mejo 341 midterm 2

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)

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."

neutral reportage

In libel law, a defense accepted in some jurisdictions that provides First Amendment protection for reporting of an accusation made by a responsible and prominent organization, even when it turns out the accusation was false and libelous.

involuntary public figure

In libel law, a person who is involuntarily drawn into a given issue. This category of plaintiff is rare.

all-purpose public figure

In libel law, a person who occupies a position of such persuasive power and influence as to be deemed a public figure for all purposes. All-purpose public figure libel plaintiffs are required to prove actual malice.

private figure

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

limited-purpose public figure

In libel law, a plaintiff who has attained public figure status within a narrow set of circumstances by thrusting him- or herself to the forefront of particular public controversies in order to influence the resolution of the issues involved; this kind of public figure is more common than the all-purpose public figure.

public figure

In libel law, a plaintiff who is in the public spotlight, usually voluntarily, and must prove the defendant acted with actual malice in order to win damages.

actual malice

In libel law, a statement made knowing it is false or with reckless disregard for its truth.

retraction statutes

In libel law, state laws that limit the damages a plaintiff may receive if the defendant has issued a retraction of the material at issue. Retraction statutes are meant to discourage the punishment of any good-faith effort of admitting a mistake.

bootstrapping

In libel law, the forbidden practice of a defendant claiming that the plaintiff is a public figure solely on the basis of the statement that is the reason for the lawsuit.

for-cause challenge

In the context of jury selection, the ability of attorneys to remove a potential juror for a reason the law finds sufficient, as opposed to a peremptory challenge.

how is publishing different in private facts vs. defamation?

Private Facts: • The plaintiff must show the facts were kept private: Revealed to no more than a few close family members and friends • Plaintiff must prove the private facts were given widespread publicity Defamation: - publish = one other person

what is Public Disclosure of Private Facts?

"This tort creates a cause of action for one who publicly discloses a private matter that is 'highly offensive to a reasonable person' and 'is not of legitimate concern to the public.'"

what is false light?

"This tort creates a cause of action when one publicly discloses a matter that places a person 'in a false light' that is 'highly offensive to a reasonable person.'"

what is intrusion upon seclusion?

"This tort provides a remedy when one intrudes 'upon the solitude or seclusion of another or his private affairs or concerns' if the intrusion is 'highly offensive to a reasonable person.'"

What is appropriation?

"Under this tort, a plaintiff has a remedy against one 'who appropriates to his own use or benefit the name or likeness' of the plaintiff."

Why are courts concerned with open proceedings? (3)

(1) a public trial can bias jurors and thus prevent a defendant from receiving a fair trial; (2) the presence of the news media will seriously affect the courtroom decorum and ultimately the judicial process; and (3) extensive publicity may adversely affect the defendant and other witnesses, including the victim

libel per se statements

(i) relate to the person's business or profession to the person's detriment; (ii) falsely claim that the person committed a crime of moral turpitude; (iii) imputes unchastity on the person; or (iv) claim that the person suffers from a loathsome disease.

SLAPP

(strategic lawsuit against public participation) A lawsuit whose purpose is to harass critics into silence, often to suppress those critics' First Amendment rights.

•Does it matter if the recipient understands that the communication is defamatory?

- A communication is defamatory only if the recipient understands it in a defamatory sense and understands that it was so intended. - If he reasonably so understood it, it does not matter that he was mistaken. In determining how the recipient understood it, the context of the statement is considered.

Governmental Absolute Privileges

- Legislators, both federal and state, performing their official duties are absolutely privileged to defame; the statement needn't relate to the proceedings at hand (Statements of witnesses in legislative proceedings are absolutely privileged, but their comments do have to relate to the proceedings to be privileged) - All participants in judiciary proceedings, starting when the complaint is filed, have an absolute privilege, as long as there's some reasonable relationship between the statement and the matter at hand - High-ranking, policy-making officials (federal and state), within the scope of their duties, have an absolute privilege as long as the statement reasonably relates to their duties

what does name & likeness include?

- name: Even a pseudonym or stage name - likeness: Even a look-alike (But OK if prominent disclaimer is used) - voice: Even a sound-alike (But OK if prominent disclaimer is used) - identity: Vanna White case Some jurisdictions have extended protection beyond name and likeness to include other features associated with the plaintiff as well - For example, some jurisdictions will now protect the plaintiff's voice, catch phrases and trademark habits

examples of facts the Times advertorial got wrong

- what song the protesters had sung - whether or not students had been expelled for participating - "They have arrested [King] seven times. ... ", whereas he had been arrested four times - that "truckloads of police ... ringed the Alabama State College Campus" after the demonstration at the State Capitol, whereas the police had been "deployed near" the campus but had not actually "ringed" it and had not gone there in connection with the State Capitol demonstration

Two Types of Information

1. "Personally identifiable information" (PII) can be linked to a specific individual 2. "Non-personally identifiable information" (non-PII) cannot, by itself, be used to identify a specific individual

Elements: Private Facts

1. A public disclosure 2. Of private facts 3. That is highly offensive to the reasonable person Sue for shame, humiliation & mental anguish

The Appropriation Tort may be divided into 2 Torts:

1. Commercialization 2. Right of Privacy

Publishing Truthful Information Regarding Confidential Proceedings

In Landmark Communications Inc. v. Virginia (1978), the Supreme Court ruled 7-to-0 that a Virginia statute subjecting individuals, including newspapers, to criminal sanctions for disclosing information regarding proceedings before a state judicial review commission was a violation of the First Amendment.

predominant use test

In a right of publicity lawsuit, a test to determine whether the defendant used the plaintiff's name or picture more for commercial purposes or protected expression.

fact finder

In a trial, a judge or the jury determining which facts presented in evidence are accurate.

false light

A privacy tort that involves making a person seem in the public eye to be someone he or she is not. Not recognized in all states.

fair report privilege

A privilege for accurate and fair reports on the content of official records and proceedings. Sometimes called "conditional privilege."

can judges restrict pre-trial publicity?

