2. Defamation

3. Elements of a Libel Claim A false statement Of and concerning an identifiable person or entity Defamatory Published to any third party Fault Causing Damage

4. Falsity Avoiding accidental falsity: –BE PRECISE –Use the same care for each sentence Burden of proof –Philadelphia Newspaper vs. Hepps. Matter of public concern by media defendant.

5. Of and Concerning Individuals –“New York police said they twice responded to the Bay Ridge house on noise complaints. … The party was hosted by an 18-year-old former Bedford man who police say is wheelchair bound from an earlier alcohol-related swimming pool accident.” Group Libel

6. Defamatory Meaning Hatred, distrust, ridicule, contempt, or disgrace Question of Law and Fact –Judge: Words capable of being defamatory –Jury: Whether words are understood as defamatory

7. Defamatory Harmful to reputation –Lower him in the estimation of the community –Deter third persons from associating with him Implications count –Headlines –Photo captions Libel by true facts

8. Defamation Examples Lawyer is “incompetent, dishonest and unethical.” An attorney is a “fixer.” The businessman is a “con artist.” The commissioner was a “racist.” The man was “disturbed.”

9. Not Defamatory The man was “adversarial” and “unhelpful.” The mathematician is a “Quack.” The lawyer is a “slickster.” The person was “crazy, an emotional wreck.” The man was a “drifter.”

10. Anderson v. Pensacola News Journal –Article about influence of a developer –Section on how he shot and killed his wife in a hunting accident –Found to be an accidental homicide.

11. Opinion Rhetorical Hyperbole A reasonable person would not likely consider the statement an assertion of fact. Mixed fact and opinion.

12. Who decides? Question of Law or Fact –Judge: Whether the statement is capable of defamatory meaning. –Jury: Whether a reasonable person would understood it to be defamatory. –Doubts are resolved by sending it to a jury

13. Publication Under the law, publication to any third party is sufficient. –In the newspaper –During newsgathering process

14. Fault Actual Malice –knowledge of falsity or in fact entertaining serious doubts about the truth –purposeful avoidance of the truth –clear and convincing evidence, even at pleading state. Negligence –reasonable person test

15. Public Officials and Figures Public Official –position is significant enough or high enough to have substantial responsibility for or control over public affairs Public Figure –General Purpose –Limited Purpose Pre-existing controversy Attempt to influence outcome of controversy More then a tangential relationship to controversy

16. Defenses & Protections Privileges Fair and Accurate Reports –Government proceedings –Government records –Official actions of public interest –port Neutral Report

17. Truth –Be precise! –Substantial truth –Lack of verifiability

18. Development of Libel Law New York Times vs. Sullivan (1964) –What was the standard of fault before Sullivan. Strict Liability No proof of damages –What were the facts. New York Times had information in its archives that would show the advertising had errors. Who was the Plaintiff? What was the ad about?

19. –Core Question: Why is truth as a defense not protective of political speech?

20. –What did Madison mean when he said: “Some degree of abuse is inseparable from the proper use of everything; and in no instance is this more true than in that of the press.”

21. –“The erroneous statement is inevitable in free debate, and that it must be protected if freedoms of expression are to have the ‘breathing space’ that they need to survive.” –NAACP vs. Button (1963)

22. “A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions – and to do so on pain of libel judgments virtually unlimited in amount – leads to a comparable ‘self-censorship.’ Allowance of the burden of proving it on the defendant does not mean that only false speech is deterred.”

23. Holding: –“We hold today that the Constitution delimits a State’s power to award damages in for libel in actions brought by public officials against critics of their official conduct.”

24. What did that mean: –Plaintiff has burden of proving falsity if a public official. –Plaintiff had to prove Constitutional Malice (Actual Malice). Proof must be made by “clear and convincing evidence. –Appellate Court has ‘de novo’ review.

25. After Sullivan Sullivan standard applies to Public Figures. Curtis Publishing v. Butts Sullivan standard applies to speech concerning matters of public concern. Rosenbloom v. Metromedia, Inc. (plurality)

26. Gertz v. Robert Welch (1973) What’s the issue in Gertz. –Whether the Sullivan standard should apply to private individuals. –Why not? What makes a private individual different from a public official or a public figure?

27. What’s wrong with Rosenbloom, according to the Court?

28. –The Sullivan standard “exacts a correspondingly high price from the victims of defamatory falsehood. Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test.”

29. Holding: “We hold that, so long as they do not impose liability without fault, the State may define for themselves the appropriate standard of liability for a publisher of defamatory falsehood injurious to a private individual.”

30. Injury –“We endorse this approach in recognition of the strong and legitimate state interest in compensating private individuals for injury to reputation. But this countervailing state interest extends no further than compensation for actual injury.”

31. Actual Malice for... –Per se damages –Punitive damages

32. Summary Sullivan test (Constitutional Malice): –Public Figure –Public Official –Per Se damages –Punitive damages Gertz (some showing of fault) –Private Figure

33. Next Case Philadelphia Newspapers, Inc. v. Hepps (1986) –Plaintiff has the burden of showing falsity by clear and convincing evidence if… Private Plaintiff Matter of Public Concern Media Defendant

34. Milkovich v. Lorain Journal “Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact.” Gertz.

35. What is the difference between: –In my opinion Mayor Jones is a liar –In my opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin.

36. “Even if the speaker states facts upon which he bases his opinion, if those facts are either incorrect or incomplete or his assessment of them is erroneous, the statement may still imply a false assertion of fact.” “In my opinion, Jones is a liar” causes as much damage as “Jones is a liar.”

37. What’s the standard A statement of opinion is not protected if it can reasonably be interpreted as stating actual facts. What’s the implication in Milkovich?

38. Fitting it all together Public Officials, Public Figures must show that the statements of implied facts were made with knowledge of their false implications or reckless disregard.” Private figures must show some level of fault for the statement of factual implication. Plaintiff then must prove it false.