MEDIA LAW LIBEL EXAM
Negligence definition
failure to use reasonable care, resulting in damage or injury to another
[DEFENSES] Opinion
opinion is not exactly a defense to a libel allegation, but relates to an element of the plaintiff's case based in Gertz v. Welch, Inc --> "no such thing as a false idea"; however pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas Ollman v. Evans (Second Circuit -- 1984) Ollman Test
Distinguish "repetition" from "republication"
Repetition: syndicated column [recurring columns are published in multiple periodical publications (newspapers and magazines)] | [to publish simultaneously, or supply for simultaneous publication, in a number of newspapers or other periodicals in different places] Republication: quoting another article
NYT v. Sullivan -- Several misstatements of fact
Several of the listed sponsors - including four minister who later became defendants in libel suits - had not lent their names to the cause The students sang the Star Spangled Banner instead of My Country 'Tis of Thee Nine students were expelled for a lunch counter protest, not for the on‑campus protest Police were deployed in large numbers near the campus but did not "ring" the campus The dining hall had not been padlocked. Dr. King had been arrested four, not seven, times.
NYT v. Sullivan (through the 7 elements)
False -students sang My Country 'Tis of Thee -Dining hall was padlocked Defamatory Statement of Fact Of and concerning the plaintiff -Sullivan had a hard time arguing that the statements were about him -the court ultimately ruled that it was not about Sullivan Published to a third party -does it matter that the statements were in am ad? Fault -- Actual Malice -Knowledge of falsity or reckless disregard for truth or falsity [NOT ill will like in Falwell v. Flynt] -reckless disregard --> entertaining serious doubts but publishing it anyway -AM standard is subjective -- what did you know and when did you know it? -failure to investigate generally is not sufficient [exception: when information is put in your lap] [information in a clip file is insufficient to prove AM]
Public Figures
public figures are "intimately involved in the resolution of important public questions, or by reason of their fame, shape events in areas of concern to society at large Gertz described two categories of PF: 1. general or all-purpose public figures 2. limited-purpose public figures a person may be a public figure within a limited community or related to a particular issue
Dendrite Test
purpose is to strike a balance between a defamation plaintiff's right to protect his reputation and a defendant's right to exercise free speech anonymously
Statute of limitations
runs from the time that the defamatory statement is first published in NC --> it's 1 year (!!)
3. STATEMENT OF FACT
"there is no such thing as a false idea" (established in GERTZ) is it loose, figurative language or provable/disprovable? the challenged statement may not be pure opinion, in which case it's not 100% protected -MILKOVICH CASE --> established the "provably true or false" test what the audience "correctly, or mistakenly but reasonably, understands it was intended to express"
NYT v. Sullivan -- Sullivan complained about two paragraphs
'In Montgomery, Alabama, after students sang 'My Country, 'Tis of Thee' on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear‑gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re‑register, their dining hall was padlocked in an attempt to starve them into submission.' 'Again and again the Southern violators have answered Dr. King's peaceful protests with intimidation and violence. They have bombed his home almost killing his wife and child. They have *258 assaulted his person. They have arrested him seven times‑‑for 'speeding,' 'loitering' and similar 'offenses.' And now they have charged him with 'perjury'‑‑a felony under which they could imprison him for ten years. * * *'
Section 230 Study Guide Notes
-Cubby v. CompuServe -Stratton Oakmont, Inc. v. Prodigy Services, Co. -The Communications Decency Act, passed by Congress in part to protect the vibrant and free market created by the Internet, created an immunity that precludes plaintiffs' claims against defendants. 47 U.S.C. § 230. -Zeran v. America Online -"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." 47 U.S.C. § 230(c)(1). Moreover, the CDA makes clear that the federal law preempts any state law - statutory or common law - that otherwise would impose liability on a defendant. "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." 47 U.S.C. § 230(e)(3).
Limited-purpose public figures checklist:
1. must step into the spotlight voluntarily 2. must play a role in the resolution of an important public or social controversy 3.tries to influence public opinion in the resolution of the issue (access to the media)
2 main standards of fault
1. negligence 2. actual malice
[DEFENSES] Conditional/Qualified Privilege
An exemption from liability for repeating defamatory works of and concerning another because the original statement was made within the performance of duty such as in judicial or political contents; usually claimed by journalists who report statements made in absolutely privileged situations; this privilege is conditional (or qualified) on the premise that the reporting is fair and accurate
1. FALSITY
-"Truth is an absolute defense" -It is now generally recognized that falsity if an element of a libel case, not that truth is a defense. -By "truth" we do not mean absolute truth in every tiny detail (gist/sting test) -This concerns substantial falsity, not minor inaccuracies -Burden to prove this is on the plaintiff -A statement cannot be held actionable as libelous if the statement is, in fact, true; statements with "slight inaccuracies of expression" do not make the alleged libel false [substantial truth doctrine]
Private Plaintiffs -- Time, Inc. v. Firestone
-A public person may have areas of her life in which she remains a private person -Mary Alice Firestone sued for publication of false information related to her divorce, and she prevailed OYEZ: Mary Alice Firestone filed for divorce from her husband, an heir to the Firestone Tires fortune. He counterclaimed alleging "extreme cruelty and adultery". The court granted the divorce with an ambiguous decree that did not specify the grounds. Time Magazine printed an article reporting that Firestone's extreme cruelty and adultery caused the divorce. Firestone requested a retraction, but Time refused. Firestone sued Time, Inc. for libel in Florida state court. The circuit court entered a judgment in favor of Firestone for $100,000. The Florida District Court of Appeal and the Supreme Court of Florida affirmed. The Supreme Court held that the actual malice standard for media reports on public figures did not apply. Firestone was not a public figure as defined by prior precedent. The Court also held the Florida judgment invalid because the court awarded damages without determining fault. Justice Lewis Powell wrote a concurrence, stating that the ultimate question is whether Time exercised reasonably prudent care in light of the ambiguous divorce decree.
