COM 698 MIDTERM

Absolute privilege

Given to those speaking in certain scenarios like high executive officials, judges, or participants in things such as courtrooms, legislative sessions, city council meetings, or attached to public records (court files, investigative reports).

Near v. Minnesota (1931)

Held that the guarantee of a free press does not allow a prior restraint on publication, and court held them to be unconstitutional, except in extreme cases, such as during wartime or involving national security.

private figure

In libel law, a plaintiff who cannot be categorized as either a public figure or public official. Generally, in order to recover damages a private figure is not required to prove actual malice but merely negligence on the part of the defendant

Ollman Test

1. Can the statement be proved true or false? 2. What is the common or ordinary meaning of the words? 3. What is the journalistic context of the remark? 4. What is the social context of the remark?

Privileges

Immunities as a defamatory defense

Florida Star v. BJF (1989)

A reporter-trainee for the Florida Star acquired victim's name from a press release prepared by the sheriff's department. First Amendment protected publication of lawfully obtained name of rape victim even though state law forbade it. **Ruled a media defendant cannot be punished for lawfully obtained truthful information**

What are the first amendment rights?

Freedom of religion, freedom of the press, freedom of speech, freedom of assembly, and the right to petition.

Gertz v. Robert Welch, Inc. (1974)

Gertz was an attorney representing a family that had their child killed by a Chicago police department. "American Opinion," a communist conspiracy group, claimed Gertz was a communist because he chose to represent clients who were sueing a law enforcement officer. Welch tried to prove Gertz was a public figure to make it harder for him to win. Court ruled Gertz was a private citizen and did not have to prove "actual malice," just "negligence" ("reasonable person standards"). **Established the standard of First Amendment protection against defamation claims brought by private individuals.**

Negligence (plaintiff must prove)

The plaintiff must prove the defendant did not act as a reasonable person; result of unintentional conduct (elements include duty, breach, causation, damages)

Schenck v. US (1919)

Unanimously upheld the Espionage Act of 1917 which declared that people who interfered with the war effort were subject to imprisonment; declared that the 1st Amendment right to freedom of speech was not absolute; **free speech could be limited if its exercise presented a "clear and present danger."**

CDA 230

internet legislation for service providers/interactive computer services that provides immunity from liability for torts committed by its user; says they are not responsible and are not going to be treated as publishers. Makes the clear distinction between publishers and service distributors.

Defamation

refers to a statement that may hurt one's reputation; slander and libel

Content-based restrictions

regulates speech based on content or subject matter.

invasion of privacy

revealing personal information about an individual without his or her consent; began with a law article in 1890 that was critical of tabloid newspaper and felt there should be legal protection for ordinary people.

Brandenburg v. Ohio (1969)

speech that does not call for illegal action is protected, and even speech that does call for illegal action is protected if the action is not "imminent" or there is reason to believe that the listeners will not take action. **established "imminent lawless action" test.**

Slander

spoken defamation

Actual Malice

the standard established by the Supreme Court in New York Times v. Sullivan (1964) for libel cases. The standard requires public figures and public officials who sue press outlets for defamation of character to prove that the news source intended "actual malice." In this context, the Court suggested that malice refers to knowledge of falsity and reckless disregard for the truth.

conditional (qualified) privilege

unlike absolute privilege it comes with conditions; immunizes defendant when the privilege is properly exercised for a legal or moral duty; person making the statement must show it was made in good faith and believing it to be true without malice.

Libel per se

when statements 1. impute a serious crime 2. impute incompetency or dishonesty in business or trade 3. impute a loathsome disease (stds/leprosy) 4. concern unchastity of women

Libel

written/permanent/typed/broadcast/radio defamation

Invasion of Privacy Torts

1. appropriation of likeness or image for commercial purposes 2. false light (most closely related to defamation) 3. intrusion of physical solitude (only tort that comes up while gathering information vs. disseminating it) 4. publication of private or embarrassing information

Statute of Limitations

A federal or state statute setting the maximum duration of which a certain action can be brought,certain rights enforced, or duration in which a lawsuit has to be filed

Food Lion v. ABC (1996)

ABC producers got jobs at Food Lion and secretly recorded them selling expired beef, rat gnawed cheese, fish washed in bleach to kill smell. Food Lion accused ABC of trespass, fraud and breach of the duty of loyalty. Reporters did not commit fraud; circumstances under which were hired were irrelevant. Food Lion could not sustain proof of "actual malice" as claims were true. Fourth Circuit further reduced award to $2

Anti-SLAPP

Anti-strategic lawsuit against public participation. A SLAPP is censoring someone by lawsuit. an Anti-SLAPP serves to provide defense, get a case dismissed, or provide lawyer fees.

