1. Chapter Four

2. Objectives To define libel and slander To list the elements of libel To understand libel defenses To understand rules for public and private persons To define anti-Slapp laws

3. Libel awards rising! 1996: average libel judgment = $2.8 million!! (that’s AVERAGE!) –Can put smaller publications out of business Largest judgment to date: MMAR v. Wall Street Journal (1997): award of $222.7 million against WSJ for publication about brokerage firm that put them out of business –Award reduced and then eliminated when found that firm had withheld crucial evidence from WSJ

4. Fear of self-censorship Tobacco company whistleblower Jeffrey Wigand’s interview with Mike Wallace for 60 Minutes was not aired after it was initially made, due to fears that Brown & Williamson would sue CBS –Interview was later aired –Wallace: “We continue to go after the big ones because it’s the big ones that count”

5. Libel and slander “ … a great deal of the law of defamation makes no sense. It contains anomalies and absurdities for which no legal writer ever has had a kind word…” William Prosser Handbook of the Law of Torts

6. Libel definitions Defamation: communication that tends to injure someone’s reputation Libel: written defamation Slander: spoken defamation –We will use “libel” regardless of the action Negligence: journalistic malpractice; sloppiness and mistakes Actual malice: worse; knowingly publishing falsehoods or acting with reckless disregard

7. How is libel handled legally? Civil tort actions, NOT criminal actions Usually in state courts, but federal courts do get cases (diversity jurisdiction) and will use state laws to determine outcome States vary in their libel laws, even though Supreme Court rulings have made libel actions more uniform

8. Overview of libel elements: Plaintiffs must prove… Defamation: statement must tend to hurt someone’s reputation Identification: statement must somehow identify its intended victim Publication: statement must be heard/seen by someone other than victim and source Fault: at the appropriate level Damages: losses that can be monetarily compensated

9. Elements of libel: Defamation Defamation is a communication that damages the reputation of a person, but not necessarily the individual’s character Your character is what you are Your reputation is what people think you are. Reputation is what the law protects.

10. Elements of libel: Defamation Libel per se vs. libel per quod –Libel per se is when words “on their faces” are libelous: “crook,” “racist,” “murderer,” “adulterer,” “prostitute” Falsely accuses someone of crime, immorality, infection by loathsome disease, incompetence –Libel per quod is when context is necessary to be defamatory E.g., reporting that man is “steady dating” a woman when he is in fact married to someone else

11. Identification: Who may sue? Any living person or other private legal entity (like corporation): libel is a personal right not property right, so it dies when person does –Some states permit heirs to sue (NJ, PA) –Many states let heirs continue existing suit Group libel: no individual may sue for libelous statement targeted at group –Cutoff? Between 5 and 100 –The larger the group, the less chance individuals have to be able to sue for libel

12. Elements of libel: Identification At least some readers/listeners must be able to identify who is being libeled Use of name is obvious, but there are other ways –Title (president of university); address (1600 Pennsylvania Blvd.); description (lead actor in Indiana Jones movies); job (Attorney General of the U.S.); initials (JFK, LBJ)

13. Elements of libel: Identification If identification is vague or incomplete, other parties may sue –Behrendt v. Times Mirror Co. (CA App. 1939): Ralph A. Behrend and R. Allen Behrendt both worked at same hospital; LA Times reported Dr. Behrendt had been arrested for theft and narcotics—when actually it was Dr. Behrend who had, so Dr. Behrendt sued and won

14. Elements of libel: Publication Victim + source + one other party = publication –Fewer people hearing it = less damages suffered –Republishing libel, even accurately and with sources, does not exempt from liability –Everyone who disseminates can be liable Single publication rule: initial publication is one libel, no matter how many people see it—no perpetual libel suits

15. Elements of libel: Fault 90% of all cases hang up here –Pre-Sullivan, fault assumed for plaintiff Different kinds of people have different levels of fault to prove –Public officials and public people must prove actual malice: that media knew something was false and published it anyway, or acted with reckless disregard for truth (didn’t care) –Private people need only prove negligence: journalistic sloppiness Much easier for private people to win libel suits!

