standard of proof must the plaintiff establish to prove actual malice? (pp. 115–116)
Preponderance of the evidence<O<without a shadow of a doubt
At the base of a media organization's defense of libel on constitutional grounds is what claim?
that limiting their ability to convey information is an abridgment of the first amendment guarantees of free speech and press.
"The ability to criticize the government and those in government was central to Times v. Sullivan." Why are statements about public officials most deserving of constitutional protection?
The freedom to be critical of government and government officials, after all, was the basis and justification for the first amendment's protection of speech and the press from interference from the state.
What is the central meaning of the First Amendment?
uninhibited discussion of governmental affairs.
The text gives a good definition of public figures. What is the definition given?
individuals who either possess widespread fame or notoriety or who have thrust themselves into a public controversy in order to influence its outcome.
What principle was established by the Butts and Walker cases?
The extension of the actual malice rule to public figures--that many people who do not hold governmental office are nevertheless intimately enough involved in the resolution of public issues that they are required to show actual malice when suing for libel.
Why do defendants want plaintiffs to be categorized by the court as public instead of private figures?
because of the dramatic difference in the level of fault required of public person and private person libel plaintiffs
How are public employees distinguished from public officials?
1)whether a public employee is in or appears to be in a position to make policy
2)whether the employee has ready access to the media
With regard to stories that refer to conduct while in office, does a person remain a public official even after leaving office?
Yes, although it MIGHT erode after time--very rare
Is it possible to libel the government? Can the government be sued for seditious libel? If so, who must the defamatory statement be directed at in order to be libelous?
No; it must be proved that the statement was directed at the official, rather than at the official's government unit.
Can anyone who does not hold public office, and is not paid by the government, be a public official? Under what circumstance?
even when someone doesn't hold office or get paid by the govt, they may still participate in some government enterprise to such an extent as to be classified as a public official
What is a public figure?
must have widespread fame or noteriety, or must have voluntarily injected themselves into a matter of public controversy, attempting to affect the outcome of the controversy.
A general or all-purpose public figure?
persons who have achieved pervasive fame or notoriety in their communitites or are pervasively involved in the affairs of society. people who have become so-called "household names." ie political candidate, entertainer, social activis, writer and columnist, political adviser, religious leader
A limited purpose public figure?
have thrust themselves to the forefront of particular controversies in order to influece the resolution of issues involved
Why are private figures more deserving of protection than public figures?
they have limited access to the media and are, therefore, more vulnerable to irreparable injury. also, there is a certain degree of risk that accompanies those in the public eye
Is it the same thing to "be in the public eye" and to be a "public figure"?
Can a plaintiff be made a public figure by the defendant's (the media's) own actions?
What is bootstrapping?
it occurrs when media defendants attach (or bootstrap) themselves ont the protection of the actual malice standard by pointing to media coverage--including their own--of the plaintiff as evidence that the plaintiff is a public figure.
The pre-existing controversy requirement?
They must determine which came first, the controversy or the publication about the controversy--the controversy had to have come first
"The proper question is not whether the plaintiff volunteered for publicity but whether the plaintiff volunteered for" what?
for an activity from which publicity would foreseeably arise
Is voluntary entry into a sphere of activity such as a particular profession (as opposed to being active in a particular issue) sufficient to make a person a public figure?
Can a person be a private person for one purpose or locality, and a public figure for others? Or a limited-purpose public figure for one purpose or locality, but an all-purpose public figure in different circumstances? In other words, can one person be more than one type of plaintiff, depending on the circumstances?
When are statements pure opinion? Are statements of pure opinion protected?
When they cannot be proved ot be true or false. Yes, although the protection has come about in a round-about way.
What is the Ollman 4-part test for distinguishing opinion from fact?
1)The inquiry must analyze the common usage or meaning of the words
2)Is the statement verifiable--"objectively capable of proof or disproof?" In other words, can the statement be proven either true or false?
3)What is the linguistic or journalistic context in which the statement occurs? The entire article or column must be considered as a whole. "the language of the entire column may signal that a specific statement that, standing alone, would appear to be factual, is in fact a statement of opinion."
4)What is the "broader social context into which the statement fits?"
Why can't opinion be the basis for a successful libel action?
Since an opinion cannot be proved to be false, it cannot be the basis for a successful libel action.
Fair comment and criticism is a common law privilege that does what?
protects critics from lawsuits brought by individuals in the public eye
What does it mean to be in the public eye? Is it the same as being a public figure for purposes of actual malice?
anyone who enters a public sphere: artists, entertainers, dramatists, writers, members of the clergy, teachers--anyone who moves in and out of the public eye, either professionally or as an amateur. No.
Does fair comment and criticism also protect commentary on institutions for matters of public interest?
Under what conditions does commentary qualify for the privilege?
based on facts that are stated, privileged or otherwise known to be available to the public
Is truth a complete defense in a libel case?
Does the plaintiff have the burden of proving falsity? Or does the defendant have the burden of proving truth?
In modern libel law, the burden of proof in this area lies with the plaintiff, not the defendant.
Despite the plaintiff's burden of proof, does the defense try to demonstrate that the disputed material is true?
What is substantial truth, and when can it protect a libel defendant
Mostly true, quirk of time had caused mistake (ie guy reported as in jail when he'd been released on bail already)
What trend is demonstrated by the Food Lion v. Cap Cities/ABC case?
lawyers are more frequently advising their clients to avoid the realm in which media defendants have the shield of both constitutional and common law protection at their disposal.
