COMM LAW- UNIT 3
Limited-Purpose public figure 3 Characteristics requires to be identified as a limited-purpose public figure
(Activist) a. People who..."have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues resolved." b. 3 characteristics required to be identified as a limited-purpose public figure 1. There must be an ongoing public controversy 2. The person must have thrust himself into the controversy... 3. ...In the attempt to affect the outcome of the controversy
Involuntary Public Figures
(Olympians) a. exceedingly rare because of that effort on your part to be a part of what is going on
Constitutional defenses
(Supreme court rulings, they make decisions, more recent) -Arguing plaintiff is a public figure -nature statement -Opinion
2. Qualified Privilege
(The most important and best defense by far...because defendant has least burden of -probably in favor of defendant) a. A privilege to discuss matters conducted in an absolutely privileged forum -Legislative proceedings -Judicial proceedings...what is said in the courtroom, documents that come out of the courtroom -Executive proceedings...office of President/governor/mayor/police department/ military -Meetings open to the public (usually)..non-governmental meetings b. Qualifications of the privilege: -the report must be accurate -the report must be fair/balance (does not mean equal) -The report must be made without common law malice
Fair comment and criticism
(common law, pilgrims used them, old school opinion) -The comment must concern something of legitimate public interest -The facts upon which the opinions is based must be truly stated or well known -The opinion must be the writer's honest opinion -The expression must be made without common law malice
Pure opinion
(more recent constitutional defense) -Does the 1st amendment protect opinion in defamation actions? YES AND NO -Opinion cannot be proven to be true OR false, therefore not actionable; opinion is/is not protected as a category of speech; any statement that cannot be proved false is protected. -Protected in 1st amendment (through history), but not protected under defamatory laws because you cannot claim everything as opinion. Defamatory laws consider character attacks/reputation -Milkovich vs. Lorain Journal
3. Publication of Private Info (privacy)
(think about invasion of privacy) -Must prove there is publicity about private facts that are not of legitimate public interest that are of highly offensive nature to a reasonable person. -Must prove: -There is publicity...widespread publication -About private facts...if something appears on a public document or happens in public, it is not private -Of a highly offensive nature to a reasonable person...a figment of the legal imagination (fake person made up in the juries mind) -That are not of public interest; newsworthiness is a complete defense for this tort (if you can prove everything else but not this, you lose entire case)
4. False light invasion of privacy
(trickiest) The widespread publication of false info that is highly offensive to a reasonable person with actual malice -Time Inc. vs Hill -Defamation is not an element (info might be positive or complimentary)
Actual Malice in VA
-"Degree of care which an ordinarily prudent person would exercise under the same or similar circumstances to avoid injury to another."
Intentional infliction of emotional distress
-"One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress." -Usually based on actions rather than speech
Actual Malice Guidelines
-Knowledge of falsity OR reckless disregard for the truth -The nature of the investigation and seriousness of the charges are important -The need for rapid dissemination should be considered -Failure to investigate, standing alone, is insufficient for a finding of actual malice -the number and veracity of sources is important
4. Falsity
-Must be proved when the matters involved are of public concern -In VA in a libel action HAVE to prove that words are false. Can't have a libel action unless can prove that defamatory words are false (Philadelphia Newspapers vs Hepps)
Public and Private Persons
-Public officials and public figures are in positions of power and influence; they are targets for criticism, and critics deserve additional protection -Public persons thrust themselves in to the public eye; they have greater access to the media
The plaintiff must prove
-Publication -Identification -Defamation -Falsity -Damages -Fault on exam=**when asked what a plaintiff must prove, it is ALL of these maybe except fault (will be given more info, so instead of fault it is negligence or actual malice)
Reckless disregard for the truth is:
-Publishing with a "high degree of awareness of probable falsity" -Publishing though the defendant "in fact entertained serious doubts as to the truth if his publication," -"The purposeful avoidance of truth"
