defamation

recordings from Mason v. New Yorker Magazine, Inc. 1991

"Intellectual gigolo" Book quoted him about having an affair with a student and then referencing how Wissler and Anna Freud saw him the same way- saw him as an "intellectual gigolo"- get your pleasure from but do not take in public Tape recording contain reference to student, but no suggestion that Eissler and Freud considered his "intellectual gigolo" court.. Agree with dissenting opinion in Court of Appeals that it suggests someone who forsakes intellectual integrity in exchange for pecuniary or other gain.. Could consider him too junior for position from this Found it difficult to perceive how it was defamatory. Most natural interpretation is that he is not one but Eissler and Anna Freud considered him one. Whether it actually is a question of CA law. Court of appeals relied on "incremental harm" doctrine for decision.. Measures incremental reputational harm inflicted by the statement.. Said that the additional harm caused by the quote with all the other stuff was nominal or nonexistent "Sex, women, fun" Book quoted him for saying his plans for Anna Freud's Maresfield Gardens house after her death. Saying he could renovate it and used it for "sex, women, and fun" He never said that part about sex women and fun. In earlier passage he said they would have great parties and live it up supreme court.. Other remarks that were similar cannot be concluded to bear the same meaning as the quoted passage suggests "It sounded better" -When explaining why he changed his last name from Moussaieff to Mason and about his family history, she quoted him saying "it sounded better" He did not say "it sounded better" in other tape he explained that it was changed in France "just to hide his jewishness" and then after he changed it back his wife said nobody good pronounce it, knew how to spell it, and it wasn't the name she knew him as supreme court.. Agree with District Court of Appeals that any difference between petitioner's statement and that "he just liked" is immaterial. Did not alter the meaning of the statement "I don't know why I put it in" Malcolm's version contains material differences from petitioner's statement and it is conceivable that the alteration results in a statement that could injure a scholar's reputation "Greatest analyst who ever lived" Book quoted Malcolm and Masson discussing his 1981 New Haven lecture. She quoted him that "it was something I tacked on at the last minute, and it was totally gratuitous and I don't know why I put it in" The tape recording he was explaining it and then said "uh" then she asked what were the circumstances in which he put it in and he said "that it was true.. I really believe it.. But I felt I should say something because papers still sell within the analytic tradition.." supreme court.. A material difference exists between the quote and tape-recorded statement and a jury could find the difference exposed petitioner to contempt, ridicule, or obloquy None of his statements about his analysis contained substance or arrogant and unprofessional tone appearance in this quote "He had the wrong man" He is explaining conversation with Eissler and discussing poisoning Anna Freud in her last days. Says "he had wrong man" at end The quote omitted an entire part of story before the "he had the wrong man" quote supreme court.. Quoted version makes it appear as if petitioner rejected a plea to remain in silence and "do the honorable thing" and the tape-recorded version indicates that the petitioner rejected a plea supported by far more varied motives (eissler told him that silence would be "the honorable thing" and PETITIONER WOULD "SAVE FACE" and might be rewarded for it. Difference in material the jury might find defamatory, and for the reasons they have given, they support a finding of deliberate or reckless falsification

"libel-proof" plaintiffs

-A few libel cases have been brought by convicts. Claims were based on errors in other stories about their actions. Courts have developed doctrine that "a libel-proof plaintiff is not entitled to burden a defendant with a trial in which the most favorable result the plaintiff would achieve is an award of national damages" THIS MEANS THAT THE PLAINTIFF'S REPUTATION IS RUINED NO MATTER WHAT. no point in trial if reputation is already damaged -Jackson v. Longcope 1985- despite doctrine, court insisted that each case be investigated to be sure that the plaintiff's reputation was so poor that it could have suffered no harm from errors in defendant's article. Here there was no question because a convicted multiple murderer was challenging a statement that he had raped and strangled all of his victims -Sharon v. Time 1983- effort to apply doctrine against Ariel Sharon failed. The fact that an Israeli commission had found him to have made a made a "grave mistake" in failing to anticipate violence at a refugee camp "cannot be said to have so severely harmed Sharon's formidble reputation as to render him libel-proof to suggestions in the article that he anticpiated but did not act to prevent massacre or that he actually instagated such acts, or that he lied to commission, or that the commission found that he lied but attempted to cover up his complciity in massacre." -Guggicone v. Hustler Magazine Inc 1987- Penthouse magazine publisher Robert Guccione was held to be "libel proof" regarding charges of adultery. Guccione sued Hustler for an article stating that Guccione "is married and has a live-in girlfriend, Kathy Keeton" when he had been divorced four years before article appeared. Nothing that Guccione had living with Keeton for 13 years while married, court of appeals ruled that the statement was substantially true and Guccione's relationship was notoroious enough to render him libel proof -Current openness about sexuality- inevitable that courts will struggle with questions as to whether mentions of people's sexuality in media is defamatory -Ward v. Klein 2005- Georgeann Ward sued Gene Klein (better known as Gene Simmons, co-founder of rockback KISS) alleging defamation in a VH1 documentary produced by Viacom. Ward had engaged in romantic relationship with Klein/Simmons for three years in 70s. In documentary, Simmons boasted of his sexual prowness- there was a caption "24 hour *****" on screen after photo of Ward with Klein/Simmons. One of arguments made in the case was that because sexual mores change over time, what was defamatory may not be any longer. Court dismissed argument because defendant failed to cite legal authority or social science data

common law and statutory privileges

-There are attractive alternatives to the defense of truth -Law of defamation has developed several privileges to protect those who utter defamations "absolute" privileges: in the sense that if the occasion gives rise to an absolute privilege, there will be no liability even if the speaker deliberately lied about the plaintiffEx. the federal and state constitutional privilege afforded legislators who may not be sued for defamation for any statement made during a debate. Ex. high executive officials, judges and participants in judicial proceedings have absolute privilege to speak freely on matters relevant to obligation NO MATTER HOW MUCH SPEAKER ABUSED THE PRIVILEGE BY LYING, NO TORT LIABILITY WILL FOLLOW -Only circumstance that gives absolute privilege to the media occurs when broadcasters are required to grant equal opportunity to all candidates for the same office. If a candidate commits defamation, the broadcaster is not liable for it -"Conditional" or "qualified" privilege is much more common- defendant who has privilege will prevail in action for defamation unless the plaintiff can show the speaker "abused" the privilege. The plaintiff shows abuse by proving that the defendant did not honestly believe what he said or that defendant published more information or published it more widely than was justified by occasion that provided privilege -Most common-law privileges serve individuals and do no specifically affect media- with two important exceptions 1. The privilege to make fair and accurate reports of governmental proceedings. Under governmental defamation law, one who repeats another's statement is responsible for the truth of what he repeats. Generally to protect gossip. Ex. if X states "Y told me Z is a murderer" Z can sue X for defamation and X will be treated as publisher of own statement. To prevail defense of truth, X needs to prove that Z did murder someone, it is not enough to say that Y told him so -Not long before courts and legislatures began to realize that sometimes speakers should be encouraged to repeat other's statements. Federal and state constitutions had already provided that members of legislative branch could quote others in debate with absolute protection against legal sanctions resulted in... 2. "record libel"- reports of what occurs in governmental proceedings are privileged even if they have been spoken falsely. Value of repetition- in reporting how government was functioning and what government officials were saying. Observers were encouraged to repeat what they said- it would be hurtful if reporters could only report truthful statements of government officials or witnesses at trial privilege of fair comment upon matters of public interest -Entered English law in 1808- Carr v. Hood- defendant charged for ridiculing plaintiff author's talent that sales of his book were discouraged. Defendant said criticism should be "fair and liberal" about the book rather than to injure the author. Did not pass. RESULT- rule that criticism, regardless of its merit, was privileged if it was made honestly, with honesty measured by accuracy of the citici's descriptive observations. If critic describing a literary or musical endeavor gave "facts" accurately, high conclusions would be fair -Cherry v. Des Moines Leader 1901- reviewer harshly described performance by Cherry sisters. At this time cases arose in which privilege of fair comment was claimed with regard to other matters of public interest, including the conduct of politicians. This was not the privilege of reporting what certain public officials were doing in their official capacity. Privilege claimed would permit citizens to criticize and argue about the conduct of their officials- presented problem of distinguishing facts and opinions. Literary criticism area of application- the privilege could depend upon the accuracy of the "facts" because they were readily apparent. When dealing with facts of politics though, were often elusive. -Most state courts decided that for criticism of government and others to be privileged, the facts of the comments had to be true Confusion about "fair comment" or opinion continued between 1974 and 1990 -Gertz v. Robert Welch, Inc. 1974- "under first amendment there is no such thing as false idea. However pernicious an opinion may seem, we depend for its correction not on the conscious of judges but on the competition of other ideas -Milkovich v. Lorain Journal Co. 1990- court emphasized that not all expressions of opinion are necessarily privileged