Zeran v. AOL (1997)

Case in which Court ruled in favor of the online forum AOL when Ken Zeran sued them saying they had negligently allowed material to stay up after they had been informed it was false. Court said there was no way AOL could possibly single out each message with false information to remove it. **Shows that online publishers and Internet service providers are granted immunity by Section 230 of the Communications Decency Act, from liability for defamatory statements.**

Masson v. New Yorker Magazine

Janet Malcolm interviews Jeffery Masson (psychologist & projects director of Sigmund Freud Archives) and gets 50 hours worth of recordings with notes. Masson sues for libel saying the false quotes damaged his reputation, and thought could prove actual malice and plead as a public figure. **Established that the altering of quotes in a story can only amount to actual malice if the alteration materially changes the meaning of original statements made by the source.**

Protected Speech

The Truth, Political Speech, Symbolic Speech, even Hate Speech if not inciting immediate violence or illegal action.

Times v. Sullivan (1964)

NY Times sued by LB Sullivan for libel per se- **case established the actual malice standard, (term used by Justice Brennan), that must be met for press reports about public officials to be considered libel.** Supreme Court decision ruled in favor of the Times.

Zacchini v. Scripps-Howard Broadcasting Co. (1977)

Ohio TV station broadcasted Zacchini's entire human cannonball act on TV. He sued claiming his act was showed and commercialized without his consent and unlawful appropriation on his personal property. Because the act was broadcasted without consent, it posed a substantial threat to the economic value of the performance. Zacchini won.

Bartnicki v. Vopper (2001)

Phone call recorded during teachers' union negotiation. The press has a First Amendment right to publish a secretly recorded conversation that it obtained legally, even though the anonymous person who recorded the conversation violated a federal wiretap statute. The government cannot punish the media for disclosing information unlawfully obtained as long as the media didn't violate the law. Court ruled that when a tape concerns an issue of public concern and the media lawfully obtained it from a third party, without encouraging or participating in an illegal taping, then they have a First Amendment right to play the tape. The case stands for the rule that media defendants are not liable even if a third party violated the law. The First Amendment provides protection to speech that discloses contents of an illegally intercepted communication.

Cantrell v. Forest City Publishing (1974)

Reporters interviewed Cantrell's children, but did not speak to his widow, although it was implied in the story that they did, as by describing her mood and attitude. Court said that the paper was guilty of "calculated falsehoods" and "reckless untruth". It wasn't defamatory - but stated that *with False Light you still need to prove actual malice.*

Milkovich v. Lorain Journal (1990)

The News-Herald published a sports column stating wrestling coach Michael Milkovich had lied under oath to the Ohio Athletic Commission concerning his role in a fight that broke out during a wrestling match. The statement "in my opinion, he is a liar" was not a protected opinion immune from a libel suit, but rather a false statement of fact. **Speech depends on context; in this context, could be considered defamatory because of the setting (court hearing, which would be considered perjury).**

public official

The designation of a plaintiff in a libel suit who is an elected public officer or is an appointed public officer who has or appears to have considerable responsibility for or control over the conduct of governmental affairs.

fair comment

a common-law privilege to criticize and comment on matters of public interest, and a defense against a charge of libel based on opinion or criticism. may be invoked by critics of books, movies, restaurants, etc. or a journalist's expressed opinion.

public figure

a person who is an elected or appointed official (a politician) or someone who has stepped (willingly or unwillingly) into a public role

opinion

a pure privilege that can't be proven either way

Libel per quod

a statement that requires additional background knowledge to understand that defamation has taken place

Prima Facie Elements

all must be proven in a defamation case: 1. falsity 2. prove of and concerning (about the plaintiff) 3. published (third party involved) 4. prove harm or damages

Content-neutral restriction

applies to all expression without regard to the substance or message. only regulates time, place, and manner of speech.

Cox v. Cohn (1975)

broadcasted name of a rape victim; Court held that Georgia statute which prevented media members from publicizing the name was unconstitutional; said media restriction was encroachment on press freedom. ruled that it is not an invasion of privacy to publish the name of a rape victim when that name is a part of public record during a trial. Resulted in the public record privilege, allowing the publication of materials (in this case the name of a rape victim) appearing in public records

Truth (Defense to Defamation)

prove the essential truth of the defamatory statement. most expensive defense (based on billable time). the defense rarely used.

Neutral Reportage Privilege

designed to protect the interests of the press in reporting on matters of public interest; often done by reporting accusations made by one public figure about another.

What are the two religious clauses in the first amendment?

establishment clause and free exercise clause

prior restraint

government censorship of information before it is published or broadcast

freedom of expression

important for individual development ("natural rights"-derived from John Locke), and necessary for society (marketplace of ideas-first recognized in American law by Justice Holmes)

Single Publication Rule

limits libel victims to only one cause of action even with multiple publications of the libel; common in the mass media and on websites

Unprotected Speech

obscenity, child pornography, incitement to riot or illegal action, fighting words, true threats, defamation

Defenses to Invasion of Privacy

privilege, plain view, consent, truth

ECPA (Electronic Communications Privacy Act)

prohibits interception and disclosure of wire, oral, or electronic communications without employee consent or for a business purpose