Libel Definition
-A published false statement that is damaging to a person's reputation -WRITTEN defamation -verb: to defame someone by publishing libel
Private Plaintiff (Purely Private Matter) Dun & Bradstreet v. Greenmoss Builders
-D&B inaccurately reported that Greenmoss Builders had filed for bankruptcy -Supreme Court held that when a private plaintiff sued a defendant about matters of purely private concern, constitutional standards might not apply. Damages may be presumed even absent actual malice. OYEZ: Dun and Bradstreet, a credit reporting agency, mistakenly reported to some of its subscribers that the construction contractor Greenmoss Builders had voluntarily filed for bankruptcy. The president of Greenmoss quickly learned about the erroneous report, requested Bradstreet to correct its error, and asked for the list of subscribers who received the report. Bradstreet refused to release the names on the list, but issued a correction to its five subscribers who received the original report. The correction stated that actually a former employee of Greenmoss had filed for bankruptcy and that Greenmoss Builders "continued in business as usual." Greenmoss was dissatisfied with the correction and again asked for the list. When Bradstreet refused a second time, Greenmoss filed suit against it for defamation in a Vermont state court. The court discovered that a 17-year-old high student interning for Bradstreet had caused the error and the jury awarded $350,000 to Greenmoss in compensatory and punitive damages. Bradstreet claimed that contrary to the Supreme Court's ruling in Gertz v. Robert Welch, the trial judge told the jury that it could award punitive damages even if Bradford did not make mistakes intentionally or out of recklessness. The court granted Bradstreet's motion for retrial, but the Vermont Supreme Court ruled that Gertz only applied to cases involving defamation by the media. Although the trial court correctly perceived that the trial judge's instructions did not satisfy the requirements of Gertz, the Court held that Gertz did not apply since the present case did not involve public speech. Instead the Court looked to apply the logic of Gertz to situations concerning private speech. The Court reasoned that laws regulating defamation suits aimed to "balance the State's interest in compensating private individuals for injury to their reputation against the First Amendment interest in protecting this type [Bradstreet's] of expression." Because the First Amendment offers less protection to private speech than to public speech, and especially less to speech "being solely motived by a desire for profit," damages caused by it can result in heavier penalties and broader conditions for convictions. Therefore states can allow the recovery of punitive damages in defamation cases involving private speech even when the perpetrator does not demonstrate "actual malice."
What's defamatory?
-If a "substantial and respectable minority" of the community consider it defamatory, it is (!!) Examples of what has changed: 1. mistaken statements about race 2. mistaken statements about sexual orientation [explain these!!]
Private Plaintiffs: Wolston v. Reader's Digest
-Ilya Wolston, who refused to testify in the McCarthy hearings, sued Reader's Digest for their coverage of the hearings. -Supreme Court held Wolston not a public figure because he was "dragged unwillingly" into the controversy OYEZ: In 1957 and 1958, Ilya Wolston's aunt and uncle, Myra and Jack Soble, were the subject of an investigation to find Soviet intelligence agents in the United States. On one occasion, Wolston failed to respond to a subpoena and pleaded guilty to a contempt charge. The incident was publicized in newspapers, but Wolston succeeded in returning to life as a private citizen. In 1974, Reader's Digest Association published a book by John Barron about the KGB and Soviet agents in the United States. The book and its index identified Wolston as a Soviet agent. Wolston sued the author and publishers for libel in district court. The district court granted summary judgment for the Association and held that Wolston was a "public figure" and had to prove the Association acted with actual malice to prevail in a libel suit. The Court of Appeals for the District of Columbia Circuit affirmed. The Supreme Court held that Wolston met neither of the requirements to be considered a public figure. Wolston was not a figure of "persuasive power and influence," nor did he thrust himself to the forefront of popular controversy. The Court held that an individual does not become a public figure merely by attracting public attention, and such individuals should not lose the protection afforded to private individuals.
5. PUBLICATION TO A THIRD PARTY
-Publication does not mean "publication" (you do not have to actually disperse the statement via mass media outlets for it to be "published" to someone else) -publication requires communication to only one, third person (you cannot libel someone to their face) (the statement need to be heard/read by only ONE other person) compelled self-publication -emerging theory that if you put someone in a position to be forced to repeat your defamatory statement about himself, this may be publication newspaper vendors do not republish; newspapers do accurate quotation of the statement does not negate the libel --> accurate quotation of libelous statement is libelous itself single publication rule [defined on next card]
[DEFENSES] Fair Comment and Criticism
-Second-cousin to opinion -A common law privilege that protects critics from lawsuits brought by individuals in the public eye -Protects criticism based on facts that are stated, privileged or known to the public ppt: -based on the idea that some people in the public eye invite criticism and comment (this is not a very strong or commonly invoked defense)
Slander Definition
-The action or crime of making a false SPOKEN statement damaging to a person's reputation -verb: to make false and damaging statements about someone
Group Libel
-The law requires that a libel plaintiff prove that the challenged statement was about him or her -That becomes difficult when a group as a whole is identified -Courts (not in NC but elsewhere) have held that members of a group of 25 or fewer can argue that the statements was about them -If plaintiff is a member of a larger group, it's harder to say that the statement is about them
Emotional Distress
-To win an intentional infliction of emotional distress suit, a plaintiff must show the defendant acted in a outrageous way that caused severe emotional distress The U.S. Supreme Court has held that public officials and public figures bringing suits for intentional infliction of emotional distress must prove ACTUAL MALICE A plaintiff suing for negligent infliction of emotional distress must prove the defendant owed plaintiff a duty to act with due care Plaintiffs rarely win negligent infliction of emotional distress lawsuits against the media because the media rarely can know to whom in their audiences they would owe a duty
Gist/sting test
-Would the gist of the truth be much different from the gist of the mistake? -If not, there is NO libel -Only the gist/sting of a statement must be correct
Actionable
-giving sufficient reason to take legal action -able to be done or acted on; having practical value -capable of giving rise to winning a case
4. OF AND CONCERNING THE PLAINTIFF
-must actually be about the plaintiff -plaintiff must be identified, but they need not be identified by name plaintiff cannot simply complain that a group of which she is a member of was libeled -no apple growers, commercial net fishermen or entire races -25 or more probably constitute a group too large to sue)
Anonymous speech (week 9 powerpoint)
-must find the correct speaker in order to successfully sue for libel -dendrite test
Publication
-often what the media do, that is, republish another's statements -a republisher is as responsible for distributing libelous material as is the originator vendors & distributors -selling or distributing is not the same as publishing -sellers and distributors (ex: bookstore) are not expected to know the content of everything they distribute -federal law says ISPs are distributors, NOT PUBLISHERS, and therefore not liable for libel
Libel per quod
-publications not obviously defamatory but when considered with innuendo, colloquium, and explanatory circumstances become libelous --> libel per quod -When a statement is only libelous when considered in connection with additional information 1. the plaintiff must prove the surrounding circumstances that make it defamatory 2. the plaintiff must prove SPECIAL DAMAGES (i.e. $$$$)
Statements capable of 2 meanings
-publications susceptible of two interpretations, one of which is defamatory and one is not -in an action upon a publication coming within the second class, that is, a publication which is susceptible of two interpretations, one of which is defamatory, is it for the jury to determine under the circumstances whether the publication is defamatory and was so understood by those who saw it
6. FAULT
-remember that under old law, fault was irrelevant -now, fault depends upon the "status" of the plaintiff and the damages sought -public officials and figures must prove AM -private figures only need to prove negligence (unless they seek presumed or punitive damages)
Neutral Reporting Case -- Edwards v. National Audubon Society, Inc.