What is absolute privilege? What is qualified privilege?
absolute: within some spheres of society, it is so vitally important that people be allowed to speak without fear of being sued for libel that they are granted immunity from liability--typically occurs w/in context of carrying out govt business.
qualified: people reporting on these proceedings or other absolutely privileged info also have the protection of privilege, although conditioned or qualified on the fair and accurate reporting of the proceeding.
How is qualified privilege lost?
if the allegedly defamatory material is published with common law malice, if it is not accurate and fair, if the gist of the article is not substantially correct or if the author draws conclusions or adds comments to the official report.
Does the qualified or fair report privilege protect media reports on the content of official government actions, even if those reports contain defamatory material?
what kinds of reports and proceedings fall under the absolute and qualified privilege defenses
Reports on the official statements and proceedings of people in the administrative--or executive--branch of govt are typically privileged.
Police--partially privileged
(things have to be said as part of their official duties)
reports about the proceedings of congress, state legislatures and local governing bodies are privilged--not privileged until officials take possession of them
reports about judicial activities--conditionally privileged. those parts of the judicial process that are closed are not privileged
Why is there virtually no defense in arguing that the defendant merely repeated a defamatory statement that someone else made or published previously?
One who republishes a defamatory statement adopts it as his own and is liable in equal measure to the original defamer
Are letters to the editor considered to be republication? Or are they expressions of opinion?
Typically viewed as expression of opinion rather than statements of fact. Placement, context, mixture of fact/opinion. Protected as media themselves.
How does placement of letters contribute to the outcome of a libel case?
If it's in an area clearly set aside for letters expressing opinions, much more likely to be viewed by a court as an expression of opinion
What is the "innocent construction rule"?
allegedly defamatory publications are to be read as a whole and the words given their natural and obvious meaning
Under what circumstances might cases involving letters to the editor sometimes be resolved in favor of the plaintiff?
combined opinion and fact
Are the authors of letters to the editor shielded from liability (at least in Ohio)?
Yes--they believe that the writers of letters to the editor enjoy the same constitutional protection for opinions that journalists do.
What is the rationale for giving so much protection for letters to the editor?
The robust exchange of ideas that occurs each day on the editorial pages of newspapers could indeed suffer if the nonmedia authors of letters to the editor published in these forums were denied the same constitutional protections enjoyed by the editors themselves.
What four factors must be met in order for the wire service defense to be available to libel defendants?
1)The defendant received the copy in which the defamatory statements are contained from a reputable news gathering agency
2)the defendant did not know the story was false
3)nothing on the face of the story could have reasonably alerted the defendant that it may have been incorrect
4)the original wire service story was republisehd without substantial change
In short, what is the wire service defense?
holds that the accurate republication of a story that a reputable news agency provided does not constitute fault as a matter of law
What does the Communications Decency Act of 1996 stipulate about this issue?
no provider of an interactive computer service can be treated as the publisher of any information provided by some entity other than the provider
What is a libel-proof plaintiff?
when an individual's reputation in the community is so bad that even a false accusation could not further harm it, the individual is considered to be lebel-proof and cannot win a defamation suit.
What is the doctrine of incremental harm?
If an individual is identified in an article as a thief, child molester and tax evader, and if all those charges are true, does it make any difference if the individual is also identified falsely as a kidnapper? The doctrine of incremental harm says no.
Is it a fail-proof libel defense?
Can states adopt the defense if they wish?
it's up to the district courts
Can libel plaintiffs with tarnished reputations with regard to a particular issue be deemed to be libel-proof with respect to that topic area?
Why does a libel defendant want to be able to establish evidence of responsible reporting?
In attempting to prove that a libel defendant acted with reckless disregard, a plaintiff is likely to attempt to build a case bit by bit, demonstrating irresponsibility or carelessness in publishing. Even if a media defendant is unable to escape liability altogether, by refuting these points, and demonstrating responsible reporting, they are likely to mitigate damages.
What are some examples of claims of irresponsibility or carelessness that plaintiffs might try to prove?
-failure to investigate sufficiently
-failure to interview parties who have knowledge or facts related to the story, including the subject of the report
-reliance on previously published material
-reliance on biased stories
-inaccurate reporting
-reporting from a certain pov in an investigative story
-refusal to retract or correct if facts warrent
-absence of a fixed deadline
-ill-will or hatred toward the plaintiff
Can retractions, apologies, and corrections for reputation-damaging reports have an effect on the outcome of damage awards? On the other hand, could they be used by the plaintiff as an admission of guilt?
Yes, and yes.
What is summary judgment?
a judge summarily decides certain points of a case and issues a judgement dismissing the case. It can occur at any of several points in litigation.
When the defense moves for summary judgment and it is granted, it is usually because the plaintiff cannot prove what?
There is no genuine issue as to any material fact, a result of a plaintiff clearly being unable to meet at least one element in the plaintiff's burden of proof.
Note that, according to the Supreme Court, when considering motions for summary judgment by the defendant, judges must view the facts and inferences in the case in the light most favorable to the plaintiff. What is the rationale for this?
if the summary judgment is granted, the plaintiff's opportunity to prove a case is ended, but if the defendant's motion for summary judgement is denied, the defendant still has an opportunity to prove its case.
Are juries usually sympathetic toward media defendants? What usually happens when jury verdicts against defendants go to courts of appeal?
Juries are mean to media defendants, but appellate judges usually reverse.