The principles laid down by the Court in Near v. Minnesota (1931) and Nebraska Press Association v. Judge Stuart (1976) effectively restrict judges from exercising control over pretrial and during-trial publicity, although they can certainly control what takes place in the courtroom.

burden of proof

The requirement for a party to a case to demonstrate one or more claims by the presentation of evidence. In libel law, the plaintiff has the burden of proof.

Paul tells Oberon that Oberon's wife, Tatiana, "is in love with a rival, but that she has never laid a finger on him." This is a lie; however, it breaks up Oberon and Tatiana's marriage. Tatiana sues Paul for defamation. Will she have to prove special damages?

Yes, because the statement (which is slander, because it is spoken) is not slander per se, meaning it does not fit in one of the four per se categories-harming business/profession, or imputing loathsome disease, crime of moral turpitude, or serious sexual misconduct. As such, special (pecuniary) damages will have to be proven

appropriation

Using a person's name, picture, likeness, voice or identity for commercial or trade purposes without permission.

reckless

Word used to describe actions taken with no consideration of the legal harms that might result.

blogs and wire service defense

rewriting news items in a blog format will limit your ability to invoke the wire service defense. When you choose to modify and comment on the material, you will likely lose the ability to assert this defense

What does the 6th amendment protect?

the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed

statute of limitations

-Term used by the courts to describe the maximum amount of time plaintiffs can wait before bringing a law suit after the events they are suing over have occurred -This time limit is typically set by state statute and is intended to promote fairness and keep old cases from clogging the courts -A relatively short limitations period is an acknowledgment of the importance of free speech principles, since a short time period reduces the potential chilling effects of speech-challenging lawsuits. Note: The statue of limitations for defamation in North Carolina is one (1) year

Determining When the Statute of Limitations Period Begins

-The limitations period begins to run when a defamatory statement is "published" (i.e., communicated to someone other than the plaintiff). -This rule is relatively easy to apply when a defamatory statement is spoken to a third person -Internet or mass audience: the statute of limitations begin anew at the time of each publication

Requirements for qualified privilege:

1. First, the defendant must believe the statement is true and either have reasonable grounds for believing it or not have acted recklessly in determining its truth or falsity •States are split on reasonable/reckless issue 2. Second, the statement must be in furtherance of the interest to be protected 3. Third, it can't be excessively published

Elements: Intrusion

1. Plaintiff had reasonable expectation of privacy 2. The defendant intentionally intruded (physical, electronic, or mechanical) on the plaintiff's privacy 3. The intrusion would be highly offensive to a reasonable person •Intrusions upon seclusion usually refer to intrusions into a person's physical private space. •Watching, listening to and recording another person's private activities are the clearest and most common examples of intrusion upon seclusion.

what are the three sources of privacy protection?

1. U.S. Constitution 2. Federal & state statutes 3. Tort Law

Development of Privacy Tort Law

1. Warren and Brandeis' 1890 Harvard Law Review article suggesting privacy protection 2. Prosser's 1960 review article dividing privacy tort law into four parts

Invasion of Privacy: 4 Privacy Torts

1."Publication putting plaintiff in a false light" 2."Appropriation of plaintiff's name or likeness for commercial purposes" 3.Intrusion upon seclusion 4."Public disclosure of private facts"

Elements of Plaintiff's Libel Case

1.A statement of fact 2.That is published 3.That is of and concerning the plaintiff 4.That is defamatory 5.That is false 6.That causes damage (or harm) 7.For which the defendant is at fault

what are the narrowly tailored measures a judge can use to protect trial fairness (9)

1.Continuance, or delay, of the trial until publicity has subsided 2.Change of the venue, or location, of the trial to avoid areas permeated by media coverage 3.Sequestration, or isolation, of the jury from the public 4.Extensive voir dire, or questioning, of potential jurors to identify prejudice 5.Gag orders on participants to limit discussion of the case outside the courtroom 6.Protection of potential witnesses from outside influences 7.Instructions, or admonitions, to the jury to avoid prejudicial influences and to set aside any preconceptions they may have 8.Retrial if the jury or the judicial process has been contaminated by media coverage 9.Limitations on press attendance, through measures such as pool reporting, to reduce the impact of their presence on jurors and witnesses

What are the 3 categories of Public Figures? why does that matter?

1.Public officials 2.All-purpose public figures 3.Limited purpose public figures Individuals in all three categories must prove falsity and actual malice

what must a plaintiff prove in a false light case?

1.Publication - widespread distribution 2.Identification - the material was of and concerning the plaintiff 3.Falsity 4.The published material put the plaintiff in a false light that would be highly offensive to a reasonable person 5.Requisite intent (fault) 6.Causes damage (harm)

Why was imposing the burden of proving actual malice on public figures, despite their non-political status, justified?

1.Such persons "often play an influential role in ordering society" 2.They "have as ready access as 'public officials' to mass media of communication, both to influence policy and to counter criticism of their views and activities"

What Is Defamatory?

A communication is defamatory if it tends to harm Plaintiff's reputation in the community, either by: 1. lowering others' estimation of him 2. deterring others from associating or dealing with him

absolute privilege

A complete exemption from liability for defamation because the statement was made within the performance of official government duties.

restraining order

A court order forbidding an individual or group of individuals from doing a specified act until a hearing can be conducted.

experience and logic test

A doctrine that evaluates both the history of openness and the role it plays in ensuring the credibility of a judicial process to determine whether it is presumptively open.

class action lawsuit

A lawsuit in which a group of people with similar injuries caused by the same product or action sue a defendant as a group.

third-party doctrine

A legal concept that holds that people who voluntarily give information to third parties, such as banks or phone companies, forfeit any reasonable expectation of privacy in that information.

gag orders

A nonlegal term used to describe court restraining orders that prohibit publication or discussion of specific materials.

The defendant published the statement

A person bringing a defamation lawsuit must prove that the defendant uttered or distributed it to at least one person other than the plaintiff.

