smad 370 exam 2

Fair report - Absolute

(privilege of the participant) with legislative, judicial, and executive branches

Milkovich v. Lorain Journal (1990)

*Provable opinion Facts: The New-Herald published a sports column stating wrestling coach Michael Milkovich had lied under oath to the Ohio Athletic Commission concerning his role in a fight that broke out during a wrestling match. *Is this a pure opinion that is protected? Importance: The USSC held that fact-based opinions expressed in editorials do not enjoy special protection under the First Amendment.

Personal harm

- loss of business, emotional distress, or reputation.

Lose conditions under Fair Report

1. Report is not fair & accurate 2. News source isn't cited in story

All purpose public figure =

Actual Malice or Reckless disregard for the truth

fair comment

Conditional - You have a certain extent to a right to critique other people's work if it is somewhat of a public performance.

Fair report - Conditional

Conditional - fair and accurate reporting

Garrison v Louisiana (1964)

Criminal Libel Case Facts: Jim Garrison, the district attorney for New Orleans Parish, attacked judges stating they were lazy, "vacation-minded," and sympathetic to criminals. Importance: USSC said state governments can't censor critics of government without due process and that the role of the citizen of government must be protected by the First Amendment. For all practical purposes declared criminal libel unconstitutional.

Intentional Infliction of Emotional Distress (Emerging Tort)

Definition - Publication/broadcast of information which causes mental distress or physical harm to an individual through negligence.

False light

Definition - the spreading of "highly offensive false publicity" with knowledge of or reckless disregard of the truth. ** Only tort that recognized by the USSC.

Private or Embarrassing Facts

Definition: "Published" information which is offensive to a "reasonable person" and/or in not of concern to the public.

Right of Publicity (Emerging Tort)

Definition: Resides with the status of the person-celebrity status-revenue loss. Defense: Newsworthiness

3rd Tort Intrusion

Definition: The 4th Amendment protects private persons from intrusion from government - this tort protects a private person's right to be left alone and control information about himself/herself.

Appropriation/Commercialization

Definition: Using a person's image or likeness (sound) for one's own purposes (commercial) without permission or compensation. May cause shame, humiliation or loss of revenue.

Bartnicki v. Vopper (2001)

ECPA: Electronic Communication Privacy Act (1986) - criminalizes intercepting messages (emails/satellite phone/cellular) Facts: Gloria Bartnicki's cell phone conversation was intercepted and taped by an unknown party. The tape was given to Vopper who played it on the air during his radio program. Outcome: The USSC ruled for Vopper Significance: The Court ruled that the information was obtained legally and of public concern.

Herbert v Lando (1979)

Facts: A 1973 "60 Minutes" broadcast questioned allegations by Colonel Anthony Herbert of an official cover up of atrocities committed by US troops in Vietnam. Herbert = public figure = has to proved actual malice or reckless disregard for the truth. Importance: The USSC held that a journalist's mind may be probed in a libel case in order to establish actual malice.

Hustler Magazine v. Falwell (1988)

Facts: A Campari-like ad in Huslter portrayed Falwell as an incestuous drunkard. This mock ad had a disclaimer in small print at the bottom of the ad. Importance: The USSC held that a person can not sue for emotional distress when there has been no defamation or privacy invasion.

**New York Times v Sullivan (1964)

Facts: A Montgomery, Alabama, police official sued the NY times for a March 29th, 1960, advertisement purchased by a committee of civil rights activists. The ad contained several false statements and minor inaccuracies. Strict Liability - If you identify a person and they're harmed they can sue Importance: USSC declared that public officials may recover for defamation upon proof of actual malice or reckless disregard for the truth. This established "The New York Times Standard." This eliminated strict liability.

Paulsen v. Personality Posters (1968)

Facts: A company sold posers of Pat Paulsen during his "comic" run as a presidential candidate. Importance: A New York court ruled that the newsworthiness of an event may override a claim of appropriation. The poster presented political commentary on a mock presidential campaign.

Philadelphia Newspapers v Hepps (1986)

Facts: A corporation that franchised a chain of Thrifty stores sued the Philidelphia Inquirer for linking the chain to organized crime. Importance: The USSC stated that private individuals seeking damages on matters of public concern have the burden of proving that the offending statements are false *Overturned laws in 8 states. * The burden of proof is on the person initiating the lawsuit in a matter of public concern.

Florida Pub. Co. v. Fletcher (1975)

Facts: A photographer took pictures of a fire scene for a fire official. The next day the Florida Times-Union ran "Silhouette of Death." Mother sued for intrusion. Importance: A Florida court determined that the doctrine of custom and usage protected the media because fire authorities had invited the media onto the property.

