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

2. Principles and Elements
Defamation Law:
Principles and Elements

3. 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

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

5. 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?

6. 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)

7. 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.

8. 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 

9. 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.

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

11. Elements of a Libel Claim
Defamation
Identification

12. 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

13. 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

14. 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.

15. Elements of a Libel Suit:
Publication
Fault

16. 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.

17. MORE About Publication
Only one THIRD PARTY must hear
Self Publication

18. PUBLICATION Publication VS Defamation
Reputation must be diminished in MANY minds

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

20. Some Traditional Libel Defenses
Statute of limitations
Truth

21. Some Traditional Libel Defenses
Consent
Fair Comment

22. 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

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

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

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

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

27. 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)

28. 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.

29. 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.

30. 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.

31. Types of Damage Awards

32. 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.

33. 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]

34. Punitive Damages: To punish and deter

35. -- 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.

36. 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.

37. 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.

38. 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

39. 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.

40. 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

41. 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…”

42. 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