All-purpose/ General Fame or Notoriety

A person may be a public figure for all purposes and all contexts if he achieves "general fame or notoriety in the community and pervasive involvement in the affairs of society," although "a citizen's participation in community and professional affairs" does not render him a public figure for all purposes.

libel-proof plaintiff

A plaintiff whose reputation is deemed to be so damaged that additional false statements of and concerning him or her cannot cause further harm.

single publication rule

A rule that limits libel victims to only one cause of action even with republications of the libel in the same outlet; common in the mass media and on websites. -states that the statute of limitations period begins to run when a defamatory statement is first published-the limitations period begins when the magazine was initially made available, not when an extra copy of it left over on the news stand is sold two weeks later. -If the purported defamatory content is re-published to a substantially different audience or is altered in a substantial way, a new statute of limitations period may begin to run -Most states have applied the single publication rule to the Internet -Generally, the statute of limitation period begins when a defamatory statement is first made available online

libel per se

A statement whose injurious nature is apparent and requires no further proof.

transformative use test

A test to determine whether the First Amendment protects a work that uses a person's name, picture, likeness, voice or identity for artistic purposes. Changing the original to give it new meaning or a different message justifies First Amendment protection.

artistic relevance test

A test to determine whether the commercial use of a celebrity's name, picture, likeness, voice or identity is relevant to a disputed work's artistic purpose.

defamatory communications

A.Expose Plaintiff to hatred, contempt, ridicule B.Reflect unfavorably on his morality or integrity C.Impair his financial reputation D.Impute that Plaintiff has a disease or other physical or mental attribute or deficiency such that others will be deterred from associating with him

post-mortem

After death. Post-mortem right of publicity generally refers to a famous person's ability to control the commercial use of his or her name, picture, likeness, voice and identity after death.

John has been married to Jackie for over twenty years. During that time, John has been having an ongoing affair with Marilyn. John's best friend Bobby is the only one who knows about the affair. Bobby, after getting into a fight with John, tells many of his friends about John's infidelity. As a result of Bobby's actions, Jackie divorces John and several of John's friends stop associating with him. In an action against Bobby, John will probably: A.Recover for both invasion of privacy and defamation. B.Recover for invasion of privacy but not for defamation. C.Recover for defamation but not for invasion of privacy. D.Not recover at all because the claim of infidelity is true.

B

negligent infliction of emotional distress

Careless breach of a duty that causes the plaintiff severe emotional harm.

Who is Liable for Defamation? (non-internet defamation cases)

Common Carriers: Common Carriers (e.g., telephone, and telegraph) have been held to not have any control over the content of the material and therefore are not liable Distributors: Distributors, vendors or bookstores are not liable for defamation (Smith v. California) Publishers: Publishers of books, newspaper, television, radio can be liable if they've exercised control over the content - In print-based media, you are responsible for everything you publish, even where it comes from a third-party.

what is the best defense for appropriation?

Consent = Best Defense

What is Data Privacy?

Data/Information privacy concerns the •collection •use •disclosure of personal information

Defenses & Privileges for Defamation

Defenses: Opinion, Truth, Retraction Privileges: New York Times privilege (actual malice), Absolute privileges (can't be repealed), Qualified privileges (can be repealed)

New York Times v. Sullivan (1964) Facts

During the 1960s Civil Rights Movement, the New York Times published a full-page advertisement that solicited donations to defend Martin Luther King Jr., who was on trial for perjury charges. Paid for by several civil rights activists, most of the advertisement was correct, but there were several minor false statements. The advertisement also criticized the Montgomery, Alabama Police Department and its treatment of protestors. The Public Safety Commissioner for Montgomery sent a written request to the Times to publicly retract the ad because while it never mentioned his name, he believed that the criticism reflected poorly on him because he supervised the department. After the newspaper refused, the commissioner filed a libel lawsuit against the Times and several of the Black ministers mentioned in the ad. The written request the commissioner had sent was required under Alabama law to for a public figure to seek punitive damages in a libel lawsuit. In an Alabama trial court, the judge instructed the jury that because the statements were "libelous per se," the law implies legal injury from the publication itself, that falsity and malice were presumed, and that the commissioner didn't need to prove monetary damages. An Alabama trial court jury ruled in favor of the commissioner and awarded him $500,000 in damages. After the state supreme court affirmed, the Times appealed to the Supreme Court, arguing that because Sullivan was a public official, a higher standard should be applied.

intentional infliction of emotional distress

Extreme and outrageous intentional or reckless conduct causing plaintiffs severe emotional harm; public official and public figure plaintiffs must show actual malice on the defendant's part.

defamation and humor

Humorous writings, verses, cartoons, or caricatures which may be understood as making a statement about Plaintiff are protected to the extent that they represent merely negative opinions not implying false facts. Hustler Magazine v. Falwell (1988).

when was the constitutional right of privacy established?

It took until the mid 1960s for the Supreme Court, in the case of Griswold v. Connecticut, to establish a constitutional right of privacy.

admonitions

Judges' instructions to jurors warning them to avoid potentially prejudicial communications.

prima facie

Latin for "at first look," or "on its face"; evidence before a trial that is sufficient to prove the case unless substantial contradictory evidence is presented.

libel per quod

Libel that is actionable only when the plaintiff introduces additional facts to show defamation.

damages

Monetary compensation that may be recovered in court by any person who has suffered loss or injury. Damages may be compensatory for actual loss or punitive as punishment for outrageous conduct.

•Ratso is a small-time criminal who likes to hang around with shady types. John Dillinger circulates the lie that Ratso is a "stoolie" who's ratted on various local criminals to the police. Various small-time criminals are now giving him the cold shoulder. Ratso sues John for defamation. Was John's statement "defamatory"?

No. A defamatory statement is one tending to harm one's reputation so as to lower him in the eyes of a respectable segment of the community. The statement here is not defamatory because it didn't tend to harm Ratso's reputation in a respectable segment of the community. The fact that small-time cons give him the cold shoulder doesn't satisfy the "respectable segment" requirement

•Francis Bacon tells a group of people: "The Bard of Avon is a plagiarist." William Shakespeare is commonly known as the Bard of Avon. When he sues Bacon for defamation, Bacon claims his statement wasn't defamatory because he didn't identify Shakespeare by name. Is he correct?