Carson v. Here's Johnny (1983)

Facts: A portable toilet manufacturer used the phrase "Here's Johnny" and "The World's Foremost Commodian" in his advertisements without the permission of Johnny Carson. Importance: A Federal District Court ruled that in situations where a person is "known" by a name or slogan there is a need to secure permission before engaging in a commercial transaction. The manufacturer tried again to use the phrase in 2010, but the court wouldn't allow it.

Walker v A.P. (1967)

Facts: A.P. reported that retired army officer Major General Edwin Walker encouraged violence and led a charge against federal marshals during the integration of the University of Mississippi in 1962. Importance: USSC declared courts will seek to determine whether a journalist had, or should have has serious doubts about the truth or defamatory statements. Element of time to check and verify sources is very important in this case. * Good journalistic technique

Sidis v. F&R Pub. Co. (1940)

Facts: As an 11 year old, William J. Sidis gave lectures to the math department at Harvard. The New Yorker many years later wrote a story concerning Sidis's sad, unfulfilled life. Importance: The court determined that Sidis was still newsworthy after many years and had little or no claim to privacy.

Shields v. Gross (1983)

Facts: Brooke Shield's mother signed a release to a photographer Brooke at the age of 10 posing nude in a bathtub. At 17 Brooke tried to stop publication of the photos. Importance: A New York court declared that a signed model release is a very strong defense regardless of the time element. A parent's consent is binding for a minor.

Cosgrove Studio and Camera v Pane (1962)

Facts: Cosgrove ran an ad promising customers a free roll of film for every roll brought in for processing. Pane warned readers in his ad. "You get nothing for nothing." Pane said he would not inflate his film processing prices to give film away. Importance: Identification can occur even when the person/business is not specifically named in the defamatory statement.

Gertz v Welch (1974)

Facts: Elmer Gertz, an attorney, was libeled by an American Opinion article. The magazine charged that Gertz had engineered a "frame-up" of a policeman convicted for shooting a young boy. Importance: The USSC defined a public figure as one who thrusts oneself into the public arena involuntarily (vortex) in which publication is expected or assumed. States may define level or proof for a private person. • Establishes a difference between public official vs. public figure

Midler v. Ford (1988)

Facts: Ford Motor Company broadcast an ad with a singer who was hired because she sounded like Midler when she sang "Do You Want To Dance." Importance: A California court ruled that "Sound-Alikes" need to be legally cleared before undergoing a commercial venture.

Cher v. Forum (1982)

Facts: Forum implied that Cher encourages others to join her as a subscriber to the magazine. This endorsement appeared on subscription cards without Cher's permission Importance: A New York court ruled that a magazine must secure permission to use a celebrity's name in an endorsement.

Roberson v. Rochester Folding Box co. (1902)

Facts: Franklin Mills Company used Abigail Roberson's picture, without her permission, in advertisements for the company's flour. Importance: Although Roberson lost, it motivated New York legislators to pass the first privacy statute.

Masson v. New Yorker (1991)

Facts: Freudian scholar Jeffrey Masson sued New Yorker author Janet Malcom for falsely quoting him as calling himself an "intellectual gigolo" and "the greatest analyst who ever lived." Importance: The USSC ruled that minor changes in quotations fail to constitute defamation. The plaintiff has a burden to show that the altered words substantially damages his/her reputation.

Rosenbloom v Metromedia (1971)

Facts: George Rosenbloom, a little known businessman, was arrested for selling obscene material. News of his arrest was aired over the radio. *Didn't use the word allegedly Importance: The USSC ruled that the burden of proof imposed on public officials extends to anyone involved in a matter of public concern, regardless of whether they were famous or unknown. *Makes the definition of a public official a lot broader, almost anybody.

Dun and Bradsteet v Greenmoss Builders (1985)

Facts: Greenmoss Builders, a construction company, had a credit-reporting agency falsely say the company had filed for bankruptcy. In reality an employee of D & B confused records of a former Greenmoss employee with the firm. Importance: The USSC held that credit reports are a private matter and not a matter of "public concern."

Cape Pub. V. Brides (1982)

Facts: Hilda Bridges sued a Fla. Paper over publication of a photo of her without clothes, fleeing the apartment where her husband had just committed suicide. Importance: An appellate judge ruled that the newsworthiness of the situation outweighed any privacy claim.

Zacchini v. Scripps-Howard (1977)

Facts: Hugo "The Human Cannonball" Zacchini had his entire act (15 seconds) broadcast by a Cleveland TV station without his permission. Importance: The USSC ruled that the media must make sure that permission is acquired in commercial situations.

