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Chapter Four

Libel and Slander

Ever since American journalists won their basic First Amendment freedoms, their most serious ongoing legal problem has been the danger of being sued for defamation— libel or slander. Other threats to journalistic freedom arise from time to time, but over the past two centuries libel has been a continuing legal problem, with thousands of lawsuits resolved by the courts—and thousands more settled out of court. Even the fear of libel suits often leads journalists to suppress newsworthy stories they would otherwise publish, thus engaging in a form of self-censorship that may not be in the public interest.

A libel is a written defamatory statement; a slander is a spoken one. Libel and slander laws exist to protect people whose reputations have been wrongfully damaged. Clearly, there is a need for that kind of protection. However, many libel suits are filed by persons who were not actually libeled, but who are angry about unfavorable but true (and thus non-libelous) publicity. And hostile juries sometimes hand out enormous punitive damage awards against the media without worrying much about the validity of the libel claim itself.

The year 2014 marked the 50th anniversary of the landmark New York Times v. Sullivan decision. Not everyone celebrated. Justice Antonin Scalia called the decision “wrong” at a 2014 National Press Club event. He said the framers would have been “appalled” at this revi- sion of the Constitution. Yet there is no serious debate about whether it should be the law.

A single libel suit can be financially devastating even to a powerful media corporation. Multimillion-dollar libel judgments have become commonplace in recent years. Although most of the large libel judgments are eventually overturned by appellate courts, the cost of defending such a lawsuit often runs into millions of dollars.

If small local newspapers are targets in libel suits, well-known national media are even bigger targets for angry jurors. A jury once awarded a former “Miss Wyoming” beauty contest winner $26.5 million for a Penthouse magazine article about a fictitious “Miss Wyoming” who resembled her. An appellate court eventually set aside the verdict and dismissed the case, but by then Penthouse had spent more than a million dollars on legal fees (Pring v. Penthouse, 695 F.2d 438, 1983). And $26.5 million is not the all-time record for a libel judgment: there have been several larger verdicts.

These judgments seem small compared to a 1997 verdict in which a Houston jury ordered the Wall Street Journal to pay $222.7 million (including $200 million in punitive damages) to an investment brokerage that went out of business shortly after the Journal reported on the firm’s alleged difficulties. However, the judge later threw out the $200 million puni- tive damage award and eventually set aside the rest of the judgment as well, ruling that the brokerage withheld crucial evidence that would have corroborated the Journal story. But by then the Journal had spent several years and several million dollars defending itself in court.

Food Lion. One of the most controversial judgments against a news organization in many years was $5.5 million in punitive damages that a jury awarded to the Food Lion grocery chain in 1997 because ABC’s PrimeTime Live had two of its staff members obtain jobs at Food Lion under false pretenses. The ABC staffers used hidden cameras to docu- ment the mishandling of foods. Although Food Lion did not even allege that ABC’s report was libelous, the jury found ABC guilty of trespass, fraud and other wrongs in connection with its undercover newsgathering. The trial judge later reduced the punitive damage award to $315,000. In 1999, the Fourth Circuit overturned that award, upholding only $2 (yes, two dollars) in damages against ABC for trespass and a breach of the duty of loyalty to an

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defamation:

a false intentional writ- ten or spoken commu- nication that injures a person’s reputation.

libel:

a written defamation.

slander:

a spoken defamation.

actual malice:

in libel, a statement made with knowing falsity or reckless disregard for the truth; a high burden of proof for fault that falls on plaintiffs who are public officials or public figures.

negligence:

in libel, a statement made carelessly or without exercise of normal care in verifi- cation; a lower burden of proof for fault that falls on plaintiffs who are private figures.

employer by the two ABC staffers who took jobs at Food Lion only to get the story (see Food Lion v. Capital Cities/ABC, 194 F.3d 505).

From the outset, ABC’s defenders saw Food Lion’s lawsuit as an end run around libel laws by a company that could not prove the ABC report was false but wanted to sue anyway. The appellate court verdict largely vindicated ABC, but only after years of litigation and enormous legal bills for the network.

Although appellate courts often overturn or reduce these multi- million-dollar judgments against the media, that does not always happen. In 1987 the U.S. Court of Appeals in Chicago affirmed a $3.05 million libel judgment against CBS and a television journalist in Brown & Williamson Tobacco Co. v. Jacobson (827 F.2d 1119). The Supreme Court refused to hear an appeal in 1988, rendering the U.S. Court of Appeals decision final. The case resulted from broad- casts by Chicago news anchor Walter Jacobson accusing tobacco companies of targeting young people in their advertising. He cited as an example an ad that was never actually used.

Ventura libel judgment. In one notable judgment in 2014, former professional wrestler and Minnesota Gov. Jesse Ventura won a $1.8 jury judgment in his libel case against the estate of Chris Kyle, the former Navy SEAL member and subject of 2014 Clint Eastwood directed blockbuster film, American Sniper. At issue were claims in Kyle’s book, American Sniper: The Autobiography of the Most Lethal Sniper in U.S. Military History, that Ventura said were false, defamatory and damaging. Ventura was not named in the book, but in interviews, including on Fox New’s The O’Reilly Factor, Kyle said he was referring to Ventura, and earlier drafts of the book included Ventura’s name.

It would be a hard trial to win, given that Ventura as a public figure would have to prove actual malice – legal standards that are discussed later in this chapter.

After a six day trial, a federal jury awarded Ventura $500,000 for defamation and $1.3 million for “unjust enrichment” (profiting from the defamation). A judge found the verdict justifiable and declined a motion for a verdict reversal or new trial. In the book, Kyle depicted an incident in which he beat up a man he identified as “Scruff Face,” after the allegedly said American soldiers deserved to die in Iraq. Kyle said Scruff Face showing up embarrassed the next day with a black eye. Kyle identified Scruff Face as Ventura in earlier drafts of his book and in subsequent interviews. Ventura said the incident never happened. During the proceedings, Ventu- ra showed convincing evidence of Kyle’s other allegations of not telling the truth. The publisher did not fact check appropriately. Sources told different stories afterward. Ventura wasn’t contacted for his version. Photos and interviews contradicted the account. All of these failures by the writer and publisher led a jury to rule in Ventura’s favor.

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Libel lawsuits are a daily concern of the media. This point has never been better illus- trated than by the campaign of the tobacco industry against media reporting of the alleged misdeeds of tobacco companies. In 1994, ABC reported on its Day One program that tobacco companies were regulating the amount of nicotine in their products, in effect spiking ciga- rettes to keep smokers hooked. Philip Morris filed a $10 billion libel suit, and in 1995 ABC paid Philip Morris $15 million to drop the case. ABC also apologized twice in prime time— even though the journalists who produced the award-winning program insisted that they could document their charges. How does all of this affect smaller media organizations—the ones that couldn’t begin to write a $15 million check to get out of a lawsuit? Libel insurance is available, but it can be prohibitively expensive.

Not even bloggers are safe—in 2009 a South Carolina judge awarded $1.8 million to the owner of an advertising agency who claimed that he had been libeled in a post on a Myrtle Beach blog; the alleged author of the blog said he was unaware of the proceedings and did not appear in court. A settlement was negotiated, and the appeal was dropped. Clearly those who prepare content for the media need to be aware of the legal hazards of libel and slander.

LIBEL DEFINED

Just what are libel and slander?

Libel vs. slander. They are legal actions to compensate the victims of defamatory commu- nications—communications that tend to injure someone’s reputation. The legal distinction between a libel—a written defamatory statement—and slander—a spoken defamation—is perhaps less important today than it once was as a result of the convergence of the media as well as several important Supreme Court decisions. Often this chapter refers to all kinds of lawsuits for defamation under the term libel. In many (but not all) states, broadcast defama- tion is treated as libel rather than slander.

Libel and slander suits are almost as old as the English common law from which they emerged. Even before this country was colonized, libel and slander were recognized legal actions in much of the world. In fact, the concept that a person’s good name is something of value, and that anyone who damages it has committed a wrong, can be traced back to the time of the ancient Romans—and on back to the Ten Commandments.

Most libel cases today are handled as civil tort actions, private disputes between two parties in which the courts merely provide a neutral forum. In earlier times, libel was often treated as a criminal matter: the prevailing view was that defamatory words might lead to a breach of the peace, and should be regarded as a crime. This was especially true in the case of seditious libel (the crime of criticizing the government), for reasons explained in Chapter Two. While some states still have criminal libel laws on their books, these laws are rarely enforced today. Some have been ruled unconstitutional. Thus, the bulk of this chapter will be devoted to civil rather than criminal libel.

Libel suits are ordinarily state cases, not federal ones. The U.S. Supreme Court has intervened in some state libel cases, reminding the states that their libel laws can have a chilling effect on freedom of the press. But aside from the Supreme Court’s role in setting constitutional limits for libel suits, this remains a field of law reserved for the states.

However, that does not mean that libel suits are never tried in federal courts. State libel cases are sometimes heard in federal courts when the two parties live in different states, but even then, the federal courts apply state law rather than federal law.

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Although libel is a matter of state law, its basic principles are much the same all over the United States, as is true of many kinds of law that grew out of the English common law. Moreover, the Supreme Court’s rulings have tended to make libel law more uniform in the various states. Nevertheless, there are still important state-to-state variations; you may wish to supplement this national overview by reading your own state’s libel statute. The state codes section of Lexis-Nexis and other online research services can be searched by keywords such as defamation, libel or slander.

AN OVERVIEW OF LIBEL

In studying a complex legal subject such as libel, it is easy to get lost in the details, over- looking some of the major principles. This section summarizes the basics of libel law.

Technically, a libel occurs whenever the elements of libel are present. As you look at the list of these elements, you will realize that many libelous statements are published and broadcast every day. But that doesn’t mean numerous libel suits are filed against the media every day. Instead, most libelous publications and broadcasts are unlikely to produce lawsuits because they are covered by one or more of the legal defenses that apply in libel law. There’s a differ- ence between a libel and an actionable libel—one that’s likely to get someone sued. To decide whether a given item is likely to produce a libel suit, you have to determine not only whether the elements of libel are present but also whether there is a viable defense.

