communications law midterm (quiz 2)

libel per se

· a statement whose injurious nature is apparent and requires no further proof

false light

· Intentionally or recklessly publicizing information that is highly offensive to a reasonable person. Several states do not allow false light suits because it is so close to libel. o Not all false statements are defamatory—this tort includes statements both disparaging and flattering o Compensates for the emotional distress a false report causes

constitution and privacy

· No mention of privacy in the constitution—assumed

What does section 230 immunity prevent courts from doing?

· Prevents courts from viewing interactive computer service providers as "publishers" in cases involving content published by third-party information content providers (ICP's). The text of Section 230(c)(1) states that: o "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."

public officials/figures v private figures

· Public officials must show that fault on the part of the defendant is at the level of actual malice. Private figures are usually required to show some lesser, easier-to-prove level of fault, typically negligence.

online anonymous speakers

· SCOTUS has no single determined standard for unmasking anonymous online speakers in defamation suits

bootstrapping

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

right of publicity

o 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 § May be considered a property right; in many states, survives after a person's death § An economic right NOT a privacy right because it diminishes their economic value

commercialization

o the appropriation tort used to protect people who want privacy; prohibits using another person's name or likeness for commercial purposes without permission. Applied to person who is private and wants to remain so. § Generally considered by courts to be a personal right, one that does not survive a person's death

punitive damages

o what it would cost to punish the offender/make them not want to do it again, more than just compensating for what was lost, pay taxes on these

distortion

occurs when facts are omitted or the context in which material is published makes an otherwise accurate story appear false

embellishment

occurs when false material is added to otherwise true facts

fictionalization

occurs when some truth, such as a person's name or identifying characteristics, is part of a largely fictional piece

campus speech

SCOTUS has established that universities have a greater obligation to create and maintain forums for broad public discussion than do public schools

speech in schools

Schools and universities may adopt regulations to achieve their educational goals even if the rules incidentally limit the freedom of speech of students and teachers

Hazelwood test

when a school creates and supervises a forum for student speech, such as a student assembly or a teacher-supervised student newspaper, the school endorses that speech and is not only permitted but required to control the content to achieve educational goals; does not apply to university student press

Fraser approach

when student speech occurs during a school-sponsored event, the student's liberty of speech may be curtailed to protect the school's educational purpose, especially when young students are in the audience; this is particularly true if the forum for the student speech suggests that the student is speaking for the school

Major difference between defamation and false light:

§ False light doesn't have to be defamatory—can be praising someone for getting an award that they didn't and that's false light § Something that is defamatory ruins your reputation/brings spite/scorn § Think of false light more as embarrassing; happens a lot with pictures, videos, overembellishing a story

compensatory damages

restores plaintiff to what they were worth before the tort; don't pay taxes on these, just restoring back to original status/condition

defenses for false light

same as libel defenses

sound-alike

someone whose voice sounds like another person's voice. Sound-alikes may not be used for commercial or trade purposes without permission or a disclaimer

3 tests for unmasking anonymous online speakers

(depends on your jurisdiction—if not decided in your jurisdiction, court is free to pick) -Dendrite Int. v Doe no. 3 -Doe v Cahill -good faith test

summary of plaintiff's case in a libel suit

1. Statement of fact 2. Published (to a 3rd party) 3. Identifies plaintiff (of and concerning) 4. Harm 5. Falsity—private + media + publication=burden on plaintiff to prove 6. Fault— PO/PF=AM=knowing falsity...; or negligence

retraction statutes

In libel law, state laws that limit the damages a plaintiff may receive if the defendant had 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.

substantial truth

Minor inaccuracies do not amount to falsity so long as the substance, the gist, the sting of libelous charge can be justified · expecting the media to be completely accurate on every tiny detail is too much of a burden; if the gist of the story remains true, then it will be counted as true

private schools and speech

Private schools don't have to abide by the same regulations as public schools because they're not funded by the gov't, but they typically do

defamation by implication

don't necessarily have to explicitly state libelous message—through implication, it can be created

libel per quod

a statement whose injurious nature requires proof

although the plaintiff must prove every element of their case,

a successful defendant needs only one suitable defense

reckless

actions taken with no consideration of the legal harms that might result

speech codes

adopted by universities, found often to be unconstitutional

Negligent Infliction of Emotional Distress

careless breach of a duty that causes the plaintiff severe emotional harm

Tinker test

classroom is a location that is "peculiarly the marketplace of ideas" where speech may be regulated only to prevent a "substantial disruption" to school activities

summary judgement

court rejects case because it knows plaintiff will not be able to prove at least one part of their case

to prove publication, a libel plaintiff must show not just that libelous material was published but must also

identify a specific person, group or business responsible for the publication. *For example, bookstores, libraries and newsstands cannot be sued for libel because they do not control the contents of the products that they sell

only ___________ can bring a false light suit

indivuduals

defenses of appropriation

news, public domain, FA, incidental use, advertising for a mass medium, consent

fear of possible disruption

not enough—the school must prove there will be material and substantial interference

section 230 immunity applies if

o The ISP/website is a content distributor and not a content creator o The ISP/website did not interact directly with the content o ISPs/websites correct, edit, add or remove content—so long as they do not substantially alter the meaning of the content o ISPs/websites solicit or encourage users to submit content o ISPs/websites pay a third party to create or submit content—so long as they do not substantially alter the meaning of the content o ISPs/websites provide forms or drop-downs to facilitate content submission by users—so long as the forms and drop-downs are neutral