ambiguity

-Statements are often ambiguous- cases have the judge decide whether the statements possible meanings can reasonably be understood to have a defamatory impact. If the judge decides that at least one of the meanings would be defamatory, it then becomes a function of the jury to decide the meaning that was in fact conveyed -Cooper v. Greenley- Greenley had written in NY Tribune that he was not worried about a suit that Cooper previously filed against him because "Mr. Cooper will have to bring his action to trial somewhere. He will not like to bring it in NY, for we are known here, nor in Otsego, for he is known there" Cooper sued again- for defamation. Greenly said statement mean that "a prophet has no honor in his own country. Point of article is the animation that the plaintiff would prefer a trial where the prejudice and rivalries which assail every mail at home could not reach him" Cooper said statement meant that he was in bad repute in Otsego. Court held that a jury should decide which of the two meanings was understood by readers of the article -Greenbelt Cooperative Publishing Association v. Bresler 1970- Case arose from city council meeting where the plaintiff, who was a local real estate developer, in a negotiation with the city council. Members of the audience characterized the plaintiff's bargaining position as "blackmail" The defendant newspaper accurately recorded the meeting and included the blackmail charges (sometimes without quotation marks. The state courts granted plaintiff a judgement against the newspaper -Justice Stewart- "as a matter of constitutional law, the word 'blackmail' in these circumstances was not defamatory"... it was the legal negotiating proposals that were being criticized, not the speakers. Readers must have perceived that the word was no more than a rhetorical hyperbole (STATEMENT NOT TAKEN SERIOUSLY) sometimes words might be clear but their use presents problems -Sen. George Smathers of Florida was reported to have made the following statement to some of his rural audiences while campaigning in the democratic primary for US Senator against Claude Pepper "are you aware that claude pepper is known all over Washington as a shameless extrovert. not only that, but this man is reliably reported to practice nepotism with his sister in-law, and he has a sister, who was once a thespian in wicken NY. worst of all, it is an established fact that Mr. Pepper, before his marriage, practiced celibacy" smathers denied making the statement and offered a reward to anyone who could prove her ever made it Meaning of a statement may be altered by punctuation, paragraphing, or typography -Wildstein v. New York Post 1965- defendant wrote that plaintiff was one of "several women described as 'associated' with the executive". Judge observed that if word "associated" had not been in quotation marks the statement would not have been defamatory. The markets employ a euphemistic use of the word, suggesting an illicit relationship between the plaintiff and the deceased Problem arises when part of article has a defamatory impact but another part of the article negates that impact. The headline may be defamatory although the article is not; the lead paragraph alone may be defamatory but article as a whole may be harmless, and one sentence may be defamatory but whole sentence may be harmless -Gambuzza v. Time, Inc.- two page spread of 12 photos in a magazine article, each with three lines beneath it. Story involved reports and activities of convicted spy. One photo of plaintiff captioned "HIS ADMIRER. Frank Gambuzza, a radio dealer who sold Abel some parts for a wireless receiver, praised the Russian for electronic knowhow" Plaintiff alleged that the first two words suggested sympathy for Abel and his cause. Majority noted that headlines might read separately from the article and judged by their own words because of people passing by newsstand without reading it. Not the case because the caption was so close to text it had to be read together- article must be considered as a whole and its meaning not from isolated parts. Two dissenters argued that critical words in the caption were in bold and capital type so they should be treated differently -Kunst v. NY World Telegram Corp. 1967- lead paragraph and photo caption conveyed a defamatory implication that was negated by a statement that a "persistent and careful reader would discover near the end of the reasonably length article" majority upheld the complaint- stressing the writing must be construed, not with high degree of precision expected of and used by lawyers/judges but as it would be read and understood by ordinary member of public. Dissenter said it should be read as whole

defamation

Act of harming or ruining another's reputation -When speech is found to be defamatory (DAMAGING REPUTATION OF SOMEONE), it's regulated after the fact instead of being enjoined (PROHIBITED) -Action for defamation has had long place in common law- harm to reputation is concern in every legal system -First amendment had no impact on defamation law until 1960s. Because defamation law was a creature of state law- the power to regulate defamation law was not delegated to congress- the first amendment had no immediate effect on state's admin of that law Supreme court did not tie defamation and first amendment together until NY Times Co. V Sullivan 1964.. Brought major changes to law of defamation and provided philosophy that has led to recent development of mass media law

Are all businesses public figures?

Bank of Oregon v. Independent News, Inc. 1985- Oregon bank and its president held to be private figures because they had not established "general fame or notoriety" in community or exhibited "pervasive involvement in affairs of society" But Brown & Williamson Tobacco Corp, makers of Viceroy cigarettes, was treated

What are the limits of Edwards Principle?

Dixson v. Newsweek, Inc. 1977- distinguished here. On the ground that Edwards involved public figures where Mr. Dixon was private citizen. One can only conjecture about whether the neutral reportage privilege retains much vitality Record libel privilege is a ste privilege that can be limited by state statutes and decisions. Ex. in NY the relevant statute requires "official proceedings" before a privilege comes into play and NY courts have not expanded this privilege, thus in edwards the state statute did not apply Khawar v. Global International, Inc. 1998- SUpreme Court of CA concluded that neutral reportage privilege is not recognized in CA. the plaintiff Khalid Khawar had used weekly tabloid newspaper the Globe because it published an article reporting a book's false accusation that he had assassinated Robert Kennedy. The article repeated allegation and included photo that had group of men near Kennedy and pointed to him. Globe said it was merely repeating allegation made in book. Supreme Court of CA concluded that Mr. Khawar was a private figure and then rejected claim of a neutral reportage privilege in the case. Said that recognition of an absolute privilege for the republication of those charges would be inconsistent with US Supreme court insistence on need for balancing info relevant to public controversies against reputation interests of public figure. Concluded that Globe acted with actual malice and upheld rewards for compensatory and punitive damages for the plaintiff

gertz case

Established a lower level of proof for private persons, negligence. look at class notes