Elements of libel. For a libel to occur, at least four elements must be present—with a fifth one required in most cases. The elements are: (1) defamation (a message that tends to hurt someone’s reputation); (2) identification of a victim (and potential plaintiff), either by name or some other designation that is understood by someone other than the victim and the perpetrator; (3) publication, communication or dissemination of the defamatory message to someone other than the victim and perpetrator; (4) an element of fault on the part of the communicator, usually by communicating a provably false message (sometimes considered a separate element) with actual malice or negligence; and (5) usually damages (tangible or intan- gible losses that may be compensated in money).

Once these elements are present, a libel has occurred. It doesn’t matter whether the defamatory statement is in a direct quote, a letter to the editor, an advertisement, a broadcast interview, or whatever. With few exceptions, anyone who contributes to the libel’s dissemi- nation may be sued for it, even if the libel was originated by someone else. That means the reporter who writes a story, the editor who reviews it, and everyone else in the production process may be named as a defendant in a libel suit. Of course, the normal legal strategy is to go after the “deep pocket”—the person with enough money to make it worthwhile. There- fore, the prime defendant is usually a corporate owner or publisher, not the hired hands who actually processed the libelous material. If you were defamed in a letter to the editor, you might want to sue the letter writer and the editor who chose to print it, but your prime defendant would probably be the parent company.

Internet services that do not edit materials placed on their servers are generally exempt from liability for postings by bloggers and others, even though those who actually post libel- ous messages (and ARE liable) may be anything but “deep pockets.” Section 230 of the federal Communications Decency Act generally exempts Internet services from liability for content created by others. But that is not true for the traditional media.

Possible defenses. After you determine whether the elements of libel are present in a given communication, the next crucial question is whether any of the defenses apply. Three

major defenses developed under common law and have been recognized for many years. In addition, defenses of lesser impor- tance are also recognized in some instances; they will be noted later. The major defenses are: (1) truth that can be proven in court; this classic common law defense is stronger than ever because plaintiffs usually have the burden of proving falsity now; (2) privilege, which protects fair and accurate accounts of what occurs during many government proceedings or appears in many public records; (3) fair comment, a statement of opinion as opposed to provably false facts.

If one or more of these defenses is present, the media may publish libelous material without fear of losing a libel suit. Howev- er, many lawsuits are filed by people who know they have little chance of ultimately winning. The mere opportunity to force the media into court may seem inviting to someone who feels he or she has been subjected to unfair publicity. Thus, the cost of defending a libel suit is itself a deterrent to publishing some controversial stories, no matter how strong the defenses are. This is especially true in states that do not have a procedure for dismissing frivolous libel suits quickly (see anti-SLAPP laws later in this chapter). In addition to the elements of libel and defenses, there are other factors to consider in deciding if a particular defamatory statement is risky.

Who May Sue for Libel?

The first step in analyzing any potentially libelous item is to determine whether there is a plaintiff—a party who may sue for libel. Generally, the rule is that any living person or other private legal entity (such as a corporation or an unincorporated business) may sue for libel. The right to sue for libel is what is called a personal right, not a property right. This means that the right dies with the individual: most states follow the common law rule that the heirs cannot sue on behalf of a deceased person unless they were also personally libeled. New Jersey and Pennsylvania do allow a libel victim’s heirs to sue under certain circumstances, but that is the exception. However, a number of states allow the heirs to continue an existing lawsuit if a libel victim dies before the case is resolved.

On the other hand, corporations are not limited by the life span or tenure in office of any individual. They may pursue a lawsuit for decades, regardless of the departure of individual offi- cers. But for a corporation to sue for libel, the organization itself must have been defamed, not just an individual officer.

It may seem surprising that a big company can sue for libel. Nevertheless, courts have often ruled that a corporation has the same right as an individual to sue for libel when its reputation is besmirched. However, special rules may apply when the defama- tion is directed at a product rather than the company itself. Many states allow a special legal action called product disparagement or

Elements of libel:

defamation: false inten- tional communication that injures a person’s reputation.

identification: can be accomplished by a name or any other information that sufficiently identifies a person.

publication/communica- tion: to someone other than the perpetrator or the victim.

fault: includes falsity and is measured as actual malice or negligence.

damages: tangible or intangible losses that can be financially compensated.

Defenses to libel:

truth: a strong defense because the burden of proof is on the plain- tiff to prove falsity.

privilege: also known as qualified privilege, given to accurate accounts of proceedings of public meetings or materials in public records.

fair comment: a state- ment of actual opinion (not provably false facts).

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trade libel. In a trade libel suit, the company usually has to prove that the libelous statement actually damaged its business, sometimes difficult to prove. These laws were rarely used for many years, but they enjoyed a new surge in popularity during the 1990s, when at least 13 states passed laws to protect perishable food products from negative publicity. These “veggie libel” laws are discussed later.

If companies can sue for libel, what about nonprofit associations and other unincorpo- rated organizations? They, too, may sue for libel in some states, but the rule on this point varies somewhat around the country. And what about government agencies? On this ques- tion, the law does not vary: governments may not sue for libel anywhere. However, govern- ment officials may sue as individuals if their personal reputations are damaged by a libel.

Group Libel

What about a libel of a group of people? May the individuals sue? A long-recognized rule of law is that individuals may sue for libel when a group to which they belong has been defamed, but only if one of two conditions is met: (1) the group must be small enough that the libel affects the reputations of the individual members; or (2) the libelous statement must refer particularly to the individual who is suing.

A libel of a five-member city council could very well hurt the reputations of all the indi- vidual members. But what about a libel directed against a big organization, such as the U.S. Army? Would it be legally safe to say something like “all soldiers are criminals”?

The courts settled that sort of group libel question long ago. No individual may sue for libel when the libelous statement is directed toward such a large group. The cutoff seems to be somewhere between five and 100 people, depending on which court you listen to. A court once allowed individual football players to sue when the University of Oklahoma foot- ball team was libeled. But other courts have refused to allow individuals to sue when groups considerably smaller than a college football team were libeled. In general, the bigger the group is, the less the chance an individual may be able to sue for libel.

To summarize: any living individual may sue if he or she is libeled, as may a corporation. Unincorporated organizations may sue in some states but not in others. Government agen- cies may not sue for libel, although government officials may if they are personally libeled. Individuals may sue for libel if they belong to a sufficiently small group that has been libeled.

In analyzing an item for possible libel, the next step after deciding there is a potential plaintiff is to check off the elements of libel and see if all are present. If so, then you should check off the defenses and see if any will protect you. That kind of analysis requires a more detailed summary of the elements of libel and the defenses.

THE ELEMENTS OF LIBEL

Defamation

Of the various elements of a libel case, the one that is sometimes the hardest to remem- ber is the most obvious: the requirement that a statement actually be libelous (i.e., defama- tory). Without defamation there is no libel, so the first step in analyzing a statement for potential libel is to decide whether there really is a defamation.

Per se vs. per quod. Over the years courts have recognized a wide variety of statements as defamatory, dividing them into two categories: libel per se and libel per quod. Libel per se is the classic kind of defamation where the words themselves will hurt a person’s reputation. Words

such as “murderer,” “rapist,” “racist” and “extortionist” are obvious examples, but there are thousands of others. Any word or phrase is likely to be libelous if it falsely accuses a person of a heinous crime, public or private immorality, insanity or infection by loathsome disease (e.g., HIV), or professional incompetence. Even words that don’t fall into any of these cate- gories may be ruled libelous if they cause other people to shun and avoid the person.

When the words themselves communicate the defamation with no additional explana- tion needed (as the words would in the examples), you have libel per se. But when, on the other hand, it is not immediately apparent that the words are libelous, or when one must know additional facts to understand that there is defamation, it is called libel per quod.

A classic example of libel per quod arose in a case called Fellows v. National Enquirer (42 C.3d 234, 1986). The Enquirer reported that television director Arthur Fellows was “steady dating” a famous actress. That statement would not ordinarily be libelous—except for the fact that he had been married to someone else for many years. The paper didn’t mention that he was married, and few readers knew this additional fact that made the statement libel- ous per quod. If the Enquirer had said he was committing adultery, that would probably qualify as libel per se. But merely to say he was dating an actress without mentioning his marriage would only be libel per quod (unless the fact that he was married was widely known).

When Fellows sued, he presented evidence that he was not dating the famous actress or anyone else besides his wife, but he lost because he could not prove special damages (any provable monetary loss). Many states require a showing of special damages in libel per quod cases, whereas only general damages (pain and suffering or merely embarrassment due to the loss of reputation) are typically required in cases of libel per se. Fellows may have been embarrassed by the article in the Enquirer, but he didn’t suffer any significant financial losses (if anything, the libelous story might have helped his career).

The distinction between libel per se and libel per quod is becoming less important today. For many years, courts generally ruled that libel per se was automatically actionable; that is, the plaintiff didn’t even have to prove general damages. Instead, courts would presume damages merely because a libelous statement had been published. But on the other hand, if it was only a matter of libel per quod, the plaintiff had to prove special damages.

However, the Gertz v. Welch (418 U.S. 323) Supreme Court decision, a landmark 1974 decision that we will return to later, prohibited presumed damages in many libel suits against the media. The plaintiff today must be prepared to prove that he or she suffered at least general damages whether the defamatory statement was libel per se or libel per quod. The only time damages may be presumed in cases involving the media is when the plaintiff proves actual malice (i.e., that a falsehood was published knowingly or with reckless disregard for the truth). Some states have even eliminated presumed damages in non-media cases.

As a result, there is not usually much difference between libel per se and libel per quod today when the media are involved. If a statement is libelous (either on its face or only because of unique circumstances in the context of the statement) the media may have to defend a libel suit, provided the victim of the libel can prove the rest of the elements of libel.

