Discussion: Defamation Article & Analysis

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Chapter 4: Defamation Fall 2020

“The First Amendment exists to insure that freedom of speech and expression applies not just to that with which we agree or disagree, but also that which we find outrageous.” - Colin Powell, 65th Secretary of State, 12th

Chairman of the Joint Chiefs of Staff

Defamation

S How would you define defamation in your own words?

S Defamatory Speech à damages a person’s reputation

S Is defamation a state or federal issue?

S ALL laws concerning defamation are at the state level! S BUT the First Amendment is binding on the states (Gitlow)

Defamation and the Courts

S When deciding whether a statement is defamatory, what rights are the courts balancing?

S Balancing Test: S Courts balance the right to free speech with individuals’ rights not to be

harmed by defamatory speech.

Types of Defamation

S What is the difference between libel and slander?

S Traditionally….

S Slander: Spoken defamation S Libel: Written defamation

S Which is harder to prove?

S How does new technology impact the slander/libel distinction?

Libel Per Se and Libel Per Quod

S Libel Per Se: The statement itself is libelous S Statement accusing someone of breaking the law

S Statements that someone has an offensive/contagious disease

S Statements attack a person’s reputation in her business/profession

S Statements that accuse someone of sexual immorality

S Libel Per Quod: The statement is libelous because of surrounding circumstances S Look at all the facts

What does the Plaintiff need to prove?

1. The defendant made a statement about the plaintiff S Ron Swanson said Andy Dwyer stole his car

2. The statement is “published” S Ron put the message on the neighborhood Facebook page

3. The statement injured the plaintiff's reputation. S Everyone thinks now thinks Andy is a thief !

4. The statement was false (and the defamer was at fault). S Andy didn’t do it! He was at work shining shoes. S Negligence – what if Ron really thought Andy did it? Ron saw a man of

Andy’s build wearing a “Mouse Rat” (Andy’s band name) t-shirt and Ron’s statement was just negligent? Could he still be held liable?

Dunn & Bradstreet v. Greenmoss Builders

S Facts: Credit rating agency sent a report to 5 subscribers indicating that Greenmoss Builders had filed for bankruptcy.

S Holding:.

S (1) If you have a private plaintiff, a private defendant, negligent statements can qualify for a successful defamation suit. S *As long as the speech is not about an issue of public concern

S (2) Companies can successfully sue for defamation!

Three Degrees of Fault in Tort Law

S Negligence S Not doing something that a reasonable person WOULD do

S Doing something that a reasonable and prudent person would NOT do

S Gross Negligence: S More serious than negligence

S Intentional failure to do what is reasonable and prudent

S Actual Malice (specific to defamation & privacy) S Knowingly communicating false information OR doing so

with reckless disregard for the truth.

How are Defamation Suits Tried?

S Criminal S Fine, jail time, or both

S Most states have done away with criminal libel

S People have been punished for online libel (nude photos)

S Civil S Monetary damages under tort law

S Types of Damages S General Damages – Seriousness of the harm (subjective)

S Actual Damages – Lost wages/income

S Punitive Damages – Form of punishment

Destefano v. Adventist Health Systems

S Facts: Destefano’s mother has Alzheimer’s. Her foot was also infected due to nursing home neglect.

S Son receives a note from a nursing home employee confirming that improper medical care was the reason for the infection.

S They asked for Destefano to return the note and he refused

S Handwritten notes in his mother’s records saying that he engaged in inappropriate sexual contact with her.

S Why would they do this? S The nursing home also repeated these allegations to hospital

employees, an elder abuse hotline, and police

S Son is angry. He sues and pickets.

S Jury awards $1M in general and $1M in punitive (punish)

Defenses

1. Truth – Most states make truth a complete defense to defamation

2. The statement does no further harm to an already poor reputation

3. Defamatory statement was merely a statement of opinion

S Bob is a jerk v. Bob stole money from the company

S Careful here!

S Question: Is it a statement of fact that can be proven or disproven?

Fact or Opinion?

S Mr. Smith is a stupid attorney

S Mr. Smith is a crooked attorney

S Mr. Smith took my money and did not provide the legal services I paid for

S Mr. Smith is practicing law without a license

S Is it a statement of fact that can be proven or disproven? If so it’s actionable.

Opinions

S Can “opinion” ever be defamatory?

S Milkovich v. Lorain Journal S “It is my opinion that he lied under oath.”

S Calling a defamatory statement “opinion” or prefacing it with the words “I think” does not change the destructive message AND does not absolve the speaker of liability

S Note: Courts will try to determine whether the statement can be proven to be true or false

Defenses

1. Truth – Most states make truth a complete defense to defamation

2. The statement does no further harm to an already poor reputation

3. Defamatory statement was merely a statement of opinion

S Bob is a jerk v. Bob stole money from the company

S Careful here!

4. The statement is privileged

Defenses

S Absolute privilege: exempts the speaker from liability S Statements made on legislative floor; statements made during judicial

proceedings

S Air Wisconsin v. Hoeper – Warnings about harm and security concerns (p. 82) S No liability for reporting suspicious behavior (safety concern)

S Qualified privilege: Some protection but not complete immunity S Journalists reporting legislative activity

S Restaurant critics

S Cherry Sisters v. Des Moines Leader (1901)

Defenses

1. Truth – Many states make truth a complete defense to defamation

2. The statement does no further harm to an already poor reputation

3. Defamatory statement was merely a statement of opinion

S Bob is a jerk v. Bob stole money from the company

S Careful here!

4. The statement is privileged

Question…

S Should government officials ever be allowed to sue for defamation concerning criticism of their official conduct S Why or why not?