5. Damages
...A plaintiff must prove actual injury in the form of: -Actual damages -Special damages ...And may also seek: -Punitive damages
3 categories of libel
1. A reputation was damaged in the eyes of at least a significant minority a. Reputation: what people think you are b. Character: what you really are (the law does not protect character 2. A person was deprived of social contacts a. not your friends, but people you are associated with (business, church, etc.) 3. A person was deprived of the ability to work, hold a job, or earn a living
1. Appropriation (privacy)
The use of the name, likeliness, or image of a person without permission for commercial gain ($$) -The only one of the 4 torts recognized in VA -Interpretation to be a purely commercial tort -Actors with distinctive voices and images
Harte-Hanks Communication VS Connaughton
-**ACTUAL MALICE -Connaughton unsuccessfully ran fro Municipal Judge. JournalNews ran front page article quoting Alice Thompson claiming that Connaughton had used "dirty tricks" and offered Thompson and sister tangible benefits and offered them a job. The reporter asked if Patsy (her sister) would justify her claim and she weirdly agreed. Then the reporter when to Connaughton to get his side of the story and he said that Thompson misunderstood in that his wife was opening up a restaurant and they were welcome to apply. He claimed a clean and fair campaign and if he were to be questioned, he would address them. Harte Hanks published both side of the story. Connaughton filed suit against Harte Hanks claiming that the article defamed him and was false, and had injured his personal, professional, and political reputation. -Supreme Court held that reporters acted with reckless disregard for the truth (Actual Malice) -Newspaper ignored Thompson's lies and didn't check important source (Patsy) that could have affirmed or denied charges against Connaughton. Irresponsible reporting and unreasonable reporting conduct alone are not sufficient to award public figures damages in libel cases ...must prove actual malice. -Failure to investigate by itself is not enough to find actual malice, but purposeful avoidance of the truth is a different category (reckless disregard for the truth-actual malice) -Even if both sides are published, if there are serious doubts about it and do not investigate, you are not protected
Time inc. VS Hill
-**All plaintiffs in false light invasion of privacy -Escaped convicts held Hill family hostage in their home and released them after 19 hours. Convicts were later in a violent crash with police, which two of them were killed. Joseph Hays published novel based on the ordeal. When novel was made into a play, Time published ads to get actors to audition for the play. The images mirrored inaccuracies of family's experience. Alleging it deliberately misrepresented the story Hill sought damages against Life. -5 to 4 (Time, inc.)
Gazette vs. Harris
-**NEGLIGENCE 4 cases together all went to SC together -two kids were assaulted and the parents went to the police. Newspaper made it seem like the parents assaulted their own kids -Newspaper published article titling a pregnant woman as Ms. Instead of Mrs. Indicating that she was a single pregnant lady, but she was actually married -9 yr old died in hospital and newspaper published vague facts and the flow of the article made it seem like the parents killed their son -Aricle published on a high school teacher on how bad she was. Included quotes from students, but only from student that didn't like her. They did not interview anyone who liked her.
Gertz vs. Robert Welch, Inc.
-**PRIVATE PERSONS -Attorney Gertz hired to sue police officer that killed the family's son. Magazine published accusation against Gertz of being a "Lennist" and a "Communist-fronter" because he chose to represent clients who were suing a law enforcement officer. Gertz lost libel suit in lower court because the magazine had not violated actual malice test for libel that Supreme Court established in Times vs. Sullivan -5 to 4 (Gertz): Supreme court reversed decision and held that Gertz's rights were violated. Justice Powell argued that application of a public that application of Times vs. Sullivan case was inappropriate because Gertz was neither a public official nor public figure. Powell established that ordinary citizens (private persons) should be allowed more protection from libel than individuals in public eye. -Private persons must prove fault...at least negligence -Private persons must prove actual malice in order to win punitive damages -Court defined figures for 1st time (involuntary, all-purpose, and limited purpose) -Opinion protected unless there is provably false factual connotation.