Common plaintiffs. In the American system of justice, a person is presumed innocent until proven guilty: stories that label people as “rapists” or “murderers” before they are convicted by a court are particularly dangerous. The best way to avoid lawsuits is to be as accurate and specific as possible in reporting the news. If someone has been detained for questioning in connection with a crime, say that much and nothing more. If the person has been formally charged, report that but don’t go beyond what the facts will support. If the

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libel per se:

a statement that is defamatory on its face, such as calling someone a murderer, rapist or racist; a false accusation of a heinous crime, public or private immorality, insanity or infection by loathsome disease, or professional incompe- tence (per se is Latin for “in itself”).

libel per quod:

a statement that requires additional background knowl- edge to understand that defamation has taken place (per quod is Latin for “whereby”).

qualified privilege:

a defense for libel which covers truth- ful reports of what was said or done in a public government meeting or what is contained in public records; also called fair reporting.

strict liability:

liability without fault; a standard that puts responsibility on the perpetrator of an event regardless of the party who was actually responsible.

person has been arraigned, indicted, bound over for trial, released on bail, or whatever, be careful to report only what has actually happened and no more. If the police are seeking someone for ques- tioning, be wary of a story that identifies him/her as a “suspect” prematurely.

Several other areas of journalism also produce more than their share of libel suits. A number of libel suits have resulted from stories accusing someone of having “Mafia” or organized crime connections. Another dangerous area—because of the ease with which special damages can be proven—is any statement that reflects upon a professional person’s competence. Professionals such as physicians, psychologists and attorneys rely on public confi- dence for their continued livelihood to a greater extent than most other persons. Should the local paper publish a story questioning a doctor’s or lawyer’s integrity or competence and his/her business thereafter declines, special damages can often be proven. A false or misleading statement (or even an innuendo) about a professional person invites a libel suit.

Those seeking public office are another group of people who generate a lot of libel suits. Although the media now have strong constitutional safeguards when sued by a public official or public figure, public officials are frequently inclined to file libel suits as a means of saving face if nothing else. Even if there is little chance that the politician will ultimately win in court, the cost of defend- ing a libel suit may force some publishers and broadcasters to think twice about carrying a story that reflects upon the character or competence of a politician.

For example, in 2012, a Maine state senate candidate filed suit against several opponents, alleging that a number of statements in campaign flyers were defamatory. The First Circuit, in a case replete with reflections on the “contact sport” nature of political campaigns, affirmed the lower court’s dismissal of the case. After tracing the long Supreme Court history protecting political speech, the court said, “All this makes it quite obvious that defamation law does not require that combatants for public office act like war-time neutrals, treating everyone evenhandedly and always taking the high road. Quite the contrary. Provided that they do not act with actual malice, they can badmouth their opponents, hammering them with unfair and one-sided attacks...” (Schatz v. Repub. State Leadership Comm., 669 F. 3d 50).

Another problem area is gossip about the private lives of the famous. Some publications that deal in this sort of “news” as their basic commodity expect (and are prepared for) frequent libel suits as a result. Of course, many celebrities would prefer to let the matter drop and thus avoid the cost and additional publicity a libel suit would bring, rather than sue a supermarket scandal sheet. But

those who do sue may have a good chance of success: tales about the private lives of celebri- ties that a publisher knew or should have known to be false are beyond the First Amend- ment’s protection.

What’s defamatory? What counts as defamation today? While this determination is fact- dependent, here are a few recent answers from the courts. The New Jersey Supreme Court said in 2009 that one candidate’s truthfully reporting another’s criminal background in campaign flyers, even when that conviction had been expunged (removed) from the record, was not libelous, as the expunging didn’t make the information false. The expungement statute didn’t protect the private facts in the libel case, and “the breadth of the expungement statute—on its face—is limited to those government agencies that are statutorily required to be served with the expungement order” (G.D. v. Kenny, 15 A.3d 300, 2011). Defendants may raise truth as a defense, the court said. Neither is it libelous, said the Second Circuit, to truthfully report that an individual is cooperating with law enforcement, even if that indi- vidual is in a prison population that might find that information unsavory (Michtavi v. New York Daily News, 587 F. 3d 551, 2009).

What about calling someone “gay”? The trend seems to be that this is not defamatory. A New York trial court ruled that the law of New York indicated that calling somone gay is libel per se. But the New York appeals court overturned: “Given this state’s well-defined public policy of protection and respect for the civil rights of people who are lesbian, gay or bisex- ual, we now overrule our prior case to the contrary and hold that such statements are not defamatory per se”(Yonaty v. Mincolla, 2012 NY Slip Op 04248, 2012). Calling someone gay during a talk show where the use of hyperbole and insults is common is also not defamatory, according to a New Jersey federal court in 2010; the court said that “it appears unlikely that the New Jersey Supreme Court would legitimize discrimination against gays and lesbians by concluding that referring to someone as homosexual ‘tends so to harm the reputation of that person as to lower him in the estimation of the community as to deter third persons from associating or dealing with him’” (Murphy v. Millennium Radio Group LLC, 38 Media L. Rep. 2338). The Third Circuit on appeal did not address this issue; it did rule on copyright issues, discussed in Chapter Six.

What about calling someone a communist? Is that still defamatory? Yes, said the Wash- ington Supreme Court, if you’re Vietnamese (Tan v. Le, 300 P.3d 356, 2013). Norman Le wrote a series of articles for Vietnamese publications alleging that Duc Tan and the Viet- namese Community of Thurston County (VCTC) were communist sympathizers, using anecdotes such as the display of the Viet Cong flag in a classroom and an apron allegedly depicting Ho Chi Minh (actually Santa Claus). A lower court awarded Tan $310,000; the award was overturned by an appeals court but reinstated by the Washington Supreme Court: “In this case there is no objectively established truth. Defendants insist that the sting of their allega- tions is that Tan and the VCTC are communists or communist sympathizers. However, there are no true statements showing Tan and the VCTC are communists or communist sympathiz- ers.” Analyzing these and other statements, the majority found there to be actual malice by “clear and convincing evidence.” In dissent, one justice disagreed: “The respondents’ allega- tions that Tan and the VCTC are communists or communist sympathizers are opinions based on disclosed facts within the context of a political debate and thus nonactionable.”

Is the Internet changing what kinds of words are defamatory? Not just yet. In Cohen v. Google, Inc. (887 N.Y.S.2d 424) the anonymity elements of which were discussed in Chapter Two, an anonymous blogger writing on a blog called “Skanks of NYC” claimed that using

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the words “skank,” “skanky,” “ho” and “whoring” in reference to model Liskula Cohen was merely opinion. Moreover, the blogger (later revealed to be fashion student Rosemary Port) said that those words were no longer really defamatory; they “have become a popular form of ‘trash talk’ ubiquitous across the Internet ...” The court disagreed and said the words could reasonably be interpreted to suggest that Cohen was sexually promiscuous.

The Identification Element

Another element the plaintiff must prove in a libel suit is identification: at least some of the readers or listeners must understand to whom the defamatory statement refers.

Where a person’s name is used, there is usually little difficulty in proving identification. However, there are a great many ways a person may be identified other than by name. Any reference—no matter how oblique—is sufficient if the plaintiff can produce witnesses who testify convincingly that they understand the libelous statement to refer to him or her.

Perhaps the classic example of an oblique reference producing a libel suit is the situ- ation that led to the famous New York Times v. Sullivan (376 U.S. 254) decision of the Supreme Court. As Chapter One indicated, the plaintiff in that case was a city commission- er in Montgomery, Ala. What prompted the lawsuit was a New York Times ad that alleged police misconduct in the South (including Montgomery) but never mentioned Sullivan either by name or as a city commissioner. He was able to convince a jury that the criticism of the conduct of the local police injured his reputation because many people knew that one of his responsibilities as a city commissioner was to oversee the police. In reversing the judgment years later, the Supreme Court expressed doubt that the ad really referred to Sullivan. But the case had gone all the way up through the American legal system at a cost of thousands of dollars.

In short, don’t expect to escape a libel suit by using a vague identification. If even a few people understand whom you are talking about, the identification requirement for a libel suit has been met.

Vague identifications. Another problem that leads to many libel suits is an identification so vague that it can refer to more than one person. A famous libel case nearly a century ago proved this point. Two lawyers in the Washington, D.C., area were named Harry Kennedy. One used his middle initials; the other did not. The one who normally used his middle initials was arrested for a serious crime. The Washington Post reported the fact, but omitted the middle initials. The other Harry Kennedy sued for libel, claiming that his reputation had been damaged, and he won (Washington Post v. Kennedy, 3 F.2d 207, 1924).

The moral of this story is obvious: when you publish or broadcast a defamatory but true statement, be sure to identify the person or persons involved as completely as possible, lest you inadvertently also identify an innocent party. It is good journalistic practice to identify people by full name, address and occupation whenever the story involves potential libel.

Some publishers go so far as to make a special note of who is not involved in a libelous story. When news broke of the 1978 Jonestown massacre, in which several hundred followers of the Rev. Jim Jones were murdered or committed suicide in a South American jungle, one of the persons implicated was a young man named Larry Layton. Thousands of miles away in Los Angeles another man named Larry Layton was a prominent lawyer. One Los Angeles newspaper published a separate news story to tell its readers that the Larry Layton involved in Jonestown was not the same person as the attorney—even though none of the news stories about Jonestown had suggested otherwise.

Beyond the dangers inherent in publishing a story with libelous content when more than one person has the same name, there are pitfalls to avoid when two people have simi- lar names, given that journalists do make errors. A notable example is the case of Ralph A. Behrend and R. Allen Behrendt, two medical doctors who had worked at the same hospital in Banning, Calif. The Los Angeles Times reported that Dr. Behrendt had been arrested for theft and using narcotics. Sure enough, it was really Dr. Behrend who was arrested—and Dr. Behrendt had a great libel suit against the Times as a result of this copy desk error (Behrendt v. Times Mirror Co., 30 C.A.2d 77, 1939). If newspapers of the stature of the Los Angeles Times and the Washington Post have identification problems and face libel suits as a result, you can see why this sort of thing is a serious problem.

The Communication Element

A defamatory statement has to be communicated (published or disseminated) for it to be libelous. The rules in this area are quite liberal: any time someone besides the party making the defamatory statement and the victim sees or hears it, this requirement is met. Actually, the plaintiff in a lawsuit may have a tough time proving damages if only a few people saw or heard the defamatory statement. Nevertheless, there have been cases where communicating a libel to only a handful of people resulted in a lawsuit for the perpetrator of the libel.