Anti-SLAPP statutes

State laws that provide a stream lined method for dismissing libel lawsuits that are filed in an attempt to subdue legitimate comment on public issues -Even when there is substantial likelihood that the defendant would prevail in case decided by appellate court, the cost of layers and employee time may make it tempting to settle out of court -Media defendants who develop reputation of settling out of court could become target for suits for plaintiffs who did not expect to win and hope they would get bought out -In 80s and 90s, some plaintiffs- including large corporations- began to use defamation lawsuits to silence their critics -SLAPP suits: strategic lawsuits against public participation- plaintiffs who are unhappy with public commentary about themselves sue the defendants in attempt to silence the commentary. Defendant often lacks plaintiff's ability or financial resources for prolonged litigation -Liberty Lobby v. Dow Jones & Co 1988- court of appeals upheld dismissal of a $50 million libel suit against publisher of Wall Street Journal. "The suit epitomizes one of the most troubling aspects of modern libel litigation: the use of the libel complaint as a weapon to harass"- the newspaper had described Liberty Lobby as an anti-Semitic group. Liberty Lobby filed number of other lawsuits about reports characterizing group as racially prejudiced or anti-Semitic and none of those had been successful. THEY TRIED TO GET MONEY FOR "LIBEL" STATEMENTS ABOUT THEM. DID NOT WORK -Some SLAPP suits- plaintiffs instead of suing media companies with money have sued media's news sources, anticipating that sources would not have money to defend themselves and then would remain silent. SLAPP suits usually fail in court but may achieve purposes of quieting criticism anti-SLAPP statutes- some states have adopted this to provide protection for statements made in a public forum in connection with an interest of public interest. Statutes typically require plaintiffs in such situations to demonstrate a likelihood of success on the defamation claim (often unable to do) -Strengthened in march 2010- allowing for an expedited review if the claims involve people acting in "public participation and petition" and require a hearing within 30 days and a decision no more than seven days after that. Designed to minimize the expense to defendants involved in potentially not serious suits -Sandholm v. Kuecker In 2010- Illinois appellate court threw out defamation lawsuit filed by high school basketball coach against parents of players and general manager of radio station. Coach alleged that comments made on websites, radio, and in a petition to school board criticizing his coaching style were defamatory. Court ruled that because speech in question was done in part to influence a governmental action- removing coach from his job- the suit could be dismissed under Anti-SLAPP law. The Plaintiff wanted to dismiss lawsuit under SLAPP, but couldn't because it involved government participation HE WANTED TO SUE FOR MONEY BUT GOVERNMENT WAS INVOLVED

Libel and Slander- the Damage Question

Subcategories of libel and slanders -Historically- slanders were oral defamations and were handled by common-law courts. Libels were written defamations that, because of development of printing, became major concern of the control. After the end days of the Star Chamber, oral and written defamations were addressed by the common-law courts (they made distinctions) Critical distinction- relates to what types of damages a plaintiff must show in order to be allowed to bring an action for defamation -Special damages: specific provable monetary losses that the plaintiff can demonstrate that he has sustained and can trace to the defendant's defamatory statement -General damages- damages to reputation that plaintiff is presumed to proved to have sustained as result of defendant's statement -Common-law courts have treated libel as substantially more serious than slander - Writing requires more thought and planning than spontaneous oral utterance. Writing is more lasting and likely to reach a larger audience. More likely to cause harm.. COURTS DECLARED THAT PLAINTIFFS IN LIBEL CASES WERE ABLE TO RECOVER GENERAL DAMAGES WITHOUT SHOWING SPECIAL DAMAGES. Plaintiffs proceeding under libel have better off than plaintiffs suing for slander of same words If actions are for slander, plaintiffs must prove "special damages" unless the defamatory thrusts fit into at least one of four categories 1. Turpitude (immorality, wickedness) 2. Imputation of existing loathsome disease 3. A charge that attacks plaintiff's competence or honesty in business, trade or profession 4. A charge of chastity (unlawful sex) in a woman -Such an action is called SLANDER PER SAY and permits an action enabling plaintiffs to claim general damages to their reputations Two developments have blurred the line between libel and slander 1. The courts began to distinguish between two types of libels: those clear on their face (called libel per se, which courts applied to traditional damage rules) and others (libel per quod, which reader had to know one or more unstated facts to understand defamatory thrust of writing). Some courts began to hold that plaintiff must prove special damages in libel per quod unless the words used, if spoken, would fit into four categories of slander 2. Development of new modes of communication. Until 20th century, written defamation would reach more people than oral one. Radio, TV, and internet now reach huge numbers of people. Should we stick to traditional oral-written line that treats all model of mass com and other modes of com as slander? Nominal damages v. punitive damages The award of a symbolic amount like $1 usually shows that the jury found attack to be false but also found the words not to have hurt, either because speaker was not credible or the plaintiff's strong reputation blunted the harm (reputation was already so low) -A few states declare that punitive damages, which are to punish defendants for serious misbehavior, are never recoverable in defamation cases. Most states allow them in appropriate cases

Zeran v. America Online, Inc.- 1997 in court

- Zeran seeks to hold AOL liable for defamatory speech initiated by third party, he argued to the district court that once he notified AOl of it, they had the duty to remove it, notify subscribers of the message's false nature, and to effectively screen it in the future -The act creates a federal immunity to any cause of action that would make service providers liable for information originating by thidr party. It precludes courts from entertaining claims that put them in publisher's role. Lawsuits seeking to hold provider liable for its exercise of a publisher's traditional editorial functions are barred -Congress has said the internet "have flourished, to benefit all Americans, with a minimum government regulation" "the policy of the US.. to preserve the vibrant and competitive free market that exists for internet and other interactive computer services, unfettered by federal or state regulation" -Internet is used by millions of users. The specter of tort liability in an area of such prolific speech would have obvious chilling effect. Would be impossible for service providers to screen each of millions postings -Another important purpose- encourage service providers to self-regulate the dissemination of offensive material over their services

Zeran v. America Online, Inc.- 1997 in court cont. 2

-AOL is legally considered to be a publisher. "Everyone who takes part in publication is charged with publication"- even distributors are considered to be publishers for purpose of defamation law.. "Those who are in business of making their facilities available to disseminate the writings composed.. Are regarded as publishes" AOL falls into this definitions -Zeran attaches too much importance to presence of distinct notice element in distributor liability. The simple fact of notice cannot transform from an original publish to a distributor in eyes of the law. And once a computer service provider receives notice of potential defamatory posting, it is thrust into traditional role of publisher -Zeran contends that the CDA impose liability on service providers with knowledge of defamatory content on their services is consistent with the statutory purposes outlined. He fails to understand the practical implications of notice liability in the interactive computer service context. Liability upon notice would defeat the dual purposes of the CDA. liability upon notice reinforces service providers' incentives to restrict speech and abstain self regulation -If computer service providers were subject to distributor liability, they would face potential liability each time they receive notice of a potentially defamatory statement- from any party concerning any message. Each notification would require careful investigation and legal judgement and on the spot editorial decision whether to risk liability...Because service providers would be subject to liability only for publication of information and not for its removal, they would have natural incentive to remove messages upon notification, whether defamatory or not. LIABILITY UPON NOTICE WOULD BE A CHILLING EFFECT. -Notice-based liability for interactive computer service providers would provide third parties with a no-cost means to create the basis for future lawsuits. Whenever one was displeased with the speech of another party conducted over an interactive computer service, the offender party would simply "notify" the relevant service provider, claiming the info to be legally defamatory. This would produce an impossible burden for service providers since there is so much speech communicated on it, they would be faced with ceaseless choices of suppression speech -Probable effects of distributoritor liability on the vigor of internet speech and on service provider self-regulation are directly contrary to the CDA CONGRESS HAS SPOKEN DIRECTLY TO ISSUE BY EMPLOYING THE LEGALLY SIGNIFICANT TERM "PUBLISHER" WHICH HAS TRADITIONALLY ENCOMPASSED DISTRIBUTORS AND ORIGINAL PUBLISHERS ALIKE

Zeran v. America Online, Inc.- 1997 in court cont.