Snyder vs. Phelps
-**PROTECTION OF RELIGIOUS EXPRESSION -Family deceased Marine Matthew Snyder filed lawsuit against Westboro Baptist Church who picketed at his funeral. Accused church of defamation, invasion of privacy and the intentional infliction of emotional distress for displaying signs at funeral ("Thank God for dead soldiers", "Fag troops"), U.S. District Judge awarded family $5 million in damages, but U.S. Court of Appeals 4th Circuit held that it violated 1st Amendment protection on religious expression -8 to 1(Phelps): Supreme Court held that 1st Amendment shields those protest at funeral of military service member from liability.
Philadelphia Newspapers vs. Hepps
-**PROVING FALSITY -The Philadelphia Inquirer accused Hepps of links to organized crime and capitalizing on that to influence state legislature. State court favored Hepps and held that the newspaper was obligated to prove accusations were true. -5 to 4 (Philadelphia News): Supreme court use Gertz vs. Robert Welch Inc, as precedent and reversed state court's decision. Gertz standard for evaluating libel requires "the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages." -Libel plaintiffs must prove burden of falsity when the matters involved are of public concern
Curtis Publishing Co. Vs. Butts (combined with Associated Press vs. Walker)
-**PUBLIC FIGURES
New York Times vs. Sullivan
-**PUBLIC FIGURES -Full page ad in NY times alleged that the arrest of MLK jr. for perjury in Alabama was part of a campaign to destroy King's efforts to integrate public facilities and encourage blacks to vote. Sullivan (Montgomery city commissioner) filed libel action against newspaper and four black ministers who were listed as endorsing ad, claiming the allegations against Montgomery police defamed him personally. Sullivan could not prove that he had been harmed (under Alabama law) and a defense claiming that the ad was truthful was unavailable since the ad contained factual errors. -9 to 1 (NY Times): Supreme court held that 1st amendment protects publication of all statements (even false ones) about the conduct of public officials except when statements are made with actual malice. -Public officials must prove actual malice to win libel cases
Time Inc. vs Firestone
-**PUBLIC FIGURES -Mary Firestone filed for divorce against Russell Firestone (heir to Firestone tire company fortune), with husband filing counterclaim for extreme cruelty and adultery. Time published results of case and statement from judge. Mary Firestone asked that Time retract what was published, Time refused, and she filed libel suit against magazine seeking $100,000 in damages. State court ruled in favor of Firestone. Time appealed on basis of Times vs. Sullivan (protecting media liability from defamation of public figure as long as there is no actual malice) -Supreme court upheld court and ruled that Mary was not a public figure. Did not meet requirements to be public figure from Gertz vs. Robert Welch Inc. -Public controversy at issue must have existed prior to the publication accused of the defamation -Shows difficulty in being an all-purpose public figure
Reporting defenses
-Good reporting -Neutral reporting
Hustler vs. Falwell
-**PUBLIC PERSON PLAINTIFFS IN INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS -Hustler magazine featured a "parody" of an advertisement (modeled after an actual ad campaign) claiming that Falwell, a Fundamentalist Minister and political leader, had a drunken incestuous relationship with his mother in an outhouse. Falwell sued to recover damages for libel, invasion of privacy, and intentional infliction of emotional distress. Falwell won a jury verdict on emotional distress claim. Hustler Magazine appealed. -8 to 0 (Hustler): Supreme court held that public figures may not recover for the intentional infliction of emotional distress without showing that the offending publication contained false statement of fact made with actual malice. -Supreme court ruled in favor of Hustler on the libel charges because the parody did not make false statements implied to be true because reasonable people would not have interpreted the parody as containing actual facts.
Milkovich vs. Lorain Journal
-**PURE OPINION -Milovich was a wrestling coach at a high school. At a home match, members of the team were involved in a fight and the Ohio High School Athletic Association (OSHAA) put team on probation. Parents and students sued seeking restraining order for the probation. Court overturned conviction and the local newspaper published an article claiming that Milkovich lied to that probation would be overturned. Milkovich filed suit on defamation grounds. -Supreme Court held that 1st amendment does not automatically protect newspapers from being sued for libel, particularly when a plaintiff can clearly demonstrate that statements were intended to harm someone and their reputation. The article was not constitutionally protected because character attacks (when based on speculation, not fact) are not protected.
