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Defamation Law and How It Pertains To Public Figures and Private Persons
Daviona Johnson
Comm Law
August 4, 2015

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Introduction
In todays society people are consumed with the latest trends and what celebrities
are doing when they are not in the publics eye. People enjoy reading scandalous
celebrity stories and reporters are not afraid to report. Many magazines print scandalous
celebrity stories whether they are true or false. One can find a story being published
everywhere they look whether they are standing in line to buy groceries or just browsing
the Internet. One is bound to see a story that defames a certain celebrity. Some of the
stories can be very defamatory meaning that it can damage ones reputation. Defamation
leads to many lawsuits from celebrities and public figures. Celebrities and public figures
are not the only people who face defamation, regular people which are also known as
private persons face defamation as well. Hopkins (2015) defines defamation as the
publication of material that would tend to hold one up to hatred, ridicule, contempt or
spite. Sanders (2008) states that the way society perceives a man may be more important
than the way in which the man perceives himself. This might be one of the reasons why
defamation lawsuits can be most commonly found within the world of media. The way
society perceives a certain person can make or break their career. So when magazines as
well as blog/social media post stories about celebrities or people in general it can damage
their reputation and if the stories are not true that person has the right to protect their
image. According to Cohen, Mutz, Price, & Gunther (1988) libel law is at best an
inconsistent body of rules unevenly applied. The foundation of libel law incorporates
basic assumptions about public opinion and the effects of mass media in creating, shaping
and altering beliefs and attitudes about individuals (Cohen, Mutz, Price & Gunther,
1988).

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Interpreting Words/ Libel Per Se
Defamation is a hard case to prove because people can interpret words in many
different ways. For example in the court case Yonaty V. Mincolla the court ruled that
calling someone gay, lesbian or bisexual is not defamatory per se but due to the fact that
if it was considered defamatory one would conclude that it is shameful and disgraceful to
be described as gay, lesbian or bisexual (Hopkins, 2015). Cohen, Mutz, Price and
Gunther proposed a question asking how do we know when certain words, phrases, and
pictures acting alone or in combination have the power to alter public opinion or to deter
third persons from associating or dealing with a libeled individual?
Words are considered to be defamatory if they impute to another a loathsome
disease, accuse another of serious sexual misconduct, impugn anothers honesty or
integrity, accuse another of committing a crime or of being arrested or indicted, allege
racial, ethnic or religious bigotry, impugn anothers financial health or credit-worthiness,
accuse another of associating with criminals or others of unsavory character, or assert
incompetence or lack of ability in ones trade, business, profession or office(Hopkins,
2015). For example right after the Boston marathon bombing the New York Post
published a picture of two men with the title Bag Men. The New York Post showed the
two men with bags standing at the finish line. Police said that there was no connection
between the two men in the photo and the bombing that took place at the marathon. The
two men Zaimi and Barhoum sued the Post on three counts of libel per se and won the
lawsuit.

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Analyzing Defamation
When interpreting defamation the first step is to analyze the defamatory nature of
a statement and determine whether the readers could interpret the words to be
defamatory. The second part of interpreting defamation is that the statement has to be
defamatory enough that the communication would tend to prejudice the plaintiff in the
eyes of a substantial and respectable minority of the community. It is not considered
enough that the communication would be defamatory in the view of a single individual or
a very small group of persons, if the group is not large enough to constitute a substantial
minority (Hopkins, 2015).
Negligence is defined as failure to act as a reasonably or ordinarily careful person
would under similar circumstances. Hopkins (2015) identified the three general
negligence rule: (1) If there is a discrepancy between what a reporter says he was told by
a source and what the source said he told the reporter, the court is more likely to believe
the source and find that negligence is likely, (2) courts are likely to rule that negligence
could be established if media representatives make little or no effort to contact a person
whom accusations are made or if a medium bases a story later found to be false upon a
single source, (3) courts are likely to rule that negligence could be established if media
fail to get all the information they should. An example of this would be the court case
Aku V. Lewis, the case involved a radio station who had accused the plaintiff of
misrepresenting himself as a station employee to defraud the public. It based its
allegation on two phone calls to the station by listeners. The Supreme Court of Hawaii
reasoned that the defendant lacked trustworthy sources and failed to exercise reasonable
care (Stevens, 1979). The radio station did not win the lawsuit.

