Libel & Defamation 1 JOMC 164, Section 2 Unit 9- Journalist's Privilege 1

Definitions Communication that injures a person’s reputation. JOMC 164, Section 2 Definitions Communication that injures a person’s reputation. Communication that exposes a person to hatred, ridicule or contempt, lowers him in the esteem of others, causes the person to be shunned, or injures him in his business or profession. 2 Unit 9- Journalist's Privilege 2

Types of defamation Libel — written defamation JOMC 164, Section 2 Types of defamation Libel — written defamation Slander — spoken defamation 3 Unit 9- Journalist's Privilege 3

Who can sue for libel? Any living person A corporation JOMC 164, Section 2 Who can sue for libel? Any living person A corporation An unincorporated association, organization or society, including a labor union, charitable foundation, non-profit and fraternal organization. 4 Unit 9- Journalist's Privilege 4

What a libel plaintiff must prove to win a libel suit JOMC 164, Section 2 What a libel plaintiff must prove to win a libel suit Publication Identification Defamatory content Fault Falsity Injury 5 Unit 9- Journalist's Privilege 5

JOMC 164, Section 2 Re-publication rule The bearer of tales is as guilty as the teller of tales. Each person who participates in the repetition or re-publication of a libelous statement can be held legally liable. 6 Unit 9- Journalist's Privilege 6

JOMC 164, Section 2 ISP exception 1996 Communications Decency Act: ISPs are not treated as publishers or re-publishers of information provided on their systems by others. Therefore, an ISP cannot be held liable for defamation on its system, just as a library or news vendor is not liable. 7 Unit 9- Journalist's Privilege 7

What constitutes identification JOMC 164, Section 2 What constitutes identification Is the statement “of and concerning” the plaintiff? Identification can be by name, picture, initials, penname, nickname, sketch, drawing, even a description. Do other people recognize the plaintiff? 8 Unit 9- Journalist's Privilege 8

JOMC 164, Section 2 Group Libel Can a member of a group sue for libel if the entire group is defamed but the member is not mentioned individually? Maybe. Depends on size of group, nature of the statement. 9 Unit 9- Journalist's Privilege 9

Defamatory content Three categories of libelous content: JOMC 164, Section 2 Defamatory content Three categories of libelous content: 1. Libel per se, “obviously defamatory” publications. 2. “Publications which are susceptible of two reasonable interpretations, one of which is defamatory and the other is not”. 3. Libel per quod, “publications which are not obviously defamatory, but which become so when considered in connection with innuendo, colloquium and explanatory circumstances.” 10 Unit 9- Journalist's Privilege 10

Requirements for double-meaning & per quod libel JOMC 164, Section 2 Requirements for double-meaning & per quod libel Libel susceptible of two meanings: Plaintiff must prove the defamatory meaning was intended by the defendant and understood by the audience. Libel per quod: Plaintiff must prove the special circumstances, that the audience understood the defamatory connotation, and special damages, that is, actual monetary loss. 11 Unit 9- Journalist's Privilege 11

Libel per se Four specific types of libel per se: JOMC 164, Section 2 Libel per se Four specific types of libel per se: accusing a person of having committed “an infamous crime.” charging that a person has “an infectious disease.” impeaching a person in his or her trade or profession. a catch-all category consisting of communication that “tends to subject one to ridicule, contempt or disgrace.” 12 Unit 9- Journalist's Privilege 12

Trade libel Also known as product disparagement JOMC 164, Section 2 Trade libel Also known as product disparagement All the usual elements PLUS special damages, that is, actual monetary loss due to the libel 13 Unit 9- Journalist's Privilege 13

Who must prove falsity in libel cases? JOMC 164, Section 2 Who must prove falsity in libel cases? Public officials, public figures and private persons involved in matters of public concern must prove falsity. Whenever the subject of the report that gave rise to the libel suit is a “matter of public concern,” the plaintiff, whether public or private, must prove the falsity of the defamatory statements. Philadelphia Newspapers v. Hepps, 1986 14 Unit 9- Journalist's Privilege 14

What is “a matter of public concern”? In Hepps, the Supreme court provided no definition of the term but merely asserted news about crime clearly was of public concern. Lower courts define the concept very broadly to include anything the public should be interested in or is interested in. In a 1985 case (not involving falsity) the Court said a private credit report on a business sent to 5 subscribers was NOT a matter of public concern.