Therefore (Milkovich)
-1st Amendment protects uninhibited speech, but the important social values underlying the law of defamation recognizes a strong interest in preventing and redressing character attacks. -Opinion is protected because any statement that cannot be proved false protected, therefore, it is not libel -Opinion is not protected as a category of speech, but the framework is protected. Fair comment and criticism is protected through common law.
3 things to prove in modern libel (under defamation)
-A false defamatory statement of fact concerning the plaintiff was published to a 3rd party -The publication was not privileged and was made with fault on the part of the publisher -The publisher caused actual injury
VA law defamation
-Accusation of a crime involving Moral Turpitude (about character) -Accusation of having an Infectious disease -Accusation that a person is unfit to perform the duties of his or her office or that the person lacks integrity for carrying out such duties -Words that harm a persona in his or her profession (nothing to do with integrity)
Libel
-Any (true or false) communication that holds a person up to contempt, ridicule, hatred, or scorn -Libel is a tort -Only the living can be sued/defended; your reputation dies with you; it is not legally possible to institute a libel action based on a something published about a dead person
Butts Case
-Butts case: The Saturday Evening post (newspaper published by Curtis Publishing company) accused UGA Athletic director Wally Butts of fixing game with Alabama head coach Bear Bryant. Reporter was told from a 3rd-hand source that overheard the exchange. Butts sued for defamation. -Established examining credibility of sources, believability of defamatory allegations, and the effort made to investigate the statements in question -5 to 4: first ruling allowing same standards of public officials to be applied to public figures due to the fact that public figures have ready access to mass media and deined as "those who command a substantial amount of independent public interest." -Public figures must prove actual malice to win libel cases.
Therefore, Gazette
-Court's first examination of negligence -Private individuals must prove negligence for compensatory damages. -The Newspaper acted negligently in violating its custom, in publishing in ignorance, and in not identifying the complaint. -Public officials cannot recover damages for defamation relating to official conduct unless actual malice is proved
6. Fault
-Culpability: something other than honest error; if the publisher did something other than what he was supposed to do (not honest mistakes because it is protected by 1st amendment) -Two kinds of fault
Defamation
-Defamatory: damaging the good reputation of someone -Publication of material that holds a person up to contempt, ridicule, hatred or scorn -Two kinds -Defamation does NOT have to be false to be defamatory, but it MUST be false to win a law suit ....what matters = whether communications causes some loss of reputation) -3 categories of defamation
1. Publication
-Easiest to prove -Occurs when a 3rd person sees the allegedly defamatory material -First=the author -Second= the subject -Third= anyone else -Usually goes after publisher, not author (can only win $$ in tort law, so go after the company/publisher, not the reporter)
2. identification
-Easy to prove -Occurs when the allegedly defamatory material is shown to be "of and concerning" the plaintiff -published material is about the person who is bringing the lawsuit; not who you are aiming defamation at that matters, but about WHO you hit -Can be a photograph, cartoon or even description -VA law recognizes that members of groups can be identified, even if not names, if the groups are relatively small (25-100 people)
Common law defenses (past judges have ruled this way)
-Fair comment and criticism -Letters to the editor -Qualified privilege -Good reporting
Good reporting
-Fair in reporting and interviewing; makes good effort to do what good journalists do -Not really a defense; primarily a news media/reporting defense -based on the fact that the plaintiff has to prove fault
Public figures
-Gertz vs. Robert Welch, Inc. (Supreme court defined who was a public figure) -3 types of public figures
The initial elements of the Plaintiff's case
-The party bringing the lawsuit must prove certain things or case will be dismissed; in VA, plaintiff must probe publication of false statements that are defamatory and are published with fault 1. Publication 2. Identification 3. Defamation 4. Falsity 5. Damages 6. Fault
3 categories of defamation
-There was a loss of reputation -There was a loss of social contacts -There was a loss of an ability to earn a living
Privacy in VA
-VA only recognizes defamation -Intentional infliction is designed to protect interests
Therefore, Snyder vs Phelps
-War in Iraq and homosexuality are matters of public concern -Snyder proved that he suffered severe emotional distress, but that fact was irrelevant to outcome of case- it is trumped by the rights of church members to talk about issues of public concern.