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Defamation Through Implication
Defamation through implication often comes to play when a writer tries to guide a
reader to a conclusion without stating the conclusion. This occurs when a writer is
ambiguous, offering multiple meanings, at least one of which is defamatory, or when a
writer juxtaposes one message with another creating an implication that is not necessarily
intended (Hopkins, 2015).
Five Elements In Libel Cases
For a libel case to succeed five elements must be established. The five elements
are publication, identification, defamation, damage and fault. In order to win a libel case
the plaintiff must prove that he or she was identified. Identification does not mean that
the plaintiff was named but it is obvious who the person was talking about. Publication is
also essential to a libel case, it occurs when the defamatory material reaches someone
other than the person who was defamed. The plaintiff must also prove that the material
could damage ones reputation. There must also be some clear evidence of suffering
based on the material that was published. Public figures and public officials are required
to prove actual malice, which is knowledge of falsity or reckless disregard for the truth.
One example of actual malice can be shown in the case Burnett V. National Enquirer,
entertainer Carol Burnett argued that the National Enquirer had falsely portrayed her as
being drunk, rude, uncaring and abusive (Hopkins, 2015). In this case the defamation was
published, Burnett was identified, it caused damage to her reputation and the Enquirer
reporter admitted that he did not check his source to see if the allegation was in fact true.
Burnett won the libel lawsuit against the Enquirer.

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Public figures/Community Defined

The court explained the distinction between public and private persons. Public
officials and public figures usually have a significantly greater access to the channels of
effective communication and hence have a more realistic opportunity to counteract false
statements than private individuals do. Minnick (1982) said that the court defined public
figures as persons who have voluntarily exposed themselves to increased risk of injury
for defamatory falsehoods, by assuming a role of prominence in society or in a particular
controversy. In the case Curtis Publishing Co. V. Butts, the Supreme Court ruled that
there was little legal difference between public figures and public officials. In the Gertz
V. Welch case Elmer Gertz sued Robert Welch, Inc., publisher of American Opinion, for
libel. Gertz had been an official of the Marxist League for Industrial Democracy. He
claimed that he had been injured both as an individual and as an attorney. Through this
case the court was able to differentiate between three types of public figures. The three
types of public figures are general or all purpose public figures, which are persons who
have achieved pervasive fame or notoriety in their communities or are pervasively
involved in the affairs of society. Limited-purpose public figures are people who have
thrust themselves to the forefront of particular controversies in order to influence the
resolution of issues involved. The third public figures are the involuntary public figures,
which are individuals who can be thrust into a matter of public controversy not merely
through voluntary actions but also through bad luck (Hopkins, 2015).
The concept of community plays an important role in defamation litigation
(Sanders, 2008). The courts may look at the definition of community to determine if the

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plaintiffs reputation was injured. In the 1909 court case Peck V. Tribune Co., the court
addressed the notion of community as a part of the courts determination of defamatory
meaning. In this case an Illinois nurse sued Chicago Sunday Tribune for using her in an
advertisement for alcohol (Sanders, 2008). Community also played a role in the Gertz V.
Welch case when they tried to determine the status of attorney Elmer Gertz (Sanders,
2008). Gertz lost the lawsuit because the magazine had not violated actual malice.
False Facts
Today libel plaintiffs must prove that the defamatory statements are false, even if
the statements were made with ill will (Hopkins, 2015). For false material to be
considered it must be likely to cause reasonable people to think significantly less
favorably about the plaintiff than they would if they knew the truth (Hopkins, 2015). In
some cases, the defendant can lose a libel case even if the material he or she reported was
actually true. An example of this would be when a blogger by the name of John Hoff was
found guilty of libel even though what he reported was actually factual (Derrick, 2011).
Hoff wrote about Jerry Moore a former community leader who got a job at the University
of Minnesotas Urban Research and Outreach-Engagement Center to study mortgage
foreclosures. In the blog Hoff claimed that Moore was not fit for the job because of his
alleged involvement with a high profile fraudulent mortgage in Minneapolis (Derrick,
2011). The Center fired Moore the next day and he sued Hoff for defamation. Although
Hoffs statement was not false, he was liable for tortuously interfering with Moores
employment contact (Derrick, 2011).

