Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
22 Cards in this Set
- Front
- Back
|
Actual Malice Standard |
requires that the plaintiff in a defamation or libel case prove that the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity. A condition required to prove libel against public officials. |
|
|
Defamation |
Injury to a person's reputation |
|
|
New York Times v. Sullivan |
Facts: On March 29, 1960, The New York Times carried a full-page advertisement titled "Heed Their Rising Voices",[3][4] which solicited funds to defend Martin Luther King, Jr. against an Alabama perjury indictment. The advertisement described actions against civil rights protesters, some of them inaccurately, some of which involved the police force of Montgomery, Alabama. Discrepancies were generally minor.
Decisision: "the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity). Established the actual malice standard.
#1: Yes some were false #2: Yes defamatory #3: of and concerning: Referring to sullivan Even though there is a police force in place. Ultimately, because his name/title isnt explicitly used, it’s NOT defamatory. They went the other way. #4: Yes, published. #5: Was Sullivan able to show malice? No NY TImes didn’t make these statements up out of thin air. They had multiple reliable sources. Standards and guidelines that NY Times must follow. #6
|
|
|
2 Types of Defamation |
Slander: orally communicated Libel: written communication |
|
|
Test for Defamation per quod |
To establish this claim, [name of plaintiff] must prove that all of the following are more likely true than not true: 1. That [name of defendant] made [one or more of] the statement(s) to [a person/persons] other than [name of plaintiff]; 2. That [this person/these people] reasonably understood that the statement(s) [was/were] about [name of plaintiff]; 3. That because of the facts and circumstances known to the [listener(s)/reader(s)] of the statement(s), [it/they] tended to injure [name of plaintiff] in [his/her] occupation [or to expose [him/her] to hatred, contempt, ridicule, or shame] [or to discourage others from associating or dealing with [him/her]]; 4. That the statement(s) [was/were] false; 5. That [name of plaintiff] suffered harm to [his/her] property, business, profession, or occupation [including money spent as a result of the statement(s)]; and 6. That the statement(s) [was/were] a substantial factor in causing [name of plaintiff]’s harm. In addition, [name of plaintiff] must prove by clear and convincing evidence that [name of defendant] knew the statement(s) [was/were] false or had serious doubts about the truth of the statement(s). |
|
|
Situations When damages are presumed. i.e. damages per se |
because of their content, the court assumes will injure the plaintiff’s reputation. * the plaintiff committed a crime; |
|
|
4 Players in Defamation |
Public Officials- Prove actual malice All Purpose Public Figures-prove actual malice Limited Purpose Public Figures-prove actual malice, but doesn't extend to their entire livelihood Private Figure-must prove negligence standard
|
|
|
Classification and Defamation Standards for Public Officials |
The "public officials" category includes politicians and high-ranking governmental figures, but also extends to government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of government affairs.
In general, if an individual is classified as a public official, defamatory statements relating to any aspects of their lives must meet the actual malice standard of fault for there to be liability. Moreover, even after passage of time or leaving office, public officials must still meet the actual malice standard because the public has a continued interest in the misdeeds of its leaders. |
|
|
Classification and Defamation Standards for All-Purpose Public Figures |
All-purpose public figures are private individuals who occupy "positions of such persuasive power and influence that they are deemed public figure for all purposes. . . . They invite attention and comment."Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1972). For these individuals, the actual malice standard extends to virtually all aspects of their lives. This category includes movie stars, elite professional athletes, and the heads of major corporations. Tom Cruise is one; that character actor you recognize instantly but can't quite name is probably not an all-purpose public figure. As with public officials, the passage of time does not cause this class of individuals to lose their public figure status as long as the original source of their fame is of continued interest to the public. |
|
|
Classification and Defamation Standards for Limited Purpose Public Figures |
These are individuals who "have thrust themselves to the forefront of particular controversies in order to influence the resolution of the issues involved." Gertz v. Robert Welch Inc., 418 U.S. 323 (U.S. 1974). They are the individuals who deliberately shape debate on particular public issues, especially those who use the media to influence that debate. This category also includes individuals who have distinguished themselves in a particular field, making them "public figures" regarding only those specific activities. These limited-purpose public figures are not the Kobe Bryants, who are regarded as all-purpose public figures, but rather the journeymen basketball players of the league. For limited-purpose public figures, the actual malice standard extends only as far as defamatory statements involve matters related to the topics about which they are considered public figures. To return to our basketball example, the actual malice standard would extend to statements involving the player's basketball career; however, it would not extend to the details of his marriage.
Individuals who are considered to be limited-purpose public figures remain so as long as the public has an "independent" interest in the underlying controversy. Unlike all-purpose public figures, it is relatively easy for a limited-purpose public figure to lose his status if the controversy in which he is involved has been largely forgotten.
statement has to do with malice to get punitive and actionable damages |
|
|
Classification and Defamation Standards for Private Figures |
Those who are not classified as public figures are considered private figures. To support a claim for defamation, in most states a private figure need only show negligence by the publisher, a much lower standard than "actual malice."