JOMC 164, Section 2 Injury Usually intangible, loss of reputation, standing in community, mental harm, emotional distress, etc. Sometimes actual monetary loss. All plaintiffs must prove some injury unless they can prove actual malice, which we’ll define and discuss later. 15 Unit 9- Journalist's Privilege 15

Fault: The basic rules Public officials and public figures must prove actual malice to win their lawsuits and collect ANY damages. Private persons must prove at least negligence to win their lawsuits and collect compensatory damages. All plaintiffs, public and private, must prove actual malice to collect punitive damages if the subject of the report is a matter of public concern (the same standard are in the falsity element).

Fault: New York Times v. Sullivan, the landmark case JOMC 164, Section 2 Fault: New York Times v. Sullivan, the landmark case Prior to 1964, libel was a strict liability tort, no fault required. In NY Times v. Sullivan, the U.S. Supreme Court established a fault requirement for public officials. 16 Unit 9- Journalist's Privilege 16

JOMC 164, Section 2 Sullivan holding The First Amendment requires that when public officials sue for libel they must prove actual malice, that is, that the defendant acted with knowledge of falsity or reckless disregard for the truth. 17 Unit 9- Journalist's Privilege 17

JOMC 164, Section 2 Why? National commitment to uninhibited, robust debate on public issues, and Sullivan-type suits would stifle such debate. Sullivan’s suit looked a lot like a seditious libel claim, designed to punish criticism of government. As a public official, Sullivan voluntarily took on a job that invited public attention and criticism As a public official, Sullivan had ready access to the media to rebut defamatory statements. 18 Unit 9- Journalist's Privilege 18

Why this high fault standard when public officials sue? JOMC 164, Section 2 Why this high fault standard when public officials sue? Public officials voluntarily take on jobs that invite public attention and criticism Public officials have ready access to the media to rebut defamatory statements. 19 Unit 9- Journalist's Privilege 19

Who is a public official? JOMC 164, Section 2 Who is a public official? The public official category includes “at the very least … those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” Rosenblatt v. Baer, 1966 20 Unit 9- Journalist's Privilege 20

What about public figures? JOMC 164, Section 2 What about public figures? AP v. Walker & Curtis Publishing Co. v. Butts, 1967: Public figures also have to prove actual malice, but no definition of public figure provided. Gertz v. Robert Welch, Inc., 1974: Defined the term “public figure.” 21 Unit 9- Journalist's Privilege 21

There are two kinds of public figures: JOMC 164, Section 2 There are two kinds of public figures: all-purpose public figure limited-purpose (or vortex) public figure 22 Unit 9- Journalist's Privilege 22

All-purpose public figure JOMC 164, Section 2 All-purpose public figure An individual with widespread fame or notoriety or special prominence in society, one who has “persuasive power and influence” or occupies a position of continuing news values. 23 Unit 9- Journalist's Privilege 23

Limited-purpose public figures JOMC 164, Section 2 Limited-purpose public figures Individuals who “have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” 24 Unit 9- Journalist's Privilege 24

JOMC 164, Section 2 Questions courts ask in deciding who is a limited-purpose public figure 1. What is the subject of the report, and is that subject a public controversy? A public controversy is a “real dispute” over an issue affecting a segment of the general public, the resolution of which will have “foreseeable and substantial ramifications for nonparticipants.” D.C. Court of Appeals 25 Unit 9- Journalist's Privilege 25

JOMC 164, Section 2 Questions courts ask in deciding who is a limited-purpose public figure (cont’d) 2. Did the plaintiff voluntarily inject himself or herself into the controversy? 3. What was the nature of the plaintiff’s involvement in the controversy? Did he or she try to affect the outcome or influence public opinion? 26 Unit 9- Journalist's Privilege 26

More on limited-purpose public figures JOMC 164, Section 2 More on limited-purpose public figures If there is no “public controversy,” there can be no limited public figure status. Public controversy is NOT the same as matter of public concern. Although the Supreme Court recognized the possibility — albeit a rare one — of an involuntary public figure, courts generally require voluntary involvement for public figure status. 27 Unit 9- Journalist's Privilege 27