-CDA argues that publisher cannot be held liable even with knowledge of what is going on -Zenan says interactive computer services like AOL are normally considered distributors, like traditional news vendors or book sellers. Distributors cannot be held liable for defamatory statements contained in materials they distribute unless it is proven they have knowledge of the defamatory statements upon which liability is predicated. He says he provided AOL with sufficient notice of the defamatory statements appearing on the company's bulletin board -Zenan contends that "distributor" carries a legally distinct meaning from "publisher"- he asserts that Congress' use of only the term "publisher" in the act indicates a purpose to immunize service providers only from publisher liability. Argues that distributors are left unprotected and his suit should be permitted THEY DISAGREE!!! COURT SAYS THIS THEORY OF LIABILITY IS JUST A SUBSET OF PUBLISHER LIABILITY AND IS THEREFORE ALSO FORECLOSED BY THE ACT

Dendrite Intern Inc. v Doe NJ 2000

-Dendrite sued four defendants, known by their usernames on yahoo financial message board which they had posted messages for defamation, breach of contract, breach of fiduciary duty and misappropriation of trade secrets. -Dendrite asserted that it couldn't tell from the messages that at least two defendants were current or former employees of Dendrite and asserted that its employees had signed confidentiality agreements that remained in effect for two years after an employee left the company. -Yahoo declined to identify the posters without subpoena. Court declined to issue the subpoena without expert analysis that the allegedly defamatory statements on the message board had caused fluctuations in the company's stock price. The court found that the plaintiff had neither proved neither reputational injury nor proved any trade secret existed -The court of appeals affirmed and set out guidelines to be applied on a case by case basis 1. When an application is made, court should first require plaintiff to undertake efforts to notify the anonymous posters that they are subject of subpoena or application for disclosure to afford them reasonable opportunity to file opposition- should include posting a message notification to their board 2. Court shall require the plaintiff to identify and set forth exact statements made by each anonymous poster that plaintiff alleges constitutes actionable speech 3. Complaint should be reviewed to determine whether the plaintiff has set forth a PRIMA FACIE cause of action against the fictitiously- name anonymous defendants. Plaintiff must produce sufficient evidence supporting each element of its cause of action, on a PRIMA FACIE BASIS, prior to a court ordering disclosure of identity of unnamed defendant 4. Assuming the court concludes that the plaintiff has presented a prima facie cause of action, the court must balance the defendant's first amendment right on anonymous free speech against the strength of the prima facie presented and the necessity for disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed Prima facie: evidence before trial which is sufficient to prove the case unless there is substantial contradictory evidence shown at trial

the reputation element

-Essence of defamation- claim that defendant has uttered a false statement that has harmed plaintiff's reputation!!!!!! -Modern view- a statement is defamatory if it harms the plaintiff's reputation by lowering him in the estimation of the community or by deterring others from associating or dealing with him (very broad) IT IS ENOUGH THAT THE PUBLISHED STATEMENT BE OF SORT THAT WOULD LEAD A SEGMENT OF COMMUNITY TO THINK LESS OF PLAINTIFF (does not need to be large) -Ex. Ben Oliel v. Press Publishing 1929. Expert on Palestinian art and customs was falsely stated to have written an article on that subject for the sunday newspaper. Article had several errors that would embarrass author among experts. Court ruled that the relevant community in that case was small group of experts on the subject and that those experts would now think less of plaintiff -definition extends to accusations that the plaintiff was of illegitimate birth, had been raped, or was in dire financial straits. Plaintiff cannot be blamed for conditions but court have bowed to reality and recognized that these kinds of charges may cause others to refrain from associating with plaintiff. Judges "take the world as we find it"- even if segment of community thinks less of plaintiff can be characterized as "wrong-thinking" as they could in the illegitimacy and rape examples. But there is a limit to this

corproations

-Generally held that corporations also have reptuations and that they may vindicate through actions of defamation -Generally corporation must be attacked in a way that affects its credit or profit-making ability if it is a corporation organized for profit Ex. El Meson Espanol v. NYM Corp 1975- corporate plaintiff's restaurant was asserted to be a good place to meet a connection to buy cocaine. Corporation was allowed to bring suit because charge might adversely affect restaurant's patronage -Non-profit organization may be defamed if the charge is one that tends to interfere with its ability to obtain financial support from the public. A corporation that relies on public donations may sue for defamation if charge would interfere with its ability to obtain funds -Corporations that organize governmental activities are usually not permitted to bring defamation actions. To permit such lawsuits would become close to reviving the action for seditious libel (was used in England by government against critics)

Are applicants for public funds public figures?

-Hutchinson v. Proxmire 1979- Sen. William Proxmire awarding of one of his Golden Fleece awards- made to government agencies that he believed engaged in wasteful spending. He awarded it to agencies that had funded the plaintiff-scientist's research work on aggression in animals. Proxy had uttered the alleged defamation in several forms- speech on Senate floor, advanced press releases, newsletter sent to 100,00 people, TV interview program. Court first decided that Article 1 section 6 of constitution, the so-called Speech or debate clause, protected only a speech delivered on the floor -Court turned to First Amendment issue. Chief Justice Burger began with Gertz passage.. Neither the fact that the plaintiff had successfully applied for federal funds nor that he had access to media after PRoxmire charges demonstrates that that Hutchinson was a public figure prior to controversy -Hutchinson's prior activities are much like those in his profession... published writings reach little people -He did not thrust himself or his views into public controversy to influence others. It is not sufficient to make him public figure. If it were, everyone who received or benefited from these public grants of research would be classified as public figure Hutchinson at no time assumed any role of public prominence in broad question of concern about expenditures. His applications for federal grants and publications can be said to have invited public attention on receipt of federal grants essential to meet public figure level, but just this does not make him public figure -Do not agree that Hutchinson had access to media that he should be classified as public figure. His access was limited to responding to the announcement of the Golden Fleece award. He did not have regular and continuing access to media to be public figure NO!!!!!

of and concerning plaintiff

-In order for defamatory statement to adversely affect the plaintiff, the reader must connect that statement with the plaintiff. Plaintiff must show the statement objected ws of or concerning him -Can be problem because of ambiguity of statement or because the plaintiff is only indirectly identified -If readers could plausibly believe the plaintiff was referred to, then a jury will decide whether the statement was in fact so understood

the falsity of the quotes

-In some sense alteration of verbatim quote is false. But writers and reporters necessity alter what people say to eliminate grammatical and syntactical infelicities, etc. if every alteration required to prove actual malice, would need to change first amendment principles. Petitioner says absolue definition of falsity in quote is too stigent and "minor changes to correct for grammar and syntax" do not amount to falsity for purposes of proving actual malice -Petitioner argues that, except grammar or syntax, publication of quote with knowledge that it does not contain words with public figures used demonstrates actual malice. The author will have published quote with knowledge of falsity, no more needs to be shown. Believes that intentional manufacture of quotes does not "represent the sort of inaccuracy that is commonplace in the forum of robust debate for which NY times rule applies" and that protection of deliberate falsehoods would hinder first amendment values of robust and well-informed public debate by reducing reliability of info available court's view.. -They reject idea that any alteration beyond correction of grammar or syntax by itself proves falsity in sense relevant to determining actual malice under first amendment. Interview who writes from notes often will engage task of attempting to reconstruct speaker's statement. That author would, we may assume, act with knowledge that at times she has unattributed to her subject words than actually used. In petitioner's standard, an author in this situation would lack first amendment protection -Even if journalist has recorded spoken statement of public figure, the full and exact statement is unlikely to be reported.. So much goes on in between publication that a quote will not be reconstructed with complete accuracy -To attempt narrow distinctions between correcting grammar/syntax and other alterations would not work -The statement is not considered false unless it "would have a different effect on the mind of the reader from that which the pleaded truth would have produced" -Deliberate alteration of words uttered by a plaintiff does not equate with knowledge of falsity for purposes of Sullivan and Gertz unless the lateration results in a material change in the meaning conveyed by the statement -Deliberate or reckless falsification that comprises actual malice turns upon words and punctuation only because words and punctuation express meaning -Readers of the archives may have Malcolm's portrait of petitioner especially damaging because so much of it appeared to be self-portrait and if these alterations of petitioner's words have different meaning to steaments, bearing upon their defamatory character, then the device of quotes might well be critical in finding words actionable

