Communication Law and Ethics CMCN 345 Communication Law and Ethics William R. Davie, Ph.D Lecture 5 Sept. 5, 2006

Principles and Elements Defamation Law: Principles and Elements

Louisiana Criminal Defamation CMCN 345 Lecture 5, Sept. 5, 2006 Libel/Slander Louisiana Criminal Defamation R.S. 14:47 Defined as “…the malicious publication or expression in any manner… “To expose any person to hatred, contempt, or ridicule, or to deprive him of the benefit of public confidence or social intercourse; or “To expose the memory of one deceased to hatred, contempt, or ridicule; or “To injure any person, corporation, or association of persons in his or their business or occupation.” PENALTY: Maximum 6 months and $500.00

Purpose of Libel Law Designed to protect reputation. Good name is precious property. Public redress by peaceful means.

Basic Elements of Libel CMCN 345 Lecture 5, Sept. 5, 2006 Basic Elements of Libel • Publication of defaming message taken as fact? • Identification of plaintiff? • Defamatory and False? • Fault of defendant?

Libel/Slander Defamation Defined CMCN 345 Lecture 5, Sept. 5, 2006 Libel/Slander Defamation Defined Reputation (damage to profession or persona) Contempt and ridicule (humiliation) Hatred (shunned)

Key Questions of Libel Harmful damage to reputation? CMCN 345 Lecture 5, Sept. 5, 2006 Key Questions of Libel Harmful damage to reputation? -- false and injurious words; -- exposure to hatred, scorn or ridicule; -- lowered esteem and/or good will; -- loss of association, business, etc.

Two Types of Defamation CMCN 345 Lecture 5, Sept. 5, 2006 Two Types of Defamation Libel Per Se -- on its face ("by itself") • Crime • Disease • Professional dishonesty • Immorality/Unchastity Libel Per Quod -- by circumstance -- contextual harm to reputation 

DEFAMATION Questions??? Libel or Slander: Print or Broadcast Is the insult obvious or not? A significant number of “right minded” audience members have to believe the slur.

DEFAMATION TO REPUTATION Headlines may be libelous; can pictures be libelous as well?

Elements of a Libel Claim Defamation Identification

Key Question of Libel: Identification of defamed? CMCN 345 Lecture 5, Sept. 5, 2006 Key Question of Libel: Identification of defamed? -- Plaintiff’s name unnecessary; -- Photos, titles, sketches, initials, other inferences; -- Group identification: USA Confidential & Nieman Marcus Oklahoma Sooners & Inhalants

IDENTIFICATION Not always by name Even fiction can “identify” No libel against very large groups (e.g., “politicians”) Case law is mixed concerning smaller groups

Identification of DEFENDANT? CMCN 345 Lecture 5, Sept. 5, 2006 Key Question of Libel: Identification of DEFENDANT? Internet anonymity requires... -- Possible “John Doe” litigation; -- Proof suit will not be dismissed; -- Extra effort in discovery phase.

Elements of a Libel Suit: Publication Fault

Key Question of Libel: Publication of defaming message? CMCN 345 Lecture 5, Sept. 5, 2006 Key Question of Libel: Publication of defaming message? -- Third person heard it. -- Broadcast or internet counts. (Any republications?) -- Bearer of tales as liable as teller of tales.

MORE About Publication Only one THIRD PARTY must hear Self Publication

PUBLICATION Publication VS Defamation Reputation must be diminished in MANY minds

PUBLICATION, continued Republications are actionable too, with exceptions: Wire services, bookstores, some internet service providers Neutral Reportage and FAIR REPORT defenses

Some Traditional Libel Defenses Statute of limitations Truth

Some Traditional Libel Defenses Consent Fair Comment

Sticks and Stones of Defamation? Media costs Damages in dollars CMCN 345 Lecture 5, Sept. 5, 2006 Sticks and Stones of Defamation? Media costs Damages in dollars Confusion + Frustration + Media Mistrust = Trouble SLAPP Initiatives

DEFAMATION “Libel-proof” plaintiffs Look at words’ natural meaning (Dr. Kevorkian and Evel Knievel) Look at words’ natural meaning

Defamation of Groups, Corporations, & Products Businesses can sue for libel when accused of dishonest practices, or insolvency.