A plaintiff can establish negligence on the part of the defendant by showing that the defendant did not act with a reasonable level of care in publishing the statement at issue. This basically turns on whether the defendant did everything reasonably necessary to determine whether the statement was true, including the steps the defendant took in researching, editing, and fact checking his work. Some factors that the court might consider include: * the amount of research undertaken prior to publication;
Show negligence for actionable damages, show malice for punitive damages |
|
|
Actionable damages |
Actual damages are compensatory damages. The purpose of compensatory damages is to restore the injured party, as nearly as possible, to his or her rightful position -- the position he or she would have been in had he or she not been wronged. Actual damages include all damages that the plaintiff has suffered with respect to his or her property, business, trade, profession or occupation. For example, any lost wages, or lost earning capacity. Actual damages also include any out-of-pocket expenses the plaintiff had to pay as a result of the defamatory statements, such as medical expenses for seeing a psychiatrist. Actual damages can also include losses for which money is only a rough substitute, such as shame, mortification, or hurt feelings experienced by the plaintiff. |
|
|
Punitive Damages |
Punitive damages are damages designed to punish the defendant for particularly egregious conduct and to deter such conduct in the future. To obtain punitive damages, the plaintiff usually needs to show that the defendant acted with malice or fraud. |
|
|
Assumed Damages |
Assumed damages (also called presumed damages) are damages that necessarily result from the publication of the defamatory matter and are presumed to exist. In other words, even if the plaintiff cannot prove actual damages, the court can assume that the plaintiff has suffered harm to his or her reputation, or experienced shame, mortification, or hurt feeling. Generally, assumed damages are not available for slander (oral defamation) or defamation per quod (situations where the statement is not obviously defamatory). There is no fixed standard in how courts calculate assumed damages. Further, the amount of assumed damages can be a nominal, meaning an amount as low as one dollar. |
|
|
Gertz v. Robert Welch |
a case in which the Supreme Court of the United States established the standard of First Amendment protection against defamation claims brought by private individuals. The Court held that, so long as they do not impose liability without fault, states are free to establish their own standards of liability for defamatory statements made about private individuals. However, the Court also ruled that if the state standard is lower than actual malice, the standard applying to public figures, then only actual damages may be awarded.
Facts: In 1968, a Chicago police officer named Richard Nuccio shot and killed a young man (Ronald Nelson). After the officer was convicted of second-degree murder, the victim's family retained a local lawyer named Elmer Gertz to represent them in a civil action against the officer. A year later, American Opinion, a publication of the John Birch Society, ran a series of articles alleging the existence of a Communistconspiracy to discredit local police agencies and thus facilitate their replacement by a single national force that could more effectively implement the dictatorship they planned to impose on the country. One of those touched on the Nuccio case, claiming that the officer had been framed at his criminal trial and making strong allegations about Gertz. It claimed that he had orchestrated Nuccio's conviction and that he was a member of various communist front organizations. It further implied that he had a lengthy criminal record himself and used various anti-communist terms of abuse ("Leninist", "Communist-fronter") to describe him.
|
|
|
Nelson v. Time Inc et al |
Court ruled that he is a limited purpose public figure. Nelson put himself out there for interviews, and other public things and therefore is subject to that heightened degree of scrutiny.
Nelson confirmed the incidents described and expressed regret: “on all that stuff I have no trouble admitting i lost control of my emotions sometimes…” Was not referring to the misconduct...The court took it out of context allegedly. Malice standard has been met
Article says Nelson reacted to poor calls, penalties through violence to others. Nelson failed to deny that he stalked his teammates. He claimed that he was never asked to refute it (?).
Nelson never given a chance to defend himself against the allegations and court found that this met the malice standard
The court ultimately ruled in favor of Nelson, and we was awarded damages. |
|
|
Compelled Speech |
Compelled speech is when government compels us to utter propositions whose truth we reject or find offensive for other reasons. |
|
|
Wooley v. Maynard |
a case in which the Supreme Court of the United States held that New Hampshire could not constitutionally require citizens to display the state motto upon their vehicle license plates when the state motto was offensive to their moral convictions. Since 1969 New Hampshire has required that noncommercial vehicles bear license plates embossed with the state motto, "Live Free or Die."[2] Another New Hampshire statute made it a misdemeanor "knowingly [to obscure] ... the figures or letters on any number plate."[3]The term "letters" in this section had been interpreted by the State's highest court in State v. Hoskin to include the state motto.[4]
Facts of the case[edit] George Maynard and his wife, followers of the Jehovah's Witnesses faith, viewed the motto as repugnant to their moral, religious, and political beliefs, and for this reason they covered up the motto on the license plates of their jointly owned family automobiles. On November 27, 1974, Maynard was issued a citation for violating the state statutes regarding obscuring of the state motto.