supreme court findings

-Judgement of the Court of Appeals is reversed, and the case is remanded for further proceedings Does the First Amendment give the New Yorker a right to publish fabricated quotations attributed to a public figure? No. In a 9-0 vote, the Court ruled that the First Amendment s free expression clause could not protect the distortions in Malcolm s article. Justice Anthony Kennedy's majority opinion also explained when a direct quotation can be considered false, and therefore potentially libelous. The First Amendment limits libel suits by public figures. A report about a public figure cannot be considered "false" unless it is a gross distortion of the truth. Justice Kennedy's opinion explained that a direct quotation will qualify as such a distortion if the quoted words differ in their factual meaning from anything the public figure really said. Malcolm_s fabrication qualified as a "gross distortion," and the Court granted Masson standing to sue.

Zeran v. America Online, Inc.- 1997

-Kenneth Zeran brought this action against AOL, arguing that AOL unreasonably delayed in removing defamatory messages posted by an unidentified third party, refused to post retractions of those messages, and failed to screen for similar postings after. District court guaranteed judgment for AOL on grounds that CDA bars Zoran's claims. Zeran appeals, arguing that the act leaves intact liability for interactive computer service provides who possess notice of defamatory material posted through their services. And says it does not apply here because his claims arise from AOL's negligence prior to CDA's entactment. But in section 230, it plainly immunizes computer service providers like AOL from liability for information that originates with third parties. And congress clearly expressed its intent that it the act apply to lawsuits, like Zoran's instituted after the CDAs enactment. THEY AFFIRM JUDGMENT OF COURT -Complaint- unidenified person posted message on AOL board advertising "naughty oklahoma t-shirts"- described sale of shirts featuring offensive slogans related to bombing of Alfred P Murrah Federal Building in oklahoma city. Gave a number to call if interested in buying shirts (Zeran). He received so many calls, a lot of death threats, but could not change his number because it was for his business. Zeran called AOL and informed them of problem. Employee said posting would be removed from board but would not post retraction. The parties dispute the date that AOL removed from bulletin board. The next day, an unknown person posted another message advertising additional shirts about the bombing. Interested people called Zeran for this again, many threatening calls. The unidentified party continued to post messages on AOL's board and advertised for new products. Zeran called AOL repeatedly and they told him the individual account posting it would soon be closed. Zeran also reported cases to Settle FBI agents. A radio broadcaster then found the original post and urgered callers to call Zeran. The calls and threats got way worse. Zeran talked to the station and AOL and local police. And then a newspaper posted it. Zeran did not bring any action against the party who posted the offensive messages

Statute of Limitations and Jurisdiction

-Libel statues give plaintiffs a limited period of time in which to bring suit, often one year. Beyond a year, might become increasingly difficult to plaintiff to prove harm suffered and ti might also become increasingly difficult for defendant to offer a successful defense -Keeton v. Hustler 1984- supreme court decision makes statute of limitations a serious concern for media organizations whose publications or audiences are in more than one state. In Keeton, a resident of NY brought a libel suit in NH against Hustler Magazine, even though the publisher was incorporated in ohio and its principal place of business was California. Her case had already been dismissed in Ohio as barred by statute of limitations. At the time NH had six-year statute of limitations. -The use of the "long" NH statute to obtain jurisdiction of Hustler are upheld in Supreme Court because of magazine's circulation of 10,000-15,000 copies in that state. Decision had serious implications for potential media defendants, who may have to be prepared to defend themselves in libel suits long after the period for a suit has expired under the statute of limitations in the state -"single publication rule"- a principle under which only legal action can be maintained for damages resulting from any single publication, all damages suffered in all jurisdictions can be recovered in one action, and a judgment for or against the plaintiff upon the merits of any action for damages bars any other actions for damages between the same parties of jurisdictions SAID NH COURTS HAD SUFFICIENT BASIS FOR JURISDICTION EVEN IF THEY APPLIED THIS RULE SINGLE PUBLICATIONS- designed to address two concerns raised by the development of newspapers and books. Every time a defamatory statement is communicated to new audience, it gives rise to new cause of action for defamation. With newspapers and books, if every copy sold gave rise to new cause of action, publishers could face huge number of actions for single day's paper or single addition of book. ALSO- if one copy were to be sold years later, the statute of limitations would begin to run anew 1. Only permitting one cause of action 2. Set the date on which the action is received as first date of general distribution of public. However different forms of publication may be considered separate publications- like paperback edition of book Internet has raised several new questions regarding the application of single publication rules. 1. Whether an internet version of print or broadcast defamation constitutes as separate publication 2. Whether these rules apply to internet. If not, then every time internet publication is accessed, it constitutes as new publication -Nationwide Biweekly Administration Inc. v Belo Corp 2007- involved Dallas Morning News. fifth circuit held that internet postings are new publication, that the Texas single publication rule applies to them and that the statute starts to run when items are posted Van Buskirk v. The New York Times 2003- allegedly defamatory letter first posted on internet and then published in NY times, second circuit held that the NY single publication law covered both the posting and publication in the times with regard to a defamation against the letter's author Calder v. Jones 1984- supreme court upheld California courts' jurisdiction in a suit brought by actress Shirley Jones (CA resident) against that Florida corporation that publishes The National Enquirer and a reporter and editor for the publication. Report frequently traveled to CA on business, but the editor did not. The court noted that CA was focal point for story and that defendant's actions were aimed at CA and that they could reasonably be "haled into court" in CA. but merely being an employee of the magazine would not be sufficient basis upholding jurisdiction in CA court -Brother Records, Inc. v. Harpercollins Publishers 1996- Supreme Court of NH ruled that a libel suit against Brian Wilson of the Beach Boys and the publisher of his autobiography, Wouldn't It Be Nice, could proceed despite the defendants' arguments that NH had virtually no connection with the parties. The court noted that the book was distributed and sold in NH and said "that the parties have no apparent connections to NH does not mean that the plaintiffs did not suffer injury in NH"

Privilege of Neutral Reportage

-One federal case suggests the possibility of a first amendment privilege that differs from Times-Gertz. Edwards v. National Audubon Society, Inc.- NY Times nature reporter was following the continuing dispute between the society and the chemical industry over the impact of various pesticides on birds. Some scientists in industry argued that pesticides were not harmful. Society believed that high numbers were due to more watchers -An editorial in a Society publication asserted that whenever members heard a scientist use the bird count in argument "you are in the presence of someone who is being paid to lie or is parroting something he knows little about" a reporter called the society and was told the names of five scientists that society officials had in mind. The reporter then wrote a story accurately reporting the dispute and stating that a Society official had said that the scientists referred to in editorial included five and then named. In the suit by the scientists, the court held than an accurate report of this nature could not constitutionally lead to a libel judgment against the newspaper At stake is fundamental principle- when a responsible prominent organization like the National Audubon Society makes serious charges against a public figure, the first amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter's private views regarding their validity. What is newsworthy about such accusations is that they were made. Do not believe press may be required under the first amendment to suppress newsworthy statements merely because it has serious doubts regarding their truth. The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them Literal accuracy is not a prerequisite- if we enjoy a robust press, we must provide immunity from defamation suits where journalists believe that his report accurately conveys the charges made. Equally clear that publisher who espouses or concurs charges made by others or deliberately distorted these statements to launch personal attack of his own on public figure cannot rely on privilege of neutral reportage. In such instances he assumes responsibility for underlying accusations. Clear here that Devlin reported Audubon's charges fairly and accurately.. He did not espouse Society's accusations and published the maligned scientists outraged reactions. It was exemplar of fair and dispassionate reporting

Are all individuals associated with businesses public figures?

