Libel What is Libel? What is Defamation? Tort – Civil Wrong Why sue for libel? What harm is there in defamation? What qualifies as libelous? What are the explicit goals of bringing a libel case? Are there any implicit, or unstated goals?

Truth and Consequences Large awards / settlements Barricade Books = 3 million Hundreds of millions not unheard of Time and Money 1990 average award against media, just over $1 million, 1996 = $3 million Reflects awards in personal injury cases Typically mass media loses, but can win on appeal Only 30% of libel cases won still stand at the appellate court level Media is often punished for being the messenger, even if they did not construct the message

Why the Media Loses Libel Trials Libel law is complicated Bias against the press Belief that the First Amendment goes too far Usually the cases are modified Between 1980 and 200 just over ¼ cases appealed by the press were left standing without modification, or being overturned

Libel as a WMD Weapon of Message Destruction SLAPP (Strategic Lawsuits Against Public Participation) Upside, defendants win 90% of the time, but at what cost? SLAPP Suits target whom? SLAPP Back Lash – at least 20 states bar SLAPP suits in some form or another Protection ranges from plaintiff must prove they are likely to win the case to protecting only certain circumstances against SLAPP

Fix it or Forget It Publish Retractions or Apologies Do they always satisfy plaintiffs? Press dislikes retractions Why? Retractions Statutes 30 States thus far Example page 237

Elements of Defamation Defamation damages reputation, not character Rep. v. Character To be Actionable, actual damage to reputation must occur At least a significant minority must believe that the plaintiff's reputation has been damages Who can sue? The dead, nor their family can’t sue for libel except in the case of Survival Statutes Corps. can sue, government agencies can’t Burden of proof – Plaintiff must establish all 5 elements Publication Identification Material is defamatory Material is false Defendant was at fault

Laughable Larry Not to be outdone by Kay Anderson’s offer of $25,000 to UVSC to rescind their invitation to Michael More. Larry Lowe, owner of The Happy Homemaker, a bar outside of Provo offered $26, if they would keep the invitation. The following day, the SL Trib reports that an anonymous friend of Larry Lowe gave said in an interview that Larry had previously been convicted of drug trafficking and was a an active member of the communist party. Larry is suing the Trib for $45 million, stating that he was arrested for drug trafficking, but never convicted, and was actually had been a member of a hippie commune in the 60’s, not a communist. Does Larry’s claim meet the elements of libel? Does Larry stand a snowball’s change in Nevada (Not that Nevada matters) of winning? Support your claims!

Publication Hornby v. Hunter – if it is in the paper, broadcast, or internet then it usually qualifies Publishers and Vendors Distributors cannot be held libel, unless they knew, or had reason to know, they were distributing libelous materials Scienter Internet ISPs usually not treated as publishers except in other countries Bloggers tend to enjoy the same protections as ISPs

Identification Must Happen i.e. you can’t be defamed for not being named Can be explicitly named Can be identified by the facts Can be idenified by other reports Geisler v. Petrocelli if those in the know know, then it counts Members of small groups can claim identification

Defamation Two types Words are defamatory on their face Words defamatory only in light of other facts Is the speech capable of defamation Budget Termite v. Bousquet If fact finders find the words capable of libel, they must then ask if they actually are defamatory McBride v. Merrell Dow Innuendo can be defamatory Cannot take words out of context Opinion is not defamatory if it cannot be proven true or false implications of criminal activity are tough ‘alleged’ doesn’t always cut it material about personal habits can be dangerous Sexual implications are risky Ridicule that goes to far can be defamatory Business Reputation single mistake rule Product Criticism / trade libel – difficult to win must prove statements are false must prove monetary loss

Falsity Public v.s Private Persons (next chapter) Material must be false, even if the truth hurts Substantial Truth Schwartz v. American College of Emergency Physicians Minor details can carry the same weight as major assertions What is said, not what is meant is what matters Major: Does learning the truth change the impression Fleckstein v. Friedman