-statement must be made by a reputable source -reporting must be accurate and disinterested -first major case in which the idea of neutral reportage was used -The case concerned the reporting of a dispute between the National Audubon Society and a group of scientists that it had accused of being paid to lie by pesticide companies regarding the effects of pesticides on birds. The New York Times, while attempting to report both sides of the dispute, was sued by several of the scientists. A federal appellate court recognized that the reporting was both neutral and in the public interest
Libel per se
-statements published that are OBVIOUSLY defamatory on their face A statement is presumed to be defamatory if it is one of several "kinds" of statements: 1. Commission of a crime 2. Infection with a loathsome disease 3. Malfeasance on the job 4. Unfitness for one's job [5. fornication/adultery/unchastity of a woman] -when a publication is libelous per se, damage is presumed
Fair Report Privilege Checklist
1. Accurate 2. Fair or balanced 3. Substantially complete 4. In some states, lack of actual malice is a factor
Ollman Test
1. Analyze the common usage/meaning of the words. 2. Assess if the statement is verifiable, "objectively capable of proof or disproof." 3. What is the journalistic context of the statement? 4. What is the social context of the statement?
Types of damages
1. Compensatory ($$$) 2. Presumed (do not require proof of injury or harm -- usually naturally result from a tortious act) 3. Punitive (beyond money and harm, this is about punishing the person who libeled you -- what they said was no bad they have to be sure this person is unable to do this again)
AM Public Figures Cases (4)
1. Curtis Publishing Co. v. Butts 2. AP v. Walker 3. Rosenbloom v. Metromedia, Inc. 4. Gertz v. Robert Welch, Inc.
Pre-Sullivan (Old) Rules To constitute libel, only three elements existed:
1. Did the defendant make the statement? 2. Was it about the plaintiff? 3.Was it damaging?
(Current) 7 elements of libel:
1. False 2. Defamatory 3. Statement of fact 4. "Of and concerning" the plaintiff 5. Published to a third person 6. That is made with fault 7. And causes injury
List of Libel Defenses
1. Plaintiff's failure on any element 2. Neutral reportage 3. Fair report privilege 4. Wire service defense 5. Communications Decency Act
4 instances where the actual malice standard applies
1. Public officials 2. Public figures 3. Anyone seeking punitive damages 4. Anyone seeking presumed damages in a matter of public concern
Two ways to go about libel cases
1. demonstrate that the plaintiff cannot prove one of his or her elements 2. prove one of the defenses
[DEFENSES] Absolute Privilege
A complete exemption from liability for the speaking or publishing of defamatory works of and concerning another because the statement was made within the performance of duty such as in judicial or political contexts
Importance of summary judgement
Especially important to libel defendants Cuts off the discovery/the expense of trial and cuts off the risk A court will enter summary judgement if it appears that there are no disputed issues of material fact and one party is entitled to prevail
Application of Section 230 Immunity
Applies to ISPs and Websites if: 1. the ISP/website is a content distributor and not a content creator 2. the ISP/website did not interact directly with the content 3. also -- when ISPs/websites correct, edit, add, or remove content -- so long as they don't substantially alter the meaning of the content 4. ISPs/websites solicit or encourage users to submit content 5. ISPs/websites pay a third party to create or submit content 6. ISPs/websites provide forms or drop-downs to facilitate content submission by users -- so long as the forms and drop-downs are neutral
[AM PF] Curtis Publishing v. Butts (1967)
Article in the Evening Post reported that Wally Butts and Bear Bryant struck a deal to "fix" a football game
[AM PF] AP v. Walker (1967)
Article reported that Walker had taken command of a violent crows and had led a charge against federal marshals
Damages
Compensatory -- for actual loses punitive -- to punish outrageous conduct
2. DEFAMATORY
Distinguish DEFAMATORY from "defamatory" -"defamatory" means that the statement has a damaging effect on someone's reputation -this does not mean that the statement is ACTIONABLE -plaintiff must still prove all other elements examples: 1. Plaintiff in Cline case complained about a statement that wasn't even defamatory 2. Plaintiff sued for publication of a statement regarding her past of misstating facts to judges to win cases -This was clearly defamatory, however, it was not actionable because it was true and it was protected by the fair report privilege (there were court filings that documented this) -- so it was defamatory, but not actionable defamation, because she couldn't prove all other elements; also the lawyer had defenses
Daniels v. Metro Magazine -- NC Court of Appeals -- (2006)
Facts: Bernie Reeves' car was stolen, recovered and then totaled by the police department. He wrote a piece reflecting his contempt for Sybil, the Progressive Insurance agent he dealt with about that. -After accusing me of stealing my own car-she actually did-Sybil lapsed into bureaucratic order-giving that would put former Soviet security police to shame. She announced she was switching on her tape recorder with a tone that suggested she was on to me and the tape would tell the tale. -In effect, I screamed at Sybil-you are taking my car from me. In that quiet Gestapo voice, she let me know that there would be an investigation, again hinting that I had stolen my own car. Right about here in the story my agent returned to town and prevented Sybil from taking me to the gas chamber and things settled down until the next day when Sybil announced that the car was not a total loss. [went on and on] Plaintiff contended the essay maligned her in her profession and "g[ave] the impression that [she was] unethical, unprofessional, unscrupulous, an extremist and a communist." Holding: -"In determining whether a statement can be reasonably interpreted as stating actual facts about an individual, courts look to the circumstances in which the statement is made." -The majority of the statements to which plaintiff objects are clearly matters of personal opinion, or alternatively, hyperbole no reasonable reader would believe. For example, whether or not plaintiff spoke in a "sinister" or "Gestapo" voice is a matter of Reeves' opinion, incapable of being proven or disproved. Indeed, it is unclear what Reeves means by a "Gestapo" voice or what such a voice would sound like." Importance: -? perhaps above?