Test for Compelling Speech (All do not have to be satisfied) You balance it 1.
Yes, it is compelled speech. So structiny applies. Does it pass the test?
Not ALL compelled speech is unconstitutional. Strict scrutiny: Compelling gov’t interest and narrowly tailored. -NOT narrowly tailored
Were the states interests to disseminate a particular ideology,
No matter how acceptable to some, it unconstitutional to make people the courier for such a message.
They dont have to infringe speech to help identify vehicles. * You can already ID a car based on license plate
The state's interest in motor vehicle identification could be achieved by "less drastic means," and its interest in fostering state pride was not viewpoint-neutral. |
|
|
Test for Compelled Speech |
All do not have to be satisfied. You balance it. 1)Is there a requirement? Or compulsion from the state to assert the speech. 2)Is the item upon which something is being compelled part of one’s daily life? Is it necessary? 3)Is the compelled speech in public view and is it required to be advertised? 4) Is the speech readily associated with the speaker? 5)Is the state’s main purpose to advertise a message?
If test passes and statements are considered compelled speech, scrutiny is applied. Scrutiny questions whether there is a compelling government interest and whether the statute is narrowly tailored.
|
|
|
Tort Liability |
The obligation, legally, of one party to the victim resulting from a civil wrong or injury.
Involves privacy and Intentional Infliction of Emotional Distress |
|
|
Midler v. Ford Motor Co |
Material facts: Someone’s identity or likeness is being misappropriated. Bette Midler is a world renowned singer and actress. Ford wants to play the song during a commercial. The song is called Do you Wanna Dance? Bette turns down the offer. Ford hosts auditions to find someone who can sing the song that is not her. Midler took Ford to court for misappropriating her identity. The issue is whether singer bette midler could recover after having her voice featured in the ad campaign.
Court states: Copyright law controls what the media can do in the reproduction of sounds. Mere imitation of a recorded performance would not constitute copyright infringement. Even when one performer set out to imitate another performer’s performance. Thus Bette cannot sue under copyright theory.
Bette re argues that there is a misappropriation of identity. This is an issue of common law.
The purpose of the media’s use of a person’s identity is permissible only if the purpose is informative. i.e. Satire, educational material, etc If it serves no such purpose and only exploits the person, it’s not.
Court ruled: Court said that Ford did misappropriate the identity and solely desired to make a profit. The fact that they asked bette midler to use her voice. She declined and so they used a similar voice. They circumvented the law and exploited her. NO FIRST AMENDMENT PROTECTION
A voice, or other distinctive uncopyrightable features, is deemed as part of someones identity who is famous for that feature and is thus controllable against unauthorized use. Impersonation of a voice, or similarly distinctive feature, must be granted permission by the original artist for a public impersonation, even for copyrighted materials |
|
|
Synder v. Phelps |
Was a United States Supreme Court case in which the Court held that speech on a public sidewalk, about a public issue, cannot be liable for a tort of emotional distress, even if the speech is found to be "outrageous". At issue was whether the First Amendment protected protests of public protestors at a funeral against tort liability. It involved a claim of intentional infliction of emotional distress made by Albert Snyder, the father of Matthew Snyder, a Marine who died in the Iraq War. The claim was made against the Phelps family, including Fred Phelps, and against Phelps' Westboro Baptist Church (WBC). The Court ruled in favor of Phelps in an 8–1 decision, holding that their speech related to a public issue, and was disseminated on a public sidewalk. IIED: Intentional infliction of emotional distress. Don’t need to know the elements and analyze IIED on the exam. If the defendant acts intentionally and recklessly. Conduct is extreme and outrageous Conduct causes severe emotional distress
They (the congregation) picked public land adjacent to funeral grounds The protest was within the confines of the laws in Maryland
Signs states - Americans doomed, dont pray for USA, Thank god for IUD’s, Thank god for dead soldiers, God hates Fags, etc.
Snyder filed a lawsuit for IIED against Phelps
Court: In the instance that there is an IIED, the congregation has the defense of free speech. Is it a public or private concern? If it’s a public concern it’s at the heart of the 1st amendment.
Test: Speech deals with matters of public concern when it can be fairly considered to issues of public or social concern. when it is a subject of legitimate news interest. The inappropriate or controversial character of the statement is irrelevant if it deals with public concern. Public vs. Private: must examine content, form, context of the speech as revealed by the whole record. Private concern example: credit report. Only in the individual’s interest. Not of public concern.
ALL MATTERS OF PUBLIC CONCERN These issues are political and moral. #1: Content relates to society at large. #2: Synder contends that based on the context, this is a private concern because it’s at a funeral. Court: This doesn’t immediately make it private. Westboro actively engaged in these activities before this particular funeral. No pre-existing relationship. These public issues are not a masked attempt to personally attack snyder. The dissenting Judge says- Congregation turned this funeral into media frenzy. It’s outrageous behavior relating. Could have used any other venue. Even after the event Phelps made several messages online about the event too. |
