Test 2 Jour 3060 Defamation

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Defamation

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Damage to one’s reputation

Types

Spoken (interpersonal, small group, large group) — Slander

Written (mass) — Libel

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Spoken

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Slander

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Written

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Libel

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Libel is

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permanent
pervasive/widespread.

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Types of Libel

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Seditious/Criminal vs. Civil/Tort

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Criminal Public wrong

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Purpose-to prevent breaches of the peace (historically)

Who sues?-Government (through a prosecuting attorney) takes action

On whose behalf?-individual, group (i.e., race, religion), public official, the dead, the government itself

The Penalty-fine, jail time

Definition: Publication-dissemination to the intended party/recipient

Proof/Jury Decision-proof beyond a reasonable doubt /unanimous jury verdict usually required

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Civil/Tort Private Wrong

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Purpose-to restore one’s reputation

Who sues?-Individual (through a private attorney) takes action

On whose behalf?-individual, small group (i.e., family)

The Penalty-damages
1. Compensatory – to compensate for the wrong suffered
2.Punitive – to penalize/punish the wrong-doer

Definition: Publication-dissemination to a 3rd party/intended audience

Proof/Jury Decision-proof by a preponderance of the evidence /unanimous jury verdict
NOT usually required

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Compensatory

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to compensate for the wrong suffered

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Punitive

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to penalize/punish the wrong-doer

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Tory v. Cochran (2005)

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NOT injunctions

Johnnie Cochran suing his former client Ulysses Tory for libel and invasion of privacy

Tory began picketing Cochran’s office

A trial judge issued an injunction ordering Tory to never again display a sign

Tory appealed, arguing that the order was a prior restraint that violated his First Amendment right to free speech

ruled that the order was unconstitutional

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Criminal Libel Foundations

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Under the Authoritarian Theory, the person speaking is criminally
responsible for the effect of the expression, because the historic purpose of criminal libel is to prevent breaches of the peace.

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Beauharnais v. Illinois

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group libel

The expression’s tendency to cause violence and disorder

The Court upheld an Illinois law making it illegal to publish or exhibit any writing or picture portraying the "depravity, criminality, unchastity, or lack of virtue of a class of citizens of any race, color, creed or religion."

Undermining the Rule
The John Peter Zenger Case (1735)

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The John Peter Zenger Case (1735)

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Truth allowed as a defense in criminal libel.

Jury decides both the facts of the case (did he do it?) and the law
(is it criminal libel?).

Doctrine of Jury Nullification

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Garrison v. Louisiana (1964)

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In criminal libel,
1.public official
seeking redress for defamatory
criticism of their
2. official conduct must prove 3.actual malice (knowing falsehood, reckless disregard of truth)before they can collect damages

same rule as will be established for civil libel in New York Times v. Sullivan

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Ashton v. Kentucky (1966)

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criminal libel

The English Common Law of criminal libel is inconsistent with American constitutional provisions.

Petitioner was indicted and convicted for violating the Kentucky common law crime of criminal libel. The indictment charged "the offense of criminal libel" committed "by publishing a false and malicious publication

The audience is responsible for its reactions to any speech, not the
speaker. “This kind of criminal libel ‘makes a man a criminal simply
because his neighbors have no self-control and cannot refrain from
violence”

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Brandenburg v. Ohio (1969)

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the rule today

Criminal syndicalism = state sedition

cannot be punished, unless imminent lawless action

similar to/an extension of
“clear and present danger” (Schenck).

Ohio lost -threat not established

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Williamson v. Georgia (1982)

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The Georgia Experience

Georgia’s Criminal Libel Statute
intent to defame blacken the memory of the dead exposes one to hatred, contempt or ridicule AND
which tends to provoke breach of the peace

The phrase “which tends to provoke breach of the peace” is
unconstitutionally vague.