-People who in business who are accused of connections with organized crime tend to be held to be public figures -Macrone v. Penthouse International Magazine (1985)- attorney who represented persons alleged to have criminal connections and who said to have "contributed down payments up to $25,000 on grass transactions. Charges against them were dismissed because he cooperated with further investigations" The court of appeals recognized that "mere newsworthiness" is not sufficient and first concluded that "drug trafficking" was a real dispute and the outcome affects general public Court noted that sometimes one can be a public figure without voluntary actions- like sports players are for their positions If position itself is so prominent that its occupant unavoidably enters the limelight, then a person who voluntarily assumes such a position may be presumed to have accepted public figure status

vagueness

-Some courts have found language too imprecise to form basis of defamation action -Buckley v. Litelli 1976- accusation that William Buckley Jr. was "fellow traveler" of facist causes was too "loosely definable" and too "variously interpretable" to be actionabale as defamation. Court suggested there might be a difference between vague charge and more specific charge that plaintiff was a member of particular group. Certoiori was denied -National Association of government Employees, Inc. v. Central Broadcasting Corp 1979- charge that a police union's collective bargaining efforts involved the "inroad of communism" was held too vague to support. Court thought it clear from the context and words that no hearer in the community after even brief reflection would understand the speaker to be charging plaintiff with complicity in the "horros distincitve of a totaliarnism regime" -Geary v. Goldstein 1993- IN CONTRAST TO OTHER TWO. federal court held in 1993 that a plaintiff had a cause of action for defamation despite the defendant's claim that no statement had been made about her. The plaintiff, an actress, had appeared in tv comcercial for Wass crispbread from Sweden. In commercial was shown in a towel with male in bathrobe. Defendant Al Goldstein, producer of sexually explicit tv program "Midnight Blue" asked staff to "adapt" the commercial to include porn videotape of couples, appearnalty engaging in sex. Court denied motion to dismiss case and held that the juxtaposition of porn video with the commercial was a "statement" subject to defamatory interpretation

state law of defamation

-State remain free to protect reputation in whatever manner they see fit so long as they do it in consistent ways with first amendment -State law itself has a significant number of protections for those who are sued for defamation. Often possible for a defendant to win defamation case under the state's traditional rules without ever having to rely on protecting of first amendment Why might a defendant who could win a case under first amendment principles try to win that case under state rules? -State defenses may permit (for matter of procedure) a defendant to win the case earlier in litigation (such as on a motion to dismiss, rather than on a motion for summary judgment or perhaps only after trial is held). Often faster and cheaper for a media defendant to succeed on state law grounds than to rely exclusively on ground of first and fourteenth amendments Ex. most states- if statement has two possible meanings, one of which would be defamatory and one which would not be, the jury decides how precipitations of that statement understood it. BUT in Illinois there is a special "innocent construction" rule providing that if a statement has one innocent meaning the defendant wins the case immediately. The plaintiff cannot argue that the defendant "really meant" something else. Has permitted defendants in Illinois to win overwhelming percentage of defamation cases and quickly without relying on federal constitution

case extended

-The court of Appeals applied test of substantial truth and added a step beyond protection of quotes that convey meanings of statement with substantial accuracy and concluded "that an altered quote is protected so long as it is a 'rational interpretation'" of an actual statement drawing from this standard. Application in this context finds no support in general principles of defamation law or in first amendment. Cannot accept reasoning of court of appeals because many quotes at issue might reasonably be construed to state or imply factual assertions that are both false and defamatory -In Pape- we reversed libel judgement which arose out of magazine article summarizing report of US commission on civil rights discussing police civil rights abuses. The article quotes the COmmission's summary of facts surrounding incident of police brutality but failed to include the commission's qualification that these were allegations taken from a civil complaint. The court noted that "the attitude of commission toward the factual verity of the episodes recounted was anything but straightforward" and distinguished between a "direct account events of events that speak for themselves." Pape took into account the difficult choices that confront author who departs from direct quote and offers own interpretation. Fair reading of our opinion is that defendant to not publish falsification sufficient to sustain a finding of actual malice -Protection for rational interpretation serves first amendment principles by allowing an author the interpretive license that is necessary when relying upon ambiguous sources. But when writer sues quotes, where reasonable reader would conclude that the quote purports repetition of statement, the quote marks indicate that author is not involved in speaker's statement- speaker speaks for themselves -By eliminating any method of distinguishing between the statements of subject and interpretation of author, we would diminish the great degree the trustworthiness of the printed word and eliminate the real meaning of quotes. Public figures and press would suffer from this rule.. Newsworthy figures might become more wary of journalists, knowing that any comment would attributed dot subject so long as bounds of rational interpretation were not exceeded THEN DETERMINED WHETHER THE QUOTES SHE SAID DIFFERED MATERIALLY IN MEANING THAN THE ACTUAL ONES

truth

-most obvious defense, rarely used, prove truth of defamatory statement -most states recognize truth as complete defense regardless of speaker's motives -minority of states have required the truth to have been spoken with "good motives" or for "justifiable ends" or both, but in wake of Sullivan, such requirements are not constitutional -The defendant does not need to prove literal truth but must establish the "sting" of his charge -If the defendant has charged the plaintiff with stealing $25,000 from a bank, truth will be established even if the actual amount was only $12,000 -If defendant cannot prove any theft at all but can prove the plaintiff is a bigamist (marrying someone who is legally married) the information will not support his defense truth, but may help mitigate damages to show the plaintiff's reputation is already in low esteem for other reasons and has suffered less harm than otherwise might have occurred -Truth is little used but would enable a decisive confrontation because the defense may be expensive to establish. A defendant rely on truth almost always bears the legal costs of a full-dress trial as well as other investigative expenses. May be costly and risky when charge is vague and does not allege specific events -Auvil v. CBS "60 Minutes" 1996- Truth was critical issue in suit against "60 minutes"- 1989 segment focused on possible carcinogenic effect of pesticides of Alar, including one used on apples. Many stores stopped stocking these apples and growers claimed to have lost $75 million in sales. 11 apple growers sued network for libel. Later in year Environmental Protection Agency classified daminozide as a probable carcinogen, and Alar's manufacturer asked EPA to withdraw the food-use registrations of the chemical. Federal court dismissed libel suit, finding that he growers failed to present evidence sufficient enough to create a "genuine issue of material fact ton the issue of whether broadcast was false" and court of appeals affirmed -Private plaintiff suing a publisher or broadcaster for statement made about a matter of public concern must bear the burden of proving defamatory statement is false- rather than forcing the publisher or broadcaster to prove it's true

