MC 3080: Defamation

Under the Fault Element, define public official

-Any government employee OR -individual that has substantial control or responsibility. (Ex. Senator, governor, president)

Who can sue for defamation?

1. Any living person 2. A corporation 3. An organization or society within limits (Ex. Labor union, charitable foundation) 4. Individual officials/employees (Government and their branches CANNOT sue for defamation)

Under the Harm Element, you can request 2 types of damages. What are they?

1. Compensatory Damages (monetary award to compensate for harm). 2. Punitive damages (extra award for plaintiff based on spite or other detestable motives, actual malice-not permitted in some states though & jury decides on reward)

There are 6 elements of Libel. What are they?

1. Defamatory content 2. Falsity/Assertion of Fact 3. Publication 4. Identification 5. Harm 6. Fault

What case is an example of Private Person and define that case.

1. Gertz v. Robert Welch Inc. (1974). 2. Gertz was attacked in this magazine. Surprise, he was blamed for being a communist and accused him as a public figure. Gertz never sought out the publicity for any of this deeming him as a public figure. Ultimately, he won the case since he only needed to prove negligence.

Under the Defamatory Content Element, there are 4 general categories of untrue statements presumed to be harmful to reputation. What are they?

1. Has committed a serious, notorious or immoral crime. 2. Has an infectious or terrible disease. 3. Is incompetent in job, trade, or profession 4. Has engaged in sexual or social misconduct Ex) pervert, wrong diagnoses, DUI, alcoholic

Under the Fault Element, in order to win a libel case and prove actual malice, one must have 1 out of 2 factors. What are they?

1. Knowledge of falsity OR 2. Reckless disregard for the truth (focus on publisher's INTENT (state of mind) AND CIRCUMSTANCES of publication aka who you are talking to so public v. private figure). *all depends on who you are going after

A Public Figure must prove what?

Actual Malice (what the defendant was thinking at the time of defamatory statement was published-That's a lot of work) This is why you don't see cases against public figures.

Under the Fault Element, define Private Person

An individual that is not a public figure. (most other circumstances) Ex. Gertz v. Robert Welch Inc. (1974)

Under the Fault Element, define all-purpose public figure

Any individual that can be instantly recognized. Generally, celebrities. They have pervasive fame and influence.

Under the Fault Element, Involuntary Public Figure

Any individual that is a pattern of notorious conduct (really just known for one thing), and has had Prior (undesired) media coverage. This is EXCEEDINGLY RARE and difficult to prove.

Under the Fault Element, define Limited-Purpose Figure

Any individual that is volunteering and talking out on a topic, public controversy. (Ex. scientist, expert) If his or her private life is brought up though, it's then considered a private individual. (Ex. attack cheating husband. Not related to topic)

Under the Fault Element, do not assume what?

Do not assume people portrayed in media are public officials. It's best to assume all potential plaintiffs are private figures who can win through simple negligence. (Exception: high ranking fed gov't official, media celebrity "of the grandest stature)

Define the Times v. Sullivan case (1964)

During this time period, it was a crazy moment for civil rights. Anything remotely related to libel law, people sued. Intimidation tactics by South: -Roughly 300 million in lawsuits against the press. For this particular case, Civil rights leaders ran a full-page ad in the New York Times to raise funds to help civil rights leaders. The ad discussed events that were occurring in Alabama. What it described was mostly accurate, but some of the charges in the ad were not true. Ad mentioned no names. Sullivan was one of three people in charge of police in Montgomery and sued the New York Times for printing an ad about the civil rights movement in the south that allegedly defamed him because Sullivan claimed that the ad implied his responsibility for the actions of the police (even though his name wasn't mentioned). Result: On appeal, the Supreme Court ruled in favor of Times because the free and open debate about the conduct of public officials was more important than occasional, honest factual errors that might hurt or damage officials' reputations aka no proof of actual malice. (wanted to give a little breathing room for the press). ***Landmark ruling for free speech/press. Before Sullivan, Court showed no interest in libel!!!

Under the Identification Element, what question must be asked?