Public officials
-Works for the gov't, is paid with public finds and is or appears to be in a policy-making position -In VA 5 considerations to determine whether one is a public official: 1. Is the plaintiff paid with public funds? 2. Did the plaintiff have ready access to effective means of communication? 3. Is the plaintiff elected to office? 4. Is the plaintiff in a policy making decision? 5. Is there an independent interest in the person who holds the plaintiff's position?
Neutral reporting
-allows media to report on newsworthy commentary even if the journalists has doubts about the truth of the statements -Provides protection for a news organization reporting on the gov't. Allows organization to report, without liability, defamatory statements that do not originate in privileged sources, even if the organization knows the statements are false, if those statements are based on gov't action or reports -5 criteria must be met; if all are met, you can escape liability under neutral defense reporting (not recognized in VA) -If Harte Hanks argued neutral reporting instead of truth defense , they would have won
Negligence
-minimum degree of fault a. failure to act as an ordinarily careful person would act in the same situation b. failure to adhere to standards of reporting and writing common to news industry c. failure to have reasonable belief in the truth of material, or publishing with reasonable doubt as to truth
3. Defamation
-occurs when the words used "taken in their ordinary sense and as they would naturally be understood" would tend to injure the reputation of a person or render that person "odious, contemptible or ridiculous" -Depends what words state law defines as defamatory -VA law (next slide) -3 things to prove in modern libel (next slide) -Other danger areas: out of the ordinary sexual conduct, bizarre personal habits, religion and politics
CASES
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Defense for Libel
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Intro to Libel
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Defense strategies
1. Defeat an element of the plaintiff's burden of proof 2. Assert a partial defense a. A defense that either gives the defendant a partial way out of trouble/that will not provide defendant complete protection OR is recognized as a complete defense in some communities but not in all communities 3. Assert a complete defense a. shields defendant from any liability, bars any recovery by the plaintiff (truth, qualified privilege, opinion)
3 types of public Figures
1. Involuntary public figures (Olympians) 2. All-purpose public figures 3. Limited-purpose public figure (activist)
FAULT
1. Negligence (minimum degree of fault) 2. Actual malice
2 kinds of fault
1. Negligence: carelessness, failure to exercise reasonable or ordinary care 2. Actual malice: knowledge of falsity or reckless disregard for the truth. a. The publisher knew at time of publication that what was published was not the truth b. Action equivalent of telling a lie
2 kinds of defamation
1. Slander- spoken 2. Libel- written ....Broadcast is libel (over airways)
5 Criteria that must be met in Neutral reporting
1. The comments must be newsworthy and related to a public controversy 2. they must be made by a responsible person or organization 3. They must be about a public official or public figure 4. They must be accurately reported with opposing views 5. They must be reported impartially
Intentional Inflication Burden of Proof
1. The conduct on the part of the defendant must be intentional or reckless 2. The conduct must offend generally accepted standards of decency or morality 3. The conduct must cause emotional distress 4. That emotional distress must be severe And for public persons: 5. The publication must be made with actual malice (Snyder vs. Phelps)
Complete defenses
1. Truth 2. Qualified privilege
Invasion of Privacy
4 invasions of privacy torts that fall under the umbrella... 1. Appropriation 2. Intrusion 3. Publication of Private Information 4. False light invasion of privacy
Therefore, Time inc.
ALL plaintiffs (not just public officials and public figures) in false light of invasion of privacy cases must prove actual malice if involved in matters of public concern.