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False Light/ Actual Malice
The New York Times Co. V Sullivan1 (1964) was the court case that helped the
United States Supreme Court establish the actual malice standard. Sullivan sued New York Times
Co. for printing an advertisement about the civil rights movement in the South that defamed him.
Some of the information in the Advertisement was false and the advertisement did not mention
Sullivans name but he claimed that it referred to him indirectly because he had responsibility of
the police, which the advertisement was written about. Sullivan won the case but New York
Times Co. filed an appeal in which the courts ruled in the New York Times favor. From this case
the criteria for actual malice was established. In order for someone to win damages, especially in
libel actions against the media, a plaintiff must establish that: a false and defamatory statement of
fact concerning the plaintiff was published to a third party, the publication was not privileged and
was made with fault on the part of the publisher, and the publication caused actual injury
(Hopkins, 2015).

In 1999 Playgirl released a magazine issue with the Baywatch actor Jose Solano
on the cover. Solano sued Playgirl saying that the magazine painted him in false light.
The magazine misled readers and made it seem like there would be nude photos of
Solano in the issue (Dias, 2002). Solano also claimed that he did not give Playgirl
consent to use his photos for that issue. He argued that the cover humiliated him and cost
him job offers, invitations to charity events and social contacts(Dias, 2002). To win a
false light claim, the plaintiff must show (1) Defendant disclosed to one or more persons
information about or concerning plaintiff that was presented as factual but that was
actually false or created a false impression about him, (2) the information was understood

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by one or more persons to whom is was disclosed as stating or implying something
highly offensive that would have a tendency to injure plaintiffs reputation, (3) by clear
and convincing evidence, Defendant acted with constitutional malice, and (4) the plaintiff
was damaged by the disclosure. In addition, plaintiffs who are public figures or officials
must also show that the Defendant knowingly or recklessly created the false impression
(Case Briefs, 2015). In 1995 truck driver Peter Kennedy and his employer Ray Veilleux,
owner of classic carriers in Waterville, Maine filed a lawsuit against NBC (Olmstead &
Robertson, 2000). Dateline had accompanied Kennedy on a trip from Salinas, California
to Chelsea, Massachusetts. Kennedy thought that he would be portrayed as a leader for
the nations truck drivers by exposing the outdated regulations and the need to reform
them. That wasnt the case, Dateline used him to show how tired truck drivers can
become deadly hazards on the highway. Veilleux claimed that him and Kennedy were
misled. In 1998 NBC was found guilty of defamation and portrayal in a false light as well
as invasion of privacy. After the decision was made the U.S. Court of appeals in Boston
reversed most of the jurys decision, stating that the allegedly defamatory statements
were reasonably based on Kennedys admissions and the plaintiffs could not prove them
false (Olmstead & Robertson, 2000).
Another case of false light would be when the Boston Herald was sued by
Superior Court judge Ernest B. Murphy when the paper reported that Murphy said, a 14year old rape victim should get over it (Jones, 2005). The judge said that he was
misquoted and the paper tried to portray him as soft on crime (Jones, 2005). Murphy won
the case due to actual malice.

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Defenses for Libel
Some defenses for libel are constitutional, some cases are determined by the
nature of the statement, opinion or common law defense such as provable truth. One
defense for libel is opinion, in an article titled Determining What Constitutes Opinion
written by Deckle Mclean (2003), Mclean wrote that a published statement that is one of
opinion will not support libel judgment. This can create a challenge for courts because
they have to determine whether the offending remark was one of opinion. The defining
case for opinion was Ollman V. Evans in 1984. A college professor sued newspaper
columnists Rowland Evans and Robert Novak, who wrote that he had no status within the
profession and that he used his classroom as an instrument to prepare for a Marxist
revolution. The judge of this case noted the difficulty in distinguishing opinion from fact
and attempted to make the decision easier by establishing a four-part test known as the
Ollman test. The test states that 1. The inquiry must analyze the common usage or
meaning of the words. 2. Is the statement verifiable-Objectively capable of proof or
disproof? 3. What is the linguistic or journalistic context in which the statement occurs?
The article or column must be considered as a whole: The language of the entire column
may signal that a specific statement standing alone would appear to be factual is in fact a
statement of opinion. 4. What is the broader social context into which the statement
fits? The court case Milkovich V. Lorain Journal challenged the opinion defense. In this
case a high school wrestling coach sued a local newspaper columnist who indicated that
the coach lied under oath about his role in a brawl during a match. This was where the
Supreme Court addressed the false idea statement from the Gertz case. The Milkovich
case shows one that opinion is not protected as a category of speech, it provides a