Wolston v Reader's Digest Association (1979)

Facts: Ilya Wolston refused to testify in 1958 before a federal grand jury investigating Soviet Spy activities. Reader's Digest reported this event 20 years later on a story concerning famous spy cases. Importance: The USSC said that Wolston did not thrust himself into the forefront of the controversy, but was "dragged unwillingly" into the spotlight.

**Time v. Hill (1967)

Facts: In 1952 convicts held the Hill family hostage in their home. Life reported in 1955 on a play based on this true crime. Pictures were taken in Hill's ex-home and showed convicts as "brutish." Importance: New York Times v. Sullivan actual malice standard was applied by the USSC to the false-light privacy tort.

Uhl v. CBS (1979)

Facts: In a CBS documentary titled "Guns of Autumn," CBS edited film footage to give the impression that Uhl was shooting geese on the ground. Importance: A federal district court ruled that a hunter shooting birds on the ground is highly offensive to the average person in western Pennsylvania.

Cohen v. New York Herald Tribune (1970)

Facts: Jimmy Breslin wrote a satirical article on a mob hit that was witnessed by Cohen. *Parody is protected Importance: A New York court ruled that "mere exaggeration, irony or wit" does not make an article defamatory.

Cantrell v. Forest City Publishing

Facts: Joseph Eszterhas of the Cleveland Plain Dealer wrote a story about a bridge collapse. Five months after the accident the wrote an article containing an interview with Mrs. Cantrell - an interview that never occurred. Importance: The USSC declared that falsifying quotes constitutes actual malice and fictionalization.

Williams v KCMO (1971)

Facts: KCMO had videotaped Williams arrest on the street. Williams was not charged with a crime, but his arrest was aired on the 6 pm news. 10 pm news aired tape, but announced no charges were placed by police. Importance: A Missouri court declared that the newsworthiness of an event outweighed any privacy concerns in fast breaking events.

Le Mistral v. CBS (1978)

Facts: Le Mistral was a restaurant that had received a poor bill of health care official CBS showed up on night with cameras disrupting the restaurant's service. Importance: A New York court ruled that the newsworthiness of an event does not necessarily outweigh the right of a private company to conduct business undisrupted.

Ocala Star-Banner Co. v Damron (1971)

Facts: Leonard Damron, running for the office of mayor of Crystal River, Florida, was falsely reported by the Star-Banner of having been charged with perjury. Importance: The USSC decided that no matter how remote in time or place a charge or criminal conduct against a public official is, it is always relevant to his/her fitness for office. *Pressure in terms of the need to get the information out

Briscoe v Reader's Digest (1972)

Facts: Marvin Briscoe participated in an unsuccessful hijacking attempt 11 years earlier. He served his time. Reader's Digest reported this event in a story. Importance: A federal district court ruled that Reader's Digest had reported the information accurately and Briscoe was still newsworthy.

Time v firestone (1976)

Facts: Mrs. Firestone sued Time after a "Milestones" item incorrectly reported that Russell Firestone had won a divorce on the grounds "of extreme cruelty and adultery". Importance: The USSC ruled that Mrs. Firestone did not assume any role of special prominence in the affairs of society.

Olivia N. v. NBC (1981)

Facts: NBC aired the movie "Born Innocent." The movie contained an object rape scene. Shortly afterwards, four youths used a bottle to rape a young girl. Importance: A California court ruled that the media had not "incited" the harmful action.

Simple v. Chronicle Pub. (1984)

Facts: Oliver Sipple, a decorated Vietnam Vet, saved President Ford's life. His homosexuality was disclosed in follow-up newspaper stories. Importance: A California appellate court ruled that the newsworthiness of the event outweighed Sipple's privacy claim.

Goldwater v Ginzburg (1969)

Facts: Ralph Ginzburg, editor of Fact, asserted Goldwater suffered from a mental disease. In a second article he edited responses to a mail survey from psychiatrists to distort their comments about Goldwater. Importance: The U.S. Court of Appeals for the Second Circuit ruled that creating false statements to support one's predetermined view is evidence of actual malice. *Demonstrates that public officials CAN sue and be compensated financially

Galella v. Onassis (1972-82)

Facts: Ron Galella, a photographer, made a living of stalking Mrs. Onassis and her family to secure pictures. Importance: A federal district court ruled that overzealous members of the media can be restrained and must be respectful of the moments of private intimacy.