Hustler v. Falwell (1988)
Facts: -Campari ad campaign included double entendre if celebrities describing their "first time" -Hustler Mag. did a parody that contained an alleged "interview" with Falwell in which he states that his "first time" was during a drunken incestuous rendezvous with his mother in an outhouse -Fine print: "ad parody -- not to be taken seriously" -Falwell sued to recover damages for libel, invasion of privacy, and intentional infliction of emotional distress -Falwell won a jury verdict on the emotional distress claim and was awarded a total of $150,000 in damages. Hustler Magazine appealed Holding: -In a unanimous opinion the Court held that public figures, such as Jerry Falwell, may not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement of fact which was made with "actual malice." -The Court added that the interest of protecting free speech, under the First Amendment, surpassed the state's interest in protecting public figures from patently offensive speech, so long as such speech could not reasonably be construed to state actual facts about its subject Importance: -
Harte-Hanks Communications v. Connaughton (1989)
Facts: -Conn. ran against the incumbent for Municipal Just of Hamilton, OH -1 month before the election, incumbent's director resigned and was arrested for bribery charges -Journal News (owned by HH Comm) published a front-page story about the grand jury investigation -Story quoted a grand jury witness who accused Conn. of 'dirty tricks' and offering her bribes in exchange for assistance w the investigation -Newspaper endorsed the incumbent judge -Conn. sued HH Comm and alleged that the article was false, damaged his reputation, and was published maliciously -newspaper failed to interview the single witness who could confirm the story -newspaper was given a recording that disproved what they were publishing, but they never listened to it -evidence that the newspaper purposefully avoided the truth Holding: - Court ruled in favor of Conn. -The Court held that a public figure plaintiff in a libel case must prove that the libelous statement was false or made without any regard for its truth. The fact that the newspaper failed to interview one of the main witnesses to the supposed bribery strongly indicated a disregard for the truth of the story. Although there were many reasons to doubt the truth of the accusations against Connaughton, the newspaper failed to properly investigate, so the act of publishing the story constituted actual malice -Justice Byron R. White wrote that the Court did not overstep its bounds by looking at the facts of the case in order to determine whether or not the newspaper exhibited actual malice Importance: -established that reckless disregard can be concluded from the record as a whole -early case in defining AM
Associated Press v. Walker (1967)
Facts: -Dispatch reports of rioting that occurred on the campus of U Mississippi in 1962 -Dispatches reported that Walker (private citizen and political activist) had personally led a violent crowd attempting to prevent federal marshals from enforcing the court-ordered enrollment of an African American -AP said Walker was encouraging the rioters -Walker denied this report and filed a libel suit in the state courts of Texas Holding: -Jury found in Walker's favor, but the judge in the case refused to award punitive damages, finding that there was no malicious intent -Judge specifically noted that NY Times was inapplicable -Texas Court of Civil Appeals agreed -Supreme court of Texas denied to hear the case -Court denied Walker's claim to damages Importance: -AP relied on a correspondent on the scene of an event that was immediately newsworthy -Contrast to Butts story --> in this case, the news was timely and called for immediate publication -reporter himself was present during the events described -the story was not inherently unbelievable or unreliable
Gerz v. Robert Welch, Inc. (1974)
Facts: -Gertz was an attorney hired by a family to sue a police officer who had killed the family's son. -In a magazine called American Opinion, the John Birch Society accused Gertz of being a "Leninist" and a "Communist-fronter" because he chose to represent clients who were suing a law enforcement officer -statements about Gertz were seriously inaccurate (he had no criminal record, his memberships were largely inaccurately described, etc) -Managing editor made no attempt to verify the article but included an editor's note that said extensive research had been done on the Nuncio case Holding: -trial court found that Gertz was not a public official OR a public figure Gertz won a jury verdict and an award of $50,000 but lost his libel suit because the trial judge found that the magazine had not violated the actual malice test for libel which the Supreme Court had established in New York Times v. Sullivan (1964) Importance: -established that there is "no such thing as a false idea" -- however pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other idea -There is no constitutional value in false statements of act -Neither the intentional lie nor the careless error materially advances society's interest -Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate >>>>>> This case also created the concept of a limited purpose public figure → must prove actual malice Truly private plaintiffs must prove at least negligence -A state could create a higher standard, but not a lower one -Plaintiffs wanting presumed damages or punitive damages must prove actual malice [this case established a lot of ish]
Masson v. NY Magazine (1991)
Facts: -Janet Malcom wrote a piece about Jeffrey Masson (fired from his position at the Sigmund Freud Archives) that was published in two parts by The New Yorker Article presented Masson as extremely arrogant and condescending -Malcom fabricated many distasteful quotes -Alfred Knopf, Inc., published the entire work as a book (In the Freud Archives) -Malcom conducted hours and hours of interviews with Masson and recorded most or all of those interviews -There were 40 hours of taped interviews, and SCOTUS noted that in none of those hours was there a statement that matched exactly what was printed -Petitioner complained that Malcom fabricated all but one passage -Masson sued for libel [actual malice under the NYTimes standard should not be confused with the concept of malice as an evil intent or motive arising from spite or ill will] Holding: -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 -"We reject that any alteration beyond correction of grammar or syntax by itself proves falsity in the sense relevant to determining actual malice under the FA" -If an author alters a speaker's words but affects no material change in meaning, including any meaning conveyed by the manner or fact of expression, the speaker suffers no injury to reputation that is compensable as a defamation -overlooks minor inaccuracies and concentrates on substantial truth -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 Importance: -FA limits libel suits by public figures -Said that a report about a public figure cannot be considered 'false' unless it is a gross distortion of the truth -Justice Kennedy explained that the direct quotation will qualify as such a distortion if the quoted words differ in their factual meaning from anything the public figure really said "gross distortion"; gist/sting test
Milkovich v. Lorrain Journal (1990)
