Com360: Defamation

Protection of Person’s Reputation Basic human dignity: protection of one’s reputation from unjustified invasion and wrongful hurt

Defamation of character Wrongfully hurting a person’s good reputation: Slander and Libel Defamation is a civil wrong (tort) The most common legal problem faced by a person who work in the mass media: about 75% lawsuits filed against the media

Libel suits are troublesome Take a lot of money and time Damage claims are often outrageous Libel law is complicated and confusing (often judges make erroneous decisions) Some plaintiffs file frivolous libel lawsuits to silence the critics in the media

Erroneous decisions For most judges a libel case is a new experience Jurors are confused by the legal concepts: e.g., actual malice Thus: 75% of libel cases are overturned by appeal courts

The Lawsuit as a weapon Strategic Lawsuits Against Public Participation (SLAPP): “Run that story and we will take you to court” Although 90% of SLAPP lawsuits fail, they are intended to intimidate and silence a less powerful critic by so severely burdening them with the cost of a legal defense that they abandon their criticism.

Laws against SLAPP In 1992 California enacted a statute intended to prevent the misuse of litigation in SLAPP suits. It provides for a special motion to strike a complaint where the complaint arises from conduct that falls within the rights of free speech

Elements of defamation Publication Identification Defamatory content Falsity Fault Harm / Compensation

Publication Who made the statement? Who disseminated it? Who repeated it? Question of transmission: “No provider of an interactive computer service shall be treated as the publisher or speaker…”

Identification Plaintiff explicitly named Suggesting plaintiff’s actual name Picture, drawing, description Similarities to fictional characters Group Identification

Defamatory content A communication which has the tendency to so harm the reputation of another as to lower him/her in the estimation of the community or to deter third persons from associating with him/her

Defamatory content Imputations of criminal behavior Sexual references and implications Personal habits (honesty, integrity, etc) Ridicule (showing someone “uncommonly foolish or unnatural”) Business reputation Disparagement of property (product)

Falsity Public Persons versus Private Persons Public-Person plaintiff must prove that the libelous remarks are false Private-Person plaintiff must prove the falsity of the libelous statement only when the subject of the statement is a matter of public concern

Fact versus Opinion Expressions of pure judgments are not subject to libel lawsuits But: Expressions of “opinion” may often imply an assertion of objective fact. Couching such statements in terms of opinion is often not sufficient.

Fault: standard for truth/falsity Straightforward in cases of private persons “Actual malice” in cases of public persons

New York Times v. Sullivan (1964) “The debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” (from Justice Brennan’s opinion)

New York Times v. Sullivan (1964) Public officials may not recover damages for defamatory falsehood relating to their official conduct unless they can prove actual malice; “that the statement was made with… knowledge that it was false or with reckless disregard of whether it was false or not.”

Public persons and officials Public figures are those who thrust themselves “into the forefront of particular public controversies in order to influence the resolution of the issues involved” Public officials are those who have substantial government responsibility

Rosenbloom v Metromedia (1971) An expansion of “public” “Public” in reference not only to the person, but the content If the content of the offending communication is of general public concern, the actual malice standard may be applicable. Later the court clarified the standard in Gertz, limiting the Rosenbloom approach

The Gertz Ruling (1974) (the new standard) Libel cases filed by private people can be judged by the standards imposed by individual state Most states use negligence (lesser degree of fault) A few states use actual malice

Classifying the Plaintiff: A Rough Guide (from your book) Public Official: Government Employee + Substantial Control or Responsibility All-Purpose Public Figure: Career of Courting Media + Pervasive Fame and Influence Vortex Public Figure: Public Controversy + Voluntary Leadership Role Involuntary Public Figure: Pattern of Notorious Conduct + Prior (Undesired) Media Coverage Private Persons: Most Others

Hustler Magazine v. Falwell (1988) In a parody that appeared in Hustler magazine the prominent fundamentalist evangelist Reverend Jerry Falwell was depicted as a drunk in a sexual liaison with his mother in an outhouse

From the “Campari Ad” But your mom? Isn’t it a bit odd? I don’t think so. Looks don’t mean that much to me in a woman. Go on. Well, we were drunk off our God fearing asses on Campari, ginger ale and soda… And mom looked better than a Baptist whore with a $100 donation.

From the “Campari Ad” Did you try it again? Oh, yeah. I always get sloshed before I go out to the pulpit. You don’t think I could lay down all that bullshit sober, do you?

Hustler Magazine v. Falwell (1988) Falwell sued for: 1. libel, 2. invasion of privacy, 3. intentional infliction of emotional distress. In the trial court he lost on (1) and (2) but prevailed on (3). He was awarded $200,000 damages for emotional distress

Hustler Magazine v. Falwell (1988) The Supreme Court reversed (8 to 0): a public figure or official may not recover for intentional infliction of emotional distress arising from a publication unless the publication contains a false statement of fact that was made with actual malice.

Hustler Magazine v. Falwell (1988) That the material might be deemed outrageous and that it might have been intended to cause severe emotional distress were not enough to overcome the First Amendment.

Hustler Magazine v. Falwell (1988) Vicious attacks on public figures are part of the American tradition of satire and parody, a tradition of speech that would be hamstrung if public figures could sue them anytime the satirist caused distress.