In most instances, of course, libel suits against the media result from statements that were actually published or broadcast; proving the dissemination element is not difficult.

It should be reiterated that everyone who furthers the dissemination of a libel can be sued. Even though the defamation first appeared in a letter to the editor, in a public speech, or even in a wire service dispatch, with few exceptions every publisher or broadcaster who further disseminates it can be sued (as can the originator of the libel or slander). Unless one of the defenses is available, the media are at risk even when they accurately report what someone else said. The speaker may be sued—but in many instances so may everyone who further dissemi- nates the libelous statement. You need not be the originator of a libel to be sued for it in the traditional media. As noted earlier, Internet services are generally exempt from liability for content provided by someone else.

In 2010, a Texas bankruptcy court was among the first courts to find that sending some- one an e-mail with a link to an allegedly defamatory site counts as publication for purposes of libel: “An e-mail, just like a letter or a note, is a means for a statement to be published so that third parties are capable of understanding the defamatory nature of the statement” (In re Perry, 423 B.R. 215). The e-mail was also part of the context necessary to establish actual malice, said the court.

The Element of Fault

Until 1964, our summary of the things a plaintiff must prove to win a libel suit would have been basically complete at this point. However, in that year the U.S. Supreme Court handed down its landmark New York Times v. Sullivan decision. A decade later, the Supreme Court announced another very important libel decision, Gertz v. Welch. Both cases are discussed in depth in the section entitled “Libel and the Constitution,” but in the interest of offering a logical presentation of the elements of libel, their basic provisions are summarized here.

In New York Times v. Sullivan, the Supreme Court ruled that public officials who sue for libel or slander must prove actual malice, which the court defined as publishing a falsehood with knowledge of its falsity, or with reckless disregard for the truth. In the Gertz case, the Supreme

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Court extended this principle by ruling that in all libel cases involving matters of public concern, the plaintiff must prove some degree of fault. No longer would the media face libel suits under a legal doctrine called strict liability, a doctrine assuming that whenever a wrong occurs its perpetrator will be held strictly responsible (no matter whose fault it was). Without this protection, the Supreme Court ruled, the fear of libel suits would unduly inhibit the media in covering controversial stories that should be reported in a free society. Therefore, these safeguards were required to protect First Amendment freedoms.

Actual malice vs. negligence. The Supreme Court in the Gertz case set up two levels of fault for the media: negligence and actual malice. The Court said the states could not allow libel suits by public figures and public officials unless they could prove actual malice, something the Court had already said in New York Times v. Sullivan and several other cases before Gertz. But the Court also said (for the first time) that private citizens as well as public figures had to prove some fault on the part of the media to win libel cases. The Court ruled that the states could allow private citizens to sue by showing a lower level of fault than actual malice, perhaps just negligence. Alternately, any state that wished to do so could also impose the tough actual malice requirement on private citizens as well as public figures who sue the media for libel. The Gertz case raised two legal problems:

1. What is negligence, and how does it differ from actual malice? 2. Who is a public figure, and who is a private person?

Negligence is a term that has a long legal history in other kinds of tort actions, but it had not previously been used in libel cases. It refers to a party’s failure to do something that he/ she has a duty to do, and that a reasonable person would do. In libel cases, it has come to mean failing to adhere to the standards of good journalism by doing such things as checking the facts. Courts in several states have ruled that private persons must prove something more than negligence—but less than actual malice—in most libel cases against the media.

Plaintiffs cannot simply claim they informed a media organization about information they think could change coverage about them; they must prove that the media organization did not follow up on that information to demonstrate negligence, according to the Fifth Circuit in Henry v. Lake Charles American Press LLC (566 F.3d 164, 2009). Mark Henry, the owner of Chennault Jet Center, sued the Lake Charles American Press for libel for articles about a government investigation of alleged sales of contaminated fuel for military aircraft. Henry said his attorney had told the American Press that some of the information in the stories was wrong and gave the paper contact information for an Air Force official who could clarify the facts, and the newspaper had failed to act on this information. The Fifth Circuit reversed the lower court’s denial of a motion under the Louisiana anti-SLAPP statute and found for the newspaper, saying Henry had provided no evidence that the newspaper had not followed up on the information provided by Henry’s attorney.

Malice is another old legal term, but the Supreme Court gave it a special meaning in connection with libel suits in New York Times v. Sullivan by saying that it meant publishing a falsehood knowingly or with reckless disregard for the truth. “Reckless disregard” generally means publishing a false story when you strongly suspect it to be false—or should entertain such suspicions. That is very hard to prove in a libel case. But, as will be discussed, some states have common law definitions of “malice” that mean ill will or malicious intent, and one federal appeals court used such a state law to award a win in a libel suit to a plaintiff.

Since it is harder to prove actual malice than negligence, the Gertz decision made it important to determine who is a private person (and therefore required to prove only negli- gence in most states) and who is a public figure (and required to prove actual malice).

Why should it be harder for public figures to win libel cases? The court’s rationale for this approach was twofold. First, public officials and public figures have much greater access to the media to reply to libelous charges than do private persons. Second, those who place themselves in the limelight have to expect some adverse publicity, while private persons should not be unduly subjected to publicity they do not seek.

Because winning a libel suit is usually much easier for a private person than a public figure, almost everyone who files a libel suit wants to be classified as a private person. The media, of course, want most plaintiffs classified as public figures. Several Supreme Court decisions since Gertz have helped to clarify who is and is not a public figure for libel purposes.

Proving Damages

Another way in which the Supreme Court’s Gertz decision changed libel law was that, as mentioned earlier, it abolished what were called presumed damages except in those cases where the plaintiff was able to prove actual malice.

Special damages. Under the old presumed damage rules, many states allowed plaintiffs in libel suits to simply skip the difficult matter of proving that they were really injured by the libelous publication or broadcast. If there was a libel, the courts would simply presume there were damages, without any proof. The Supreme Court’s Gertz decision changed all that. Now all plaintiffs who cannot prove the media guilty of actual malice—even private persons—must prove damages to win their cases. Plaintiffs can win special damages by prov- ing their out-of-pocket losses, of course. But in addition, the Court ruled that plaintiffs may also collect general damages for such intangibles as embarrassment and loss of reputation. Obviously, no dollar amount can be placed on such losses, but if the plaintiff can prove he or she was injured, the court (i.e., the judge or a jury) may then decide how many dollars the plaintiff should be given as compensation.

How is this different from presumed damages? It’s subtle, but the difference is this: under the old presumed damages doctrine, plaintiffs didn’t have to offer any proof of their loss of reputation in the community. The court just assumed the bad publicity had a bad effect. Now plaintiffs must prove there was harm to their reputation. How? For example, a plaintiff may bring in witnesses to testify about the effect the defamatory statement had on his/her reputation. Often plaintiffs themselves testify that their friends shunned them.

For example, in an interesting turn of the tables in 2011, the Second Circuit determined that a newspaper publisher was unable to show that per se defamation by a mayor actually chilled his speech and resulted in damages (Zherka v. Amicone, 634 F.3d 642). Selim Zherka was the publisher of the Westchester Guardian in Yonkers, New York, and in 2007 the paper was critical of Yonkers mayor Philip Amicone’s administration, alleging corruption and financial mismanagement. But Zherka sued Amicone, claiming that the mayor had retaliated against him. The district court dismissed Zherka’s claims, and the Second Circuit agreed. Saying that Zherka had failed to demonstrate “actual chilling” of his speech, the court said that simply alleging that the defamation was libel per se was not enough to establish that chilling had taken place. The injury must be demonstrable.

A New York state appeals court said proving monetary damages wasn’t necessary to continue a peculiar per se libel case (LeBlanc v. Skinner, 955 N.Y.S.2d 391, 2012). In a

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creepy allegation with shades of The Godfather, businessman David LeBlanc was permitted to continue his libel case against three bloggers who claimed he was responsible for dumping a severed horse head into the swimming pool at a town board member’s home. Because this is a criminal act, the court said, LeBlanc didn’t need to prove monetary damages to continue his case: “TA false published allegation that a person committed a serious crime is also a ground for asserting a cause of action to recover damages for defamation per se, thus reliev- ing the plaintiff from pleading special damages.”

In the Gertz decision, the Supreme Court went a step further in placing limits on damages in libel suits: it also held that punitive damages should not be awarded—even to private persons—without proof of actual malice (i.e., knowing or reckless publication of a falsehood) by the media. Previously, the courts in some states allowed punitive damage awards (which can involve huge amounts of money) on proof of a different sort of malice. That kind of malice involved showing that the publisher or broadcaster harbored ill will or evil intentions toward the plaintiff. Under that rule, a publisher could face a massive punitive damage award without being guilty of actual malice as the Court defined the term for libel cases.

As indicated earlier, punitive damage awards by no means disappeared in libel cases since the Gertz decision, but at least plaintiffs now must prove actual malice under the new definition to win punitive damages.

Focus on... Defamation by implication: diluting the truth defense

In 2006 a construction crane collapsed in Bellevue, Wash., and a man was killed. The Seattle Post-Intelligencer, in its cover- age of the accident, featured a story on the crane’s operator, Warren Yeakey, and his past battles with drugs and criminal activity. An investigation later revealed that mechanical prob- lems had caused the accident, but Yeakey claimed though all the facts in the article about him were true, he had still been defamed—under a theory called defamation by implication.

Yeakey claimed the article didn’t just discuss his past, but it “juxtapose[d] that history against the front page headline, the large photo of the collapsed crane...and all the other statements within the article so as to imply a defamatory connection between all these elements.”

FIG. 21. Crane used in construction of railway bridge, circa 1910-1930.

Library of Congress.

Yeakey relied on a 2005 Washington Supreme Court case, Mohr v. Grant (153 Wash.2d 812), where the court said that defamation by implication happens when “the defendant juxtaposes a series of facts so as to imply a defamatory connection between them, or creates a defamatory implication by omitting facts.” Other states (Florida, Iowa) have recognized this approach. The state court of appeals, however, found for the Post-Intelligencer, saying that Yeakey had “the mistaken belief that Mohr expanded the defamation tort to include defamation by implication through juxtaposition of truthful statements” (Yeakey v. Hearst Communications, Inc., 234 P. 3d 332, 2010). Is this part of

a troubling trend, echoed in Noonan v. Staples from the First Circuit discussed in this chapter, of attempts by libel plaintiffs to water down the truth defense?

