Libel-Defamation

Dangerous for all media

All media professions
Expensive
Cases protect political speech sp 09
 Libel-Defamation
Plaintiff
Defendant
Burden of Proof
Preventing Libel suits
 Libel
Define
Elements
defamation
identification
publication
harm
fault
 Libel
Terms
Public Official
Public Figure
Private Person
Actual Malice
Negligence
 Libel
Defenses
Truth
Opinion
Qualified Privilege
 Libel
Internet
Slapp Suits
 Libel v. Slander
Libel: written
Slander: spoken
But terms merge in broadcasting, on internet.
 Libel

Historically
Libel
more widely disseminated
than slander
more permanent
more deliberate
more harmful
But also true of broadcast and internet
 Criminal v. Civil Libel
Criminal Libel
Very out of favor
No jail time for libel
Was way to punish critics of government
Historically
...
 Criminal Libel
Historically
Based on breach of the peace theory
“The greater the truth the greater the libel”
Sedition laws
Now
No breach of the peace punishment
Truth a compete defense
 Criminal Libel
Ashton v. Kentucky
Unconstitutional to punish criticism of
officials “calculated to create a
disturbances of the peace.”

SCOTUS: Criminal libel law too vague

Plaintiff must prove malice
 Libel: Plaintiff
Living Individuals

Businesses

Organizations

Products
 Libel : Plaintiff
NOT “the government”
But individual officials may sue
 Libel Defined
A false and unprivileged
statement
of fact
that harms
a person’s
reputation.
 Libel Definition
Harm to reputation
causes “hatred, ridicule or contempt”
(Restatement (Second) of Torts)
 Libel defined
Types of libel
False statements that say or imply
immorality
mental illness
contagious disease
criminal activity
 Libel defined
False charge of criminality, e.g.,
“Guilty” when only a charge was filed
“Guilty”when person is acquitted.
“Arrested” when person is only questioned
 Libel defined
Be precise:
False report: Driver charged with driving an
uninsured automobile
Fact: Driver without proof of insurance
was summoned to prove car is
insured.
 Libel defined
Loaded criminal words

ambulance chaser
cheats
collusion
deadbeat
embezzler
fraud
 Libel Defined
Business Libel
loaded words
“cheat” customers
company is “insolvent”
 Libel defined
Business libel
false report: tobacco company advertised
“illicit pleasure” to children
Brown & Williamson
 Libel defined
Product disparagement
False report: Sound from Bose speakers wandered
“about the room.”

Violin appeared to be
“10 feet wide, and a piano stretched from
wall to wall.”

Financial harm: Publication caused 9-month decline in

sales growth.
 Libel defined
Veggie Libel
Oprah vowed to eat no more hamburgers,
to avoid mad cow disease;
Expert guest proclaimed danger to
American beef.
.
 Libel defined
Veggie libel
Court: Oprah did not violate Texas food
disparagement statute prohibiting false
information about safety of perishable food
products.
Why? . . .
 Libel defined
Veggie libel
Court: Texas beef not “perishable.”
First Amendment issue—whether
statute is constitutional—was avoided.

Question: Can disagreeing, expert scientists

create “false facts?
 Libel defined
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Libel: R & B Villa West text
Libel Villa West
R & B Villa West Correction
 Libel defined
Alcohol Abuse
Carol Burnett
 Libel defined
Incompetence
Libelous or opinion?
“The easiest five credits” at Stanford.
The professor travels “without a full
set of luggage.”
 Libel defined

• Libelous? Professor Buttlick

 Libel defined
Direct quotations
Fabricated quotes not defamatory per se.
Fabricated quotes defamatory if fabrication
defames. New Yorker-Masson case
Innocent construction rule.
Journalist can’t escape liability with quotes:
e.g., The professor was “drunk” in class.
The quote is defamatory if false.
 Libel defined
Loaded words
Communist
Nazi
Homosexual
Plagiarist
Sold out
Obscene
Substandard
Fired
 Elements of libel
Defamation
Publication
Identification
Harm
Fault
 Libel publication
Any format
Newspaper
Book
Broadcast
Internet
PR release
Headline
Cutline
Advertisement
Libel publication. Advertisement
 Libel Identification
“of or concerning”

Not always necessary that name be published

Libel Identification - Cartoon
Libel Publication - Cartoon Correction
 Libel Identification
Panning camera

Houses in drug story

 Libel Identification
Group Libel
No KFC restaurant identified from among 5,000

No owner of burned building identified

from among 160 owners.

But, identification established when all ten

members of fraternity are libeled.
 Libel Publication

Publication needed to a third party

Newspaper
Broadcast
Internet posting
Including Facebook
Letter of recommendation
 Libel: Who’s Responsible?

