Some important terms, concepts and cases related to Libel:
● Elements of libel: defamation, identification, publication (plus falsity and fault)
-Communication that is damaging to reputation
-More than merely unflattering or annoying
-Defamatory if “significant segment of average and reasonable people in the community” would interpret it as such
Ex: National Inquirer 1975 published article about Carol Burnett having an embarrassing argument with Henry Kissinger
Name is not required, but at least one person must be able to ID
Don’t have to be literally name them, if you describe the person well enough that people know who you are talking about that is enough
Groups of fewer than 25 may claim identification
If you want to learn more check out What is cytology?
Groups/organizations/businesses can sue
Comments about groups can be libelous
Identification: Corporations can sue
-Murray Energy Corp sued for libel after John Oliver’s episode about it
Government cannot sue for libel
-this would constitute permitting seditious-libel based suits Don't forget about the age old question of Why you should believe the law of demand?
-Journalist may get someone’s name wrong
-broadcasters must be especially careful bc of the juxtaposition of voice and video
At least one party other than the victim and the speaker or writer must hear/read it Can occur in
● Stories and articles
● Headlines and layout
● News releases
● Tv and radio
● Blogs, radio, and other online sources
● Letter to the editor
● Fundraising letter and headline
● Who has the burden of proof in a libel case
The plaintiff has the burden of proof in a libel case. They must prove defamation/identification/publication/falsity/fault
-survivors cannot sue over defamation of person who died
● Fault standards: negligence and actual malice, and who must prove which standard
Relates to the New York Times vs Sullivan case Don't forget about the age old question of What are the classifications of the periodic table?
Plaintiff must prove negligence or malice.
Respondent must prove that the reason for publication was reasonable conduct/ “hot news” or understandable error
Legal fault standard: negligence
A person acted negligently if he or she has departed from the conduct expected of a reasonable person acting under similar circumstances. Regardless of your own personal state of mind or intentions. We also discuss several other topics like What organization was the largest contributor to the first earth day?
This is why the Supreme Court had to identify a different fault standard for public officials suing for libel in the NYT vs Sullivan case
Legal fault standard: Actual malice
If the statement is made with knowledge that it was false, or with reckless disregard as to whether it was true or false
-If you are a public official, you can’t win a libel suit unless you can show the person who libeled you was lying or at least seriously doubted the truth of what was published about you
-Doesn’t matter what the jury thinks a reasonable person should have done -To prove actual malice, you have to get inside the defendant’s head, which is incredibly tough to do
● Which is why the Supreme Court chose the actual malice standard for the NYT vs Sullivan case
Knowing the falsehood standard
Having ill will towards the plaintiff is irrelevant
-Again, it comes back to the defendant’s state of mind, or “knowingly” disregarding the truth
-The Sullivan case switched who must demonstrate the burden of proof ● Prior to this case, the defendant had to prove a statement was not libelous ● Since Sullivan, public officials plaintiffs also must prove falsity and fault
● Per se and per quod
per se: facially obvious, the statements are presumed harmful defamation per quod: facially innocuous but defamatory because of intrinsic facts, the harm/damage that the statements cause must be proven We also discuss several other topics like What is information system?
Per se defamation: facially obvious
Per quod defamation: facially innocuous but defamatory because of intrinsic facts Ex: “boyfriend sues for raffle prize” in Baltimore News, intrinsic fact is that he is married
● Groups and libel
Comments about groups or organizations can be libelous.
● The legal stages/process of a libel case
Libel litigation procedure
1.) Alleged libel occurs
2.) Suit filed
4.) Dismissal or summary judgement sought
-Case over if granted
Trial if summary judgement denied
5.) Possibly an appeal or out of court settlement
● Types of damages a plaintiff can seek
Actual- Cannot place dollar amount EX: Pain, suffering
Special- Provable losses EX: Hospital bills, loss of salary We also discuss several other topics like What is hebrew society?