Facts: -Milkovich is a high school wrestling coach -a recent meet had resulted in a brawl and the coach, in court testimony, denied having incited the brawl -Article in local newspaper accused Milkovich of starting the fight and said he lied under oath at the hearing -Milkovich sued the paper and writer for defamation, alleging that the article accursed him of perjury, damaged his occupation, and constituted libel -Court ruled in favor of the paper because Milkovich failed to show the article was published with actual malice Ohio Court of Appeals reversed and remanded -Trial court also ruled in favor of the paper (said article was a constitutionally-protected opinion) -The Ohio Court of Appeals affirmed, but the Supreme Court of Ohio reversed and remanded Holding: -Supreme Court of Ohio held that Milkovich was not a public figure and the defamatory statements were factual assertions, not constitutionally-protected opinions Importance: -Supreme Court held that there is no special constitutional privilege for opinions -he Supreme Court held that there is no special constitutional privilege for opinions. The statements in the newspaper were sufficiently factual to be proved true of false. -Justice William J. Brennan wrote a dissent, expressing that the statements could not reasonably be interpreted as defamatory. Justice Thurgood Marshall joined in the dissent >>>if something can be proven true or false, it is NOT an opinion
Ollman v. Evans -- Second Circuit -- (1984)
Facts: -Ollman was offered a job at U. Maryland -Evans and Novak wrote a column in the newspaper entitled "Marxist Professor's Intentions." Ollman claimed the column led to the withdrawal of the job offer, so he sued Evans for $6 million Holding: -Justice Starr read the majority favoring Evans -Created O. test Importance: -Ollman test was created in this case Ollman test has 4 parts that looks at: 1. Verifiability 2. Common meaning 3. Journalistic context 4. Social context
St. Amant v. Thompson (1968)
Facts: -Phil St. Amant was a candidate for public office -In a TV speech broadcast (Baton Rouge), he accused his opponent of being a Communist involved in criminal activities with Teamsters -Amant implicated that Thompson (Baton Rouge deputy sheriff) was involved in a scheme to move money between the Teamsters Union and St. Amant's political opponent -Thompson successfully sued Amant for defamation (Louisiana's First Circuit Court of Appeals reversed, holding that Thompson did not show St. Amant acted with "malice.") -- Thompson appealed Thompson's argument for AM was that Amant: -had no personal knowledge of Thompson's activities -had solely relied on somebody else's affidavit without knowing that person's reputation for veracity -gave no consideration to whether or not the statements defamed Thompson Holding: -Supreme Court of Louisiana held that, although public figures forfeit some of their First Amendment protection from defamation, St. Amant accused Thompson of a crime with utter disregard of whether the remarks were true -that court held that the First Amendment protects uninhibited, robust debate, rather than an open season to shoot down the good name of anyone who happens to be a public servant Importance: -SCOTUS said that AM does not lend itself to a precise definition (it's case-by-case) -Statement at issue must have been made with a 'high degree of awareness' of its 'probably falsity' -Established that there MUST BE EVIDENCE to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication ** it is not enough to just testify that you thought it was true -recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports
Greenbelt Co-op Pub. Ass'n v. Bresler (1970)
Facts: -Reporter covered a city council hearing where Bresler was trying to obtain variances to build a high-density housing development on land he owned while the city was seeing to purchase a parcel owned by Bresler that would be the site of a new high school -Bresler indicated that he would be willing to sell the property the city wanted as long as he received the variances he was seeking -esidents at the hearing were critical of the deal and of the way that Bresler was using the leverage he had in delaying the sale of the proposed high school property to obtain the right to build more densely on the properties he owned -Article quoted resident saying that "It seems that this is a slight case of blackmail" continuing to state that "the word was echoed by many speakers from the audience" a charge that was rejected in the article by a city council member who said that this was not blackmail, but was part of a negotiations process that was "a two-way street" -Bresler filed a lawsuit in Prince George's County circuit court claiming that the allegations and use of the word "blackmail" constituted libel, and a jury found in his favor, awarding him $5,000 in compensatory damages and $12,500 in punitive damages Holding: -Held that using the word "blackmail" in a newspaper article about a public figure "was no more than rhetorical hyperbole" and that finding such usage as libel "would subvert the most fundamental meaning of a free press Importance: -
Rosenbloom v. Metromedia, Inc. (1970)
Facts: -Rosenbloom distributed nudist magazines in the Philadelphia area -Police arrested him at his home on obscenity charges and seized several of the magazines -A local news broadcast, run by Metromedia, Inc., reported on the arrest, but failed to use the words "allegedly" or "reportedly" in during one broadcast. -In subsequent broadcasts, the reporters called Rosenbloom and other similar distributors "girlie look peddlers" and "smut distributors". -Eventually, Rosenbloom was acquitted on the obscenity charges -Rosenbloom then sued Metromedia for libel Holding: -The district court held that the First Amendment standard, which allowed recovery of damages only for knowingly and recklessly false statements, did not apply because Rosenbloom was not a public official or figure -The court instead instructed the jury to award damages where Metromedia did not use reasonable care to discern the truth before broadcasting. The jury awarded Rosenbloom general and punitive damages, although the district court reduced the punitive damages. The U.S. Court of Appeals for the Third Circuit reversed, holding that the knowingly and recklessly false standard applied -The Supreme Court held that the knowingly and recklessly false standard applied because the story was a matter of public concern. Importance: -?? (above)
Curtis Publishing Co. v. Butts (1967)
Facts: -Saturday Evening Post published an article about an attempted "fix" to a college football game -The 'source' said he has been patched into a call between Wally Butts (AD at UGA) and Alabama's Bear Bryant and that they were arranging the fix in favor of Alabama -"source" said he had careful notes, but the magazine never asked to review them -No other sources were consulted at all -Magazine did not check the source's credibility (he had a criminal record) -Butts brought and won the libel suit against Curtis Publishing, but Curtis asked for a new trial -Trial rejected this because he said that Butts was not a public official Holding: -SCOTUS said that the evidence is ample to support a finding of highly unreasonable conduct constituting an EXTREME DEPARTURE from the standards of investigation and reporting ordinarily adhered to by responsible publishers Importance: -Court reasoned that public figures who are not public officials may recover damages for libel stemming from false reports based on "highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers." -The Court concluded that Curtis' investigation of its allegations against Butts failed to meet this standard. The company printed a questionably reliable source's allegations without any attempt to verify his claims, and the story in question was not a pressing event or immediately newsworthy. -The Court thus affirmed the lower courts' denial of a retrial