EVERYONE
Reporter-writer
Editor
Publisher
Broadcaster
Sources

But, not Internet service provider, section 230

 Libel Publication

Internet Service Provider

Section 230
ISP not liable for defamation as carrier
Kenneth Zeran
 Libel Publication
Internet service provider, sec. 230

But no immunity for ISP under sec. 230 if

provider induces defamation
on interactive site.
E.g., Roommates.com
 Libel Publication
Foreign Jurisdictions
“Libel tourism”
 Fault

Strict Liability—(No longer)

Malice—public officials and figures
Negligence—private plaintiffs for compensatory
damages
 Fault

New York Times v. Sullivan

End of seditious libel
Sedition Act 1798
Truth a defense
Juries determine law
Leonard Levy
 Fault
New York Times v. Sullivan
See, Brief
 Fault
New York Times v. Sullivan
Significance
Constitutionalizes libel law
Burden on plaintiff
Malice requirement for public officials
Protection for paid editorial ads
 Public Officials
Public Officials
Sullivan
Police official
Rosenblatt v. Baer
Government employees “who have,
or appear to the public to have, substantial
responsibility for or control over the conduct
of governmental affairs.”
 Public Officials
Mayor?
Governor?
Tax Assessor
High School Principal?
Football coach?
 Public Figures
Public Figures
Curtis Publishing Co. v. Butts
Gertz v. Welch
vortex – limited. voluntarily inject self into
controversial issue of public importance
all purpose. pervasive power and
influence
 Public Figures
Involuntary public figure?
Is there such an animal?
Rosenbloom v. Metromedia
Maximum extension of public figure
malice requirements to:
The involuntary public figure
Supreme Court retrenchment
 Public Figures-Private Persons
Public Figure
Supreme Court retrenchment
Gertz v. Welch
Time v. Firestone
Hutchinson v. Proxmire
Wolston v. Readers’ Digest
 Public Figures-Private Persons
All-purpose public figure
Wield pervasive power or influence;
enjoy wide fame or notoriety.
household name
 Public Figures-Private Persons
All-Purpose Public Figures
Wally Butts
National television celebrity
National political writer
Film stars
Not: Mary Alice Firestone.
Prominent only in Palm Beach
society
 Public Figures-Private Persons
Limited or Vortex Public Figures

Inject selves into controversial issues

of public importance to affect the
outcome
 Public Figures-Private Persons
Limited or Vortex Public Figures
Not Gertz: No attempt to influence public
opinion on issues of police brutality
Not Firestone: No controversial public issue
Not Hutchinson: No thrust
into public controversy
Not Wolston: Didn’t seek subpoena
to testify
 Public Figures-Private Persons
Vortex Public Figures
Yes: Waldbaum. Executive entered
controversies on supermarket practices,
energy legislation, fuel allocation.
Attracted news coverage-
Yes. Monitor Patriot v. Roy
Losing candidate thrust self into political
issues; private life exposed in campaign
(called a bootlegger)
 Public Figures-Private Persons
Public Figures
Richard Jewell?
Damon Evans?
Ted Turner?
Greg McGarity?
Vince Dooley
 Fault
Actual Malice
Knowing falsehood or reckless disregard
for the truth -- Sullivan
 Fault
Reckless Disregard
Garrison: “high degree of awareness of their
probably falsity.”
St. Amant: “entertained serious doubts”
about truth. Story was “inherently
improbable.”
 Fault
Reckless disregard
Combination of factors
Unreliable source. Butts,
Connaughton
Failure to interview or check
Butts, Connaughton
 Fault
Reckless disregard
Intentionally avoiding the truth
Connoughton
Avoiding contradictions
Avoiding warnings
Story improbable
Bias
Ill will
 Fault
Reckless disregard
Not in AP v. Walker
Usually reliable source
No reason to doubt
Journalistic speed sometimes needed
 Fault
Knowing Falsehood
Fabrication. Cantrell v. Forrest City Pub.
Fabricated dialog
Fabricated excessive poverty
 Fault
Knowing Falsehood
Not knowing falsehood:
Changing quotes in quotation marks,
unless the change creates
defamation. Masson
 Fault
Negligence
Failure to do what average professional
[person?] would do
May be single error.
Failure to check. Sullivan
Wrong name from phone
book. Liquori
 Fault
Negligence
Wire service defense
Not negligent to publish wire story
unless story is “inherently improbable”
Not negligent if there is no reason
to know story is defamatory
 Fault
Negligence—Georgia Broadcasters
O.C.G.A. § 51-5-10.  Liability for defamatory
statements in visual or sound broadcast;
damages

   (a) The owner, licensee, or operator of a

visual or sound broadcasting station
is not liable for defamatory broadcasts
. . . [continued]
 Fault
O.C.G.A. 51-5-10 (continued)
By guests or sources
Unless plaintiff can prove stations has
“failed to exercise due care to prevent the . .
.broadcast.”
 Fault

Do broadcasters need time delay to avoid

Negligence?