Defamation of Groups, Corporations, & Products Trade libel [or product disparagement]: Falsely criticizing a product line Criticism of manufacturer’s motives

GROUP or CRIMINAL LIBEL Beauharnais v. Illinois (1952) CMCN 345 Lecture 5, Sept. 5, 2006 GROUP or CRIMINAL LIBEL Beauharnais v. Illinois (1952)

LIBEL'S DEFENSES AND DAMAGES CMCN 345 Lecture 5, Sept. 5, 2006 LIBEL'S DEFENSES AND DAMAGES Truth Privilege  (Absolute and Qualified) Tarnished Reputation Opinion (Fair Comment & Criticism) Other (Consent, Right of Reply)

LIBEL'S DEFENSES AND DAMAGES CMCN 345 Lecture 5, Sept. 5, 2006 LIBEL'S DEFENSES AND DAMAGES Privilege  (Absolute and Qualified) Official government records or proceedings, so long as accuracy, balance, reasonable completeness are evident. • Criminal charges • Courtroom proceedings • Legislature, school board, parish, other public meetings.

LIBEL'S DEFENSES AND DAMAGES CMCN 345 Lecture 5, Sept. 5, 2006 LIBEL'S DEFENSES AND DAMAGES Fair Comment & Criticism: Milkovich v. Lorain Journal (1990) • Columnist claimed a coach was lying about a brawl, which court held to be a fact-based statement. • Fair comments described as hyperbole, figures of speech, or statements incapable of being proven true or false, ugly.

LIBEL'S DEFENSES AND DAMAGES CMCN 345 Lecture 5, Sept. 5, 2006 LIBEL'S DEFENSES AND DAMAGES opinion statements will lose legal protection once they suggest that A. some defamatory but undisclosed facts do exist; B. opinions are based on false or incomplete facts, or…. C. opinions are based on erroneous assessments of accurate information.

Types of Damage Awards

DAMAGES: Compensatory CMCN 345 Lecture 5, Sept. 5, 2006 DAMAGES: Compensatory ACTUAL: monetary relief for intangibles -- harm to reputation, mental anquish, other types of distress. SPECIAL: compensation for specific financial losses. PRESUMED: requires proof of actual malice in most cases NOMINAL: plaintiff wins case but jury finds no evidence indicating true harm suffered. DAMAGES: Punitive PUNITIVE: Designed to punish the libeler rather than compensate the person libeled.

Compensatory Damages Designed to make the plaintiff “whole” Presumed = no real proof of harm needed; harm is in the words themselves Actual = plaintiff must make some showing of harm Special = plaintiff must prove very specific loss [e.g., firing from a job]

Punitive Damages: To punish and deter

-- Falsity or Truth (Substantial)? CMCN 345 Lecture 5, Sept. 5, 2006 Key Question of Libel Burden of Proof -- Falsity or Truth (Substantial)? -- Common law required defendant prove truth. -- Contemporary law requires plaintiff prove falsity.

FAULT U. S. libel law used to embrace “strict liability” no finding of negligence required if a damaged reputation resulted from a publication, there was liability. New York Times v. Sullivan changed that principle.

Was the defendant at fault? CMCN 345 Lecture 5, Sept. 5, 2006 Key Question of Libel: Was the defendant at fault? -- Negligence defined as failure to exercise reasonable or ordinary care. -- News media requirement of fact checking (verification); fair and balanced; seeking harmed party’s response, etc. -- Evidence of ordinary malice.

New York Times v. Sullivan (1964) Public Official’s CMCN 345 Lecture 5, Sept. 5, 2006 New Standard of Fault: New York Times v. Sullivan (1964) Public Official’s “Actual Malice” Test: To show the Defendant had either ** Knowledge of Falsity, or ** Reckless Disregard of Truth or Falsity

PUBLIC OFFICIAL RATIONALE: CMCN 345 Lecture 5, Sept. 5, 2006 PUBLIC OFFICIAL RATIONALE: • Public officials voluntarily enter public life and realize criticism may result. • Public officials have more access to media to correct wrongs and make statements of rebuttal.

Public versus Private Persons CMCN 345 Lecture 5, Sept. 5, 2006 Public versus Private Persons All-Purpose Public or Private Figures: Curtis Pub. Co. v. Butts (1967) Limited-Purpose Public Figures (Paul “Bear” Bryant) Rosenbloom case: Actual Malice if issue was of public importance

Public versus Private Persons CMCN 345 Lecture 5, Sept. 5, 2006 Public versus Private Persons Gertz v. Welch (1974) Principle: “A publisher or broadcaster of defamatory falsehoods about an individual who is neither a public official nor a public figure may not claim the New York Times protection against liability…”

CMCN 345 Lecture 5, Sept. 5, 2006 Two Louisiana Cases Actual Malice Test 1: Garrison v. State of Louisiana (1964) “high degree of awareness of probable falsity” Actual Malice Test 2: St. Amant v. Thompson (1968) “entertained serious doubts as to the truth” of the publication