Lacomb v. Jacksonville Daily News (2001)
Facts: -Story published in the paper regarding the delinquency of a minor -Couple accused of encouraging smoking, drinking, sexual acts with 15 year old boy and 16 year old girl Holding: -The fair report privilege - which is conditional - is derivative of the absolute privilege that attaches to statements made "in the due course of a judicial proceeding." -This privilege remains intact so long as the publication is confined to a substantially accurate statement of the facts and does not comment upon or infer probable guilt of the person arrested -Reiterates, "[s]substantial accuracy is therefore the test to apply when a plaintiff alleges defamation against a member of the media reporting on a matter of public interest, such as an arrest Importance: -You can use any police report in article as long as you aren't passing judgement in your reporting Underscores that minor inaccuracies are not enough to be false, must have substantial accuracy If the official record is wrong, but it's reported accurately, then it's not the reporter's fault
Zeran v. America Online -- Fourth Circuit -- (1997)
Facts: -Zeran sought to hold AOL responsible for postings by a third party promoting "Naughty Oklahoma T-shirts" that bore offensive slogans related to the bombing of the federal building in Oklahoma -This message posted Zeran's phone number even though he did not post the content or have anything to do with it at all -Zeran was inundated with hostile and threatening phone calls -Zeran alerted AOL, requesting the posting be removed -AOL removed the post but would not post a retraction -Even though Zeran plead his claims as those of negligence, they are indistinguishable from a garden variety defamation action Holding: -Said that because publication of a statement is a necessary element in a defamation action, only one who publishes can be subject to this form of tort liability Importance: -Established that no provider or user of an ISP shall be treated as the publisher or speaker of any information provided by another information content provider
Dendrite International, Inc. v. Doe No. 3, NJ Trial court (2001)
Facts: -a New Jersey Superior Court case in which Dendrite International, Inc., a purveyor of computer software used in the pharmaceutical industry, brought a John Doe lawsuit against individuals who had anonymously posted criticisms of the company on a Yahoo message board. -When Presiding Chancery Judge Kenneth MacKenzie rejected one of Dendrite's requests to compel Yahoo to reveal the identity of an anonymous defendant, Dendrite appealed. The appellate court upheld the district court's decision, and in doing so, created a set of guidelines for determining the circumstances under which an anonymous online speaker may be unmasked Holding: -Plaintiff must make certain threshold showings before stripping away constitutionally protected anonymity Importance: -Found that a party must make a prima facie showing of evidence as to every element of the alleged cause of action -Court then will 'balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed' >>>You can only figure out who wrote the anonymous speech if you can prove to the court that you have a legit libel claim (plausible case on all 7 elements) >>>Courts: you have the right to be anonymous, but it someone can forecast (prima facie) they can prove a libel case, then anonymous poster can be unmasked
Summary Judgement Definition
In law, a summary judgment (also judgment as a matter of law) is a judgment entered by a court for one party and against another party summarily, i.e., without a full trial. Such a judgment may be issued on the merits of an entire case, or on discrete issues in that case
Opinion Case: Ollman v. Evans (1984)
Ken Starr and Antonin Scalia wrote the majority and dissenting opinions In 1977, Ollman was offered a job at University of Maryland. Rowland Evans and Robert Novak wrote a column in the newspaper entitled the "Marxist professor's intentions". Ollman claimed the cloumn let to the withdrawal of the job offer, so he sued Evans for $6 million. Justice Kenneth Starr read the majority ruling favoring Evans, and created the Ollman test
Section 230 of the Communications Decency Act (CDA)
Landmark piece of Internet legislation in the US that provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by others "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." 3-Prong Test 1. the defendant must be a "provider or user" of an "interactive computer service" 2. The cause of action asserted by the plaintiff must treat the defendant as the "publisher or speaker" of the harmful information at issue 3.The information must be "provided by another information content provider," i.e., the defendant must not be the "information content provider" of the harmful information at issue
Anti-SLAPP statutes
Laws to throw out cases that are filed merely to harass critics or quell public participation (aka political speech)
Libel law (purpose)
Libel law is all about balancing the rights of a free press and freedom of speech against an individual's interest in his or her reputation SCOTUS said "under the FA, there is no such thing as a false idea" They also said, however, that "there is no constitutional value in false statements of fact"
NC's Retraction Statute
NCGS § 99‑1 -A plaintiff must give notice to a publisher at least five days before filing suit, specifying the statements alleged to be false NCGS § 99‑2 -If it appears the publication was made in good faith and -Within 10 days of notice the publisher publishes "a full and fair correction, apology and retraction" in the same edition or corresponding issues in as conspicuous place and type as original appeared -The defendant can recover only actual damages.
[DEFENSES] Plaintiff's failure on any element
Proof by a defendant that the plaintiff has not proven or cannot prove any single element of the plaintiff's prima facie case constitutes a complete defense generally, the plaintiff must prove elements by a preponderance of the evidence [Exception --> Actual malice must be proven with convincing clarity: "Strong, positive and free from doubt"
[DEFENSES] Truth
Substantial truth is what is required --> gist or sting test (described earlier) Philadelphia Newspapers, Inc. v. Hepps held that in cases involving matters of public concern, even private plaintiff must prove falsity In NC, all plaintiffs must prove falsity
NYT v. Sullivan -- Alabama Supreme Court
The Ala. Supreme Court affirmed the trial court -Found the advertisement libelous per se, hence presumtively false and damaging -Found statements were "of and concerning" Sullivan -Found the $500,000 not excessive -The NYT had shown "irresponsibility," since articles in the news files "would have demonstrated the falsity of the allegations in the ad." -"The First Amendment of the U.S. Constitution does not protect libelous publications."
