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Com360: Defamation. Protection of Person’s Reputation. Basic human dignity: protection of one’s reputation from unjustified invasion and wrongful hurt. Defamation of character. Wrongfully hurting a person’s good reputation: Slander and Libel Defamation is a civil wrong (tort)

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protection of person s reputation
Protection of Person’s Reputation
  • Basic human dignity: protection of one’s reputation from unjustified invasion and wrongful hurt
defamation of character
Defamation of character
  • Wrongfully hurting a person’s good reputation: Slander and Libel
  • Defamation is a civil wrong (tort)
  • The most common legal problem faced by a person who work in the mass media: about 75% lawsuits filed against the media
libel suits are troublesome
Libel suits are troublesome
  • Take a lot of money and time
  • Damage claims are often outrageous
  • Libel law is complicated and confusing (often judges make erroneous decisions)
  • Some plaintiffs file frivolous libel lawsuits to silence the critics in the media
erroneous decisions
Erroneous decisions
  • For most judges a libel case is a new experience
  • Jurors are confused by the legal concepts: e.g., actual malice
  • Thus:
  • 75% of libel cases are overturned by appeal courts
the lawsuit as a weapon
The Lawsuit as a weapon
  • Strategic Lawsuits Against Public Participation (SLAPP): “Run that story and we will take you to court”
  • Although 90% of SLAPP lawsuits fail, they are intended to intimidate and silence a less powerful critic by so severely burdening them with the cost of a legal defense that they abandon their criticism.
laws against slapp
Laws against SLAPP
  • In 1992 California enacted a statute intended to prevent the misuse of litigation in SLAPP suits.
  • It provides for a special motion to strike a complaint where the complaint arises from conduct that falls within the rights of free speech
elements of defamation
Elements of defamation
  • Publication
  • Identification
  • Defamatory content
  • Falsity
  • Fault
  • Harm / Compensation
publication
Publication
  • Who made the statement?
  • Who disseminated it?
  • Who repeated it?
  • Question of transmission: “No provider of an interactive computer service shall be treated as the publisher or speaker…”
identification
Identification
  • Plaintiff explicitly named
  • Suggesting plaintiff’s actual name
  • Picture, drawing, description
  • Similarities to fictional characters
  • Group Identification
defamatory content
Defamatory content

A communication which has

the tendency to so harm the reputation

of another as to lower him/her in

the estimation of the community or

to deter third persons from associating

with him/her

defamatory content1
Defamatory content
  • Imputations of criminal behavior
  • Sexual references and implications
  • Personal habits (honesty, integrity, etc)
  • Ridicule (showing someone “uncommonly foolish or unnatural”)
  • Business reputation
  • Disparagement of property (product)
falsity
Falsity
  • Public Persons versus Private Persons
  • Public-Person plaintiff must prove that the libelous remarks are false
  • Private-Person plaintiff must prove the falsity of the libelous statement only when the subject of the statement is a matter of public concern
fact versus opinion
Fact versus Opinion
  • Expressions of pure judgments are not subject to libel lawsuits
  • But:
  • Expressions of “opinion” may often imply an assertion of objective fact. Couching such statements in terms of opinion is often not sufficient.
fault standard for truth falsity
Fault: standard for truth/falsity
  • Straightforward in cases of private persons
  • “Actual malice” in cases of public persons
new york times v sullivan 1964
New York Times v. Sullivan (1964)
  • “The debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials”

(from Justice Brennan’s opinion)

new york times v sullivan 19641
New York Times v. Sullivan (1964)
  • Public officials may not recover damages for defamatory falsehood relating to their official conduct unless they can prove actual malice;
  • “that the statement was made with… knowledge that it was false or with reckless disregard of whether it was false or not.”
public persons and officials
Public persons and officials
  • Public figures are those who thrust themselves “into the forefront of particular public controversies in order to influence the resolution of the issues involved”
  • Public officials are those who have substantial government responsibility
rosenbloom v metromedia 1971 an expansion of public
Rosenbloom v Metromedia (1971)An expansion of “public”
  • “Public” in reference not only to the person, but the content
  • If the content of the offending communication is of general public concern, the actual malice standard may be applicable.
  • Later the court clarified the standard in Gertz, limiting the Rosenbloom approach
the gertz ruling 1974 the new standard
The Gertz Ruling (1974) (the new standard)
  • Libel cases filed by private people can be judged by the standards imposed by individual state
  • Most states use negligence (lesser degree of fault)
  • A few states use actual malice
classifying the plaintiff a rough guide from your book
Classifying the Plaintiff: A Rough Guide (from your book)
  • Public Official: Government Employee + Substantial Control or Responsibility
  • All-Purpose Public Figure: Career of Courting Media + Pervasive Fame and Influence
  • Vortex Public Figure: Public Controversy + Voluntary Leadership Role
  • Involuntary Public Figure: Pattern of Notorious Conduct + Prior (Undesired) Media Coverage
  • Private Persons: Most Others
hustler magazine v falwell 1988
Hustler Magazine v. Falwell (1988)
  • In a parody that appeared in Hustler magazine the prominent fundamentalist evangelist Reverend Jerry Falwell was depicted as a drunk in a sexual liaison with his mother in an outhouse
from the campari ad
From the “Campari Ad”
  • But your mom? Isn’t it a bit odd?
  • I don’t think so. Looks don’t mean that much to me in a woman.
  • Go on.
  • Well, we were drunk off our God fearing asses on Campari, ginger ale and soda… And mom looked better than a Baptist whore with a $100 donation.
from the campari ad1
From the “Campari Ad”
  • Did you try it again?
  • Oh, yeah. I always get sloshed before I go out to the pulpit. You don’t think I could lay down all that bullshit sober, do you?
hustler magazine v falwell 19881
Hustler Magazine v. Falwell (1988)
  • Falwell sued for:

1. libel,

2. invasion of privacy,

3. intentional infliction of emotional distress.

  • In the trial court he lost on (1) and (2) but prevailed on (3). He was awarded $200,000 damages for emotional distress
hustler magazine v falwell 19882
Hustler Magazine v. Falwell (1988)
  • The Supreme Court reversed (8 to 0):
  • a public figure or official may not recover for intentional infliction of emotional distress arising from a publication unless the publication contains a false statement of fact that was made with actual malice.
hustler magazine v falwell 19883
Hustler Magazine v. Falwell (1988)
  • That the material might be deemed outrageous and that it might have been intended to cause severe emotional distress were not enough to overcome the First Amendment.
hustler magazine v falwell 19884
Hustler Magazine v. Falwell (1988)
  • Vicious attacks on public figures are part of the American tradition of satire and parody, a tradition of speech that would be hamstrung if public figures could sue them anytime the satirist caused distress.