Prior to Sullivan, plaintiff had to prove (for common law libel) that

o A statement of fact o Was published (to a 3rd person) o Identified (of and concerning)—don't have to explicitly state name, as long as people know exactly who material is talking about o False (presumed—defendant used to have to prove info was true) o Fault (strict liability—we don't care why this happened; it was just your fault)

Courts use a three-prong test to determine if the CDA provides an ISP defendant immunity

o Defendant must be a provider or user of an interactive computer service o Second, the plaintiff's cause of action must view the defendant as the "publisher" or "speaker" of a harmful statement. o Third, the harmful information was provided by another information content provider, other than the defendant.

Doe v Cahill

o Delaware § A "modified Dendrite standard" consisting of the first and third prongs of the dendrite test (notification and produce evidence to defeat a summary judgement motion) § The court rejected the second prong of the Dendrite test because it believed it subsumed within the summary judgement "prima facie" test. Similarly, the court rejected any need for balancing, stating that the summary judgement test itself was the balance

Dendrite International v. Doe No. 3

o Dendrite International, a company that developed and serviced software for the pharmaceutical industry, brought a John Doe lawsuit in New Jersey state court against fourteen unnamed defendants for critical messages they posted on Yahoo! message boards. Dendrite claimed the messages were defamatory and revealed trade secrets, and they sought permission from the court to take discovery from Yahoo regarding the identity of certain of the anonymous posters. o The trial court allowed Dendrite to conduct limited discovery to find out the identities of John Does 1 and 2, who were current or former employees of the company, but rejected its request for an order compelling Yahoo to identify John Doe 3. o Dendrite appealed, and the New Jersey appellate court affirmed the lower court's ruling. In its opinion, the court set out guidelines for lower courts to follow when faced with a request for an order compelling an ISP to reveal the identity of an anonymous Internet poster. The court developed a five-part test: (1) the plaintiff must make efforts to notify the anonymous poster and allow a reasonable time for him/her to respond; (2) the plaintiff must identify the exact statements made by the poster; (3) the complaint must set forth a prima facie cause of action; (4) the plaintiff must bring forth sufficient evidence for each element of its claim; and (5) the court must 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. o Applying the standard to the facts of the case, the appellate court held that Dendrite had failed to produce sufficient evidence for each element of its defamation claim, because it had not produced evidence of harm resulting from John Doe 3's statements.

Morse v. Frederick 551 U.S. (2007)

o Facts: At a school-supervised event, Joseph Frederick held up a banner with the message "Bong Hits 4 Jesus," a slang reference to marijuana smoking. Principal Deborah Morse took away the banner and suspended Frederick for ten days. She justified her actions by citing the school's policy against the display of material that promotes the use of illegal drugs. Also, even though they were off campus, it was still a school-sponsored event. Frederick sued under 42 U.S.C. 1983, the federal civil rights statute, alleging a violation of his First Amendment right to freedom of speech. The District Court found no constitutional violation and ruled in favor of Morse. The court held that even if there were a violation, the principal had qualified immunity from lawsuit. The U.S. Court of Appeals for the Ninth Circuit reversed. The Ninth Circuit cited Tinker v. Des Moines Independent Community School District, which extended First Amendment protection to student speech except where the speech would cause a disturbance. Because Frederick was punished for his message rather than for any disturbance, the Circuit Court ruled, the punishment was unconstitutional. Furthermore, the principal had no qualified immunity, because any reasonable principal would have known that Morse's actions were unlawful. o Question: 1) Does the First Amendment allow public schools to prohibit students from displaying messages promoting the use of illegal drugs at school-supervised events?2) Does a school official have qualified immunity from a damages lawsuit under 42 U.S.C. 1983 when, in accordance with school policy, she disciplines a student for displaying a banner with a drug reference at a school-supervised event? o Conclusion: Yes, and not reached. The Court reversed the Ninth Circuit by a 5-4 vote, ruling that school officials can prohibit students from displaying messages that promote illegal drug use. Chief Justice John Roberts's majority opinion held that although students do have some right to political speech even while in school, this right does not extend to pro-drug messages that may undermine the school's important mission to discourage drug use. The majority held that Frederick's message, though "cryptic," was reasonably interpreted as promoting marijuana use - equivalent to "[Take] bong hits" or "bong hits [are a good thing]." In ruling for Morse, the Court affirmed that the speech rights of public-school students are not as extensive as those adults normally enjoy, and that the highly protective standard set by Tinker would not always be applied. In concurring opinions, Justice Thomas expressed his view that the right to free speech does not apply to students and his wish to see Tinker overturned altogether, while Justice Alito stressed that the decision applied only to pro-drug messages and not to broader political speech. The dissent conceded that the principal should have had immunity from the lawsuit but argued that the majority opinion was "[...] deaf to the constitutional imperative to permit unfettered debate, even among high-school students [...]." o Standards set by Tinker would not always be applied because students not as protected by FA as adults. Court distinguished this case from Tinker because it was about a pro-drug message and not political speech.