JOMC 164, Section 2 More Gertz holdings Under the First Amendment, only public officials and public figures must prove actual malice to win their libel lawsuits. The First Amendment also requires private figure plaintiffs to prove some degree of fault, at least negligence, but states can require a higher fault standard if they choose. All plaintiffs — public and private — must prove actual malice to win punitive or presumed damages. 28 Unit 9- Journalist's Privilege 28

What is actual malice? Publishing with 1. knowledge of its falsity OR JOMC 164, Section 2 What is actual malice? Publishing with 1. knowledge of its falsity OR 2. reckless disregard for the truth. 29 Unit 9- Journalist's Privilege 29

JOMC 164, Section 2 When does changing the words of a direct quote constitute knowledge of falsity (actual malice)? When “the alteration results in a material change in the meaning conveyed by the statement.” Masson v. New Yorker Magazine, U.S. Supreme Court, 1991 30 Unit 9- Journalist's Privilege 30

What constitutes reckless disregard for the truth? JOMC 164, Section 2 What constitutes reckless disregard for the truth? The U.S. Supreme Court has defined reckless disregard for the truth as: Serious doubts as to the truth of the publication. A high degree of awareness of probable falsity. Purposeful avoidance of the truth. 31 Unit 9- Journalist's Privilege 31

JOMC 164, Section 2 In determining whether actual malice is present, courts look at 2 types of evidence. 1. Direct, state-of-mind evidence -- what the journalist(s) thought, believed, felt, said at the time the story was being produced. In Herbert v. Lando, 1979, the U.S. Supreme Court said a libel plaintiff could inquire into a journalist’s state of mind. 32 Unit 9- Journalist's Privilege 32

JOMC 164, Section 2 In determining whether actual malice is present, courts look at 2 types of evidence (cont’d) 2. Indirect or circumstantial evidence, typically including (but not limited to): a. the source(s) used or not used; b. the nature of the story, especially whether the story was “hot news” being prepared under deadline pressure; c. the inherent probability or believability of the charges. 33 Unit 9- Journalist's Privilege 33

What is NOT reckless disregard for the truth? JOMC 164, Section 2 What is NOT reckless disregard for the truth? Carelessness Failure to verify facts Sloppy reporting Ill will or intent to harm or bad motives. Failure to retract s story. None of those things, standing alone, is enough to prove reckless disregard for truth — although each may be used to support a finding of actual malice in combination with other factors. 34 Unit 9- Journalist's Privilege 34

What about private people? JOMC 164, Section 2 What about private people? In Gertz, the Supreme Court said even private people had to prove some level of fault to win libel suits. The Court said states could decide what that fault level would be, as long as it was at least negligence. 36 Unit 9- Journalist's Privilege 36

JOMC 164, Section 2 What is negligence? Failure to exercise ordinary care or to act as a reasonably prudent person would under similar circumstances (the reasonable person standard) OR Failure to follow accepted professional standards and practices (the professional standard or journalistic malpractice standard) 37 Unit 9- Journalist's Privilege 37

How is negligence proven? JOMC 164, Section 2 How is negligence proven? Same factors considered as with reckless disregard — sources used or not used, nature of story, believability of allegations — but lower threshold. Is there a discrepancy between what source says he told the journalist and what the journalist reported? Did the journalist try to contact the subject of the allegations? Did the journalist get all the information he/she should have? 38 Unit 9- Journalist's Privilege 38

JOMC 164, Section 2 Gertz recap Two types of public figures — all-purpose and limited-purpose; both,along with public officials, must prove actual malice to win. Private people must prove at least some fault, but the level is left up to the states. (Most have chosen negligence) All plaintiffs, including private people, must prove actual malice to collect presumed or punitive damages. (This was later modified in Dun & Bradstreet v. Greenmoss Builders, 1985). The rule applies only when the defamation involves a matter of public concern. 39 Unit 9- Journalist's Privilege 39