● Actual loss of good name, humiliation, stress
● Special: actual monetary loss
● Awarded simply to send a strong message to the defendant, purpose is not primarily to compensate plaintiff but the plaintiff will receive some or all of the punitive damages awarded
● Can be an arbitrary figure
● big money: to punish a wrongdoer and as a warning to others
● Common Law and Statutory Defenses: Truth, Fair Comment, Fair Report, Communications Decency Act
-Truth is an absolute defense to libel
-Truth is not the same thing as accuray
-Truth is often difficult to prove
-Truth defense: North Carolina Senate race ad **
Fair comment privilege
It protects opinions when they are:
Grounded in fact
● Restaurant review Philadelphia Inquirer **
Confined to the matter at hand
● If you are reviewing a play and comment on the lead actor’s personal life-- even if it is opinion-- those comments would not be protected by fair comment privilege
Judicial guidelines for fair comment
● No one would take it literally
● What matters more than literal language used is how people would understand it ● WaPo review of Cuba Libre **
Can’t be proven false
● Lacks a precise meaning
● In what context is the material published?
● Two categories recognized by the courts
Internal to the media
● Where in the newspaper or magazine did the allegedly defamatory statements appear?
● What kind of radio program broadcast the material?
External to the media
● What are the circumstances surrounding the allegedly defamatory statements? Fair report privilege
The fair report privilege may protect you from liability even if you publish something that is defamatory.
Rationale: encourage public scrutiny of governmental activities through fair and accurate reporting of governmental proceedings. Allows you to report without bearing the burden of first proving the truth of everything that was said
1. Your source is an official public document or statement by a public official on a matter of public concern
2. You properly attribute the information to that source
3. You fairly and accurately portray the information from the document or statement. Examples where the fair report privilege would probably apply include: -Statements made by a judge in a trial
-A speech made by a city council member during a council meeting -Testimony during a trial
-Facts recorded in a final police report
-Analysis reported in an Environmental Protection Agency survey
The privilege would probably not apply to:
-Statements made by an arresting officer about the facts of the case, where those facts are not recorded in the police report
-Gossip overheard on the courthouse steps
-Offhand remarks made by a government official in a private setting -Statements made in a draft government report
Immunizes the press from being sued for libel when they fairly and accurately report something that has:
-transpired as part of an official government proceeding
-is contained in documents that are officially part of a government proceeding Kansas political ad defamation suit **
California Fair Report statute
● A privileged publication or broadcast is one made: (a) In the proper discharge of an official duty. (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law.
● Example of article attributing all criminal allegations to sources and documents ** https://www.presstelegram.com/2018/05/22/woman-arrested-in-connection-to-roll ing-hills-estates-stabbing-death-released/
Communications Decency Act
Gives ISPs complete immunity from being sued for libel for things third parties disseminate via the internet
-The rationale is that if ISPs can be held responsible for every incidence of libel on the Internet, they would go out of business
-The immunity also gives protection to websites who publish third party comments ● California Retraction statute (general idea of what it says)
California Retraction Statute
In any action for damages for the publication of a libel in a newspaper, or of a slander by radio broadcast, plaintiff shall recover no more than special damages.
● Unless a demanded correction is not published or broadcast.
The legislature passed the retraction statute realizing that the media cannot always check for accuracy and errors happen. The law limits monetary damages
● First Amendment Defense
○ New York Times v. Sullivan
At the time, libelous statements received no First Amendment protection.
Times argued that Sullivan’s libel suit amounted to sedition, and this is why it should provide First Amendment protection to the newspaper and all other future libel defendants
-Specifically, argued that the plaintiff is a public official trying to manipulate the law of libel to claim that he was defamed, when the real issue is criticism of government -And that, the Times asserted, the Constitution will not tolerate
The strategy was successful
○ Proving Falsity (i.e. connotation or words not literally true) Can the plaintiff prove falsity? If not, it is protected under First Amendment defense. ○ What constitutes evidence of actual malice
If the statement is made with knowledge that it was false, or with reckless disregard as to whether it was true or false. Failure to investigate or retract not inherently evidence of actual malice
○ Gertz v. Welch, Inc., and its impact on fault, damages, definition of public figures
Gertz v Welch
● Attorney Elmer Gertz was representing clients in a civil wrongful death suit. ○ Two Chicago police officers had been convicted of murder. The victims’ family members filed a wrongful death suit against the cops, seeking monetary damages. Gertz represented the families.
● A reporter from Welch Publishing covered the proceedings and wrote that the litigation was part of a communist conspiracy to discredit the Chicago police. ○ And that was the libel.
● Gertz was a constitutional lawyer with a national reputation.
○ He’d written scholarly books and served on the school board.
● Gertz’s libel suit against Welch Publishing made its way to the Supreme Court.