Communications Decency Act

-question of whether online bulletin boards could be held liable for defamatory statements of third party -site operators had two options: refuse to exercise any editorial control, or to exercise complete editorial control. both not good -CDA- congress attempted to find middle ground. "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider" "no cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section" -By providing immunity from liability, Congress sought to encourage site operators to remove unlawful or offensive material, without limiting the amount of material that could be posted by others -It's a "safe harbor" provision that provides immunity from liability for content that originates from third parties, regardless of whether the service provider has knowledge of the content in question -Even if the service provider edits the material, there is no liability unless the editing causes the content to be actionable. Removing some, but not all defamatory content from a communication DOES NOT CREATE LIABILITY. -Provides service provider with immunity for third-party content, but does not do so when service provider is the content "creator" or "developer"

state defenses

-several cases are typically recognized in state law 1. truth 2. the absolute privilege accorded to participants in hearing 3. qualified privilege for those who quote accurately 4. "fair comment" privilege to criticize

The Basis for Liability- The Trouble Shoot

Before one person is liable in tort law (civil law that causes harm) for hurting another, commonly some "fault" must be ascribed to the actor's conduct Ex. plaintiff cannot win automobile accident case simply by showing that the defendant's car hit plaintiff. Plaintiff must show that the defendant driver was :at fault" for his behavior -Defamation- common law long took view the fault played no part in short.. The plaintiff had only to show that the defendant's statement hurt the plaintiff's reputation and prove whether damages were required by libel-slander rules. Was irrelevant that defendant did not realize that the statement could hurt the plaintiff or anyone -A newspaper lost a case in which it published a birth announcement that was a hoax (the couple had been married three months). Those who read article and knew the plaintiffs' recent marriage would have given story an unintended meaning. Defendants were subject to "strict liability" or a liability that was not based on fault -Traditionally plaintiff's action for defamation had been easy to establish. They had to prove the publication to third person of a statement and concerning plaintiff that injured his reputation, then had to meet whatever damage showing was required under libel-standard rules. Then up to defendant to present defense -Development of internet poses new questions about liability, in part because of opposing views as to whether providers of online services should be treated as publishes like newspapers or as passive distributors of bookstores and libraries -Cubby, Inc. v. CompuServe, Inc. 1991- publsiher of electrictronic newsletter Skuttlebut sued CompuServe for alelgedly defmaatory statements in a competing electronic newspaper called Rumorville USA. called skuttlebut a "new start-up scam" that got is information "through from backdoor" Compuserve argued that it acted as a news distributor rather than a publisher and could not be held liable for the statements in Rumorville. Federal district court agreed, calling the online service "in essence" an electronic for-profit library with "little or no editorial control" -CONTRAST- Stratton Oakmont, Inc. v. Prodigy Services Co (1995)- unknown Prodigy user posted a message on Prodigy's "money Talk" electronic bulletin board in oct 1994 portraying a securities investment firm and its president as criminals and characterizing the firm's dealings as fraud. They used for $200 million.. Prodigy argued that it was not a publisher, but the argument was rejected by NY trial court in May 1995. The trial judge indicated that Prodigy's use of human monitors and automated systems to remove objectionable material made it a publisher.

Do involuntary public figures exist?

Dameron v. Washington Magazine, Inc.- 1985 Plaintiff had been only air traffic controller on duty in 1974 when a plane approaching Dulles Airport crashed into Mt Weather. Received a lot of attention, the plaintiff testified in hearings, and a claim under Federal Torts Claims Act was litigated. In that case the court dismissed claims based on controller negligence -Court held that plaintiff had no injected himself into controversy, but was an involuntary public figure for the limited purposes of the crash -Supreme court had said that the "instances of truly involuntary public figures must be exceedingly rare" and court that this was the plaintiff's fate "within the narrow framework represented by facts" -Merely being involved in a matter of public controversy is insufficient to make someone an involuntary public figure -Abdulrahman Alharbi, a 20-year-old student was injured at 2013 Boston Marathon. Federal authorities questioned and searched him. 0Concluded he had no involvement in bombing. After he was cleared, a radio host continued to say he was "active participant" in bombing and criticize federal authorities for failing to pursue or detain him -Court held that a minimum, an involuntary public figure has to have "assumed the risk of publicity" "choosing to attend sporting event as one of thousands of spectators is NOT the kind of conduct that a reasonable person would expect in publicity" Even if he was involuntary public figure, the question is whether the status evaporated once he was exonerated by authorities

statements where defamatory accusations are not clear

In such indirect defamation cases, the plaintiff's' complaint must show how the statements defame them. The description of how plaintiffs do this involves the use of three technical words 1. colloquium -If plaintiffs themselves are not directly named they must by "colloquium" that the statements were "of and concerning" them 2. inducement -If it is still not clear how plaintiffs have been defamed, they must plead extrinsic facts that would permit a defamatory meaning to be applied to defendants' words- "inducement" 3. innuendo -statement is not clearly defamatory on its face it is the function of the innuendo to assert the meaning that plaintiff attaches to the passage and any additions by colloquium and inducement. NOT A FACT, BUT THE PLAINTIFF'S ASSERTION OF HOW THE PASSAGE WOULD BE UNDERSTOOD BY THOSE WHO HEARD THE DEFENDANT'S WORDS AND KNEW THE ADDITIONAL UNSTATED FACTS -Assume defendant says "the man who lives in the house two doors east of my house was the only person in the Smith home between 7 and 8 pm last night"- if the plaintiff thinks this statement is defamatory of him and wishes to sue, his pleading must establish how he has been defamed.. For colloquium- "I am the only may who lives in the house two doors east of the speaker's house" ties the plaintiff to the statement but does not clarify its defamatory nature. Defamation is clarified if plaintiff alleges as inducement that the Smith house was burglarized between 7 and 8 on that night. The plaintiff will then assert the inunedo that he is being charged by the defendant with a crime of burglary

altered quotations

Mason v. New Yorker Magazine, Inc. 1991 -Justice Kennedy opinion of court- a public figure claims he was defamed by the author who, with full knowledge of the inaccuracy, used quotation marks to attribute to him comments he had not made. First amendment protects authors and journalists who write about public figures by requiring a plaintiff to prove that the defamatory statements were made with "actual malice"- denoting to deliberate or reckless falsification. Consider whether the attributed quotes had the degree of falsity required to prove this state of mind, so that the public figure can defeat a motion for summary judgement and proceed to a trial -New Yorker published piece in dec 1983 as two part series. In 1984, with knowledge of at least petitioners general allegation that article contained defamatory material, Alfred A. Knopf Inc. published entire work as book called The Freud Archives. The book was a big hit, the public now thought of him as an "arrogant and self destructive fool" not because of Malcolm's words but because of his own Mason wrote to NY times Book Review called the book "distorted" Malcolm responded the things she did not include was for the sake of his reputation and all of the quotes were accurate

Maxon v Ottawa Publishing Co 2010

Not all courts have found additional protection for anonymous posters necessary -allegedly defamatory statements posted on newspaper website, an Illinois court of appeals held that the state rules of procedure for discovery provided adequate protection for the anonymous defendants. Court reasoned that there was no constitutional right to defame and therefore no need for different standard of discovery

district and appeals court Mason v. New Yorker Magazine, Inc. 1991

Parties agreed petitioner was public figure so could escape summary judgement only if evidence of record would permit a reasonable finder of fact, by clear and convincing evidence, to conclude that respondents published a defamatory statement with actual malice District court analyzed each passage and held that alleged inaccuracies did not raise a jury question. Found that allegedly fabricated quotes were either substantially true or were "one of number rational interpretations" of conversation or were "bristled with ambiguous" and entitled to constitutional protection. The court also ruled that "he had the wrong man" passage involved an exercise of editorial judgment upon which the courts could not intrude Court of appeals affirmed. Assumed for much of its opinion that Malcolm had deliberately altered each quote not found on tape recordings, but held that petitioner failed to raise jury question of actual malice. Said for "intellectual gigolo" could not prove actual malice because Malcolm had not altered the substantive content of petitioner's self description. Each statement could not be actionable under the "incremental harm branch" of "libel proof doctrine" Under CA law- libel is false and unprivileged publication by writing,, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has tendency to injure him in his occupation. False attribution of statements to a person may constitute libel, if the falsity exposes that person to an injury comprehended by the statute. It matters not under CA law that petitioner alleges only part of work at issue to be false.. Can be a single sentence buried in text First amendment limits CA's libel law in various respects When plaintiff is public figure he cannot recover unless he proves by clear and convincing evidence that defendant published defamatory statement with actual malice "knowledge that it was false or with reckless disregard whether it was false or not" mere negligence does not suffice. Plaintiff must demonstrate that the author "in fact entertained serious doubts as to the truth of his publication" or acted with a "high degree of awareness of probable falsity"