New York Times v. Sullivan; 376 U.S. 254 (1964), p. 187

o Facts: During the Civil Rights movement of the 1960s, the New York Times published an ad for contributing donations to defend Martin Luther King, Jr., on perjury charges. The ad contained several minor factual inaccuracies. The city Public Safety Commissioner, L.B. Sullivan, felt that the criticism of his subordinates reflected on him, even though he was not mentioned in the ad. Sullivan sent a written request to the Times to publicly retract the information, as required for a public figure to seek punitive damages in a libel action under Alabama law. o When the Times refused and claimed that they were puzzled by the request, Sullivan filed a libel action against the Times and a group of African American ministers mentioned in the ad. A jury in state court awarded him $500,000 in damages. The state supreme court affirmed and the Times appealed. o Question: Did Alabama's libel law unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections? o Conclusion: To sustain a claim of defamation or libel, the First Amendment requires that the plaintiff show that the defendant knew that a statement was false or was reckless in deciding to publish the information without investigating whether it was accurate. In a unanimous opinion authored by Justice Brennan, the Court ruled for the Times. When a statement concerns a public figure, the Court held, it is not enough to show that it is false for the press to be liable for libel. Instead, the target of the statement must show that it was made with knowledge of or reckless disregard for its falsity. Brennan used the term "actual malice" to summarize this standard, although he did not intend the usual meaning of a malicious purpose. In libel law, "malice" had meant knowledge or gross recklessness rather than intent, since courts found it difficult to imagine that someone would knowingly disseminate false information without a bad intent. o Actual malice: knowledge of reckless disregard for the truth

libelous anonymous speech

o In Virginia, plaintiffs must show they have a legitimate, good faith basis to claim an actionable offense within the court's jurisdiction, and that the identity of the anonymous speaker is central to advancing their case o Most other state courts have rejected this because it does not offer the speaker sufficient FA protection o Dendrite v John Doe: plaintiff must present the court with prima facie (on its face) evidence that is sufficient to prove the plaintiff has a case that can withstand a motion to dismiss. o Motion to dismiss=formal request to the court to dismiss a case o If the plaintiff's case can withstand a motion to dismiss, then the court should balance the FA rights of the anonymous speaker against the strength of the prima facie case and the need to disclose the anonymous speaker o Delaware Supreme Court: a defamation plaintiff must satisfy a summary judgement standard before obtaining the identity of an anonymous defender

Gertz v. Welch; 418 U.S. 323 (1974).

o 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. 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). The Court of Appeals for the Seventh Circuit affirmed the trial judge's ruling. o Question: Does the First Amendment allow a newspaper or broadcaster to assert defamatory falsehoods about a private individual who is neither a public official nor a public figure? o Conclusion: The Court reversed the lower court decision, holding that Gertz's rights had been violated and ordering a new trial. Justice Powell argued that the application of the New York Times v. Sullivan standard in this case was inappropriate because Gertz was neither a public official nor a public figure. In the context of the opinion, Powell advanced many lines of reasoning to establish that ordinary citizens should be allowed more protection from libelous statements than individuals in the public eye. First, the recklessness standard applies only to defamation of public figures or public officials. Second, even for private individuals, states may not impose strict liability on news media. And third, any standard of fault less then recklessness limits private persons to actual injury. o "The first remedy of any victim of defamation is self-help—using available opportunities to contradict the lie or correct the error, and thereby minimize its adverse impact on reputation. Public officials/figures usually enjoy significantly greater access to the channels of effective communication, and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury, and the state's interest in protecting them is correspondingly greater...We hold that, so long as they do not impose a liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual." o Gertz removed strict liability completely from defamation law—there will be no liability without fault

Zacchini v. Scripps-Howard, 433 U.S. 562 (1977)