● And next to the Sullivan case, this is the most important statement on libel we have. They are the bedrock cases.
● So the court said private figures should not have to meet the same standard as public figures, as they deserve more protection than public figures. ● The court acknowledges it went too far in the pornography distributor case, and this decision is a partial retreat from that ruling.
Gertz v Welch
● The court gave states the leeway to make it easier for private individuals to win libel suits.
○ Negligence became the preferred fault standard for private individuals. ■ i.e. Failure to act as a reasonable person in similar circumstances would act.
■ States have the choice, but nearly every state has adopted
negligence as the fault standard in cases where the plaintiff is a
○ BUT the court also added that libel plaintiffs cannot win damages without proving fault— i.e., no strict liability for any type of plaintiff.
Public figure vs Private figure status
● The court also created standards for determining private/public status. ● Gertz was found to be a private individual.
○ While he was prominent in legal circles, the average person would not recognize him.
○ So the Supreme Court sent the message that the “private individual” category should be broad.
● The Gertz decision put an end to presumed damages.
○ The plaintiff must provide evidence as to how he or she was harmed. ● The court said no punitive damages if only negligence is proved. ○ This was good news for the media.
● But if the plaintiff can prove actual malice, he or she can get both presumed and punitive damages.
Recap: The Gertz case
● Made it possible for states to allow different treatment for public and private figures.
○ Reiterated that public officials and public figures must meet a higher fault standard (actual malice) when proving libel.
● Made it easier for private figures to win libel suits by reducing the fault standard (to negligence).
● Who fits into the private figure category and who fits into the public figure category?
● The consequences are huge, given that it is much easier for a private figure to win a libel suit.
○ Hustler v. Falwell
● Falwell sued Hustler magazine and publisher Larry Flynt on three grounds: libel, invasion of privacy and intentional infliction of emotional distress.
He won emotional distress claim but the jury ruled against Falwell for libel because they said no one could possibly take the parody in ad seriously
○ Public figures: types and definitions for each category
Who is considered a public figure, according to libel law
● Any elected official is a public figure
○ school board member, etc.
● Any obviously high-ranking appointed official is a public figure ○ cabinet members (i.e. Secretary of State Mike Pompeo)
○ agency heads (i.e. FCC Chair Ajit Pai)
○ police chief
○ university chancellor
Court guidance on public officials
● The Supreme Court said a public official is “anyone…in government who has or appears to the public to have substantial responsibility for or control over governmental affairs.”
○ This is a very broad definition
Some important terms, concepts and cases related to Privacy ● Interests protected/differences from libel
Different than defamation law because defamation law requires just one other person to hear/see the libelous statement, in public disclosure the facts must be widely disseminated & must involve previously private information
● Four basic types of torts, what they are/what the plaintiff must prove ○ Intrusion
Unique among privacy torts because it concerns newsgathering rather than new reporting ● Intrusion is when newsgatherers “intentionally intrude, physically or otherwise, upon the solitude or seclusion of another” and that intrusion would be highly offensive to the reasonable person
● Cameras with telephoto lenses, hidden microphones and snooping through records are all associated with intrusion
● But there is no right to privacy in a public space
Defenses for Intrusion
Consent is considered the strongest defense for an intrusion claim
- Consent can be explicit, such as telling a reporter she is welcome to attend a private event
- Or consent can be implied, such as failing to object to the presence of a specific person, even after she identifies herself as a reporter
Demonstrating that the information obtained is not highly offensive
Demonstrating that the information gathered is of the public interest
Public Disclosure of Private Facts:
- Plaintiffs rarely win public disclose suits, and media defendants are likely to prevail - We study these cases as much as a matter of ethics as a matter of law - Journalists may publish truthful information that may embarrass the subject of disclosure. The question is, should they publish?
Disclosure of Private Facts:
Generally required elements for a lawsuit
- The defendant publicly disclosed information about the plaintiff
- The information was private (previously unknown to others)
- The disclosure would be highly offensive to the reasonable person
- The information is not newsworthy
Different than defamation law because defamation law requires just one other person to hear/see the libelous statement, in public disclosure the facts must be widely disseminated & must involve previously private information
● A defendant cannot be held accountable for violating another person’s privacy if what is revealed was already widely known or readily available for anyone to see -In order to win a public disclosure tort, the plaintiff must also prove that the private information is highly offensive to reasonable people
○ Appropriation (Misappropriation)
● Commercial use of name or likeness without consent. There are two grievances involved in an appropriation claim.