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LIBEL DEFENSES

In analyzing a given news item (or advertisement, press release or whatever) for libel, the next step after determining if the elements are present is to decide whether any of the recognized libel defenses apply. At this point, however, the analysis must be approached a little differently. In order to win a libel case, the plaintiff must convince the court that the elements of libel are present; that is not the defendant’s task. The plaintiff bears the burden of proof in that part of the case. But when it comes to building an affirmative defense against a libel suit, it’s often the other way around: the defense bears the burden of proof. Thus, in many cases it isn’t enough for publishers or broadcasters to believe they have a libel defense: they may have to prove it under a court’s rules of evidence.

That can be a problem. The rules of evidence make it difficult to prove many things that are discovered through investigative journalism. A reporter may be absolutely convinced of the correctness of a story: the sources may be completely reliable and the reporter may have extensively double-checked the facts. But that doesn’t mean the facts can be proven in court. For example, under a court’s rules of evidence, hearsay (statements made by one person to another, with the second person testifying about what he was told) is often inadmissible. A good deal of the information a reporter gathers would be considered hearsay.

Another problem arises when journalists promise to keep the identities of sources confi- dential. Many important stories could not be developed without the use of such sources, but in a libel suit journalists may have to choose between identifying their sources and losing the case. A judge won’t take their word that the source exists; the source may have to be identified during the discovery process, or may even have to testify. If the source cannot be produced without compromising journalistic ethics, the case may be forfeited.

With these problems in mind, you should check off the defenses that might apply to a potentially libelous item. Only if there is a defense—and it could be proved in court— should the item be considered safe. There may be times when it is necessary to take a chance and publish an important story without certainty that it could be defended in court, but the decision to gamble in that way should only be made intelligently, after calculating the risks.

Truth

The oldest of all libel defenses—and certainly the most obvious—is truth (sometimes called justification). Since the early days of American independence, courts have been allow- ing publishers to prove the truth of what they printed as a means of defending against civil libel suits. For many years, there was a catch: in some states the proof of truth had to be accompanied by proof that the publisher’s motives were not improper. For instance, a publisher sometimes could be sued for engaging in character assassination of an enemy (often a rival publisher), even if all of the charges were true.

And, of course, there was the additional catch that only those truthful facts that could be proved under a court’s rules of evidence would be considered true in deciding the case. As just suggested, that has been a serious problem for journalists.

However, the U.S. Supreme Court revised the rules on truth as a libel defense, particu- larly by shifting the burden of proof from the media to the plaintiff. As indicated earlier, in its Gertz decision the Court said it was not constitutionally permissible to allow a libel judgment against the media unless the plaintiff could prove fault, with fault meaning the publication of a false statement of fact due to negligence or malice.

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Proof of falsity. The Supreme Court reinforced this in a 1986 decision, Philadelphia Newspapers v. Hepps (475 U.S. 767). In that case, the Philadelphia Inquirer had published sever- al articles linking beverage distributor Maurice Hepps to organized crime. When he sued for libel, he was unable to prove the charges false, but neither could the reporters fully docu- ment the charges to prove them true.

Pointing out that conclusively proving that type of charge can be difficult, the Court said that to prevent self-censorship by journalists, those who sue for libel must now bear the burden of proving the story false, at least when issues of public concern are involved. In such cases, no state may require the media to prove that a statement is true; the person suing must prove that it is false. Justice Sandra Day O’Connor explained, “[W]e hold that the common-law presumption that defamatory speech is false cannot stand when a plaintiff seeks damages against a media defendant for speech of public concern.... There will always be instances when the factfinding process will be unable to resolve conclusively whether the speech is true or false. It is in those instances that the burden of proof is dispositive.”

Thus, the rule today is that to win a libel case resulting from the media’s coverage of any issue of public concern, the plaintiff always bears the burden of proving that the libel- ous statement is false. But what about libel cases not involving issues of public concern? The Supreme Court left that up to the states: the states are constitutionally required to place the burden of proof on plaintiffs only in cases involving public issues. However, some states have completely abandoned the common law rule that presumed all libelous statements to be false and now require all plaintiffs to prove the falsity of every allegedly libelous statement. Also, in most cases the old requirement of truth plus good intentions is no longer valid.

Defamation by implication. Judge Leon Kendall, formerly on the Virgin Islands superior court, sued the Virgin Islands Daily News for libel arising from its coverage of several deci- sions Kendall made while on that court, and the Third Circuit, exercising appellate review over the Virgin Islands Supreme Court, evaluated the issue of defamation by implication (as discussed in the “Focus On” box in this chapter). The court noted that this “occurs when a defendant juxtaposes a series of facts to imply a defamatory connection between them.” But, said the court, in these cases, “showing known falsity alone is inadequate to establish an intent to defame,” but plaintiffs must also “show something that establishes defendants’ intent to communicate the defamatory meaning.” Judge Kendall was unable to do this (Hon. Leon A. Kendall v. Daily News Publ’g Co., 716 F.3d 82, 2013).

As a general rule, there can be no successful libel suit against the media unless the mate- rial is proven false—period. If it cannot be proven false, the publisher’s motives no longer matter in most libel suits. However, one appeals court revisited this notion in 2009 and said that truthful statements may be actionable if the state statute uses a common law definition of malice, which does examine the motivations of the publisher.

If the publisher’s motives are irrelevant when a publication is truthful, they are very relevant if a publication turns out to be false. In that circumstance, the key issue may be whether the publisher or broadcaster knew or should have known that the libelous state- ment was false. If so, a court may find that there was actual malice, which means that even a public official or public figure may win a libel case against the media. And in cases involv- ing private persons rather than public figures, publishing a false statement negligently but unknowingly—because of sloppy fact-checking—may be enough to lose a libel suit.

Also, flatly stating that the First Amendment does not permit libel judgments against the media for truthful publications about public issues does not rule out other potential legal

problem for the media. As Chapter Five explains, truth is not always a defense in a privacy suit. The fact that a statement is truthful may preclude a successful libel suit, but not neces- sarily an invasion of privacy lawsuit.

Privilege

The legal concept of privilege is an old one, and it creates a strong libel defense for the media. A privilege is an immunity from legal liability, and the term is used in a variety of legal contexts. Chapter Eight discusses reporter’s privilege, the concept that a journalist should be exempt from being forced to testify about his sources of information and unpublished notes. Other privileges excuse lawyers and doctors from testifying about much of what their clients and patients tell them in confidence.

As the term is used in libel and slander law, privilege means an immunity from a lawsuit. The concept was recognized in Article I, Section 6 of the U.S. Constitution, which created an absolute privilege for members of Congress engaged in debates on the floor of Congress. They may never be sued for anything they say there; they have absolute freedom of speech during Congressional debates.

Over the years, this absolute privilege has been broadened to encompass many other government officials, government proceedings and government documents. Today, there is a broad privilege for local, state and national legislative bodies, and it extends to major officials in the executive branch of government and to court proceedings. When perform- ing their official duties, many government officials now have an absolute privilege; they cannot be sued for libel or slander as a result of what they do while conducting their official duties.

As this privilege for government officials was developing, the courts also recognized that in a democracy the news media need to be free to report to the public on what their elected leaders are doing and saying. This led to the concept of qualified privilege, sometimes called conditional privilege, or the fair report privilege.

Qualified privilege. Qualified privilege is a libel defense that allows the media to report on government proceedings and records without fear of a libel suit, provided they give a fair and accurate account. A biased account or one that pulls a libelous quote out of context may not be protected by the qualified privilege defense. However, this defense is broad enough to allow the media to publish many stories based on government documents or statements by government officials—without worrying about whether the statements themselves are true. If a charge of wrongdoing is contained in a government document such as a court record, for example, the media may publish it even if it later turns out to be false. Neverthe- less, this defense raises at least two major legal questions:

1. What officials and records are within its scope? 2. Under what circumstances does it apply—when are officials conducting

official business, and when are they doing something else?

It would take a detailed state-by-state summary to describe which officials and what records are covered by the qualified privilege defense, but some general rules have devel- oped over the years. First, this defense clearly applies to official legislative proceedings from the local level to Congress, but not necessarily to informal and unofficial functions. What a local government official says during a meeting of a city council or commission is privileged,

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Focus on... Teddy Roosevelt’s libel cases

Do American presidents ever sue for libel? Most do not. However, President Theodore Roosevelt filed at least one libel suit during his presidency (1901-1909) and participated in at least two thereafter. In the first case, TR sued famous publisher Joseph Pulitzer for libel over coverage of financial improprieties in the building of the Panama Canal; in February 1909 a grand jury indicted Pulitzer and some of his editors. The case was eventually dismissed.

After his presidency, in 1912, TR sued the publisher of the Ishpeming Iron Ore in the upper peninsula of Michigan for a mean-spirited edito- rial. Publisher George Newitt wrote, “Roosevelt lies, and curses in a most disgusting way, he gets drunk too, and that not infrequently, and all of his intimates know about it.” Roosevelt brought all his power to bear on the case, and Newitt, outmaneuvered, eventually apologized and paid the president the damages he asked for: six cents.

FIG. 22. Theodore Roosevelt, c. 1904.

Library of Congress.

Finally, in 1925, the former president found himself the defendant in a libel case brought by the publisher of the Albany Times-Union for a comment carried by many newspapers that in New York, “we see at its worst the development of bipartisan boss rule.” Publisher William Barnes, Jr. was the Republican “boss,” said TR. The trial was moved to Syracuse to avoid bias toward Barnes in Albany. Roosevelt won based on his counterclaims: Barnes was guilty of corruption, and probably also of collusion with the Democrats.

but what the same official says at a service club meeting or a campaign appearance (or writes in a press release, as will be explained shortly) may sometimes be a different matter.