No. Defamation requires publication of a false statement of fact about someone that tends to harm his or her reputation. The "about someone" requirement is called the "of and concerning" element of defamation, and all it requires is proof that a reasonable person would identify plaintiff as the one to whom the statement refers. Because Shakespeare's known as the "Bard of Avon," Bacon's statement qualifies

intrusion upon seclusion

Physically or technologically disturbing another's reasonable expectation of privacy.

what must the plaintiff prove with a libel per quod statement?

Plaintiff must prove the special circumstances, that the audience understood the defamatory connotation, and special damages, that is, actual monetary loss.

private facts

Publicizing highly offensive, true private information that is not newsworthy or lawfully obtained from a public record.

Bollea v. Gawker

Publishing parts of a celebrity sex tape may be tantamount to publication of private facts because the video was not a matter of public concern.

What is Section 230?

Section 230 says that "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" •Section 230 does not immunize the actual creator of content. •The author of a defamatory statement, whether he is a blogger, commenter, or anything else, remains just as responsible for his online statements as he would be for his offline statements.

emotional distress

Serious mental anguish.

anti-SLAPP laws

State laws meant to provide a remedy for a SLAPP. Plaintiffs have the burden to show that they will prevail in the lawsuit; otherwise, the suit is dismissed.

shield laws

State laws that protect journalists from being found in contempt of court for refusing to reveal sources.

right of publicity

The appropriation tort protecting a celebrity's right to have his or her name, picture, likeness, voice and identity used for commercial or trade purposes only with permission.

commercialization

The appropriation tort used to protect people who want privacy; prohibits using another person's name or likeness for commercial purposes without permission.

reporter's privilege

The concept that reporters may keep information such as source identity confidential. The rationale is that the reporter-source relationship is similar to doctor-patient and lawyer-client relationships.

what must a judge determine before closing a courtroom?

The facts demonstrate all of the following: - Openness poses a substantial threat to a fair proceeding. - No alternative exists that would effectively eliminate the threat to fairness. - Closure will effectively eliminate the threat. - Closure will be narrowly tailored to eliminate the threat and protect maximum public access to the judicial process. •Before closing any or all of a trial, judges must permit interested parties and the public to raise objections.

impanel

To select and seat a jury.

Decision: New York Times v. Sullivan

for NYT -This case was clearly one of seditious libel - We have a national commitment to the principle that debate on public issues should be uninhibited - When public officials take a government post, they must expect their work will be closely examined and criticized •Errors must be protected to allow "breathing space" for free expression •Permitting merely a defense of truth will not deter only false speech •A public official, suing with respect to statements about official conduct, must prove actual malice: knowledge of falsity or reckless disregard for the truth

has the SC recognized a 1a right to gather information? how does the 1a protect the press (2 ways)?

no, never explicitly stated 1. 1.The government cannot interfere with the publication of material -- except under unusual circumstances such as when national security is at stake. 2.Publishers generally do not have to fear criminal sanctions.

•The Heel City Herald announces the marriage of a local resident, Sherman Pious. Not only has Sherman not gotten married, but he's a Catholic priest. •Is it libel per se or libel per quod?

per quod

Truth or Opinion? The Ollman test

•1) Can the statement be proved true or false? E.g., objectively capable of proof or disproof? •2) What is the common or ordinary meaning of the words? •3) What is the journalistic context of the remark? E.g., the op-ed pages, personal columns, social media or a blog. •4) What is the social context of the remark? E.g., was the statement at issue made within a context or in a place where the expression of opinions is common or expected? Or was it made within a context in which opinion is not commonplace and, instead, statements are presumed to be statements of fact?

Why is the distinction between "general" and "special" damages important in defamation?

•: The distinction is important because if a plaintiff can't prove special damages, in a slander case outside the four slander per se categories, she can't recover at all. And special damages are very hard to prove, so if you have to plead specials, you may well have no recovery at all. •The rule is that if the plaintiff either proves libel or slander per se or special damages, general damages will be "tacked on."

When is a Qualified Privilege Applicable?

•A "qualified privilege" applies when the statement bears some relationship to a public or private interest, of either the publisher, the reader/listener, or both, or that of the general public. •If the statement is in furtherance of the interest, it's protected. - Defendant must honestly believe that his defamatory statements are true. If he knows that his statements are false, he forfeits his qualified privilege

who decides if its defamatory?

•A communication is defamatory if a substantial and respectable minority of Plaintiff's community or associates would so regard it; it is not necessary that all or a majority would. •However, it is not defamatory if the minority's views on that subject are so anti-social or extreme that it would not be proper for the courts to recognize them.

Richmond v. Virginia (1980) Facts

•A defendant was being tried for the fourth time on a murder charge. •When the defense attorney moved that the trial be closed, the state trial court judge granted the request. •Neither the prosecutor nor the two newspaper reporters who were present in the courtroom at the time objected to the closure. •However, the reporters did file a motion later that day, asking that the order be vacated, but the judge denied the request. •The following day, the judge granted a motion by the defense to strike the prosecution's evidence. •He then dismissed the jury and ruled the defendant was not guilty. •All during this time, of course, the proceedings were closed to the press and to the public.

infliction of emotional distress

•A person commits IIED by intentionally using words or actions that are meant to cause someone extreme anxiety or emotional distress. Actual physical injury is not required for the plaintiff to recover damages. Defendants conduct must be quite outrageous. Plaintiff's emotional distress must be proven. Mere insults are not enough to form the basis for any emotional distress claim.

•Limited-purpose/ Involvement in Particular Controversy

•A person may "voluntarily inject himself or be drawn into a particular controversy to influence the resolution of the issues involved" and thereby become a public figure for a limited range of issues. [Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)] Note that Gertz appears to allow for the possibility of a person's being an involuntary public figure for a limited range of issues, although such a case would be "exceedingly rare."