o Facts: Hugo Zacchini performed a "human cannonball" act, in which he was shot from a cannon into a net 200 feet away. A free-lance reporter for Scripps-Howard Broadcasting Co. recorded the performance in its entirety without consent and it aired on the nightly news. Subsequently, Zacchini sued Scripps-Howard, alleging the unlawful appropriation of his professional property. Ultimately, the Ohio Supreme Court ruled in favor of Scripps-Howard. While recognizing that Zacchini had a cause of action for the infringement of his state-law right to publicity, the court found that Scripps-Howard was constitutionally privileged to include in its newscasts matters of public interest that would otherwise be protected by the right of publicity, absent an intent to injure or to appropriate for some nonprivileged purpose. o Question: Do the First and Fourteenth Amendments immunize the Scripps-Howard Broadcasting Co. from damages for its alleged infringement of an entertainer's state-law right of publicity? o Conclusion: No. In a 5-4 opinion delivered by Justice Byron R. White, the Court held that Scripps-Howard's constitutionally privileged free speech did not extend to broadcasting Zacchini's entire performance without his permission. Noting that Zacchini's interest in the case was similar to a patent or copyright, in which he was seeking to obtain the benefit of his work, the Court emphasized that the broadcast of an entire act was categorically different from reporting on an event in so far as it posed a substantial threat to the economic value of the performance. "Wherever the line in particular situations is to be drawn between media reports that are protected and those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer's entire act without his consent," wrote Justice White. Justice Louis F. Powell, Jr., joined by Justices William J. Brennan, Jr., and Thurgood Marshall, dissented, arguing that the recording was genuinely treated as news and as such Scripps-Howard was constitutionally privileged. Justice John Paul Stevens also dissented. o Rare occasion when a journalist was held accountable for right of publicity o Based the whole case on the fact that they showed his entire act (even though it was only 15 secs lol)

Time Inc., v. Hill, 385 US 374 (1967)

o Facts: In 1952, three escaped convicts took James Hill, his wife, and their five children hostage in their Whitemarsh, Pennsylvania, home. After nineteen hours, the family was released unharmed. The convicts were later apprehended in a violent clash with police during which two of them were killed. In 1953, Joseph Hays' published a novel based on the Hill family's ordeal. When the novel was subsequently made into a play, Life Magazine ("Life") printed an article about the play that mirrored many of its inaccuracies concerning the Hill family's experience. Alleging that it deliberately misrepresented his story, Hill sought damages against Life. On appeal from an adverse ruling, the Appellate Division of the New York Supreme Court remanded for a new trial where a reduced adverse ruling was imposed on Life. Following an unsuccessful appeal in the New York Court of Appeals, the Supreme Court granted Life's owner, Time Inc. ("Time") certiorari. o Made the family look heroic, a lot of unwanted attention o Question: Is a publication, containing misrepresentations about the subject of its coverage, protected under the First Amendment's freedom of speech guarantees? o Conclusion: Yes. In a 6-to-3 opinion, the Court set aside the Appellate ruling against Time because the lower court failed to instruct the jury that Time's liability was contingent upon a showing that it knowingly and recklessly published false statements about the Hill family. The Court explained that absent a finding of such malicious intent on the part of a publisher, press statements are protected under the First Amendment even if they are otherwise false or inaccurate. The Court remanded for retrial under the new jury instruction.

Lohrenz v. Donnelly 350 F.3d 1272, 358 U.S. app. D.C. 425 (2003)

o Facts: In August 1994, the United States Navy assigned Carey Lohrenz (plaintiff) a position as an F-14 jet pilot. At the time, there was a public controversy over the appropriateness of women in combat roles. Lohrenz was aware of the controversy when she chose her career path, as well as of the likelihood that her role as one of two female combat pilots would place her at the center of the controversy. In October 1994, the other female pilot died during a training exercise, and the controversy surrounding female combat pilots intensified. Elaine Donnelly (defendant) had been campaigning against allowing women to assume combat roles. After the crash, Donnelly began targeting Lohrenz, specifically questioning her competence as a pilot. After losing her position as a pilot, Lohrenz filed a defamation action against Donnelly, claiming that Donnelly's defamatory publications had caused Lohrenz to lose her pilot position. The district court granted Donnelly's motion for summary judgment, finding that Lohrenz was a limited-purpose public figure and had failed to show actual malice. Lohrenz appealed the decision. o Conclusion: The case finally ended on May 17, 2004, when the Supreme Court denied the petition of Plaintiff Carey D. Lohrenz for a writ of certiorari. The federal courts dismissed the bogus case for a simple reason: There were no issues of material fact brought by Plaintiff Lohrenz that would have justified a jury trial. Dismissal of Lohrenz v. Donnellywas a solid victory for the First Amendment, and for the right of private individuals to question the government "party line" when advocating high, uncompromised standards in all forms of military training. This is a matter of life-an-death importance to both women and men in the military, and it was well worth the fight.

4 ways people can claim you have defamed them

o Interfered with their relationship with other people o Interfered with future relationships o Destroy a favorable public image o Create a negative image for a person who had no public image at all

Dendrite Int. v Doe no. 3

o New Jersey, (harshest) five-part test: § Notice § Exact statements § Establish prima facie § Produce evidence to support each part of prima facie § Court must balance defendants FA right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of their identity

