1. Boundaries of Free Expression I (Libel)
Lecture 24 Chapter 7
Boundaries of Free Expression I
(Libel)

2. This Lecture Boundaries of Free Expression Pages 321-335 Libel
New York Times v. Sullivan (1964)
Hustler Magazine v. Falwell (1988)

3. Are there limits to the First Amendment?
Are some things not included in First Amendment protections?
We have already seen things that are not included
Troop movements
Less protections for school children
Threats to violently overthrow the government
Fraudulent commercial speech
The purpose of the First Amendment was to protect legitimate expression
Libel and obscenity were not meant to be protected
But how far can the government go in restricting these?
What about a chilling effect on speech?

4. Libel Libel vs. slander Defenses to libel Libel is written
Slander is spoken
Defenses to libel
Truth
Absence of malice
Privilege

5. New York Times v. Sullivan (1964)
Background
The New York Times ran an ad by civil rights leaders trying to raise money
It criticized practices involving race in the South including Montgomery
While it didn’t mention Sullivan by name, he took offense to criticism of how he handled himself civil rights protests suggested wrongdoing
He brings a lawsuit against the New York Times in the Alabama courts
The court said it contained falsehoods so it was unprotected speech
He won a judgment of $500,000
The Alabama Supreme Court found it libelous per se
They use this definition: “tend to injure a person libeled by them in his reputation, profession, trade or business, or charge him with an indictable offense, or tend to bring the individual into public contempt”

6. New York Times v. Sullivan- II
Arguments
For the NY Times
Political expression is protected foremost by the First Amendment
Government officials are not free from criticism
Libel should only apply with actual malice as to the truth of the claims
For Sullivan
Libel is not protected by the First Amendment
Commercial ads are not protected by the First Amendment
Libel per se tests do not violate the First Amendment

7. New York Times v. Sullivan- III
Brennan, J. for a 9-0 Court
They rule against use of the libel per se standard
They also reject the commercial advertisement claim that it is not protected
He discusses the misguided Sedition Act of 1798
Enforcement of the Alabama law could lead to self-censorship for fear of lawsuits
The standard they develop is “actual malice”
Whether the statement is made with knowledge that it was false or with reckless disregard of whether it was false or not
States are thus limited in their ability to impose damages in libel cases
Makes proving these cases very difficult

8. New York Times v. Sullivan- IV
Black, J. joined by Douglas, J. concurring
He thinks that the First Amendment doesn’t just limit as state’s power to award damages based on libel
He thinks it completely prohibits it
He thinks the privilege is absolute and unconditional and wouldn’t use actual malice

9. Expansion of the Test Curtis Publishing Company v. Butts (1967)
Lawsuit based on a magazine article that Butts had fixed a college football game
Trial court rules for Butts magazine acted with reckless disregard for the truth
Said he was not a public figure
Public figures who are not public officials may still sue news organizations if they disseminate information about them which is recklessly gathered and unchecked
A 5-4 Court found for Buts
Associated Press v. Walker (1967)
Lawsuit based on an AP article that Walker had led a riot in 1962 Mississippi
Wins at the jury level, but judge reverses saying he is essentially a public figure
Using the same standard as Butts, the Court finds 9-0 that Walker did not meet this

10. Rosenbloom v. Metromedia (1971)
Expanded the privilege to whether the allegedly defamatory publication concerns a matter of public concern or general interest
This could expand this to a lot more people

11. Gertz v. Welch (1974) Gertz v. Welch (1974)
The Court backs away from Rosenbloom
Gertz sues Welch after he called him a “communist fronter”
Gertz was a Chicago attorney suing in a high profile case
Gertz said he was a private, not public figure
He had just be thrust into the spotlight
But because of the case
The Court, by Powell, J. rules for Gertz in a 5-4 margin

12. Time, Inc. v. Firestone (1976) Time, Inc. v. Firestone (1976)
The Firestones were a noted couple because of their name
They went through a contentious divorce
Many of the allegations were found by the judge to be unreliable
Time publishes a small story on the case and quoted things from the trial about affairs
She requested a printed retraction based on the judge’s finding the allegations unreliable
Time said she was a public figure and had to prove actual malice
The Supreme Court ruled for Firestone
Said she was only well known in a small circle
Did not thrust herself into the spotlight
Key is the individual’s status, not the nature of the story or event at the time

13. Hustler Magazine v. Falwell (1988)
Background
Rev. Jerry Falwell was a well-known Baptist minister from Lynchburg, Virginia
Head of the conservative religious group the Moral Majority
And a televangelist
Larry Flynt was the publisher of Hustler Magazine
He runs a parody against Falwell that said his first time was with his mother while both were drunk (from drinking an Italian liqueur called Campari) and in an outhouse
At the bottom of the parody, it stated that it was a parody, and was fiction
The trial court ruled for Falwell on an intentional infliction of emotional distress claim
Everyone acknowledged Falwell was a public figure
The question was whether he had a claim based on a parody that did not claim to be factually accurate

14. Hustler Magazine v. Falwell- II
Arguments
For Hustler Magazine and Larry Flynt
This is more hyperbole
Parody of public figures has a long tradition
Actual malice requires a false statement of fact
For the Rev. Jerry Falwell
A balancing test would put his emotional distress first
For intentional infliction of emotional distress the test should be intentional conduct of the individual in question

15. Hustler Magazine v. Falwell- III
Rehnquist, C.J. for a 8-0 Court (Kennedy not present for arguments)
They decline to put his claims of emotional distress above free speech
First Amendment does not recognize things as false
Public figures may be subject to some pretty nasty attacks
Adopting Falwell’s test would have a “chilling effect” on speech
Outrageousness not going to cut it
Still must show actual malice
The motivations of Flynt were not important
Country has a long history of political cartoons
Some have been very caustic

16. Next Lecture More Boundaries of Free Expression Pages 335-348
Obscenity I
Roth v. United States (1957)
Miller v. California (1973)