Elements: Intentional Infliction of Emotional Distress

•A plaintiff must show that the defendant's conduct: (1) is intentional or reckless; (2) offends generally accepted standards of decency or morality; (3) is causally connected with the defendant's emotional distress; and (4) caused emotional distress that was severe.

examples of actual malice

•Actual malice may be established by: üDeliberate falsification üFabrication üReliance on a wholly anonymous call üAllegations that are inherently improbable or open to doubt for obvious reasons

Opinions Based on Facts

•All opinions that rely on underlying fact are not necessarily outside the opinion privilege. - If you state the facts on which you are basing your opinion, and the opinion you state could be reasonably drawn from those truthful facts, you will be protected even if your opinion turns out to be incorrect. - Even if you state the facts you are relying on for your opinion, but those facts turn out to be false, the privilege will not apply.

Proving Falsity

•All public-person plaintiffs must prove that the libelous remarks are not truthful. •But (the Supreme Court has ruled) a private-person plaintiff must prove the falsity of the libelous statements only when the subject of the statement is a matter of public concern. •In those few instances when a private person sues for a story that is not a matter of public concern, the defendant must prove that the material is truthful.

Who are All-purpose Public Figures?

•All-purpose public figures are those whose fame reaches widely and pervasively throughout society. - All-purpose public figures are private individuals who occupy "positions of such persuasive power and influence that they are deemed public figure for all purposes. . . . They invite attention and comment." - Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1972). •This category includes movie stars, elite professional athletes, and the heads of major corporations. •The actual malice standard extends to statements involving virtually any aspect of their private lives. - As with public officials, the passage of time does not cause this class of individuals to lose their public figure status as long as the original source of their fame is of continued interest to the public.

Why require more than negligence?

•Allowing public officials to prevail on defamation claims based on mere negligence alone would cast too great a shadow on the First Amendment by chilling reporting on political matters.

is access to courts guaranteed? explain

•Although the Constitution provides a right of access to courts, openness is not absolute. •Judges may limit attendance, including the number of media present, and they may exclude recording devices to ensure decorum in their courts.

What are the benefits to open trials?

•An open trial can go a long way toward ensuring that a defendant does get a fair trial by subjecting the whole process to public scrutiny. •We have a tradition in the United States of openness in the judicial process as a means of demonstrating that the public has a stake in the trial.

•In a defamation suit in common law against the newspaper, because the statement isn't defamatory "on its face," what would the priest have to plead and prove?

•Answer: He'd have to prove extrinsic facts showing why the statement was defamatory. This is called the "inducement." Remember, defamation requires publication of a false statement of fact about someone that tends to harm his or her reputation. Inducement shows why it is that the statement will harm the plaintiff's reputation. If what makes the statement defamatory isn't clear on its face, plaintiff can't prevail unless he proves inducement.

•A high-level official of the U.S. Justice Department is trying to uncover instances of drug abuse in government. He publicly announces that the powder President Thomas Jefferson uses on his wig is really cocaine. If this is false, does an action for defamation lie?

•Answer: No. Government executive officials are absolutely privileged in the statements they make while fulfilling the obligations of their office. There is a reasonable relationship requirement between the statement and the executive matter or proceeding in which the official is functioning.

•If a newspaper reports that my spouse had an affair, or that my son is a notorious drug dealer, or that my father is a terrorist, does that report defame me?

•Answer: No. The general rule is that there can be no vicarious defamation; to be actionable, the defamatory statement must be understood as being "of and concerning" the plaintiff.

•Robert agrees to be the subject of a Celebrity Roast. The comments get pretty vicious, as roasts generally do, and Robert sues the offenders for defamation. They assert the defense of "consent." Robert claims consent isn't a valid defense to defamation. Who's correct?

•Answer: The Roasters. Consent is a valid defense to defamation. Note: The defamation has to be within the scope of the consent, and it can't be obtained by fraud.

•Pennan Ink, cartoonist, draws and disseminates a cartoon depicting Paul Revere stopping for an adulterous rendezvous with a young lady on his famous Midnight Ride. The incident, in fact, never happened. Is there a "defamatory statement" about Paul (assuming he's still alive)?

•Answer: Yes. A defamatory "statement" can take any number of forms, including pictures, cartoons, dramatizations, and gestures, because these are all capable of adversely affecting one's reputation.

Anti-SLAPP statutes

•Anti-SLAPP statutes are meant to protect people from lawsuits of questionable merit that are often filed to intimidate speakers into refraining from criticizing a person, company, or project •Fighting these suits can be a time-consuming and expensive enterprise - Anti-SLAPP laws are designed to provide for early dismissal of meritless lawsuits filed against people for the exercise of First Amendment rights.

Who can sue for defamation?

•Any living person It is a personal right that doesn't survive death •A corporation Defaming a company or a product can result in a lawsuit •An unincorporated association, organization, or society, such a as a labor union, fraternal organization ØNote: Government can't sue for libel; though an individual in the government can.

what is the right of publicity?

•Applies to someone who wants to be known far and wide, to be a celebrity—a musician, athlete, movie star or television personality. •Using this person's name, picture, likeness, voice or identity—or a look-alike or sound-alike—for advertising or other commercial purposes without permission invades this person's right of publicity. •It diminishes the person's economic value.

what is commercialization?

•Applies to someone who wants to remain private and unknown except to family and friends. •Using this person's name, picture, likeness or voice for advertising or other commercial purposes without permission is commercialization. •It is invading this person's privacy, causing emotional distress.

How long does right of publicity last?

•As a property right, rather than a tort, the right of publicity may be transferable to the person's heirs after their death. •"Deleb" is a term used by the entertainment industry for a deceased celebrity whose estate continues to generate substantial revenues after the death of the celebrity - 23 states currently recognize a postmortem right either by statute or common law - The duration of the right after the death of a celebrity varies

how did new york times v. sullivan change fault standard?