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Civil Libel / Common Law Elements

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Defamation
Identification => “of and concerning”

Publication -- dissemination to a 3rd party => intended audience

Degree of Fault
1. public fig/of-> actual malice
2. priv ind. -> negligence

Actual Injury

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Common Law Defenses

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Truth
Qualified Privilege (first requires absolute privilege)
Fair Comment & Criticism

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Technical Defenses

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Retraction/Correction — will only mitigate damages

Consent

Statute of Limitations (1 yr for both slander & libel in Georgia)

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Absolute privilege

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a public official in a public forum dealing with public business

absolute right to say anything

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Qualified privilege

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must be fair and accurate
must have absolute privilege

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Philadelphia Newspapers v. Hepps (1986)

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defamation suit

gave newspaper burden of proof on the question of truth or falsity

plaintiff must prove false

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(New York Times v. Sullivan, 1964)

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Constitutional Defense

Public officials willing to collect damages for criticism of their official conduct must prove actual malice

Ad in NY times writes false facts
Sullivan sues and uses truth

wins in lower court and looses in supreme court

-must allow for public discussion to allow mistakes, couldn't prove NY times knew they made mistake

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Constitutional Defense

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Sullivan rule

Public official->Official conduct-> Actual Malice (1. knowing falsehood 2. reckless disregard of truth)

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(Gertz v. Welch, 1974)

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Private individual bc is a lawyer and just doing his job

magazine starts calling Gertz names
private ind seeking comp must prove Negligence

private ind-> issue of pub int-> punitive damages-. actual malice

" no such thing as a false idea"

opinion is protected

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.

if the state standard is lower than actual malice, the standard applying to public figures, then only actual damages may be awarded.

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The Cherry Sisters

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Fair Comment & Criticism

Things created which are offered to the public may be fully praised or criticized.

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(Edwards v. National Audubon Society, 2nd Cir. 1977).

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Neutral Reportage: objective, dispassionate reporting of conflicting charges

the reporting was both neutral and in the public interest

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Who is a “Public Official”?

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Influential in job
executive, judicial, legislative
-former p.o may still be accountable

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Rosenblatt v. Baer (1966)

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Former public officials/a matter of public interest at the
time

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St. Amant v. Thompson (1968)

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Appointed public officials/executive branch

Petitioner read questions which he had put to a union member answers; the answers falsely charged respondent, a public official, with criminal conduct

. Respondent sued petitioner for defamation, and was awarded damages by the trial judge. The trial judge, having considered New York Times Co. v. Sullivan, 376 U. S. 254 (1964), decided after the trial, denied a motion for a new trial.

found that petitioner had not acted with actual malice within the meaning of the New York Times rule, i.e.,

The State Supreme Court reversed, finding that there had been sufficient evidence that petitioner had acted in "reckless disregard"

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Monitor Patriot Co. v. Roy

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Candidates for public office

Publications concerning candidates for public office must be accorded at least as much protection under the First and Fourteenth Amendments as those concerning occupants of public office.

A charge of criminal conduct, no matter how remote in
time or place, “can never be irrelevant to an official’s or a
candidate’s fitness for office.”

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Who is a “Public Figure”?

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involved in issues of interest to the public.”
#1) They invite public
attention and comment;

#2) they have a special prominence in the
resolution of public questions;

#3) they have persuasive power and influence;

#4) they thrust themselves in the forefront of particular
public controversies in order to influence the resolution of the issues involved.

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Types of Public Figures

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Voluntary Public Figure
Involuntary Public Figure

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Contextual requirement

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All-purpose public figure
Limited purpose public figure

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All-purpose public figure

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one who is “public” for all purposes and in all contexts

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Limited purpose public figure

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one who injects himself into a particular public controversy

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Masson v. New Yorker

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Voluntary public figure

Knowing falsehood + Material change in the meaning

Fabricated quotes not by themselves evidence of
actual malice, despite the fact that they are both 1) knowing
and 2) false; “the reporter may lie a little, but not too much”

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Curtis Publishing v.
Butts

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Sat evening post writes that butts wants to fix game, butts sues


not public official but public figure by his actions

news organizations protected from liability when printing allegations about public officials under the Supreme Court's New York Times Co. v. Sullivan decision (1964) but still be liable to public figures if the information they disseminate is recklessly gathered and unchecked

(EDRSR)- extreme departure from responsible source of reporting

butts wins

Extreme departure from responsible source of reporting

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AP v. Walker

Back 40

Mob against federal marshals,
walker gets photographed
Is walker leading the mob?