Tinker v Des Moines School District, 393 U.S. 503 (1969)

o Facts: In December 1965, a group of students in Des Moines held a meeting in the home of 16-year-old Christopher Eckhardt to plan a public showing of their support for a truce in the Vietnam war. They decided to wear black armbands throughout the holiday season and to fast on December 16 and New Year's Eve. The principals of the Des Moines school learned of the plan and met on December 14 to create a policy that stated that any student wearing an armband would be asked to remove it, with refusal to do so resulting in suspension. On December 16, Mary Beth Tinker and Christopher Eckhardt wore their armbands to school and were sent home. The following day, John Tinker did the same with the same result. The students did not return to school until after New Year's Day, the planned end of the protest. o Through their parents, the students sued the school district for violating the students' right of expression and sought an injunction to prevent the school district from disciplining the students. The district court dismissed the case and held that the school district's actions were reasonable to uphold school discipline. The U.S. Court of Appeals for the Eighth Circuit affirmed the decision without opinion. o Question: Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the students' freedom of speech protections guaranteed by the First Amendment? o Conclusion: Yes. Justice Abe Fortas delivered the opinion of the 7-2 majority. The Supreme Court held that the armbands represented pure speech that is entirely separate from the actions or conduct of those participating in it. The Court also held that the students did not lose their First Amendment rights to freedom of speech when they stepped onto school property. In order to justify the suppression of speech, the school officials must be able to prove that the conduct in question would "materially and substantially interfere" with the operation of the school. In this case, the school district's actions evidently stemmed from a fear of possible disruption rather than any actual interference. o In his concurring opinion, Justice Potter Stewart wrote that children are not necessarily guaranteed the full extent of First Amendment rights. Justice Byron R. White wrote a separate concurring opinion in which he noted that the majority's opinion relies on a distinction between communication through words and communication through action. o Justice Hugo L. Black wrote a dissenting opinion in which he argued that the First Amendment does not provide the right to express any opinion at any time. Because the appearance of the armbands distracted students from their work, they detracted from the ability of the school officials to perform their duties, so the school district was well within its rights to discipline the students. In his separate dissent, Justice John M. Harlan argued that school officials should be afforded wide authority to maintain order unless their actions can be proven to stem from a motivation other than a legitimate school interest.

Cantrell v. Forest City Publishing Co., 419 US 245 (1974)

o Facts: In December 1967, the Silver Bridge at Point Pleasant, West Virginia, collapsed and killed 43 people, including Melvin Cantrell. Joseph Eszterhas, a reporter for the local newspaper the Plain Dealer, was assigned to cover the story. He decided to focus on the Melvin Cantrell's funeral and the impact of his death on his family. Five months later, he returned to do a follow-up piece and spoke to the Cantrell children when their mother, Margaret Cantrell, was not present. The article appeared on August 4, 1968 and contained a number of admitted inaccuracies concerning the family and the status of their home. o Margaret Cantrell and her children sued under the "false light" theory of invasion of privacy. After the jury heard plaintiff's case, the judge removed the demand for punitive damages because Cantrell had failed to present evidence that the falsehoods stemmed from actual malice. The defendants moved for a directed verdict, which the judge denied. The jury found the defendants guilty and awarded compensatory damages. The U.S. Court of Appeals for the Sixth Circuit reversed and held that the district judge should have granted the defendant's motion for a directed verdict. o Question: Should the district judge have directed a verdict for Forest City Publishing Co.? o Conclusion: No. Justice Potter Stewart delivered the opinion of the 8-1 majority. The Court held that the district judge adequately instructed the jury that liability could only be imposed if the jury determined that the false statements were made knowingly or with a reckless disregard for the truth. Because no one objected to the instructions, the Court held that it did not have to consider whether this was an acceptable standard for "false light" cases. The Court held that the U.S. Court of Appeals for the Sixth Circuit erred in overturning the case. The Court of Appeals based its analysis on the concept of "actual malice" as defined in New York Times v. Sullivan, while the district judge based his analysis on the common law standard of malice. The Court held that the district judge should not have directed a verdict for Forest City Publishing Co. because there was sufficient evidence in the case to prove Forest City Publishing Co. was aware of the falsehoods.

Curtis Publishing Co. v. Butts & A.P. v. Walker, 388 U.S. 130 (1967)

o Facts: In New York Times Co. v. Sullivan (1964) the Court held that public officials in libel cases must show that a statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not." These two cases concern libel as it pertains to public figures who are not public officials. Curtis Publishing Co. v. Butts concerns an article published in the March 23, 1963 edition of The Saturday Evening Post alleging that former University of Georgia football coach Wallace Butts conspired with University of Alabama coach Paul "Bear" Bryant to fix a 1962 football game in Alabama's favor. The article's source was George Burnett, an Atlanta insurance salesman who had allegedly overheard a telephone conversation between the coaches. Butts brought and won a libel suit against Curtis Publishing, owner of the periodical. Soon after the Court's ruling in New York Times, Curtis moved for a new trial. The trial judge rejected the argument because Butts was not a public official. On appeal, the Fifth Circuit Court of Appeals affirmed the trial judge's decision on the basis that Curtis had waived any constitutional challenges by not raising such questions at trial. Associated Press v. Walker concerns dispatch reports of rioting that occurred on the campus of the University of Mississippi on September 30, 1962. The dispatches, authored by a correspondent on the scene, reported that Edwin A. Walker, a 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. Walker denied the report and filed a libel suit in the state courts of Texas. A jury found in Walker's favor, but the judge in the case refused to award punitive damages, finding that there was no malicious intent. The judge also specifically noted that New York Times was inapplicable. On appeal, the Texas Court of Civil Appeals agreed. The Supreme Court of Texas declined to hear the case. o Question: In light of the Court's ruling in New York Times Co. v. Sullivan, were the allegations made against Butts and Walker libelous? o Conclusion: In a 5-4 decision authored by Justice John M. Harlan, the Court noted significant differences between the circumstances of these cases and those of New York Times. In particular, criticism of Butts or Walker, unlike a government official, could not be conflated with criticism of public policy. Thus, the 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. The situation in Butts contrasted with Walker, where the AP relied on a correspondent on the scene of an event that was immediately newsworthy. The Court thus denied Walker's claims to damages.