In the executive branch, most states apply the privilege to the official conduct of senior elected officials, but not necessarily to lesser officials or appointees. The state attorney gener- al’s remarks on an official occasion may be privileged, for example, but not necessarily the statements of his deputies. In general, the less official the occasion and the lower the status of the person making the statement, the less likely it is to be privileged. Many courts recog- nize the privilege defense even in situations involving unofficial public events where matters of public concern are discussed. On the other hand, in some states the courts are moving in the opposite direction, declining to extend the privilege beyond government officials.

In the judiciary, the privilege applies to public court proceedings and official records. It may not apply to proceedings and records that are not open to the public, however. If a particular type of proceeding is routinely closed to the public (as divorce and juvenile proceedings are in some states), the reporter who surreptitiously covers such a proceed- ing or publishes information taken from the secret records of the proceeding may not be protected by the privilege defense. Also particularly dangerous are false charges appearing in non-public documents that are “leaked” to the press.

Another problem in reporting court news involves documents that have been filed but have not yet received any review by a judge. A number of states recognize a rule that court documents are not privileged (even though they may be available to the public) until they are in some way acted upon by a judge. An additional complication is that a lawyer who sends court documents to the media may not be protected from liability even if the document

itself is privileged. It’s generally okay if a reporter discovers public court records on his/her own and publishes them, but if a document is libelous, a lawyer can be sued for giving the document to a reporter.

Police beat. A serious privilege problem involves reporting the police beat. Law enforce- ment officials sometimes let journalists see files that are not public records. A story based on such reports may not be protected by the qualified privilege defense: if the police privately suspect someone of a crime and they’re wrong (i.e., guilt isn’t proven in court), there is a danger of libel. Beware of undocumented charges leveled against a potential suspect, charges that may never be substantiated or placed in a public record. Stories about a person’s arrest and booking are almost always privileged; stories quoting police hunches usually are not. This is not to suggest that journalists should never report the progress of a law enforcement investigation aimed at someone suspected of a serious crime until charges are formally filed or an arrest is made.

There are occasions when this kind of story is important. At times, it may be necessary to report information not protected by the qualified privilege defense. But it should be done with a full awareness of the potential for libel that may exist. At that point, the precise wording of the story may be crucial. To qualify a story by saying someone is only an “alleged” murderer probably will not help if he has not been charged with the crime, but to say he was “detained for questioning in connection with” a crime may—if that is what has happened.

Statements beyond official duties. Equally troubling is the problem of government officials who engage in activities beyond the scope of their official duties. A 1979 U.S. Supreme Court decision provided a classic example of a United States senator engaged in a thoroughly newsworthy activity in which he was not—the court ruled—protected by privilege. The case, Hutchinson v. Proxmire (443 U.S. 11), involved the “Golden Fleece of the Month Awards,” presented to various individuals and organizations by Sen. William Prox- mire (D-Wis.) because he felt they were wasting taxpayer money in a conspicuous way. One of the winners of this tongue-in-cheek award was Dr. Ronald Hutchinson, a mental health researcher who had received nearly a half million dollars in government grants to study such things as the teeth-clenching habits of monkeys under stress. Dr. Hutchinson sued, claim- ing this satirical award damaged his professional reputation. Inasmuch as Senator Prox- mire regularly issued press releases publicizing his selections for the “Golden Fleece” award, Hutchinson was able to show the elements of libel, including a publication beyond the limits of Proxmire’s absolute privilege as a senator. The Court said this privilege covered the sena- tor’s remarks in the Congressional Record but didn’t cover the press release even though it was almost a verbatim copy of those remarks. The Court ruled that the privilege defense did not protect Proxmire. The senator had gone beyond his official capacity in issuing a press release, even if it said the same thing he had said on the floor of Congress.

If a U.S. senator who pokes fun at what he considers wasteful government spending is not protected by the privilege defense, it should be apparent that this libel defense has its limitations. However, it should be noted that the libel suit was against the senator, and not against the media that reported the award. Probably no state would entertain (nor would the First Amendment allow) a libel suit against a news medium that accurately reported the contents of the Congressional speech in which Proxmire announced the award. The sena- tor’s mistake was republishing his own remarks off the floor of Congress.

The Proxmire decision troubled many journalists, because the “Golden Fleece” awards were not only newsworthy but also dealt with a matter of great public concern (wasteful government spending). For better or worse, the Supreme Court chose to restrict the scope

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Libel and Slander

of the constitutional absolute privilege of members of Congress. But that had little effect on the qualified privilege of the media to report on issues of public concern; that privilege has been expand- ing in recent years. Nor did it affect the right of other public offi- cials to issue press releases. All Proxmire really did was to limit the constitutional privilege of those who serve in Congress.

As a means of protecting the media when they fairly and accu- rately report public records and public proceedings, qualified privilege represents an important safeguard. When a public offi- cial engages in slander during a government proceeding, or when an official public document carries a libelous charge, the privilege defense enables the media to report this newsworthy item to the public.

Photos and captions. Photos and captions can create libel problems. For instance, in 2006 a federal appeals court refused to dismiss a libel suit against Boston Magazine for an article that implied Boston teens were promiscuous, illustrated by photos of local teenagers. A caption in small type said, “the photos... were from a... project on teen sexuality... of individuals unrelated to the people or events described in this story.” One young woman who was recognizable in a photo sued, claiming that the article and photo created the impression she was sexually active, despite the disclaimer (Stanton v. Metro Corp., 438 F.3d 119).

Section 315 immunity. In addition to the qualified privilege defense, there is one circumstance under which the media are afforded an absolute privilege defense. Under Section 315 of the Communications Act, broadcasters are required to provide equal opportunities for air time to all candidates for a given public office. And the act denies the broadcaster any control over the content of a candidate’s remarks made on the air under this provision. Thus, the broadcaster has no way to prevent a politician from defaming someone during such a broadcast.

In a 1959 decision (Farmers Educational and Cooperative Union v. WDAY, 360 U.S. 525), the U.S. Supreme Court afforded broadcast- ers an absolute immunity from libel and slander suits under these circumstances. Since they are forbidden to censor or otherwise control the content of political speeches required under Section 315, broadcasters are powerless to prevent a defamation and should not be held accountable if one occurs, the Court ruled.

Some states carry this logic a step further: they exempt broad- casters from liability for defamatory statements made as a part of network programming they are not allowed to edit locally (although the network remains liable).

Fair report privilege in the states. The fair report privilege remained alive and well as two state supreme courts in 2010 supported it. The Supreme Judicial Court of Massachusetts in

Focus on... Fact vs. Opinion

How can you tell the difference between fact and opinion under Milkovich v. Lorain Journal?

As Chief Justice Rehnquist put it, “expressions of ‘opinion’ may often imply an assertion of objective fact.”

A statement like “I think my teacher gives men better grades than she gives women” is NOT really an opinion under Milkovich. Why? Because it could be proven

true or false, if one had access to the teacher’s grades. Someone who heard the statement might think that the speaker had knowl- edge to support that assertion. Simply prefacing this state- ment with “I think” does not make it

an opinion under

Milkovich.

On the other hand, a statement like “I think my teacher is a bad teacher” is truly opinion, because there is no way to prove “badness”

one way or another. It may be up to a jury to determine whether a statement is fact or opinion.

Howell v. Enterprise Publ’g Co. (455 Mass. 641) said that a Brockton, Mass. newspaper was protected for reports on the firing of James Howell, the superintendent of a sewer depart- ment, after inappropriate sexual materials were found on his work computer. The Enterprise used anonymous sources in some of its stories, and the court said that even those were protected under the fair reporting privilege, because those sources generally accurately reported government actions (though there were some errors). Noting that there might be a concern that anonymous reports will distort the truth of official actions, the court said that here, the information provided by anonymous sources was accurate, adding, “The privilege to report official actions would mean very little, however, if to qualify for its protection, the media were limited to reporting such actions solely on the basis of on-the-record statements by high-ranking (authorized to speak) officials or published official documents.”

In Salzano v. North Jersey Media Group (993 A.2d 778) the New Jersey Supreme Court upheld the fair report privilege after a state appellate court had narrowed it by applying it only to journalists’ use of final judgments, not pretrial filings. Thomas Salzano had sued two New Jersey newspapers for libel after they reported on his bankruptcy case using infor- mation filed in court. The court said initial pleadings “fall squarely within the protective sweep of the privilege,” and described the privilege as a hybrid: “It is conditional insofar as it attaches only to full, fair, and accurate reports of government proceedings. It becomes absolute once those prerequisites are met.” The U.S. Supreme Court denied cert.

Other forms of qualified privilege. States may recognize other forms of qualified privilege. For example, in 2011, the Second Circuit affirmed a lower court’s dismissal of a defamation suit against a Cornell scientist by his post-doctoral research associate on state qualified privilege grounds (Chandok v. Klessig, 632 F.3d 803). Meena Chandok sued her laboratory supervisor, Daniel Klessig, for defamation for claiming that her research in his lab was falsified, as no one in the lab after she left could replicate her research findings (a critical part of the scientific method). Klessig reported to a federal funding agency his allegations of scientific misconduct and wrote letters to two journals in which Chandok’s research had been published, retracting the articles and alleging that his investigation “strongly suggests that she falsified” her data.

The Second Circuit upheld summary judgment for Klessig. In New York, there exists “a qualified privilege when [a statement] is fairly made by a person in the discharge of some public or private duty, legal or moral.” Thus, the court said, Klessig’s reports of Chandok’s alleged scientific misconduct were made as a result of his duty to report findings to profes- sional journals, government agencies, and his own institution, and were thus privileged.

Fair Comment and Criticism

Another of the classic common law libel defenses is called fair comment. Although it has been partially superseded by the constitutional protection for the media created by the Supreme Court in recent years, it remains important in many states.

The fair comment defense protects expressions of opinion about the public perfor- mances of persons such as entertainers and politicians who voluntarily place themselves before the public. The courts recognized long ago that reviewing public figures’ perfor- mances is a legitimate function of the press and should be protected, even if it sometimes means excusing defamation.

As this defense was expanded by the courts, it came to protect even hostile expressions of opinion as long as two qualifications were met: the expression had to be based on facts

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that were correct and accurate, and it had to be a critique of the person’s public perfor- mance rather than his/her private life.