•At common law, defamation liability was strict: Defendant did not have to be aware of the falsity or defamatory character of the statement, or even be negligent in ascertaining these things; nor need he have intended or foreseen any harm, or that the statement as referring to Plaintiff. The only fault required was with respect to its publication: had to intentionally or negligently publish the matter - nyt v. sullivan established the actual malice standard

Determining Statements of Fact

•Because a statement must be false to be defamatory, a statement of opinion cannot form the basis of a defamation claim because it cannot be proven true or false. •To determine whether a statement is an opinion or a fact, courts will generally look at the totality of the circumstances surrounding the statement and its publication to determine how a reasonable person would view the statement. •Under this analysis, the difference between an opinion and a fact often comes down to a case-by-case evaluation of the publication's context.

Reporter's Privilege as ruled by SC

•Branzburg v. Hayes (1972). •Reporters claimed the First Amendment provided a privilege that protected them from revealing confidential information. Their ability to report news would be irreparably harmed. Sources would dry up. Mere appearance before a closed grand jury could chill their access to sources who would never know what the reporter revealed. Forced grand jury appearance alone would reduce the information available to the public in violation of the First Amendment. •By a 5-to-4 majority, the Supreme Court disagreed. •The Court balanced the benefits of a reporter's privilege not to testify before a grand jury against the public interest in justice and favored the latter.

How is libel handled legally?

•Civil tort actions, NOT criminal actions •Usually in state courts, but federal courts do get cases (diversity jurisdiction) and will use state laws to determine outcome •States vary in their libel laws, even though Supreme Court rulings have made libel actions more uniform

defamation (include libel vs. slander)

•Defamation is a false statement that injures a third party's reputation •Historically, the tort of defamation includes both libel (written statements) and slander (spoken statements)

group libel?

•Defamatory statements about a group or class of people generally are not actionable by individual members of that group or class. •There are two exceptions to this general rule: 1.The group or class is so small (25 or smaller) that the statements are reasonably understood to refer to the individual in question 2.The circumstances make it reasonable to conclude that the statement refers particularly to the individual in question - ex: "all bloggers who attended the most recent city council meeting payed bribes to the mayor." Bill Blogger may be able to claim defamation based on the statement if Bill is the only blogger who attended the meeting and readers will therefore understand the statement as being a thinly veiled indictment of him.

The "Republication Rule"

•Each person who participates in the repetition or republication of a libelous statement can be held legally liable. •Every person that re-publishes the defamation is just as liable as the first person.

omissions

•Even if a story contains nothing but truthful statements it still might be regarded as false if important facts are left out and the story leaves a false impression.

truth and defamation

•Even though truth is a defense to defamation claims, it is possible for a plaintiff to bring a successful defamation claim against a defendant for having said something literally true, provided that the statement is implicitly false and defamatory.

False light = first cousin to libel

•False light protects a person from emotional distress •Libel protects a person's reputation While defamation is supposed to redress the reputational harm caused by a statement, false light is supposed to redress the emotional harm caused by the same statement

How the 4 Torts Relate: Prosser Article

•False light requires falsity or fiction; the other three do not •Appropriation involves a use for the defendant's advantage, which is not true of the rest •Intrusion & Disclosure require the invasion of something secret, secluded, or private pertaining to the plaintiff; False light and Appropriation do not •Disclosure and False light depend upon publicity, while Intrusion does not

Defenses to Privacy

•First Amendment defense - Generally, the media cannot lose a private facts suit based on truthful information lawfully obtained from a public record •Newsworthy •Consent The facts that the defendant discloses must pertain to the plaintiff's private life. Any facts that are already known or that are a matter of public record cannot be the basis of a cause of action.

The relationship of Plaintiff & Appropriation

•For ordinary people, the unauthorized use of their name or likeness is actionable as an invasion of privacy and the plaintiff will be able to bring a tort action for appropriation of his likeness •If the plaintiff is a celebrity, the use of his name and likeness has a clear commercial value and thus, he would be entitled to damages for the appropriation of his likeness under a tort theory and also for the violation of his right of publicity under an intellectual property theory

Gertz: Private Figures & Fault

•Having less access to the mass media, private persons "are therefore more vulnerable to injury." •Moreover, a private person has not accepted the consequences of notoriety that come with being a public official or public figure. •Accordingly, the State had greater cause to protect the reputations of private figures, and so the State could allow a private figure to recover actual damages for defamation on a showing of negligence

Not all "opinions" are protected

•If a statement implies some false underlying facts, it could be defamatory. •Couching false statements of fact as opinion or within quotes from other sources generally won't protect you either. - Adding "in my opinion" will not convert a statement

Identification and Fictional Works

•If the characters, in a literary or dramatic work intended as fictional, resemble actual persons so closely that it is reasonable for readers or viewers to believe that the character is intended to portray the person in question a person may claim defamation - Bart O'Kavanaugh •A disclaimer that the work is fiction and does not depict any persons living or dead will not automatically foreclose a defamation claim

Newsworthiness Defense for appropriation

•If the plaintiff is a newsworthy figure, publication of his name or likeness is not actionable so long as the use is not for business or advertising purposes.

Publishing Juvenile Offender Names

•In Robert K. Smith v. Daily Mail Publishing Co. (1979), unanimously struck down as unconstitutional a West Virginia statute that provided criminal penalties for publication, without the written permission of the juvenile court, of truthful information that had been lawfully acquired concerning the identity of a juvenile offender. The asserted state interest of ensuring the anonymity of juveniles involved in juvenile court proceedings was not sufficient to override the First Amendment's restrictions against prior restraint

who can sue? (identification)

•In order to be actionable, a defamatory statement must be "of and concerning" the plaintiff. •This means that a defamation plaintiff must show that a reasonable person would understand that the statement was referring to him or her.

Exception to Republication Rule: Wire Service Defense

•In states that recognize the wire service defense, it will apply if: A.You republish a news item from a reputable news agency; B.You did not know the information was false; C.The news item on its face does not indicate any reason to doubt its veracity; and D.You do not substantially alter the news items when republishing it.

Intrusion upon Seclusion vs. Public Disclosure of Private Facts

•Intrusion - the way that the information is collected •Public Disclosure - the way that the information is revealed

what is actual malice?