Rosenblatt v Baer (1966)

Facts: Rosenblatt, a reporter, wrote a story critical of the manner that a county-owned ski resort that was managed by Baer. Importance: USSC ruled that "Public official" criteria was designated to include those in the hierarchy of government employees who have substantial responsibility for the conduct of government affairs. *Extends The NY Times v Sullivan Case

Hyde v. City of Columbia (1982)

Facts: Sandra Hyde escaped from an abductor who was still at large. She received threats after the paper published her name and address. Importance: A Missouri court ruled that a newspaper and the city could be sued for emotional distress.

Braun v. Soldier of Fortune (1992)

Facts: Soldier of Fortune ran an ad for a "Gun for Hire." Michael Savage, who ran the ad, was hired to kill Richard Braun. Importance: A court held the magazine liable for the harmful effect of the ad. Court ruled that the ad had subjected the public to a "clearly identifiable, unreasonable risk of harm."

Greenbelt Cooperative Pub. Assn. v. Bresler (1970)

Facts: The Greenbelt News Review wrote a story in which Bresler, a land developer, was charged with blackmail because he offered to sell land to the city only after the city rezoned a different parcel he owned. Greenbelt wanted to be protected under the "innocent construction" rule. Importance: The USSC stated that the use of words, such as "blackmail", when used in a public forum was determined to be non-actionable.

Harte-Hanks Communication v. Connaughton (1989)

Facts: The Hamilton (Ohio) Journal News published a front-page story charging a judicial candidate, Daniel Connaughton, with planning blackmail and promising favors for help in smearing his opponent. Importance: The USSC ruled that this newspaper made a "deliberate decision not to acquire knowledge" that would have revealed the falsity of charges against Connaughton. *Demonstrates that you need to go out and check information.

Walt Disney v. Shannon (1981)

Facts: The Mickey Mouse Club demonstrated sound effects. A young boy lost his eye copying one of the sound effects. Importance: A Georgia court ruled that Walt Disney could not be sued for emotional distress.

Curtis Publishing Co. v Butts (1967)

Facts: The Saturday Evening Post reported that Georgia football coach Wally Butts fixed a football game with Alabama. The Post relied on the unsupported testimony of a check forger. Importance: USSC declared that the y will examine the credibility of sources, believability of the defamatory allegations and the effort made to investigate the statements in questions. The media had plenty of time to verify the facts of this story, but didn't. *Poor journalistic technique

Gazette v Harris

Facts: This litigation involved three cases: - Misidentification of sex offender (Gouch Gazette) - Misidentification of married, pregnant, sexual assault victim as "Miss" (Charlottesville Daily Progress) - Misidentification of a child's accidental death as a case of abuse. (Alexandria Port Packet) Importance: The Virginia State Supreme Court declared that negligence is the legal standard of proof for private individuals in the Commonwealth of Virginia. • Established negligence as the standard that private individuals need to prove.

Wilson v. Layne (1999)

Facts: US Marshals entered the home of the Wilson's in an effort to execute an arrest warrant for their son, Dominic, A reporter and a photographer from the Washington Post accompanied the Marshals. Importance: Media ride-alongs violate the Fourth Amendment. • The marshals were entitled to qualified immunity because this principle of law was not established at the time of this ride along.

Farmers Education and Cooperative Union v WDAY (1959)

Facts: W.C. Townley, a colorful independent candidate for the US Senate from North Dakota, accused the FECUA of being controlled by Communists over WDAY Importance: The US Supreme Court declared that broadcasters are immune from liability for defamation by political candidates in political ads.

Beauharnais v Illinois (1952)

Group libel case - if you hand out racist/sexist literature, you can be prosecuted because it is hurtful to an entire identifiable group. Facts: Beauharnais distributed racist literature. He was prosecuted under an Illinois group libel statute. Importance: The US Supreme Court rules that defamation directed at ethnic and racial groups can be illegal even when it is not directed at specific individual.

Statute of limitations (In defamation suits)

In the Common Wealth of Virginia is 1 year and 1 day Truth - (provable with justification and without malice)

Libel vs. Slander

Libel = print Slander = spoken

Defenses (false light)

New York Times v. Sullivan - if the plaintiff is a pubic figure/official, then the plaintiff has to prove actual malice Gertz v Welch decision has not been applied to this tort.

Legal options:

Summary judgment or Demurrer

Can anyone sue for defamation?

Yes, it's a civil suit.

Falsity

a burden only for persons suing for defamation related to matters of public concern.

Demurrer

a pleading early on in a law suit where the defendant will say "so what" to the charges. Federal courts don't allow it and 3 states still have it - CA, PA, and VA. The truth of the charges are not challenged; it's whether the plaintiff has enough facts to go to trial.