16. New York Times v. Sullivan, 1964 Starts modern era of defamation Introduces concept of requiring fault in libel actions Adds element of actual malice (publishing with knowledge of falsity or reckless disregard of the truth)

17. Changes from common law In original common law of strict liability (SL), defendant had high burden of proof –Defendant had to show that it did not libel someone—hard to do –Plaintiff only showed defamation, publication and identification took place; media had to demonstrate that it had not libeled –Truth not a defense: “the greater the truth, the greater the libel” After Sullivan (1964), libel considered as constitutional question, with 1A protection, and burden of proof shifted to plaintiff (MAJOR)

18. Fallout from New York Times v. Sullivan, 1964 Actual malice rule applied to public figures who held no office (Curtis Publishing Co. v. Butts and Associated Press v. Walker) Actual malice rule applied to private citizens involved in matters of “public interest” (Rosenbloom v. Metromedia, 1971)

19. New York Times v. Sullivan, 1964 revisited States could allow a lesser standard of proof (negligence not malice) for private persons (Gertz v. Welch, 1974) Private persons thrust into the limelight do not have to prove actual malice (Time inc. V. Firestone, 1976)

20. Elements of libel: Damages Any plaintiff MUST prove some damages to win (no damages, no case) Varies based on award sought and whether public or private plaintiff –Punitive damages require proof of actual malice, at all levels

21. Defenses to libel: hard-line Truth: absolute defense –Plaintiff must prove falsity—but if you can prove truth, you win—it’s hard! –Not a defense to print accurate account of what someone else falsely said (unless from a gov’t proceeding or document) Privilege: three kinds –Absolute: rare for media –Conditional/Qualified: like private facts defense of public record/public proceeding: truthful coverage of gov’t proceedings or documents

22. Falsity Before 1964, falsity assumed, defendant had to show otherwise—now plaintiff must prove Philadelphia Newspapers v. Hepps (1986): Maurice Hepps alleged by Inquirer to be linked to organized crime; he couldn’t prove falsity, but PI couldn’t prove truth –Hepps lost: Where speech of public importance is concerned, all plaintiffs, public or private, have burden of proving falsity (in favor of speech) Truth an absolute defense—but very, very hard to prove to jury

23. Privilege Hutchinson v. Proxmire (1979): Sen. William Proxmire of WI issued “Golden Fleece” awards to people he thought wasted taxpayer money –Dr. Hutchinson studied teeth-clenching monkeys, sued for libel on Proxmire’s press release –Court said he wins: privilege does not cover press release, only Proxmire’s remarks on Senate floor recorded in Congressional Record (even if verbatim) So this defense is limited

24. Defenses to libel: hard-line Fair comment and criticism: similar to opinion defense –Must be based on facts and not published with malice Consent (of course!): but be careful—could be setup if someone permits publication of info defamatory of them Statute of limitations: if libel action not filed within set period of time, statute “runs” and claim cannot proceed (1-2-3 years usually, varies by state)

25. Fair comment and criticism Milkovich v. Lorain Journal Co. (1990): HS wrestling coach sued newspaper that alleged he lied under oath about fight at wrestling match –Court said no constitutional privilege for opinion when based on false statements of fact, unsupported facts, or implied facts –To write “in my opinion, Jones is a liar” is no defense—charge implies knowledge of facts Court affirmed Hepps in that plaintiff must prove falsity If something can be proved, probably not protected: “X is bad” vs. “X did a bad thing” Good protection for pure opinion, however

26. Defenses to libel: mitigating Correction/retraction: “I take it back!”—timely –Might satisfy plaintiff; usually prevents punitive damages Libel-proof plaintiff: plaintiff’s reputation so bad already that couldn’t be further harmed Neutral reportage: reporting all sides of controversial issue of public importance fairly (2CA opinion, few states recognize, not CA) Right of reply: when one media sues another, first claims it was merely replying to attacks by second Usually reliable source (a.k.a. wire-service defense): source was reliable in past

27. Trade libel (a.k.a. “veggie libel”) 13 states have “food disparagement laws” for growers/ranchers to help recover damages from anyone who alleges health risks associated with their product Texas Beef Group v. Oprah Winfrey (Tex. 1998): discussion about mad-cow disease prompted Oprah to say, “It has just stopped me from eating another burger” –TX cattle owners sued, claiming beef prices dropped as result of her comment –TX court said couldn’t use TX food disparagement law

28. Libel on the internet Telecommunications Act of 1966 –Internet service providers are not to be treated as publishers –Thus, the are not liable for content of messages they carry –Thus, they can not be sued for libel –Providers free to screen materials they consider inappropriate

29. SLAPP lawsuits Strategic lawsuits against public participation –Legislation that says if a plaintiff files a merit less lawsuit to discourage the defendant, the defendant can require the plaintiff to pay attorney fees –Allows the court to dismiss frivolous lawsuits

30. Conclusion Defamation is an expression that damages a person’s reputation. Printed defamation and most broadcast defamation are considered to be libel. Slander is spoke defamation. Civil libel—whereby one person or organization sues another for monetary damages is most common.

31. Conclusion Libel elements include defamation, identification, publication, fault, damages. Libel defenses include truth, privilege, fair comment and criticism, consent, statute of limitations.

32. Conclusion In New York Times v. Sullivan, the U.S. Supreme Court ruled for the first time that the First Amendment protects the publication of false statements that damage reputation. Public officials suing the media for statements about their conduct must prove that defamation was published with knowing falsehood or reckless disregard for the truth.