Court cant find actual malice or EDRSR

like Masson (1991)

Walker lost


By “thrusting his personality into the ‘vortex’ of an
important public controversy” + accusations of criminal
activity

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Involuntary Public Figure

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Whenever a private citizen is
involved in a matter of general or public interest

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Rosenbloom v. Metromedia

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Involuntary Public Figure

raided by police for obsene material

charches are droped but its still published

rosenbloom sues for libel

even though Involuntary PF must prove actual malice

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Gertz v. Robert Welch, Inc. (1974)

Back 43

mag calls gertz names

gertz is pI b/c he is doing his job

Before a private individual can collect compensatory
damages for defamation, he must prove negligence

Before a private individual can collect punitive damages
for defamation, he must prove actual malice.

No liability without injury; no libel per se.

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Defining NEGLIGENCE in defamation

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Elements

Duty of care
Breach of duty causing harm measurable harm/injury

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What is NOT an element in negligence?

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Intent

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Who is a “Private Individual”?

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A seemingly public figure a private individual if
issue is NOT a public one.

public employee is not automatically synonymous with public official, nor is one who has engaged in criminal conduct, nor one who is forced unwillingly into a public controversy.

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Time, Inc. v. Firestone (1976)

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PI bc not an issue of public interest

Absolute privelege- court = public forum

Ex-wife of a prominent member of a wealthy industrial
family, even though she held news conferences and hired a
clipping service, BECAUSE divorce is NOT a matter of public interest

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Hutchinson v. Proxmire (1979)

Back 48

gets federal grant to study close proximity relationships

Proksmire distorst article

Hutchinson loses b/c proksmire presents it on floor =absolute privelege

Then proksmire issues press release- it can be controlled

Hutchinson= Public Individual- won

“The Speech and Debate Clause” -- absolutely protects
the speech of public officials on the floor of Congress.

A behavioral research scientist, with access to the media, who received a grant from a federal agency, even though concern about general public expenditures

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Wolston v. Readers Digest (1979)

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Russian immigrant who was investigated for ties to communism, got soepena didnt go , in contempt of court, paid a fine

Readers digest accused him of soviet espionage

Time lapse on how long someone is a public figure

was private individual b/c too much time has passed=won

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Dun & Bradstreet v. Greenmoss

Back 50

Bradstreet mistakenly reports that greenmoss is bankrupt

greenmoss sues

greenmoss wins b/c private entity

allowed to collect punitive damages only having to prove negligence

pi-> punitive damages -> negligence

bankrupsy not an issue of public interest
(See also, Firestone, 1976.)

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Difference b/t Greenmos and Gertz case ?

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Because Greenmoss did not involve an issue of
public interest, Gertz must have involved an issue of
public interest, even though the issue is not identified as
such one way or the other.

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Falwell v. Flynt (1988)

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outrageous accusation

the more outrageous the more protected

Advertising parody/satire -- “not to be taken
seriously”

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Milkovich v. Lorain Journal (1990)

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If capable of being proven true or false it is defamatory

Accusation of lying by high school wrestling coach
in a sports editors “column” is a factual assertion

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keckton v hustler

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Statute of Limitations

Using minimum business contacts requirement to bypass state law

published in ohio, sues in new hamshire

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Keeton v. Hustler (1984)

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Personal Jurisdiction (California, where the damage was done [also
place of largest circulation], vs. Florida, place of publication)

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Calder v. Jones

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Sues in california b/c largest circulation

Personal Jurisdiction (California, where the damage was done [also
place of largest circulation], vs. Florida, place of publication)

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Disparagement

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false information that a perishable food product or commodity is not safe for human consumption

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Statute of limitations for product disparagement/ defamation

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2 years