NYT. Sullivan -- Local Treatment
The Alabama Journal wrote an article about the ad. -L.B. Sullivan was a city commissioner for Montgomery, Alabama, and was "in charge of" the police in Montgomery. -Sullivan considered the advertisement to be about him, since it mentioned the Montgomery police. Sullivan wrote a letter to the NYT demanding a retraction. The NYT's law firm wrote Sullivan back, stating: -"We ... are somewhat puzzled as to how you think the statements reflect on you." -[So far, the paper's investigation revealed that the statements were] "substantially correct with the sole exception that we find no justification for the statement that the dining hall in the State Colleges was 'padlocked in an attempt to starve them into submission.'" Four days later Sullivan sued the New York Times.
NYT v. Sullivan -- Supreme Court Decision
The Court rejected the Alabama Supreme Court's decision that the case was not subject to the First and Fourteenth Amendments. -"Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only, though supplemented by statute."' "The second contention is that the constitutional guarantees of freedom of speech and of the press are inapplicable here, at least so far as the Times is concerned, because the allegedly libelous statements were published as part of a paid, 'commercial' advertisement. . . . The publication here was not a 'commercial' advertisement in the sense in which the word was used in Chrestensen. "[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide‑open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." "That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the 'breathing space' that they 'need * * * to survive,' was also recognized by the Court of Appeals for the District of Columbia Circuit . . ." -"A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions‑‑and to do so on pain of libel judgments virtually unlimited in amount‑‑leads to a comparable 'self‑censorship.'" -Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about 'the clearer perception and livelier impression of truth, produced by its collision with error.' "The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'‑‑that is, with knowledge that it was false or with reckless disregard of whether it was false or not." -Court notes that such a standard has been recognized by some states, and the first citation is to Ponder v. Cobb, 257 N.C. 281, 299, 126 S.E.2d 67, 80 (1962). The Court noted that public officials enjoy an immunity in what they say in public office, and the Court finds it only appropriate that "[a]nalogous considerations support the privilege for the citizen‑critic of government. It is as much his duty to criticize as it is the official's duty to administer." "We hold today that the Constitution delimits a State's power to award damages for libel in actions brought by public officials against critics of their official conduct. Since this is such an action, the rule requiring proof of actual malice is applicable." "While Alabama law apparently requires proof of actual malice for an award of punitive damages, where general damages are concerned malice is 'presumed.' Such a presumption is inconsistent with the federal rule." "Finally, there is evidence that the Times published the advertisement without checking its accuracy against the news stories in the Times' own files. The mere presence of the stories in the files does not, of course, establish that the Times 'knew' the advertisement was false, since the state of mind required for actual malice would have to be brought home to the persons in the Times' organization having responsibility for the publication of the advertisement." "We also think the evidence was constitutionally defective in another respect: it was incapable of supporting the jury's finding that the allegedly libelous statements were made 'of and concerning' respondent." Court quotes the Ala. Supreme Court: -"We think it common knowledge that the average person knows that municipal agents, such as police and firemen, and others, are under the control and direction of the city governing body, and more particularly under the direction and control of a single commissioner. In measuring the performance or deficiencies of such groups, praise or criticism is usually attached to the official in complete control of the body.'" Supreme Court finds "This proposition has disquieting implications for criticism of governmental conduct.
NYT v. Sullivan -- In Summary
The First Amendment applies to civil actions for libel. Criticism of government must be afforded "breathing space" and error is inevitable. In order to recover for libel, a public official must prove actual malice. Sullivan could not prove actual malice. -"Clip file" didn't demonstrate knowing falsity. Sullivan could not prove statement was "of and concerning"
Opinion Case: Milkovich v. Lorrain Journal (1990)
The First Amendment does not require a separate "opinion" privilege limiting the application of state defamation laws. Where a media defendant is involved, a statement on matters of public concern must be provable as false before liability can be assessed, thus ensuring full constitutional protection for a statement of opinion having no provably false factual connotation. -Essentially adopted the second prong of the Ollman test: verifiability as true or false. Statements that cannot reasonably be interpreted as stating actual facts about an individual are protected -If the "opinion" implies defamatory facts, and those facts are false, the "opinion" can be libelous.
[AM] Hustler v. Falwell (1988)
The First and Fourteenth Amendments prohibit public figures and public officials from recovering damages for the tort of intentional infliction of emotional distress by reason of the publication of a caricature such as the ad parody at issue without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. The ad parody did not state actionable facts. A plaintiff cannot avoid the actual malice standard by arguing a different legal theory. Ill will and hatred do not equal actual malice.
NYT v. Sullivan -- The Trial
The NYT challenged the lawsuit at the outset on the basis that, as a New York corporation with very limited circulation in Alabama, it could not be hailed into court in Alabama. This argument lost. Approximately 394 copies of the edition of the Times containing the advertisement were circulated in Alabama. The NYT challenged the suit at trial on the grounds that: -The paper wasn't on "notice" that the ad was wrong (a)The ad was placed by an ad agency with a transmittal letter from an individual known to the NYT staff -The contents of the ad didn't put the NYT staff on notice that it was wrong -The statements were not about L.B. Sullivan -Sullivan did not suffer any injury from the ad The judge charged the jury on a strict liability basis -Charged the jury that the statements were libelous per se -Statements presumed to be false, which could only be overcome by a showing of truth (a) The NYT had conceded falsity of the padlock issue (b) Damage was presumed. -Only questions for the jury (a) Did the NYT publish the statements? (b) Were they about L.B. Sullivan? (c) If so, how much money should he be awarded? After 20 minutes, the jury returned a verdict for Sullivan in the amount of $500,000
Libel Proof Plaintiff
The are some rare occasions in which the argument can be made that the plaintiff is libel-proof, that there is nothing you can say that would damage his reputation because it's already so bad 1. The first theory, incremental harm, is that what you published is only slightly worse than the truth. This is similar to the issue of substantial accuracy. 2. The second theory, which is issue specific, is that truthful information already published has so tarnished the plaintiff's reputation that it cannot be hurt any further.