•Is a state of mind about truth or falsity •Means (1) knowledge of falsity or (2) reckless disregard for the truth •Requires a high degree of awareness of probable falsity üThis is a subjective test for recklessness Ø The plaintiff must show that the defendant was subjectively aware that the statement he published was false or that he subjectively entertained serious doubts as to its truthfulness.

What effect does retraction have on defendant's defamation liability?

•It can serve one of four purposes: 1.It can serve as a defense, but only if it's made immediately after the defamation and is so clearly connected with it that it effectively negates the defamation (many states have statutes to this effect) •If the retraction doesn't meet that standard, it can be used to: 2.Prove that actual damages are less than the plaintiff claims they are 3.Negate the malice requirement, or show that punitive damages aren't warranted 4.When the defendant has a qualified privilege to defame, the retraction may show defendant's good intentions, indicating that the privilege wasn't abused.

Categories of Defamatory Statements

•Libel per se = "obviously defamatory" publication •Libel per quod = "publications which are not obviously defamatory, but which become so when considered in connection with innuendo, colloquium and explanatory circumstances."

False Light Elements

•Making a person appear to be someone he or she is not - Distortion or fictionalization Only individuals can bring a false light suit

•Snow White is in a poison-induced coma. Grumpy the Dwarf comes up to her, nudges her, and says, "Watch out for that Prince Charming. He has a vile and loathsome disease." Prince Charming overhears this and sues Grumpy for defamation. Assuming the statement is false, will the claim succeed?

•No. Defamation requires publication of a false statement of fact about someone that tends to harm his or her reputation. Here, there has been no publication, because Snow White can't hear Grumpy. "Publication" requires transmission to a third party capable of understanding the communication.

•Gil Ibble, reporter for the Washington Rag during the Lincoln administration, hears a guy in a bar say, "The only way Abe Lincoln got elected was by stuffing ballot boxes!" Ibble figures this would make a great story, and he writes it, fully believing it's true not and unearthing any evidence to the contrary. In fact, "Honest Abe" didn't stuff any ballot boxes and he sues Ibble for defamation. Will there be a finding of "actual malice" under modern constitutional rules?

•No. To recover damages from a media defendant for defamation involving an issue of public interest or concern, a plaintiff who is a public figure or public official must prove "actual malice." Actual malice is knowledge of a defamatory statement's falsity or reckless disregard for its truth. Recklessness is measured subjectively here and requires proof that defendant actually had serious doubts about the truth of his story. ØHere, Ibbie believes the story is true, so there's no "actual malice."

What kind of person is 'libel proof'?

•One common application of the doctrine is where plaintiffs have criminal convictions. - Mattheis v. Hoyt, 136 F. Supp. 119 (W.D. Mich. 1955). - Urbano v. Sondern, 41 F.R.D. 355 (D. Conn. 1966), judgment summarily aff'd, 370 F.2d 13 (2d Cir. 1966) and judgment summarily aff'd, 370 F.2d 14 (2d Cir. 1966).

Why are SLAPPs used?

•One of the key characteristics of a SLAPP suit is that the lawsuit is not necessarily designed to achieve a favorable verdict. Instead, it is designed to intimidate the target in order to discourage them and others from speaking out on an issue of public importance. •In addition to engendering fear and intimidation, the party initiating the suit (SLAPPer) often seeks to bleed the other party (SLAPPee) of resources and produce a chilling effect, not only on the SLAPPEE's expression of First Amendment rights but also on those who consider speaking out on the issue in the future. •In essence, SLAPPs are designed to discourage public discussion by using our legal system to choke the exercise of free speech.

defamation and verbal abuse

•Profanity and similar statements, directed at Plaintiff in anger and obviously intended as mere vituperation or abuse, ordinarily cannot be taken literally and therefore are not defamatory.

Who Must Prove Actual Malice?

•Public official & figures suing about either public or private matters are subject to Sullivan and must prove actual malice. •Private figures suing about public matters are covered by Gertz v. Welch and must prove actual malice to recover punitive damages, but otherwise need only prove negligence. •Private figures bringing suit over matters of private concern are not constitutionally required to prove actual malice as a prerequisite to recovering presumed or punitive damages.

Public Disclosure of Private Facts: public concern

•Publishing truthful, intimate, private information that is not of legitimate public concern - No legitimate public interest was served by having these private facts disclosed •If publishing the information would be highly offensive to a reasonable person - The published facts were not of legitimate public concern if published for morbid and sensational reasons

What is a SLAPP suit?

•SLAPP stands for "Strategic Lawsuit Against Public Participation." •It refers to a lawsuit filed in retaliation for speaking out on a public issue or controversy. - A SLAPP suit is a civil complaint or counterclaim filed against people or organizations who speak out on issues of public interest or concern.

Types of Damages

•Special damages = pecuniary losses caused by harm to plaintiff's reputation; for instance, loss of a job, loss of a gift, loss of business, or any firm pecuniary expectation. •General damages = harm of a non-pecuniary nature; for instance, humiliation, mental anguish, harm to reputation with no financial repercussions, and the like.

•Napoleon owns the Louisiana Territory. He is about to give it to his friend, Emperor Maximillian of Mexico, when Thomas Jefferson gives him a call and says, "You're going to give Louisiana to that scum-sucking liar Maximillian? Hah! He's been plotting against you for years!" Napoleon believes Jefferson and gives Louisiana to Jefferson instead. When Maximillian sues Jefferson for defamation, what type of damages will cover the loss of Louisiana-general or special?

•Special, because special damages in the defamation context cover specific pecuniary losses, such as the loss of inheritance, customers, job, or gift, as here.

False light and the supreme court

•U.S. Supreme Court has ruled in only two false light cases: In both, the Court said all plaintiffs must prove actual malice •Courts in some states follow the Supreme Court's rulings •Courts in some other states follow the Gertz ruling and allow private plaintiffs to show only negligence in false light cases •Courts in a few states refuse to allow plaintiffs to bring false light lawsuits •Some state courts say the false light tort is too similar to defamation and refuse to recognize it. They also say false light is so vague it encroaches on First Amendment rights.