New York Times v. Sullivan

S https://www.youtube.com/watch?v=e1niZWb9oqI

New York Times v. Sullivan

S Facts: NYT posted an ad on the front page criticizing the Montgomery, AL city commissioner (Sullivan) for the police’s treatment of MLK and other civil rights protesters S Sullivan said his reputation was damaged!

S He couldn’t prove that his reputation was hurt, but under Alabama law at that time, he didn’t have to prove harm.

S The advertisement had some factual errors, so it was difficult to fact check.

S In the Montgomery County Court, Sullivan won $500,000, which was affirmed by the Alabama Supreme Court.

S What did SCOTUS say?

S Rule: If plaintiff is a public official, she must prove falsity OR reckless regard as to whether the statement was was true or false (actual malice) in order to recover damages for defamatory statements related to official conduct.

New York Times v. Sullivan

S If public official wants to sue for libel, he must show ACTUAL MALICE S Malice: Knowledge that the information is false or make with

reckless disregard for its truth/falsity.

S Implications: S Negligent/erroneous statements are inevitable and thus

protected S Press needs a certain amount of “breathing space”

S Why must public officials show MALICE? S They are supposed to be held accountable to the public S Don’t want to give civil liability regarding viewpoints/reporting.

Question:

S Justice Brennan: If we make the press guarantee the truth of all its factual assertions or risk libel, they will engage in broad self- censorship. S Fear of reporting because of potential litigation……would “dampen the

vigor and limit the variety of public debate.”

S Malice: Knowledge that the information is false or make with reckless disregard for its truth/falsity.

S Garrison v. Louisiana – “Speech concerning public affairs is more than self-expression; it is the essence of self-government.”

What qualifies as a “public figure”?

S Unelected Officials?

S Rosenblatt v. Baer (1966) – Journalist accused county recreation area supervisor of lacking financial integrity.

Holding - Government employees who have substantial responsibility over the conduct of public affairs must show malice to recover damages.

S Political Candidates?

S Monitor Patriot Company v. Roy (1971) – Concord Monitor described Roy, a Senate candidate as a “former small-time bootlegger”

Holding: There is a public interest in the free flow of information about political candidates, and anything that might touch on a candidate’s fitness for public office is relevant (even private matters).

Mistakes in Reporting

S Time v. Pape (1971) S Facts: Time magazine published a story about police brutality, based on a

report from the US Commission on Civil Rights, that reflected poorly on an officer named Frank Pape.

S Holding: The Time writer did not use “reportedly or “allegedly” in the article. Holding: No reckless disregard because Time was relying on an official report.

S Note: Qualifying statements with “allegedly” or “reportedly” may not nullify the defamatory nature of a statement, but it will help your defense!

S Ocala Star-Banner v. Damron (1971) S Facts: Local newspaper confused a public candidate with the misdeeds of

the candidate’s brother (perjury in federal court) S Holding: An honest mistake does not constitute malice.

S Concerns about chilling the press

Extending the Rule….

S Is there a difference between a public official and a public figure?

S Curtis v. Butts – Article in the Saturday Evening Post alleges that Wally Butts (UGA athletic director) and Bear Bryant (former Alabama coach) conspired to fix games.

S Holding: SCOTUS says that publications can be held liable if they disseminate information that is recklessly gathered and unchecked (MALICE).

S Significance: (1) Extends the “public official” rule to celebrities, or “public figures.” (2) Allows the court to consider the nature of the medium.

Review

S Can you still be held liable for defamation even if your statement was just negligent?

S What is the difference between actual and punitive damages?

S Are there any defenses to defamation?

Review

S What is the difference between negligence and actual malice?

S Negligence: S Not doing something that a reasonable person WOULD do

S Doing something that a reasonable and prudent person would NOT do

S Actual Malice S Knowingly communicating false information OR doing so with

reckless disregard for the truth.

Public Figures

S What is the difference between an all-purpose public figure and a limited-purpose public figure?

S Talk to your colleagues and identify an example of each.

Public Figures: Two Types

S All-Purpose Public Figures S Occupy positions of such power and influence

that they are public figures for all purposes. S Need to show actual malice in all defamation suits S Examples?

S Limited Purpose Public Figures S Temporarily involved in issue/issues S Voluntary or involuntary S Need to show actual malice for defamatory statements

involving matters for which they are considered public figures S Lots of gray area!

S Private Citizen à Only need to show negligence

Defamation Flow Chart

Gertz v. Welch

S Facts: Elmer Gertz, an attorney representing a family whose loved one was killed by a police officer S American Opinion published a story saying Gertz was a Communist with a

criminal record

S Holding: Even though it was an issue of public concern, Gertz was NOT a public figure and did NOT have to show actual malice to recover damages (only negligence). S Public figures voluntarily expose themselves to increased scrutiny; this

is not the case for a private attorney. S Public figures also have greater access to channels of communication to

clear their reputations

Gertz v. Welch

S No more strict liability S States must provide a minimum standard of fault (negligence) that

plaintiffs must prove in order to recover

S Note: If plaintiff sues a media defendant and only shows negligence, s/he can only receive actual and general damages S To recover punitive damages against a media defendant, a plaintiff

must show ACTUAL MALICE

S What is the difference between actual damages and punitive damages?

Can I get a quote?

S Have you ever had your words taken out of context?

S What do you think when you see quotation marks?

S Masson v. New Yorker Magazine S Does the First Amendment protect a fabricated

quotation, even if it is a “rational interpretation” of the speaker’s intent?

S Holding: “Deliberate alteration” of a someone’s words amounts to malice if “the alteration results in a material change in the meaning conveyed by the statement.”

Online!

S How does defamation law apply in cyberspace?

S The basic elements of defamation law apply wherever the defamatory statement was published!

S What does YOYOW mean?

S You Own Your Own Words S You own the rights to your own speech

S You own responsibility for your own speech