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Week 5

by: Laura Castro Lindarte
Laura Castro Lindarte

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About this Document

Exam next Thursday.
Media Law
William L. Youmans
Class Notes
Media, Law
25 ?




Popular in Media Law

Popular in Journalism and Mass Communications

This 3 page Class Notes was uploaded by Laura Castro Lindarte on Saturday October 1, 2016. The Class Notes belongs to SMPA 2173 at George Washington University taught by William L. Youmans in Fall 2016. Since its upload, it has received 10 views. For similar materials see Media Law in Journalism and Mass Communications at George Washington University.

Similar to SMPA 2173 at GWU

Popular in Journalism and Mass Communications


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Date Created: 10/01/16
September 27, 2016 Libel & Emotional Distress: The Plaintiff’s Case (P. 2) ● Public figures have to show more fault (actual malice) because have more access to courts ​(private figures only needs negligence) ○ Matters because level of fault that is needed changes if private or public ○ Bootstrapping: ​when the media covers them because of case/lawsuit ● Gertz v. Robert Welch, Inc. (1974​ ourt said that some people ​ ell-known that have to show actual malice (all-purpose (universal)) ○ All-purpose is known by A LOT OF PEOPLE and for several reasons (several topics) ○ Limited-purpose:​ nly throw selves for one purpose/topic ■ Only public figure in one topic or place not in ALL a. Any public advocate as long as not super celebrity, only need actual malice if libel dealing with topic they are known for ■ How to know… 1. In spotlight voluntar​ volunteer for activity that naturally had attention) 2. Play a role in the resolution of controversy 3. Tries to influence public opinion ● Involuntary public figure: ​get put into spotlight without wanting to ● NO FIX RULE FOR LOSING PUBLIC-FIGURE STATUS ​(no set time) ● Private figure is NOT PUBLIC ○ Only have to show negligence ● Private v. public statues can be ​due to nature of statement ● Type of damages: ○ Actual: ​measurable and estimable for emotion (not precise) ○ Special: ​actual money amount ○ Presumed: ​no need to prove harm ○ Punitive: ​(exemplary), prove point (highest amount) ■ Some state look at this using actual malice ● Emotional Distress: ​more than being upset, it is ​ here there is such serious mental anguish beyond normal ○ Intentional Infliction of Emotional Distress ○ Negligent Infliction of Emotional Distress ● At first courts didn’t recognize emotional distress but changed ○ Beginning only if emotional with physical injury, later needed physical symptom of mental anguish, now no physical injury is OUTRAGEOUS ○ Many states require emotional stress to be sued with something else ● Plaintiff’s case: emotional case ○ Defendant’s intentional or reckless conduct ○ Was extreme and outrageous ○ Causing plaintiff’s severe emotional distress ○ And defendant acted with actual malice (if plaintiff is public person) ○ Defense: No defense available ● Outrageous conduct: ​beyond the bounds of decency tolerated in society ○ Average person must be okay so outrageous, high standard ● Defendant’s action doesn’t need to be deliberate ○ A person must be able to assume action would cause emotional distress ○ Private figure: not state of mind but reasonable person ○ Case of California cops sending pictures of decapitated girl to family which went viral so sued, not intentional but reckless ● Public figure need to prove ACTUAL MALICE ○ Hustler v. Falwel​ ustler published parody ad of Falwell having sexual activity to mom, sued for libel (not okay because too outrageous to be taken serious), emotional distress and approbation ■ District said that okay and gave money, appeals agreed ■ Court said no proof of actual malice, also parody v. satire as different but are both protected ​(parody makes fun of person, satire doesn’t need to) ■ EXPAND SULLIVAN TO EMOTIONAL DISTRESS ● Difficult to win IIED claims: ○ Snyder v. Phelps (2010)​ hurch members protested in funeral of soldiers ■ Appellate courts found that church members’ speech protected even if message is wrong, not targeting family directly ● Negligent Infliction of Emotional Distress ○ Plaintiff’s case: ■ Duty ■ Breach ■ Proximate cause a. Cause-in-fact b. Foreseeability September 29, 2016 Libel: Defense and Privileges (P. 1) ● BIGGEST DEFENSE IS TRUTH ● Fair report privilege: ​defense of journalists if rep​ fficial documents ○ Acknowledge that information is already out there so not in fault ○ Journalists are not responsible for accuracy of official reports ○ Debate on what official record are, judicial branch needs to be transparent so documents public ○ Absolute: ​words are from ​business of government ​(3 branches of government in all levels) ○ Conditional/Qualifie​ onditions that need to be met ■ Case by case ■ Can lose conditional privilege if ill-willed or breaks conditions, not substantially true, author adds or draws conclusions ■ Detroit news published names of convicted felons in school, ok because got them from records ● Fair comment and criticism: ​protects critics because if people put out work they are allowed to be criticiz​ engaged creatively) ○ Lose defense if not about public manner or not supported by facts ■ Needs to be honest opinion, common law tradition ○ Author sued New York Times for bad book review and c​ ourt said that reviews use harsh/strong words because it is part of gen​ NOT ABSOLUTE) ● Figuring out opinion v. fact is hard ○ Opinion as defense claim has common law and Constitutional protection​ might chill speech) ■ “In my opinion” is not enough ○ Ollman v. Evans (1984):​ llman was profesor that got job in Maryland and Novak and Evans wrote that he was a marxist and using class to create revolution, Ollman lost Maryland job ■ Big issue was the claim that we was using the classroom to make revolution ■ Court created Ollman test to see if opinion or not: 1. Look at how language is usually used ​ common/ordinary meaning) 2. Can it be verified or proved false​ verifiability) 3. Look at entire column/article statement is ​ journalistic context) a. Type of writing? (opinion?) 4. Look at BROADER CONTEXT ​(social context) ○ Milkovich v. Lorain Journal Co. (1990​ ilkovich is wrestling coach that got into fight in game so went to hearing to try to get team out of probation and Lorain Journal said that he was lying in the hearing ■ Court said that statements could be proven true/false, reasonable person would see that story was bias and accusing him of lying under oath ■ No matter that in opinion section ■ Ollman test is not absolute, need to prioritize aspects of test, most important is verifiability ○ Whether it is opinion or not might dependent on one single word so i​ nnocent construction says that courts will tend to look at these words in defense point of view to protect speech and decrease libel claims ○ Letter to the editor writers get protection like other opinion​ NOTers ( ABSOLUTE but do provide defense) ○ Parody, satire and rhetorical hyperbole make verification hard ■ Court has recognized ​ yperbole as protected i​ f reasonable person could tell that it is exaggeration


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