Milkovich v. Lorain Journal Co. et al

o Facts: Michael Milkovich, Maple Heights High School's wrestling coach, testified at a hearing concerning a physical altercation at a recent wrestling meet. After the hearing, Theodore Daidium published an article in the local newspaper saying that anyone at the wrestling meet "knows in their heart" that Milkovich lied at the hearing. Milkovich sued Daidium and the paper for defamation, alleging that the article accused him of perjury, damaged his occupation, and constituted libel. The court ruled in favor of the paper, holding that Milkovich failed to show the article was published with actual malice. The Ohio Court of Appeals reversed and remanded. On remand, the trial court ruled in favor of the paper, holding that the article was a constitutionally protected opinion. The Ohio Court of Appeals affirmed, but the Supreme Court of Ohio reversed and remanded, holding that Milkovich was not a public figure and the defamatory statements were factual assertions, not constitutionally protected opinions. o Question: Are the statements in the newspaper article constitutionally protected opinions? o Conclusion: No. In a 7-2 decision, Justice William H. Rehnquist wrote the majority opinion reversing and remanding. The Supreme Court held that there is no special constitutional privilege for opinions. The statements in the newspaper were sufficiently factual to be proved true or 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. o Because it was verifiable whether or not he committed perjury—statement not an opinion and unprotected

issues of jurisdiction in libel cases

o Happening more often now between people from different states o Plaintiffs will sue US companies abroad because it can be easier to win in some countries o However, most US courts have declined to enforce any judgements obtained abroad that they consider "repugnant" to the FA

Ollman v. Evans; p. 223

o In 1978, Professor of political science at NYU Bertell Ollman was nominated to head of the Department of Government and Politics at the University of Maryland. Rowland Evans and Robert Novak published a column questioning the nomination, which said five major things about Ollman. § It denied Ollman's credit as a scholar and marked him as a political activist. § Ollman is viewed as a political activist by others. § Ollman is an outspoken political Marxist. § Ollman is a pamphleteer § Lastly, Ollman plans to use the classroom for political activism and encourage "the revolution." o Ollman claimed the column led to the withdrawal of the job offer, so he sued Evans for $6 million. Ollman's argument was that the article ruined his reputation, caused him mental anguish, and caused him to not get the position he was nominated for. o Evans claimed that the article was essentially a statement of opinions and conclusions, meaning there was no case for defamation. o In its majority opinion, the DC Circuit Court of Appeals recalled that the Supreme Court stated in Gertz v. Welch, "Under the First Amendment 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 ideas.....there is no constitutional value in false statements of fact." Since Evans' and Novak's article referred to Ollman's speeches and writings, their opinions reflected what Ollman had written. There was no evidence to prove Evans' and Novak's conclusions as defamatory or false, or that they depended on outside evidence for their work. Justice Kenneth Starr read the majority ruling favoring Evans and created the Ollman test. The Ollman test has four parts that looks at 1. Verifiability 2. Common Meaning 3. Journalistic Context 4. Social Context

3 major relevant considerations concerning student speech, determined by the Supreme Court

o The extent to which the student speech in question poses a substantial threat of disruption (Tinker) o Speech is offensive to prevailing community standards (Hazelwood Sch. Dist. v. Kuhlmeier) o Speech, if allowed as part of a school activity or function, would be contrary to the basic educational mission of the school (Morse v. Fred) *· Each consideration has given rise to a separate mode of analysis, and Court has implied that each may be an independent reason

summary of libel defenses

o Truth/substantial truth o Opinion=parody, satire, rhetorical hyperbole, context o Neutral reportage o Fair report/qualified privilege o Fair comment and criticism o Libel-proof plaintiff o Other defense issues: CDA Sec. 230 immunity; statutes of limitations, retractions, state anti-SLAPP laws, etc.

reckless disregard criteria

o Urgency of the story o Source reliability o Number of sources o Story believability

good faith test

o Virginia § Yelp inc. v Hadeed Carpet Cleaning, inc. § Requires adequate notice to the anonymous commenter § Like Dendrite-Cahill, the Virginia statute calls for the court to weigh the parties' respective rights § Plaintiff demonstrates a "legitimate, good faith basis to contend" that the anonymous content is tortious § The statute does not require plaintiffs to present a prima facie case of all required facts to prove the anonymous commenter committed defamation or some other tort

transformative use test

o a test to determine whether a creator has transformed a person's name, picture, likeness, voice, or identity for artistic purposes. If so, the person cannot win a right of publicity suit against the creator.