Actual Damages: Special Damages: Punitive Damages:
Actual damages: must prove actual injury (have suffered) in order to win Special damages: can show a specific (pecuniary) $ amount of what was lost and prove that a specific number of money was lost Punitive damages: actual malice on the part of the publisher, awarded to plaintiff to punish the publisher
Walker Case
Associated Press released news dispatch about Former army general Edwin Walker attempting to incite violent riots amongst people when James Meredith attempted to enroll at University of Mississippi. An AP reporter claimed that Walker (private citizen at the time) was giving advice on how to use tear gas. Walker sued AP for defamation. Trial judge found no actual malice in the case because Walker was not a public figure. -9 to 0 (AP): There was not enough evidence to proclaim the AP liable. Plaintiff must prove actual malice by media outlet to gain rewards for defamation. -Public figures must prove actual malice to win libel cases.
Negligence in VA
Failure to act as a reasonable journalist would: -Failure to investigate -Failure to contact the subject of the defamatory publication -Publishing incomplete or inaccurate info -Changes or diversions from newsroom policy or operations Common law malice- words of spite Rule in VA only applies when material in question makes substantial danger to reputation apparent
Other methods of protecting privacy in VA
It is illegal to: -Photograph another person who is nude/partially nude -Spy into an occupied structure -Trespass on private property -Intercept communications -Picket or disrupt the tranquility of a home
Fault=
Negligence or actual malice Negligence--> private persons Actual malice--> public officials, public figures, private persons seeking punitive damages.
Negligence= Actual Malice=
Negligence= private persons Actual Malice= Public officials & Public Figures --> Must prove actual malice in every state to win lawsuit if you're a public official/figure.
Opinion defenses
Opinion is protected in two ways: 1. The common law defense of fair comment and criticism 2. The common law defense of pure opinion
Pre-Defense Defenses
Summary judgement: -The defendant by making a variety of arguments can attempt to have a case dismissed by a judge before the trial begins -Taking all reasonable inferences in a light most favorable to the plaintiff, -A reasonable juror, acting reasonably, count not find for the plaintiff... -Under the appropriate burden of proof -Defendant can argue the the plaintiff has not satisfied all elements of the burden of proof and therefore the case should be dismissed. Statute of Limitations -Every state has established a time period that someone can file a libel suit -VA= 2 years
2. Intrusion (privacy)
The act of physically invading a place where a person has a reasonable expectation of privacy -Involves use of recording devices/telephoto lenses -Involves entering a place under false pretenses -Not recognized in VA, but frequently covered by other statutes -Ride along cases; Wilson vs. Layne, Hanlon vs. Berger -Newsworthy events on private property- journalists may pressure they have a license to enter property and right to record what they see and hear. However, law requires journalists to leave when ordered. -Journalists have special privilege to emergency scenes even when ordinary citizens do not in VA.
Therefore, (Hustler)
To win an intentional infliction of emotional distress case, public figures must prove that the communication was false and published with knowledge of falsity or reckless disregard for the truth (actual malice)
Actual Malice
a. Knowledge of falsity=lying -publisher knew at the time of publication that the material was false b. Reckless disregard for the truth -Recklessness must be equal to lying -Like knowledge of falsity, reckless disregard is a subjective standard -Intent to harm through falsehood -Reckless disregard for the truth -Actual malice in VA
All-purpose public figures
a. Widespread fame or notoriety- must have instant recognition when names are said. b. Difficult to become an all-purpose public figure c. Newsworthiness and public-figure status are not synonymous (George Zimmerman) d. Can be governed by geography or media reach (Times vs. Firestone)
1. Truth (complete defenses)
a. the proof must be as broad as in the charge b. Substantial truth is sufficient c. The defendant can prove evidence that the material published (even if defamatory) is tru -Plaintiff cannot win libel action if material is true -Philadelphia Newspapers vs. Hepps; Supreme court explicitly stated that falsity must be proved by the plaintiff in libel actios when the subject of the allegedly defamatory material relates to matters pf public concern, making truth no longer a defense for that