○ The first is the feeling of humiliation, shame or even damaged reputation associated with having our name or photo disseminated widely in ways beyond our control.
■ The harm is likely most severe when our name is associated with a cause or product with which we entirely disapprove, i.e. a
vegetarian appearing to endorse Inn & Out burgers.
● The second is simply lost income. If you steal my name or photo to sell your product, you will have enriched yourself unfairly at my expense.
○ False Light
● A person can sue for false light when something highly offensive is implied to be true about them, but the info is actually false.
○ The portrayal is often—but not necessarily—negative.
● California law allows plaintiffs to bring these cases. But because false light is considered a backdoor libel vehicle, many states don’t allow them.
● Defenses for each type of tort
○ First Amendment (as defense in false light and disclosure)
○ that the information is not offensive to a reasonable person (as defense in disclosure of private facts)
○ newsworthiness (as in defense in disclosure of private facts)
○ consent (an absolute defense in appropriation cases)
● California Privacy Act (basic definition and elements)
California Privacy Act:
California is notable for also requiring a plaintiff to show that the defendant published private facts “with reckless disregard for the fact that reasonable men would find the invasion highly offensive”
- This requirement gives extra protection against a private facts claim A plaintiff must show more than that you were simply wrong in believing publication of the facts in question were not offensive
The plaintiff must show that you entertained serious doubts about the offensiveness of the facts and published them anyways
● In a court, this would involve examination of your state of mind at the time of publication
● California Intrusion Statute (what it protects)
California Intrusion Statute
Elements of a claim:
- The defendant, without authorization, must have intentionally invaded the private affairs of the plaintiff
- The invasion must be offensive to the reasonable person
- The matter that the defendant intruded upon must involve a private matter - Finally, the intrusion must have caused mental anguish or suffering to the plaintiff This statute is partially motivated by the presence of paparazzi in California
● Where the Supreme Court stands on publication of the names of rape victims, as a result of Cox Broadcasting v. Cohn and Florida Star v. B.J.F.
Cox Broadcasting Corp vs Cohen: Publication ok if the information was obtained from a governmental source
A local Georgia TB station reported the name of a victim of vicious gang rape and homicide. The reporter obtained the information from the official indictment, provided by the clerk of the court
- The victim’s father brought an invasion of privacy suit against the broadcaster - The broadcaster won because it obtained the private information from a governmental source
Florida Star vs BJF: First amendment defense, the Sheriff Department provided her name therefore Florida Star Won
The Florida star reported the name of a rape victim, who was alive. After the article ran, the suspect phoned the victim’s mother and threatened to rape her again
Although the reporter obtained her name from a sheriff department’s incident report, she was told the info was provided by mistake
- Additionally, a sign in the room reminded the media that Florida Law prohibited the publication of the names of sex crime victims
- BJF sued the Florida Star for invasion of privacy. The newspaper invoked a First Amendment defense, noting that the Sheriff’s Department provided her name The newspaper argued that the court should look at the Cox Broadcasting case for precedent Instead the court looked to Smith vs Daily Mail and found Florida’s statute unconstitutional The takeaway: The chances of a rape victim successfully suing for disclosure of their name are very remote
Some important terms, concepts and cases related to Access to Information
● First Amendment
○ Prison Access (Pell v. Procunier, Houchins v. KQED)
Pell vs Procunier (1974)
● No special access rights for press to interview specific state prison inmates selected by press
● Press has no more rights than public
● 1st Amendment does NOT require government to make sources available to press where those sources are not generally available to the public
○ Balancing First Amendment and Fair Trial
Conflict between the First and Sixth Amendment
What happens when the conflict between press coverage and a defendant’s actual trial becomes the subject of litigation?
