Media Law Final - Ch4&5 - Libel, Defenses And Privileges

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4 Elements of Libel

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Defamation, Identification, Dissemination, Negligance or Actual Malice (With proof of damages).

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Elements of libel

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Defamatory statement that is false (Defamation).

Identifies its intended victim (to whom the statement is referring) (Identification).

Is broadcast or published (Dissemination).

With a level of fault (actual malice or negligence) on the part of the defendant (Negligence or Actual Malice).

With proof of damages.

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New York Times v. Sullivan, USSC 1964

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Background: a reproduction of the full page ad that appeared in the New York Times published in March 1960.

This advertisement has a headline “Heed the Rising Voices” which came from an earlier New York Times editorial, which was about occurring civil rights movement going on in the deep south. African American ministers took out this advertisement.

As mass media got involved it made the civil rights movement grow. The paid advertisement doesn’t mention Sullivan’s name in Mobile, Alabama. What Sullivan argues when people in Alabama will associate the wrong doing in police work with Sullivan because he is the police commissioner.

The defamatory statement wasn’t these acts weren’t being committed, but minor inaccuracies and details that made the information incorrect. Sullivan sues the New York Times and wins. Sullivan wins $500,000 damage award. (Falsity is the key here).

Unanimous decision for the New York Times. Brennan, writing for the court, lists three main reasons why the decision cannot stand, why it must be overturned.

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Brennan, writing for the court, provides 3 reasons why the decision NYT v. Sullivan decision cannot stand

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1) Allowing the decision to stand would create a new form of government censorship by way of civil libel lawsuits (court is worried that this would motivate politicians to silence media outlets).

2) Major newspapers would steer clear of controversial topics; chilling effect; self-censorship.

3) mass media need “breathing space” in their handling of controversial topics; errors inevitably occur in robust debate (should not be able to punish media outlets, so minor errors don’t cause a successful lawsuit against them).

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Sullivan v New York Times is important because

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it is still relevant today

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Other reasons NYT v Sullivan decision couldn’t stand

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Public officials voluntarily move in the public arena—they should expect criticism. Public officials have more access to media to respond to charges

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Questions after Sullivan decision

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Which public officials are covered? Applies to elected officials, and public figures (celebrities) who hold no public office. All public servants, or just prominent ones?

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Aftermath of Sullivan decision

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Rosenblatt v. Baer, USSC, 1966: Specific holding—actual malice requirement applies to minor public officials, too. Public official designation would apply to all who have “substantial responsibility for the conduct of governmental affairs”

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Gertz v. Welch USSC, 1974

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(10 years after Sullivan Trial)

Sets the standard for private people. Elmer Gertz is a lawyer. Robert Welch is the publisher of a magazine called the American Opinion. The American Opinion is the magazine of the John Birch society is a conservative, ultraconservative (politically conservative) Welch is a publisher of this magazine.

The America Opinion writes and article and Gertz sues them for libel. There’s a police shooting in Chicago in which a young black man is shot and killed there is a criminal investigation but no charges against the police officer.

Family of young man sues the officer for wrongful death. Gertz is a lawyer representing the family of the young man in suit. American Opinion writes a character assassination of Gertz and throws stones at Chicago’s finest, all these things about Gertz, he takes them to trial for libel, defamatory statements are false, to make police officers look bad.

Gertz wins at trial level ($50,000 judgment against Welch). But, trial judge sets aside judgment, rules Gertz to be a public figure, and says Gertz has to prove actual malice.

Appellate court agreed—Gertz, as a public figure has to prove actual malice. Gertz appeals to USSC. 5-4 decision in favor of Gertz. USSC says Gertz had done nothing to seek public figure status in this case; therefore, shouldn’t have to prove actual malice. He is a lawyer in a prominent case that has generated a lot of publicity, doing his job representing the family. Court holds that states may let private persons, such as Gertz, win libel suits against the media by proving a level of fault short of actual malice. Gertz wins $100,000 because he was able to prove negligence. However he was able to prove actual malice (although he didn’t need to) which entitled him to win punitive damages of $300,000 and totaled $400,000. Negligence is easier to win than actual malice.

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3 Major libel defenses

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Truth, Privilege and Fair comment and criticism)

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Truth

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Strongest defense to a libel claim.

Media outlets should aim for the truth, it is what viewers/readers expect, and it also provides a strong defense.

Where is the burden (of proof)? Is it on plaintiff to prove the statement false? Or on the media defendant to prove the statement true?

Traditionally, the burden was on the media defendant But the USSC placed the burden on the plaintiff in Philadelphia Newspapers, Inc. v. Hepps.

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Privilege

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Different kinds of privilege: Absolute and qualified (conditional) privelege

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Absolute Privelege

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U.S. Constitution provides protection for members of Congress. Absolute privilege (immunity from lawsuit) for the conduct of governmental affairs

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Qualified Privelege

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Journalists who report on what elected officials say are protected by a qualified, or conditional, privilege. Their news reports must be fair and accurate. Information must be obtained from an official record. News report must fairly and accurately reflect what is in the official record. Source of the statement should be clearly noted in the report.

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Fair Comment and Criticism

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This defense protects expressions of opinion about the public performances of people who voluntarily place themselves before the public (American Idol, X-Factor, Shark Tank). Also protects hostile opinions (baseball playoffs, Obama and Romney). Reinforces the idea that people in the public eye should expect criticism.

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Philadelphia Newspapers v. Hepps, USSC 1986

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Maurice Hepps, principal stockholder in a beverage and snack distributing company that owned a franchise of “Thrifty” stores.

Philadelphia Inquirer wrote a series of articles accusing Hepps of having ties to organized crime. Accused Hepps of using those ties to influence decisions in state government. Hepps sued, argued that the articles weren’t true. Trial court ruled that the burden of proof was on plaintiff to prove falsity. Hepps lost at the trial level, but appealed. Pennsylvania Supreme Court ruled in Hepps’ favor: buren of proof on the media defendant.

USSC granted certiorari. By a 5-4 vote, USSC ruled that the burden of proving falsity on the plaintiff. Justice Sandra Day O’Connor, writing for the majority: “we believe the Constitution requires us to tip [the scales] in favor of protecting free speech.” See Quote pg. 158 & box pg 159.

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Food Lion v. Capital Cities/ABC, Fourth Circuit Court of Appeals 1999

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ABC’s Prime Time Live news magazine show. ABC gets wind of unsafe practices in handling of meat, 2 reporters go undercover (using false IDs) for purposes of getting jobs at 2 different Food Lions, they go undercover with tiny cameras and audio recorders, and document what employees are doing with meat--mishandling of food. Taking expired ground meat and packaging it with fresh meat, using bleach for chicken, using BBQ sauce to make it smell fresher. Food Lion accused ABC of trespass, fraud and breach of the duty of loyalty. What accusation was missing? Libel. Why was it missing? Because it was true. Food Lion won at trial, awarded some $5.5 million in punitive damages. Judge reduced the award to $315,000. Fourth Circuit further reduced the award—to what? $2—for trespass and breach of duty; the rest of the damage award was thrown out. Epilogue—causes a chilling effect. Food Lion wins. Food Lion was going to lose if they used Libel as a defense.

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Elements of libel

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Defamatory state that is false. Identifies its intended victim. Is broadcast or published (disseminated). With a level of fault (actual malice or negligence) on the part of the defendant. With a proof of damages.