artistic relevance test

o a test to determine whether the use of a celebrity's name, picture, likeness, voice, or identity is relevant to a disputed work's artistic purpose. It is used in cases regarding the infringement of a celebrity's right of publicity. § Consent is needed if the name or celebrity's likeness is used primarily to give the work commercial appeal

people with absolute privilege if sued for libel are also...

o absolutely privileged in false light suits

predominant use test

o 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

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

plaintiff's case for appropriation

o must prove their name or likeness was used for advertising or other commercial purposes without permission and that the commercial use was of and concerning them and was widely distributed § Must be reasonable grounds for identifying plaintiff, many times name is not enough

__________________ are not protected to the fullest extend by the FA

students

communications decency act

the part of the 1996 Telecommunications Act that largely attempted to regulate internet content. This act was successfully challenged in Reno v. American Civil Liberties Union.

the best defense to libel is

the truth *knowing something is true is different from being able to prove that it's true

In general, rules affecting expression in public schools likely are constitutional if the policies neither

§ Limit expressive content that is compatible with the school's educational priorities nor § Target specific content without a strong educational justification

plaintiff's case for false light

§ Publicizing § False facts § About an identified person § The statements or pictures put the plaintiff in a false light that would be highly offensive to a reasonable person § In an intentional or reckless manner (Sup. Ct.) or negligently if plaintiff is a private person (according to some courts)

SLAPP (strategic lawsuit against public participation)

· A lawsuit whose purpose is to harass critics into silence, often to suppress those critics' FA rights; uses chilling speech—plaintiffs rarely win these cases -some states have enacted anti-SLAPP legislation

Knight v Trump

· Can't exclude/block people from a certain website because you don't like what they're saying o Only rules you can make as a gov't entity in the public forum, you can't make content-based exclusions—must apply strict scrutiny

tort

· Civil wrong · Ex. defamation, libel and emotional distress

Sedition Act of 1798

· Federal legislation under which anyone "opposing or resisting any law of the US, or any act of the POTUS," could be imprisoned for up to two years. The act also made it illegal to "write, print, utter or publish" anything that criticized the president or Congress. The act expired in 1801 and was ultimately seen as a direct violation of the FA.

Gertz v Welch

· The first remedy of any victim of defamation is self-help—using available opportunities to contradict the lie or correct the error, and thereby minimize its adverse impact on reputation. Public officials/figures usually enjoy significantly greater access to the channels of effective communication, and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury, and the state's interest in protecting them is correspondingly greater...We hold that, so long as they do not impose a liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.

fair comment and criticism

· a common law privilege that protects critics from lawsuits brought by individuals in the public eye

material change of meaning doctrine

· a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity unless the alteration results in a material change in the meaning conveyed by the statement

private figure

· 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 not actual malice but merely negligence on the part of the defendant.

libel-proof plaintiff

· a plaintiff whose reputation is deemed so badly damaged already that additional false statements of and concerning him or her cannot cause further harm.

fair report privilege

· a privilege claimed by journalists who report events on the basis of official records. The report must fairly and accurately reflect the content of the records; this is the condition that sometimes leads to this privilege being called "conditional privilege." o The info must be obtained from a record or proceeding recognized as "official" o The news report must fairly and accurately reflect what is in the public record or what was said during the official proceeding o The source of the statement should be clearly noted in the news report o Not all states recognize the fair report privilege

single-publication rule

· a rule that limits libel victims to only one cause of action even with multiple publications of the libel, common in the mass media and on websites.

conditional (or qualified) privilege

· an exemption from liability for repeating defamatory words of and concerning another because the original statement was made within the performance of duty such as in judicial or political contexts; 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 (you cannot add your own opinion)

Philadelphia v. Hepps

· burden of proving falsity now on the plaintiff, both public and private (falsity no longer presumed); in other words, falsity is proven by plaintiff if public issue and media defendant o "because in such a case the scales are in an uncertain balance as to whether the statements are true or false, the Constitution requires that the scales be tipped in favor or protecting true speech. To ensure that true speech on matters of public concern is not deterred, the common law presumption that defamatory speech is false cannot stand." o If no media organization is concerned/no issue of public concern—falsity is presumed here, but not a very common situation

how a plaintiff can be identified

· by name, title, photos or within a context in which their identity can be inferred. *As a group grows in size, the inclusiveness of the language that allegedly libeled its members becomes a factor

trade libel

· criticism of products rather than people or businesses

Intentional Infliction of Emotional Distress (IIED)

· extreme and outrageous intentional or reckless conduct causing plaintiffs severe emotional harm; public official and public figure plaintiff must show actual malice on defendant's part. Plaintiff's case is that defendant's intentional or reckless conduct: o Was extreme and outrageous—beyond the bounds of decency tolerated in civilized society o Involved actual malice, if plaintiff is a public official or public figure o Caused plaintiff's severe emotional distress *FA will likely not allow successful IIED suits based on satires and parodies

defamation

· false communication about another person that damages that person's reputation or brings them into disrepute—holds one to hatred, contempt, ridicule or spite o Includes slander and libel