What is defamation?

an expression that tends to damage a person's reputation and good name, or a right to enjoy social contacts, or a profession, business or calling

Summary judgement

case is dropped - defendant is released of trial

Criminal libel

government statues that punish criticism of government

If you're a public official....

have to prove Actual Malice or Reckless disregard for the truth

Libel per quod

in the context of other words, the words are injurious

Single Publication Rule

it's published in a reputable publication and you reprint it.

Civil libel

lawsuit between private parties

Actual malice

must be proven by public officials and public figures • Known as the New York Times standard

Strict liability

no finding of negligence required and if a damaged reputation resulted from a publication, there was liability

Private individual....

only has to prove negligence

Innocent construction

rule in some states, e.g., Illinois. - they take the least offensive definition of whatever allegation is made.

Limited or vortex public figure

someone saving someone

Libel per se

the words on their face are injurious

Artistic relevance test - Transformative test - Predominant Use Test -

used celebrity to sell the product. how much originality is in the works. media put names in context for commercial purposes.

Neutral reportage

you have not added anything to the story, you got it form somewhere else.

What type of fault?

• Actual Malice • Reckless disregard for the truth

Fuor torts of privacy

• Appropriation/Commercialization (Right of Publicity) • False Light • Intrusion • Private or Embarrassing Facts (Emotional Distress)

Damages

• Compensatory/general/actual damages (presumed in libel per se) • Special (must be established) - special circumstances where they have been hurt. • Punitive/exemplary or "smart money" damages (tied to degree of malice) - the big bucks. • Nominal damages - small

Plaintiff's burden of proof:

• Defamation • Identification • Publication • Fault - publication was a result of recklessness or negligence

Five things a defendant must address:

• Duty of Care • Breach of duty - you didn't exercise reasonable care • Factual Cause - example, wrong dates • Harm - did people get hurt because you were negligent • Scope of liability - are you there for liable for the harm that resulted

Defendant's defenses (opinion pieces)

• Expression not provably false • Ollman v. Evans (DC 1984) - "Ollman Test" - Verifiable - Common/ordinary meaning - Journalistic context - Social Context • Parody/rhetorical hyperbole

Defenses: (Emerging tort)

• First Amendment • Newsworthiness • Consent

Preventing libel suits

• Handle complaints • Retractions - when you are wrong, you have to say you are wrong and apologize. Retractions do not prevent lawsuits.

Lose conditions under fair comment?

• If comments are not about public matter • If comments aren't supported by facts

Plaintiff's Position (false light)

• Material was published • Identification • Information was false • Highly offensive to a reasonable person • Defendant knew the info was false

Paintiff's position (privacy)

• Name or likeness, picture, voice or identity • Without permission • For money

Ride along intrusions

• Popular on "reality programs" • Police may be liable for inviting media along • Media may even be in violation of subjects' constitutional rights

History of Privacy:

• Privacy has largely developed in the 20th Century. • Concept originated in 1890 Harvard Law Review article by Samuel Warren and Louis Brandeis. • Technology development was key to privacy's developed.

Defenses: (Intrusion)

• Public Places • Written Permission • False Pretenses

Defenses: (Private or Embarrassing)

• Public Record • Newsworthiness • Written Consent

Plaintiff's Position: (Intrusion)

• Reasonable Expectation of Privacy • Intentional Intrusion • Offensive to a Reasonable Person

"Drone Journalism"

• Refers to "unmanned aerial vehicles (UAVs) or unmanned aerial systems (UAS) • No flying higher than 400 feet and remain below any surrounding obstacles. • Keep you UAVs in eyesight at all times. • Do not interfere with manned aircraft operations. • Do not intentionally fly over unprotected persons and vehicles.

Republication - wire service/web

• Reputation of news gathering agency • Didn't know story was false • Nothing to alert defendant as to falsity of information • Republication without substantial change

Negligence:

• Standard of proof for private individuals • May result from failure to try and contact person being defamed, lack of effort to verify sources and/or disregarding contradictory evidence

SLAPPs

• Strategic Lawsuits against public participation • Used by plaintiffs to harass their critics into silence. Create a "chilling effect". Cases rarely won with this tactic • States have passed Anti-SLAPP statutes - you can't just sue small public interest groups as a large corporation. Protects small civic-minded groups

Legislation

• Video Voyeurism • Anti-paparazzi Laws - "constructive" invasion of privacy. This is when you use visual or auditory enhancing devices.

Defenses against privacy

• Written Consent • Newsworthiness • Incidental use • Ad for a mass medium