● The Supreme Court has taken a number of cases arguing that a conviction should be overturned on the grounds that media publicity made an impartial jury impossible and thus created a constitutional violation
○ Sheppard v. Maxwell and its suggested ways for controlling prejudicial publicity
To protect Fair Trial, control prejudicial publicity
Sheppard vs Maxwell (1966) ** listen to slides
The Supreme Court said lower court judges must control prejudicial publicity, when necessary, by taking any of these steps (**note that the list does not include any direct restriction on publication)
● Insulate witnesses
● Control the courtroom itself
● Control the release of info from cops, witnesses, lawyers
● Grant a continuance of the trial
● Change the trial venue
● Sequester a jury
● When all else fails, declare a mistrial
○ Courtroom Access (Richmond Newspapers and the Richmond Test, Press Enterprise I and II and associated standards, Globe Newspapers v. Superior Court, Nebraska Press Association test)
Richmond Test or Press Enterprise Test
The Supreme Court said openness is not absolute, but can be limited only if: ● A judge makes specific findings, justified by evidence, to support closure ● The interest justifying closure is overriding
● No alternative to the closure exist
● Closure is no broader than necessary
Significance: First Amendment gives press and public right of access to criminal trials Press Enterprise v Superior Court 1984 (jury selection)
● The defense and the government supported restricting access out of concern for juror privacy and the defendant’s Sixth Amendment right to a fair trial The central legal question:
Is closing jury selection a violation of the press’ First Amendment rights? ● Is jury selection part of a trial?
-The Supreme Court ruled that voir dire is part of a trial and subject to the Richmond Test
-Judges can not close jury selection to protest juror privacy without satisfying the Richmond Test
● Then another significant case comes along.. Press Enterprise 2 -and this is the last time the Supreme Court has exhibited any interest in First Amendment issues involving the press and criminal trials
Press Enterprise vs Superior Court (pre-trial hearings) 1986
Rationale for closure
● If the reason for closure is protection of Sixth Amendment rights, the judge must demonstrate that there is “substantial probability” of prejudice
-not merely reasonable likelihood
○ California Open Meetings Law - procedures, exemptions, enforcement
○ California Open Records Law - procedures, balancing test, enforcement
● Whose covered
○ All state and local agencies
● What’s covered
○ “Records” include all communications related to public business ”regardless of physical form or characteristics, including any writing, picture, sound, or symbol…”
○ Electronic records are included, but software may be exempt.
● Journalist’s Privilege: See Source Confidentiality Lecture ● Cohen v. Cowles – Promissory estoppel
● Freedom of the press does not exempt journalists from laws that apply to the general public.
○ Promissory Estoppel: The legal theory on which the plaintiff, Cohen, prevailed after journalists breached promises of confidentiality to him. ■ The theory allows courts to enforce promises, even though there is no legally binding contract, in order to avoid injustice.
● Branzburg v. Hayes - the U.S. Supreme Court’s view on reporter’s privilege
● The facts:
○ Branzburg watched and photographed two men synthesize pot into “hishish.”
○ He wrote about it for the Louisville Courier-Journal, on the condition that the men not be identified.
○ When he fought a grand jury subpoena, the court said Kentucky’s shield statute did not apply when the journalist is a direct witness to a crime (as opposed to a source witnessing the crime).
● When the case went to the Supreme Court, it was consolidated with two other involving journalists who had confidential sources in the Black Panther movement.
● The journalists in these cases did not ask for absolute privilege. Ironically, this argument worked against them.
○ Court said qualified privilege would be confusing to sources.
○ Court also said no special privileges for journalists.
● By a 5-4 margin, the Supreme Court concluded there is no First Amendment right for journalists to withhold confidential information from grand juries. ○ At the same time, the court said that if states or the U.S. Congress want to recognize a privilege, that’s fine.
● O’Grady v. Superior Court - 2006 appellate court decision in the California case
● Zurcher v. Stanford Daily - U.S. Supreme Court ruling
● Police searched the Stanford Daily newsroom looking for photos of a demonstration that took place at the medical center in 1971.
○ The paper sued, claiming violation of First and Fourth Amendment rights. ○ The paper argued that police needed to issue a subpoena requesting the photos.
● The court ruled against the Stanford Daily.
● California Shield Law – who is covered, what is protected
● A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication . . . shall not be adjudged in contempt for refusing to disclose the source of any information procured . . . or for refusing to disclose any unpublished information. . . .As used in this subdivision, ‘unpublished information’ includes information not disseminated to the public by the person from whom disclosure is sought, … and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public…
● Federal constitutional reports privilege in CA state courts and federal courts ● Privacy Protection Act
● In response to Zurcher case, Congress passed the Privacy Protection Act. ● This legislation makes it unlawful for government officials to search for or seize work possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.
● The basics of filing a FOIA request