court view on quotes in this case

Quotation marks around passage indicate that it reproduces speakers words verbatim. Adds credibility to authors work. Allows reader to assess own conclusions of author Fabricated quote may injure reputation in at least two senses Quote might injure because it attributes an untrue factual assertion to the speaker. An example would be public official admitting he had been convicted of serious crime when in fact he had not -Regardless of truth or falsity of factual matters asserted within quote, the attribution may result in injury to reputation because the manner of expression or even the fact of the statement was made indicated a negative personal trait or attitude that speaker does not hold Readers may not automatically imply that quotes mean the truth.. Can be a hypothetical conversation, or recreating conversations from memory -With journalistic writing- provides the reader no clue that the quotes are being used as rhetorical device or to paraphrase the speaker's actual statements. Work contains lengthy quotes attributed to petitioner and neither Malcolm nor publishers indicate to reader that quotes are anything but reproduction of actual conversation. Work was published in New Yorker, which had reputation for factual accuracy which would lead readers to believe them at face value

groups

Statements that attract large groups of people.. Is it possible for individual of member of group to assert that statement hurt his personal reputation? -Generally accepted that a charge made against a small group may defame all members of that group Ex. newspaper article may assert "the officers" of a corporation have embezzled funds.. If there are only four in the corporation, they may be found to have been defamed. Even if statement said "one of the officers in corporation" the small group is enough that all four can say they were As a group gets larger, the impact of the statement may depend on number within group who are accused -Ex. Arcand v. Evening Call Publishing 1977- a defamatory charge was made against one unidentified member in a 21-member police force. All 21 sued. Court dismissed case- feared that allowing the action would permit a suit of an entire baseball team over a report that a member was disciplined for brawling. Such result would "chill communication to the narrow" -Neiman-Marcus v Laft 19520 two authors, in a book about Dallas, stated that some department store models were "call girls.. The salesgirls are good, too- pretty and often much cheaper" "most of the male sales staff are fairies too"- suits were filed by all nine models, 15 of the 25 salesmen and 30 of the 382 saleswomen. Defendants did not challenge the right of the nine models to sue. The other two groups were challenged for being too large. The case for the "salesgirls" was dismissed. Result would be same even if the authors had explicit;y referred to "all" and even if 382 had sued. Judge could find no case allowing a group of 382 to sue. He cited cases rejecting suits when the statements attacked all officials of a stae-wide union or all taxi drivers in DC

Jones v. Dirty World Entertainment Recordings 2013

high school teacher and Bengals cheerleader was subject of several anonymous defamatory posts on Thedirty.com which is a "user-generated, online tabloid" the posts accused her of contracting STDs from her former boyfriend and engaging in sex at high school she taught. Court rejected website owner's immunity under CDA that "these postings and others like them were invited and encouraged by defendants using the website" and by adding inflammatory comments to posts. Jury gave move to Jones in punitive damages. Sixth circuit reversed, encouraging defamatory statements is not sufficient. The website must "materially contribute to the alleged unlawfulness" of the content

Carafano v. Metrosplash.com

involving "cruel and sadistic identity theft"- the safe harbor defense was applied to computer dating service. Unknown person posted a fake profile for Christianne Carafano without her knowledge or consent. She has appeared in films and TV. profile stated she was looking "for a hard and dominant man with a strong sexual appetite" and that she liked "being controlled by a man, in and out of the bed" the profile included an email address which would send an automatic reply "you think you're the right one? Proof it!" and provided her home address and phone number. Carafona began to receive sexually explicit voicemails, faxes, and threats to her son. It was several weeks before profile was discovered and delated. Meanwhile Carofano and son left their home for their safety - Court held that CDA did not apply to matchmaker because the company provided part of the profile content. But the court found her address was newsworthy and the company had not recklessly invaded her privacy or acted with malice On appeal- court found that CDA did apply, question was whether the questionnaire used to generate profile was sufficient to make company an info content provider and unable to use CDA. court found that questionnaire only provided structure as opposed to actual content. Cda applied the court affirmed the summary judgement without reaching grounds relied on by district court MATCHMAKER GETS IMMUNITY, THEY DID NOT CREATE THE CONTENT

Joseph v. Amazon.com Inc

online reviews of businesses and protected posted on sites have provoked numerous defamation claims. Courts have consistently held that the sites are protected by CDA

Constitutional Privilege

protects members of the press who publish "opinion" material about public officials, public figures, or persons of legitimate public interest -So long as state law controlled, publishers and broadcasters could try to persuade state courts and legislatures to alter the defamation rules -Near- case that first reinforced protection of press in country, majority observed that "punishment for abuse of the liberty accorded to the press is essential to the protection of the public, and common law rules that subject the libeler to responsibility for the public offense, are not abolished by the protection of the constitution" -Certain well-defined and narrowly limited classes of speech...the prevention and punishment of which have never been thought to raise any constitutional problem- lewd and obscene, the profane, the libelous, and the insulting or "fighting" words which their very utterance incite an immediate breach of peach. No benefit derived from them

libel tourism

the act of suing a writer for alleged defamation in a foreign jurisdiction where there are weaker libel laws -Difficulty of winning defamation suits in the US because of strong protection of first Amendment. has resulted in plaintiffs' looking elsewhere to file lawsuits and the international nature of many media entities increasingly provides plaintiffs with opportunity to do just that -the practice of forum shopping- looking for a jurisdiction in which to sue that might increase one's chances of winnings -Many suits have been brought to Great Britain because there under English Law there is presumption that derogatory comments are false, placing burden on the defendant to comment. Prior knowledge of falsity or reckless disregard for truth, required in some cases like NY times v. Sullivan, is not required in England -Actress Kate Hudson successful sued The National Enquirer for libel in England after its British edition published an article suggesting she had an eating disorder. The late Khalid bin Mahfouz, Irish-Saudi businessman along with two members of his family sued Rachel Ehrenfeld, author of FUnding Evil, a 2003 book on terrorist financing, the book alleged that the Mahfouz family supported Islamic terrorist groups, book had not been published in Britain but had been purchased on websites registered there. He counter-sued US, claiming that the suit in England violated her first amendment rights. Attention focused on this case resulted in new calls for libel reform in England -US- congress has barred US courts, in instances where defamation suit would not be successful under US law, from enforcing libel judgements issued in foreign courts against US residents -Passed the SPEECH Act of 2010- Securing the Protection of our Enduring and Established Constitutional Heritage. NY, CA, illinois and florida have also enacted their own state laws to protect against libel tourism -Trout Point Lodge, Ltd. v. Handshoe 2013- fifth circuit blocked enforcement of Canadian defamation judgement against a Mississippi blogger whose constant criticisms eventually targeted Canadian residents. The plaintiffs won a default judgement against the blogger and asked a Mississippi court to enforce the verdict for hundreds of thousands of dollars. Fifth circuit refused to, noting that in Canada the plaintiffs did not have to prove the blogger's statements were false, which contravenes the First Amendment protection