Sheppard v. Maxwell (1966)

•Supreme Court overturned a murder conviction when a judge allowed extensive pretrial and trial publicity to turn the proceedings into a "Roman holiday." •It said judges must protect the fair trial rights of a defendant by controlling the trial process and participants, including the media. •The Court said the press has no right to inflame the minds of jurors, jeopardize the fairness of trials, or make a mockery of the solemn judicial process. Facts: •Prominent Cleveland physician Sam Sheppard was charged with the beating death of his wife. •Media broadcast live coverage and printed verbatim transcripts of the second-degree murder trial. - Sheppard was convicted and sentenced to life imprisonment.

Snyder v. Phelps, 562 U.S. 443 (2010)

•The Court decides that Westboro's signs were "public speech" directed to a broad audience and relating to matters of public concern. Speech of public concern warrants greater protection under the First Amendment and is a defense to IIED

Richmond v. Virginia (1980) holding

•The Court held 7-to-1 that the First Amendment guarantees the press and the public the right to attend criminal trials. •According to the Court, the right is not absolute, but "absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public."

gag orders on the media

•The Supreme Court's landmark decision in Nebraska Press Association v. Stuart called press gags an extraordinary remedy that is presumptively unconstitutional •Court orders that bar the media from publicizing legally obtained information about ongoing trials must meet the highest standard of review •Before imposing a media gag, courts must consider: (1) the quantity and content of media coverage, (2) the potential effectiveness of alternatives to a gag and (3) the likelihood that a gag would remedy the harmful publicity. •Judges must determine that the gag is a last resort that narrowly targets information that poses a clear threat to the fair trial and limits as little press freedom as possible. Constitutionally valid media gag orders are rare.

What Is a "Matter of Public Concern"?

•The courts decide on a case-by-case basis whether the defamatory statement involves a matter of public concern, looking at the content, form, and context of the publication.

Anti-SLAPP statutes: How it works

•The defendant makes a motion to strike the case because it involves speech on a matter of public concern •The plaintiff then has the burden of showing a probability that they will prevail in the suit Plaintiff must make more than allegations of harm and actually show that they have evidence that can result in a verdict in their favor •If the defendant prevails on the motion, many of the statutes allow them to collect reasonable attorney's fees from the plaintiff

How does one prove falsity or truth?

•The evidence presented in court must go to the heart of the libelous charge. •The proof must be direct and explicit. - If there is conflicting evidence, the fact finder—the judge or the jury—will decide who is telling the truth. - Every word of a defamatory charge need not be truthful, only the part that carries the gist or the sting of the libel. - To be protected, a defamatory statement does not have to be absolutely accurate in every aspect. - Minor flaws are not actionable, so long as the statement was "substantially true." - Mistakes in a statement that do not harm a plaintiff's reputation cannot be the subject of a defamation suit. - A jury will determine the truth or falsity of a story based on what the story said, not what the reporter meant.

does a plaintiff have to be specifically named to meet libel criteria?

•The plaintiff need not be specifically named, however, if there are enough identifying facts that any (but not necessarily every) person reading or hearing it would reasonably understand it to refer to the plaintiff. •Too much information — in text or photos — can inadvertently identify a "disguised" subject

Opinion & Fair Comment Privileges

•The right to speak guaranteed by the First Amendment to the U.S. Constitution includes the right to voice opinions, criticize others, and comment on matters of public interest. •It also protects the use of hyperbole and extreme statements when it is clear these are rhetorical ploys. •Accordingly, you can safely state your opinion that others are inept, stupid, jerks, etc. even though these statements might hurt the subject's feelings or diminish their reputations. •Such terms represent what is called "pure opinions" because they can't be proven true or false. •As a result, they cannot form the basis for a defamation claim.

•If a journalist reports that Bill Williams was convicted of stealing $1 million when, in fact, Williams was convicted of stealing $950,000, is the statement true or false?

•The statement is substantially true because the "gist" or "sting" of the defamatory statement is true. The statement that Williams was convicted of stealing a large amount of money is accurate. The statement that caused the harm was that Williams stole a lot of money.

Limited-Purpose Public Figures

•They are the individuals who deliberately shape debate on particular public issues, especially those who use the media to influence that debate. This category also includes individuals who have distinguished themselves in a particular field, making them "public figures" regarding only those specific activities. •The actual malice standard applies only to subject matter related to the controversy in question or to the field in which the individual is prominent, not to the person's entire life.

Appropriation of Plaintiff's Name or Likeness

•To prove a prima facie case of appropriation of plaintiff's name or likeness for commercial purposes, the plaintiff must show that the defendant used the name or likeness: (1) for commercial purposes (2) without being authorized to do so Note: if the plaintiff is not a user of the product that his likeness appears on and the advertisement for the product harms the plaintiff's reputation, the plaintiff may also have a cause of action for defamation

•A man was filmed fighting with another inmate in a prison and was identified in a TV broadcast as a member of the Aryan Brotherhood, a white prison gang and crime syndicate in the United States. He was in fact a member of Mexikanemi, an affiliated gang. The plaintiff sued the broadcasters, arguing that the allegation was false. True or false?

•True. The court rejected plaintiff's argument, noting that while the plaintiff technically was not a member of the Aryan Brotherhood, he was a member of Mexikanemi, a gang affiliated with the Aryan Brotherhood. The allegation was therefore substantially true. Bustos v. United States, 38 M.L.R. 1747 (2010).

•Mrs. Tolstoy is jealous of the beautiful and popular Anna Karenina. In an effort to destroy her reputation, Mrs. Tolstoy circulates the story that Anna is an adulteress -- she's having an affair with Vronsky. Will the fact that this is true absolve Mrs. Tolstoy from liability, even though she was trying to wreck Anna's reputation?

•Yes. In defamation, truth is always an absolute defense. Note: Mrs. Tolstoy could be guilty of other torts, like invasion of privacy through publication of private facts about Anna.

negligence (defamation)

•journalistic malpractice; sloppiness and mistakes