Libel defenses truth fair report privilege: based on common law JOMC 164, Section 2 Libel defenses truth fair report privilege: based on common law privilege for communication of mutual interest: based on common law neutral reportage: based on First Amendment fair comment and criticism: based on common law constitutional protection for opinion: based on First Amendment 40 Unit 9- Journalist's Privilege 40

Fair report or reporter’s privilege JOMC 164, Section 2 Fair report or reporter’s privilege Fair report or reporter’s privilege protects reports of official government proceedings and records if the reports are: 1. Accurate 2. fair or balanced 3. substantially complete 4. not motivated by malice Courts in some states have said the report must be attributed to the officials record or meeting for privilege to apply. 41 Unit 9- Journalist's Privilege 41

JOMC 164, Section 2 LaComb v. Jacksonville Daily News, 2001: the case of the misplaced semicolon Police report: The defendants “did knowingly … cause, encourage and aid [2 juveniles] to commit an act, drinking beer and smoking cigarettes, and engage in a sex act.” Daily News story: “The two were both accused of encouraging cigarette smoking; beer drinking and engaging in sex acts involving a 15-year-old boy and 16-year-old girl.” Court: Despite the misplaced semicolon, the article is substantially accurate; the fair report defense applies. 42 Unit 9- Journalist's Privilege 42

Privilege for communications of mutual interest JOMC 164, Section 2 Privilege for communications of mutual interest A statement is privileged if 1. it is about something in which the speaker has an interest or duty; 2. the hearer has a corresponding interest or duty; 3. the statement is made in protection of that interest or performance of that duty; 4. the speaker honestly believes the statement to be true. 43 Unit 9- Journalist's Privilege 43

JOMC 164, Section 2 First Amendment protection for neutral reportage of controversial charges The charges must be: 1. newsworthy and related to a public controversy, 2. made by a responsible person or organization, 3. made against a public official or public figure, 4. accurately reported with opposing views, AND 5. reported impartially. 44 Unit 9- Journalist's Privilege 44

Fair comment and criticism JOMC 164, Section 2 Fair comment and criticism Protects non-malicious statements of opinion about matters of public interest. The opinion must be “fair.” Often courts say that means the opinion must have a factual basis either 1. provided 2. generally known OR 3. readily available to the public Some courts have ruled that the defense protects only the originator or an opinion, not a repeater. 45 Unit 9- Journalist's Privilege 45

Constitutional protection for opinion JOMC 164, Section 2 Constitutional protection for opinion Key case: Milkovich v. Lorain Journal, 1990, U.S. Supreme Court Columnist said a coach lied under oath about his his role in a brawl. Newspaper argued the column was constitutionally protected as a statement of opinion. Supreme Court said calling someone a liar was an assertion of fact, not opinion. 46 Unit 9- Journalist's Privilege 46

Constitutional protection for opinion JOMC 164, Section 2 Constitutional protection for opinion In Milkovich, Supreme Court said two types of opinion statements are protected by the First Amendment: 1. exaggerated, loose, figurative language, rhetorical hyperbole or parody, e.g., calling a worker who crossed picket lines “a traitor to his God, his country, his family and his class.” 2. statements incapable of being proven true or false, such as imprecise evaluations like good, bad, ugly. 47 Unit 9- Journalist's Privilege 47

JOMC 164, Section 2 Opinion, cont’d However, even unverifiable statements of opinion can lose their protection if they imply the existence of false, defamatory but undisclosed facts are based on disclosed but false or incomplete facts OR are based on erroneous assessments of accurate information. 48 Unit 9- Journalist's Privilege 48

Damages: compensatory JOMC 164, Section 2 Damages: compensatory actual: compensation for intangible harm, i.e., loss of reputation, mental suffering, emotional distress. special: compensation for actual monetary loss. presumed: requires proof of actual malice in most cases nominal: plaintiff wins but jury feels no real harm suffered. plaintiffs claiming libel per quod must show special damages. In trade libel suits, plaintiffs show special damages. 50 Unit 9- Journalist's Privilege 50

JOMC 164, Section 2 Damages: punitive Designed to punish the libeler rather than compensate the person libeled. All plaintiffs, public and private, must prove actual malice to collect punitive damages if the libel suit resulted from publication of a report on a matter of public concern. 51 Unit 9- Journalist's Privilege 51