4 categories of privacy law

· false light, appropriation, intrusion, and private facts

The Ollman Test (Ollman v Evans)

· four-part test to determine if a statement is one of fact or opinion: o Verifiability: is the statement verifiable—objectively capable of proof or disproof? In other words, can the statement be proved either true or false? o Common meaning: what is the common usage or meaning of the words? o Journalistic context: what is the journalistic context in which the statement occurs? Ex. op-ed column o Social context: what is the broader social context in which the statement fits?

neutral reportage

· in libel law, a defense accepted in some jurisdictions that says that when an accusation is made by a responsible and prominent organization, reporting that accusation is protected by the FA even when it turns out the accusation was false and libelous. Says the FA is a defense in a libel case if the following apply: o The story is newsworthy and related to a public controversy o The accusation is made by a responsible person or group o The charge is about a public official, public figure or public organization o The story is accurate, containing denials or other views o The reporting is neutral

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. Public figure libel plaintiffs are required to prove actual malice.

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. *· An individual may assume public figure status within small publics but may revert to be a private figure in larger spheres *· Whether a plaintiff is considered a public figure for purposes of a libel suit can depend on the nature of the material being published—specifically whether it relates to a matter of public concern

limited-purpose public figure (found in Gertz)

· in libel law, those plaintiffs who have attained public figure status within a narrow set of circumstances by thrusting themselves 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. o A public figure only in certain circumstances. When you defend them on issues outside of what they thrust themselves into, then they would be considered private.

vortex/involuntary public figure (found in Gertz)

· involuntary limited-purpose public figure, didn't thrust themselves into an issue but have been anyway; still must prove actual malice

actual malice

· knowledge of falsity or reckless disregard for the truth

wire service defense

· may be applied as long as the following are present: o The defendant received material containing the defamatory statements from a reputable newsgathering agency o The defendant did not know the story was false o Nothing on the face of the story reasonably could have alerted the defendant that it may have been incorrect o The original wire service story was republished without substantial change

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.

opinion

· not libelous because it cannot be false -however, can't just say "in my opinion" for it to be an opinion -Opinion stems from the FA and is therefore a constitutional defense and thus stronger and more effective than fair comment and criticism

section 230 immunity

· offers immunity to websites in libel claims, although the protection is not absolute. Generally, provides legal protection to website operators and internet service providers when issues arise from the content created by others

Curtis v. Butts and AP v. Walker introduced

· public figures and differentiated/compared them to public officials; not being paid by public money but still well-known enough and in a capacity where they can sway public opinion/policy o In libel law, treated in same category as public officials—must prove actual malice o Curtis v. Butts: actual malice—random person told them the info, and they did nothing to try and check the info/his credibility o AP v. Walker: no actual malice, there was a real reporter on the scene trying to figure out what was happening

republication

· republishing libelous information is seen as a new publication in the eyes of the law—even when careful attribution occurs. It is as potentially harmful to someone's reputation as publishing in the first place

Gertz removed...

· strict liability completely from defamation law—there will be no liability without fault

deposition

· testimony by a witness conducted outside a courtroom and intended to be used in preparation for trial

Whatever the standard for what is defamatory, courts traditionally have said

· that the matter must be viewed from the perspective of "right-thinking" people

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, for example, the plaintiff has the burden of proof.

if all three prongs are met,

· then the defendant is protected by the CDA and immune from legal liability

Goal of Section 230 immunity

· to enable internet and tech companies to develop without fear of legal liability content published to their websites by internet users o If internet service providers are held liable for content published by their users, this could either: o Drive companies into bankruptcy from constant legal battles, or incentivize companies to heavily regulate and censure content published by users · Both consequences would discourage free online speech and innovation on the internet. Section 230 is often credited for enabling social media companies, search engines, and cloud storage systems to be as successful and integrated into society as they are today.

NYT v. Sullivan

· to readily punish a media organization for publishing criticism of gov't officials is contrary to "the central meaning of the FA." Media defendants did not have sufficient protection from libel suits. Awarding victories to libel plaintiffs too easily threatens to choke off the free flow of info that is essential to democratic society. Fear of making even minor errors would result in a chilling effect on the media, unduly restricting press freedom. This freedom is especially important when it comes to the criticism of the gov't and its officials. o For Sullivan to win his case, he would have had to prove actual malice: aka NYT published the editorial ad knowing it contained false info or with reckless disregard for its truth. o This opinion emphasized that the FA permits—encourages even—an aggressive watchdog press o With this case, libel law was "constitutionalized."

new model of fault after Gertz

· two diff categories: public figures/officials and, for most states, negligence

What did Sullivan introduce?

· two types of plaintiffs and concept of actual malice. Two plaintiffs: o Public officials—must prove actual malice, which is knowing falsity or reckless disregard for truth; elected or appointed and paid by public money o Everyone else (strict liability)

appropriation

· using another's name or likeness for advertising or other commercial purposes without permission—includes commercialization and right of publicity