In recent years, many states eliminated these requirements, extending libel protection to all expressions of opinion that are clearly labeled as such, while allowing libel suits only for false statements of fact. This trend was greatly encouraged by the majority opinion in the Supreme Court’s Gertz decision, which said, “Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correc- tion not on the conscience of judges and juries but on the competition of other ideas.” That language seemed to rule out libel suits for expressions of opinion.

Opinion vs. implied fact. However, in 1990 the Supreme Court added an important qualification in Milkovich v. Lorain Journal Co. (497 U.S. 1). In Milkovich, the justices allowed a high school wrestling coach to sue a sports columnist who accused him of lying under oath during an investigation of a melee that broke out at a campus wrestling match. A lower court ruled that the entire sports column was an expression of opinion and therefore not libelous.

The Supreme Court held that expressions of opinion enjoy no separate constitutional protection in libel suits. The Court reaffirmed its holding in Philadelphia Newspapers v. Hepps, discussed earlier. The Hepps case held that libel plaintiffs must prove the falsity of any alleg- edly libelous statement, at least in cases involving matters of public concern. And because opinions by their nature cannot be proven true or false, expressions of opinion cannot be the basis for a successful libel suit. However, in Milkovich there was more than an expres- sion of opinion: there were potentially false factual allegations. For example, to accuse a coach of lying under oath is to accuse him of a crime. This was an opinion column—but it also contained factual allegations that might be proven false. The Court ruled that the states may allow libel suits in such situations. Chief Justice William Rehnquist used an example to explain the difference between fact and opinion: “[U]nlike the statement, ‘In my opinion Mayor Jones is a liar,’ the statement, ‘in my opinion Mayor Jones shows his abysmal igno- rance by accepting the teaching of Marx and Lenin,’ would not be actionable.”

While a pure expression of opinion cannot be the basis for a libel suit, an opinion that carries a false factual implication (like the charge that “Mayor Jones is a liar”) is not constitu- tionally protected. If the writer or speaker cannot prove that Mayor Jones actually told a lie on at least one specific occasion, the statement may be an actionable libel, not a protected expression of opinion. To say that someone told a lie is a factual allegation that may be proved or disproved; to say a person is “abysmally ignorant” is just someone’s opinion.

The distinction between a fact and an opinion is often a very subtle one. As a result, it may be necessary to have a full libel trial in which a jury determines whether a given statement is a protected expression of opinion or a false and libelous factual allegation.

Nevertheless, the fair comment defense offers excellent protection for those who dissem- inate pure opinions. Fair comment often protects the media from liability even for vitriolic political rhetoric, social commentary and criticism of the arts. This defense allows the media to use intemperate language and get away with it, as long as a statement is clearly an expres- sion of opinion. It has been said that the fair comment defense protects rhetorical hyperbole. For instance, during a single year various courts allowed the media to: accuse a church of “Nazi-style anti-Semitism” and refer to a newspaper publisher as a “near-Neanderthal” whose paper is published “by paranoids for paranoids.” (See Holy Spirit Assn. v. Sequoia Elsevier, 426 N.Y.S.2d 759, 1980 and Loeb v. New Times, 497 F.Supp. 85, 1980.)

Test for opinion vs. fact. Two federal court decisions may help to explain the differ- ence between a statement of fact (which could lead to a successful libel suit if false) and an expression of opinion (which could not). In a 1985 case, Ollman v. Evans (750 F.2d 970), and a 1986 case, Janklow v. Newsweek (788 F.2d 1300), two different federal circuit courts faced the problem of separating fact from opinion. The first case arose when syndicated colum- nists Rowland Evans and Robert Novak accused Bertell Ollman, a political science professor at New York University, of not only being an avowed Marxist but also of wanting to use his teaching position as a platform for political indoctrination. He sued the columnists for libel.

In the second case, William Janklow, the governor of South Dakota, was described in a Newsweek article as having had a long-running feud with Native American activist Dennis Banks. Newsweek implied that as South Dakota’s attorney general, Janklow had prosecuted Banks to get revenge after Banks falsely accused him of raping an Indian girl. Janklow sued Newsweek for libel. In both cases, the federal courts had to distinguish facts from opinion. In both, the courts found the statements to be opinions and thus not the proper basis for a libel suit. Both decisions are especially significant because they are en banc decisions—rulings by all judges of the particular circuit court instead of the usual panel of three judges.

Adapting and slightly modifying the guidelines developed in the Ollman case, the Jank- low decision listed the following four criteria to be used in determining whether a statement is a potentially libelous fact or a protected expression of opinion:

1. The precision and specificity of the disputed statement. Calling someone a “fascist” is indefinite and therefore an opinion; charging someone with a specific wrongful act would be a statement of fact.

2. The verifiability of the statement. “If a statement cannot plausibly be verified, it cannot be seen as ‘fact,’” the court said.

3. The literary context in which the statement is made. A court may look at the type of publication, its style of writing and intended audience to determine whether a statement is fact or opinion.

4. The “public context” of the statement. A statement made in “a public, political arena” or which “implicates core values of the First Amendment” is much more likely to be an expression of opinion than a statement of fact.

Concluding its analysis of the context of the Newsweek article, the Janklow ruling added: “Here we have criticism of the conduct of a state attorney general who now serves as gover- nor, as well as questions about the actions of three other governors of two other states, all involving an issue of national importance, the treatment of Indian people. Few other discus- sions of public concern could make a greater claim for First Amendment protection.”

While this four-part test may not be accepted by all courts dealing with fact-or-opinion questions, it has now been adopted by several federal circuit courts.

In 1994, a federal court caused near panic among book reviewers and others who write critical reviews by holding that a reviewer could be sued for expressing the opinion that a book contains “too much sloppy journalism.” However, the court changed its mind and reversed itself a few months later. In Moldea v. New York Times Co. (15 F.3d 1137; 22 F.3d 310, 1994), the U.S. Court of Appeals in Washington, D.C. issued this surprising pair of opinions.

The case began when New York Times sports writer Gerald Eskenazi did a review of Interference: How Organized Crime Influences Professional Football, a book by Dan E. Moldea.

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The review, published in the New York Times Book Review, offered a number of examples from Moldea’s book to back up the charge that it contained “sloppy journalism.” Moldea sued for libel, charging that the New York Times book review destroyed his career as an author. A trial court dismissed the lawsuit almost immediately and Moldea appealed. At first, the appellate court reinstated the lawsuit, but then the three-judge panel that ruled on the case took the unusual step of reversing itself.

In the second ruling, the court held that to escape libel, a book reviewer’s criticism must be “rationally supportable by reference to the actual text he or she is evaluating.” In short, what a book review says about a book need not be more than a supportable interpretation of the book. The appellate court said that in the context of a book review, a charge such as “sloppy journalism” is not libelous as long as it is backed up with valid examples from the book.

To summarize the fact-versus-opinion distinction, a false charge that someone committed a crime is likely to be ruled a libelous statement of fact, even if it appears on an “opinion” page of a newspaper, in a direct quote or in a letter to the editor or an advertisement. However, if the charge is made by a public official or during a government proceeding, the privilege defense may apply even though the charge is a false statement of fact and not a protected expression of opinion.

On the other hand, a clearly labeled column or editorial accusing a public figure of incompetence is likely to be ruled an opinion, protected by the fair comment defense. But between the extremes of falsely calling someone a murderer (almost certainly a statement of fact) and accusing a celebrity of lacking talent or accusing a politician of incompetence (which would usually qualify as an expression of opinion), there is a large gray area. In this ill-defined middle ground between fact and opinion, the courts must often decide on a case- by-case basis whether a statement is fact or opinion. If anything, the gray area is a little bigger as a result of the Supreme Court’s 1990 decision in the Milkovich case.

However, one thing has become clear about the Milkovich decision: most states are continuing to dismiss libel cases based on statements that are clearly expressions of opinion as opposed to verifiably true or false statements of fact. When the Milkovich case was decided, many journalists feared an avalanche of lawsuits by persons criticized in columns, reviews, editorials and op-ed pieces. Except where an opinion piece also contains an allegedly false factual statement, that has simply not happened.

In the years since the Milkovich decision, most courts have continued to interpret the fair comment defense liberally, extending broad protection to expressions of opinion. A 1998 decision of the Ninth Circuit illustrates the degree to which the courts refuse to allow libel suits based on expressions of opinion. In Dodds v. American Broadcasting Company (145 F.3d 1053), the court dismissed a lawsuit filed by a judge after ABC’s PrimeTime Live depicted him as incompetent. Writing for the court, Judge Stephen Reinhardt said, “Part of our Ameri- can heritage is the right of all citizens to express their views about politicians, officeholders and umpires, frequently in highly unfavorable terms.” He added that the First Amendment protects “statements of opinion concerning whether a person who holds high public office is fit for that office or is competent to serve... whether or not those statements are supportable, verifiable or based on facts or premises that are disclosed.” The Supreme Court denied cert.

These principles apply not only to “politicians, officeholders and umpires” but also to many other people who may be newsworthy, allowing the media to criticize them as well. For example, after the O.J. Simpson murder trial, New York Post columnist Andrea Peyser wrote that Johnnie Cochran, Simpson’s lead attorney, “will say or do just about anything to win,

typically at the expense of the truth.” Peyser also said Cochran was part of a team of “legal scoundrels” who “dazzled a Los Angeles jury into buying his fantasy tale of a citywide police conspiracy in order to set free a celebrity who slaughtered his ex-wife.”

In 2000, a federal appellate court upheld a trial judge’s decision to dismiss Cochran’s libel suit. The court said Peyser was merely exercising her constitutionally protected right to criticize Cochran’s defense strategy, not accusing him of unethical conduct, lying or anything else that would be actionable as a libel (Cochran v. NYP Holdings, 210 F.3d 1036).

“Caustic personality” defense? Several courts have extended the opinion defense to radio hosts known for their confrontational styles. The Ninth Circuit interpreted the distinction between fact and opinion in 2009 in Gardner v. Martino (563 F.3d 981) to be one of public expectations. Plaintiffs John and Susan Gardner brought suit against talk show host Tom Martino for comments made on his nationally syndicated radio show about their personal watercraft business. A caller had complaints about the Gardners’ handling of a defective craft, and Martino called the Gardners liars and made other negative comments about their business. The court, in finding against the Gardners, said, in effect, that no one really expects bombastic talk show hosts like Martino to be purveyors of fact: “The Tom Marti- no Show is a radio talk show program that contains many of the elements that would reduce the audience’s expectation of learning an objective fact: drama, hyperbolic language, an opinionated and arrogant host, and heated controversy.” Thus, said the court, Martino’s statements were opinion rather than objective statements of fact.