[DEFENSES] Neutral Reportage
The defense: -operated on the principle that media should be able to report on certain statements simply because they have been made -has never been recognized by SCOTUS but has been referenced -common law defense against libel and defamation lawsuits usually involving the media republishing unproven accusations about public figures -limited exception to the common law rule that one who repeats a defamatory statement is just as guilty as the first person who published it -for the defense to succeed, it is almost always required that the reporting is unbiased and in the public interest
Butts & Walker
decided the on the same day by SCOTUS EXTENDED ACTUAL MALICE STANDARD TO PUBLIC FIGURE PLAINTIFFS
NYT v. Sullivan -- Others Involved
The governor of Alabama wrote a similar letter requesting a retraction. The NYT published a story apologizing to the governor. Two weeks later, the governor sued for $1 million. Also named in the lawsuits were four minister whose names appeared on the advertisement. -The inclusion of the ministers prevented the NYT from "removing" the case to federal court. No diversity of citizenship. -None of the ministers sued had given permission for their names to be used. The NYT was sued by several plaintiffs, totalling $3 million in claimed damages.
[AM PF] Rosenbloom v. Metromedia, Inc. (1971)
extended the Butts/Walker principles to cases involving matters of public or general interests THIS PRINCIPLE WAS OVERTURNED BY SCOTUS IN GERTZ CASE
3 types of Statements
[come from Renwick v. News and Observer] 1. Libel per se 2. Statements capable of two meanings 3. Libel per quod (must plead innuendo and special damages)
Plaintiff
a person who brings a case against another in a court of law
[DEFENSES] Innocent Construction Rule
allegedly libelous words that are capable of being interpreted, or construed, to have an innocent meaning are not libelous, so long as that interpretation is a reasonable one not all states recognize this; NC hasn't been addressed
Defendant
an individual, company, or institution sued or accused in a court of law
[DEFENSES] Fair Report Privilege
based on principle that reporting privileged statements should be privileged potentially "covers" statements made by public officials, in public documents, by individuals in public proceedings requires: fair and substantially accurate report of the statement powerpoint: The source of the information must be "official" The report must fairly and accurately reflect the official record/proceeding -Some states add that the report must be "complete" -Some states add that the news report must identify "on the record" the official record -based on the idea that keeping citizens informed about matters of public interest is very improtant -reporters need breathing room to report on official conduct/official information -we rely, in part, on the context of the "original statement"
NY Times v. Sullivan (1964) -- Heed Their Rising Voices (Ad)
began with a civil rights advertisement published in the New York Times -The advertisement outlined the efforts of civil rights activists throughout the South, including specific descriptions of a violent incident in Orangeburg, SC arising from a lunch counter protest, and events on the campus of Alabama State College in which students protested. -The ad described the Rev. Dr. Martin Luther King's leadership of non‑violent protests. -The ad said Dr. King's protests had been met with "intimidation and violence," as well as prosecutions for speeding, loitering, and perjury. The advertisement called for contributions to the committee to defend Dr. King The advertisement listed many "sponsors" of campaign, including Nat King Cole, Sammy Davis, Jr., Sidney Poitier, Jackie Robinson and Mrs. Eleanor Roosevelt. The advertisement also listed many ministers as sponsors of the campaign.
NYT . v. Sullivan -- Slide Takeaways
constitution guarantees a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement is made with ACTUAL MALICE -- (with the knowledge that it was false or with reckless disregard of whether it was false or not
General or all-purpose PF
have achieved fame or notoriety in their communities or are pervasively involved in affairs of society -a person who enjoys fame or possesses such power and influence as to be deemed a public figure for all purposes MUST PROVE ACTUAL MALICE [Ex: ???]
Limited-purpose PF
have thrust themselves to the forefront of particular controversies in order to influence the resolution of issues involved [Ex: ???]
Actual Malice definiton
knowledge that the statement was false or with reckless disregard of whether it was false or not when a defendant published a statement about the plaintiff he knows is false or when they publish a statement about the plaintiff with reckless disregard for whether it is false or true it's more serious from ill will and hatred/it's also more serious than failing to properly investigate
Involuntary public figures
on exceedingly rare occasions, someone may be drawn into a matter of public controversy unwillingly
Libel timeline
originally, it was enough to prove that something was defamatory (harmful); truth did not matter next, defendants could be let off the hook if they could prove their statements were true
[AM PF] Gertz v. Welch (1974)
overruled Rosenbloom outlined principles for distinguishing public from private figures -Noted category of limited-purpose public figure -Noted possibility of involuntary public figures but said such would be "exceedingly rare." held that there can be no presumed of punitive damages absent actual malice held that a private plaintiff can recover for libel absent actual malice so long as the standard wasn't strict liability
Single publication rule (online notes)
plaintiff must recover all damages from a libel in any one edition of newspaper or magazine in a single action limits libel victims to only one cause of action even with multiple publications of libel this is commonly invoked in the context of mass media and websites [principle that a plaintiff in a libel suit against a publisher has only ONE claim for each mass publication, not a claim for every book or issue in that run also states that the statute of limitations period begins to run when a defamatory statement is first published
[DEFENSES] Wire Service Defense
protects statements that have been published before by reputable publishers 4 factors must be met: 1. the source is a reputable news gathering agency 2. the defendant did not know the story to be false 3. nothing on the face of the OG story belied that it was false 4. the original story was republished without substantial change
Single Publication Rule (slide notes)
the common thread of traditional republication is that it presents new material, IN ITS ENTIRETY, before a new audience a mere reference to a previously published articles does not do that; while it may call the existence of the article to the attention of a new audience, it does not present defamatory content of the article to the audience; therefore, a reference, without more, is not properly a publication Hence, linking is NOT a republication
Actual Malice -- Public Officials
those who have or appear to have substantial responsibility for or control over the conduct of governmental affairs two-part test: 1. is the employee in a position to make policy? 2. does the employee have ready access to the media? In NC, a "public official" is broadly construed to include more people than just elected officials A person can be considered a public official if they are running for office, are in office, or after they complete their term and leave office