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framework in which opinion is protected. Statements in 60 minutes story about the
alleged use of chicken processing company as a cover for terrorism financing in the
United States is a constitutionally protected opinion under the latter category
(Rasmussen, 2011).
Another defense is fair report privilege. In another case two Texas news outlet
reported that Jose Spencer Sotelo was a sex offender, which proved to be false. But the
source behind the inaccurate reports was a press release from the local police department.
Texas news organizations are immune from liability under the fair report privilege, which
allows journalists to report incorrect information if it comes directly from an official
source. In the case Solaia Technology V. Specialty Publishing Co. ruled that reporters
have an absolute privilege from liability when reporting accurately on an official
proceeding, regardless of whether they knew of or recklessly disregarded the falsity of
those reports. In the article Reporting False Facts (Saharko, 2006) Texas media attorney
Charles Babcock stated, that under Texas law the qualified privilege is lost when the
communication is made with malice and here the media companies negated malice
(Saharko, 2006).
Times V. Sullivan was a classic Constitutional defense case. It allowed Times to
criticize the government and the government officials. Times used the first amendment
rights of freedom of speech and press. According to the article Presumed Harm: An Item
for the Unfinished Agenda of Times V. Sullivan written by David A. Anderson (1985), the
Times had presented the issue, arguing that even if Alabama could constitutionally refuse
to extend a privilege for criticism of official conduct, the judgment was nevertheless
unconstitutional as applied to Sullivan because there was no evidence of injury.

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According to Hopkins (2015), not only is the categorization of the plaintiff
meaningful to the defendant, the nature of the statement at issue also can be important.
Truth is a complete defense in a libel case (Hopkins, 2015). If truth can be proved
than there can be no liability. There are many misconceptions about the truth defense and
it is not easy to prove. The burden of proof in this area now lies with the plaintiff instead
of the defendant, especially when the news media are sued for defamation relating to a
matter of public interest. Broadcasters have the ability to alter a message and its
believability, which is known as the perceived truth. A libel suit was filed against a
Chicago television station claiming that one of its reporters gave a false impression of
what had actually occurred and thereby defamed the plaintiffs with his skeptical tone of
voice. But the court ruled that the tone of the reporters voice could not defame a person
(Hopkins, 2015). Plaintiffs are circumventing the issue of truth in the defendants story
by filing suit for transgressions other than libel. An example of this is the court case Food
Lion V. Cap Cities/ ABC in which a supermarket chain was unhappy with a television
news magazine segment on its food preparation practices sued not for libel, but because
of the techniques used in gathering the information. This strategy enabled Food Lion to
entirely bypass any obligation of proving that the broadcast was false (Hopkins, 2015).
Defamation And The Internet
In the world we live in today one has to keep an eye out on what is being
published not only through the media but what is being published online. For cyberlibel,
a plaintiff has to identify the person who posted anonymously on the Internet. The
plaintiff has to ask a court to order ISPs to identify the original online defamer. The New
Jersey appellate court created a five-part test to determine whether a plaintiff is entitled to

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discover the identity of an anonymous defendant. For the five-part test the plaintiff must
do the following: (1) Attempt to notify an anonymous online defendant that he or she is
the subject of a subpoena or application for order of disclosure. (2) Give the defendant a
reasonable time to file opposition to the application. (3) Identify the exact statements
purportedly made by each anonymous online defendant that rise to each claim. (4) Make
a prima facia or substantial showing of proof for each element of each cause of action. (5)
If a plaintiff has successfully complied with the first four requirements and the courts
concludes that a substantial showing of proof has been made, the fifth and final step is for
the court to balance the First Amendment interests of the anonymous defendant against
the strength of the plaintiffs prima facia case and the need for disclosure to allow the
claim to proceed (Hopkins, 2015). In 2007 the U. S. Court of Appeals in New Orleans
ruled that the single publication rule, which holds the statute of limitations for libel
begins when a statement is first published, applies to publications on the Internet as well.
The single publication rule dates back to 1948 New York case Gregoine V. G.P. Putnams
Sons, which noted that the advent of mass publication should encourage courts to
reexamine how defamation claims are considered and how publishers are protected. Two
cases, one in New York and the other one in Georgia helped lay the foundation for the
online application of traditional publication rules. The New York Court of Appeals
applied the single publication rule in 1998 to report on a state website. In the article
When Defamation Goes Online, Frank Walsh, the lawyer that represented the state in the
1998 New York case stated, that the same rules that apply to print should apply to the
Internet as well (Harder, 2008).

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References
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Derrick, J. C. (2011). Truth doesnt protect Minnesota blogger from defamation suit, judge
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