Is the placement "of or concerning" the plaintiff? The big question is basically do other people identify/recognize the plaintiff? Identification can be name, picture, sketch, nickname, even description. Ex) write a book defamaing Kayne, but never mention his name. Instead say "rapper who's married to a reality star and has a daughter whose first name is a point of direction"

Define Libel

It is written defamation (aka falsity). This is from the days when written communication was the main source of permanent communication. Plaintiff needs to prove damage (career, emotional) (Ex. social media) DIFFERENT THAN SLANDER

Under the Falsity Element, what does it purport to? A statement or opinion?

It purports to be a statement of fact. It's a false statement NOT an opinion. Looking for what is said to be substantially true, the heart of the defamation that was alleged. Ex) "I think Jared is a jerk." -opinion "Jared stole money from his employer" -false statement

Under the Defamatory Content Element, what does Libel per se mean?

It's a statement whose injurious nature IS APPARENT and REQUIRES NO FURTHER PROOF. (so clear and apparent there is no other way around it.) The defamatory content is "on its face"

Under the Defamatory Content Element, what does Libel per quod mean?

It's a statement whose injurious nature REQUIRES PROOF. (Ex. A College students gives birth to twins. The news is put into paper. Most would celebrate, but further reading the article, it mentions the the husband/BF has been stationed overseas for 14 months. That math doesn't exactly add up.) Other factors are involved such as geographical location, historical period, nature of audience. (Ex. "Outing" someone as a lesbian back then was a huge issue, didn't even speak of it, but today not as big deal and more accepted).

Under the publication element, it's important to remember what?

It's important to remember republishing libelous information is seen as new publication. ISPs are exempt (aka if living under a rock this means the internet- It's tricky) Vendors and distributors are protected as well (Distinction between publishing and making published material available to the public). You can't just simply sue them for having a book, etc.

Under the Falsity Element, what is important to watch for?

It's important to watch for "verifiable assertions of fact" Example: "worst teacher, "ugliest coach," "racist principal"

Under the Identification Element, what sized group is exempt?

Large groups are exempt aka political parties, ethnic groups, religions. With small groups, it's mixed results (best to exercise caution).

For Defamation Cases, is it always a great idea for the plaintiff?

NO. 1. lawsuit creates a larger audience. 2. Difficult to win cases, damage awards are small. (Ex. Rare attorneys take libel case on contingent fee) 3. Might still lose if cannot prove actual malice (people might assume charges were true if you lose//can't take a joke).

A Private Person must prove what?

Negligence. (a reasonable person would have research the statement before publishing it).

For Libel, can you have one element without the other?

No, all must exist.

Under the Harm Element, all plaintiffs must prove what?

Plaintiffs must prove some form of injury unless prove actual malice. (Difficult to prove in some situations). Usually intangible: loss of reputation, standing in community, emotional distress.

What is Prior Restraint again?

Restriction of speech before it's disseminated. It's rarely constitutional to execute this; it's becoming less of an issue

Define Post-Publication Punishment

Spending most of our class on; much more likely legal. Occurs after essay/writing/media is published as opposed to beforehand

Define Slander

Spoken defamation. This isn't a thing as much anymore because it's most likely written down on social media, etc.

Define SLAPP

Strategic Lawsuit Against Public Participation. Idea is for the plaintiff to have deliberated chilling effect (anti-SLAPP laws allow defendants to seek early dismissal of lawsuit).

Who can't sue for defamation?

The government and their branches (but remember individual officials/employees can)

Define the Publication Element

The plaintiff must show statement that was published/made public. Essentially, need a third party to be accessible to the public. (& When it's presented in mass media, it's pubilc)

When determining the Fault Element, always need to find the what?

The public concern. (what is the subject matter of the alleged defamatory statement?) Concerns plaintiff's status as public official/figure. Purely private matter?

What is the best case example for libel?

Times v. Sullivan (1964)

Under the Falsity Element, is truth largely a defense to libel?

When it comes to truth, it is largely a defense to libel. The burden of truth though must come from the plaintiff. It can be difficult if truth is ambiguous. (Supreme Court Ruled to "tip the scales" In favor of free speech so it's harder to prove libel).

When is a false statement considered "Substantially true"?

When the heart of defamation was alleged. Ex) If you allege Bigchem dumped toxic waste on May 17th and not May 19th, it's considered substantially true and can still hold up in court although the date is inaccurate

Historically speaking, Reputation is?

something of value; needs to be protected (built up over time). It's why there are libel laws in the world.