The “caustic personality as defense” approach worked for a radio defendant in the Rhode Island Supreme Court in 2013 in Burke v. Gregg (55 A.3d 212). The state high court rejected the defamation claims of a restaurant owner, Robert Burke, against Providence Jour- nal reporter Katherine Gregg and AM talk-show host Dan Yorke, who, on-air, called Burke a “punk” and a “piece of garbage” (Gregg had written an article about Burke’s forbidding journalists to cover a political “roast” at his restaurant, and Yorke commented about it on his show). Nothing the journalists said was defamatory, though some comments were in bad taste. The court said that on-air, “on occasion, tensions flare and these conversations dete- riorate from moderate exchanges into heated free-for-all arguments: the tone can become caustic, the comments blunt, unrefined, and downright unfair.”

Online opinion. The opinion defense has been extended in New York to even pointed, hurtful posts on a private Facebook page. In Finkel v. Dauber (906 N.Y.S.2d 697), a New York state court said that such statements were opinion. Denise Finkel asserted that even though she was never named on the “Ninety Cents” Facebook page maintained by people she knew, she was the “11th cent” in posts such as “I heard that the 11th cent got aids when she hired a male prostitute who came dressed as a sexy fireman.” The court called this opinion: “Taken together, the statements can only be read as puerile attempts by adolescents to outdo each other. While the posts display an utter lack of taste and propriety, they do not constitute statements of fact.” The suggestion that the page constituted cyberbullying was rejected because the court could find no cases recognizing cyberbullying as a tort in the jurisdiction.

Minor Defenses

In addition to the generally recognized libel defenses, other defenses have been recog- nized by some courts. Also, two purely technical defenses should be noted here.

Neutral reportage. Perhaps the most interesting of the less-recognized defenses is one called neutral reportage. It got its main impetus from a 1977 Second Circuit decision in

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Edwards v. National Audubon Society (556 F.2d 113). That case involved a New York Times story reporting a heated dispute between the National Audubon Society and a group of scientists the society had accused of being “paid to lie” by pesticide companies. The paper attempted to cover both sides on this controversy and was sued by some of the scientists for reporting the charge against them, even though the reporter attempted to present their side of the story too. The Second Circuit recognized a special defense for this situation, pointing out that the paper was attempting to be neutral in reporting both sides of a controversial issue.

Although the idea of a neutral reportage defense is appealing to those who believe the media should be able to cover all sides of a controversy without risking a libel suit, the concept has not been widely accepted by other courts. For instance, shortly after the Edwards decision another federal appellate court declined to follow the precedent and refused to recognize the defense in a seemingly similar situation. Some state courts (in Florida, for instance) have recognized neutral reportage, while others (in Kentucky, Michigan, New York and Pennsylvania, for example) have not. In Illinois, one appellate court recognized neutral reportage but another appellate court rejected the concept.

In 1998, the California Supreme Court rejected neutral reportage in a case where a tabloid, The Globe, republished charges made in an obscure book that a farmer who had once been a photojournalist was the real assassin of Sen. Robert F. Kennedy. The California court held that the defense could be used by the media to escape liability for republishing known falsehoods about private persons who have little opportunity to reply to the charges (Khawar v. Globe Comm’ns, 19 C.4th 254). In 2004, the Pennsylvania Supreme Court ruled that neither the U.S. Constitution nor the Pennsylvania Constitution provides a neutral report- age defense. In Norton v. Glenn (860 A.2d 48), the court allowed a lawsuit where two borough council members engaged in heated exchanges. When a newspaper reported charges and countercharges that the feuding local officials made outside of a council meeting, the result was a libel suit. (The reporting of charges made during the meeting would have been protect- ed by the privilege defense.) The U.S. Supreme Court denied cert in both these cases.

In short, while neutral reportage has been accepted as a new libel defense in some juris- dictions, it has not yet gained the broad acceptance that many journalists hoped it would.

Technical defenses. Among the technical (as opposed to substantive) libel defenses, two should be mentioned here: consent and the statute of limitations. Where it can be proved that a plaintiff gave an actual consent to a libelous publication, he or she cannot thereafter sue for libel. If the consent was voluntarily and intelligently given, it precludes a libel suit. Likewise, where the statute of limitations (the time limit during which a law suit must be filed) has run, the defendant is entitled to an easy dismissal without the trouble and expense of a trial.

LIBEL AND THE FIRST AMENDMENT

The extent to which the U.S. Supreme Court has reshaped American libel law in recent years is probably best shown by the number of times we have already mentioned the Supreme Court in this chapter.

Until 1964 we could have concluded our discussion of libel law with almost no mention of the Supreme Court. For nearly 200 years of American jurisprudence, the nation’s highest court took the position that civil libel suits were purely a state matter and none of its busi- ness. But in 1964 the historic New York Times v. Sullivan decision was handed down, establish- ing that there are constitutional limits to what states may do in awarding libel judgments.

FIG. 23. Justice William J. Brennan, Jr., official Supreme Court portrait, 1976.

Library of Congress.

What prompted this landmark Supreme Court decision was a half-million-dollar libel judgment against the New York Times. In making this award, an Alabama jury was allowed to presume that a massive injury had occurred simply because it found the wording of an advertisement libelous to L. B. Sullivan, a Montgomery city commissioner. The ad never mentioned Sullivan, and in fact only a few copies of that issue of the Times were ever distrib- uted in Sullivan’s community.

What did the advertisement say to produce such a large libel judgment? It said, among other things, that the Montgomery police had taken certain actions against civil rights demonstrators that they in fact had not. We could devote several pages of this chapter to the charges contained in the ad and the means by which Sullivan’s lawyers convinced a jury that the ad defamed him even though he wasn’t mentioned. However, Chapter One discussed this case to illustrate court procedures, so we’ll not repeat the details here. But Sullivan won at the trial level, and the Alabama Supreme Court affirmed the judgment in its full amount.

Meanwhile, other Montgomery public officials filed additional libel suits against the New York Times, seeking total damages of $3 million. The Times was going to pay dearly for publishing a pro-civil rights advertisement that contained some factual errors and then distributing a few dozen copies of the paper in Montgomery, Ala.

Had the U.S. Supreme Court not chosen to review the case—instead maintaining its long tradition of leaving civil libel law completely up to the states—the threat of censorship via libel suits would have been a serious one. The Supreme Court broke with tradition and agreed to hear the case precisely because lawsuits such as this one were a serious threat to First Amendment freedoms.

new York Times v. Sullivan’s holding. Writing for a unanimous Court, Justice William Brennan ruled that the huge libel judgment against the Times could not stand—for three reasons. He said to allow such a judgment would in effect sanction a new form of govern- ment censorship of the press via civil libel suits. To avoid lawsuits by local officials in various communities to which the nation’s major newspapers are mailed, the major papers would have to steer clear of controversial subjects. Moreover, Brennan wrote, the media need some “breathing space” in their handling of controversial issues—including some protection when errors inevitably occur during the “robust” debate of these issues.

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FIG. 24. The March 1960 New York Times advertisement that gave rise to the case of New York Times v. Sullivan in 1964.

National Archives at Atlanta, made available on Flickr as part of the U.S. National Archives’ Documented Rights Exhibit.

Finally, Brennan pointed out that public officials voluntarily move into the public arena when they seek office, subjecting themselves to much more scrutiny than private citizens should have to face. Criticism is something they must expect. In return, public officials gain more access to the media to present their side of the story than a private citizen enjoys. Thus, public officials need less libel protection than other citizens.

Under this rationale, the Supreme Court ruled that public officials could no longer win libel judgments against the media unless they could prove actual malice:

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that a statement was made with “actual malice”—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

This language is among the most important ever written on mass media law in America. If you remember any single concept from this discussion, you should remember that public officials must prove actual malice to win libel suits and how actual malice is defined. First, actual malice means publishing a falsehood. Second, it means publishing that falsehood either with knowledge that it was false, or with reckless disregard for whether it was false or not.

Malice is a legal term that has other meanings in other contexts, often referring to bad intentions. But in libel law it was given a special meaning in the New York Times v. Sullivan decision. But as we will see, a 2009 development in the First Circuit calls this traditional meaning of “malice” in libel cases into question.

When a landmark Supreme Court decision is handed down, there are often unanswered questions—issues that must be clarified by additional Supreme Court rulings. The New York

Times case had exactly that result. First of all, what public officials are included in its cover- age? Does it apply only to elected officials or does it also apply to public figures who hold no office? And does it apply to all public servants or just to certain prominent ones? And equally important, exactly what does “reckless disregard for the truth” mean?

Post-Sullivan Rulings In the years that followed the New York Times decision, the Supreme Court attempted

to resolve these ongoing questions by handing down a series of additional libel rulings. First, in a 1966 case (Rosenblatt v. Baer, 383 U.S. 75) the Court said the actual malice requirement would apply to minor public officials. A. D. Rosenblatt, a New Hampshire newspaper colum- nist, had accused the former supervisor of a county skiing and recreation area of mishan- dling public funds. The Court said even a public employee of that rank would henceforth have to prove actual malice to win a libel suit. The “public official” designation would apply to all who have “substantial responsibility for...the conduct of governmental affairs,” the Court ruled. (More recent rulings have cast doubts on the applicability of the actual malice requirement to “minor” public employees, however.)

Then in 1967 the Court applied the actual malice rule to public figures who held no office and offered guidance on the meaning of the “reckless disregard” concept in two cases decided together, Curtis Publishing Co. v. Butts and Associated Press v. Walker (388 U.S. 130).

The Curtis case arose when the Saturday Evening Post, published by Curtis, carried an article entitled, “The Story of a College Football Fix.” The article claimed that Wally Butts, athletic director at the University of Georgia, had given Alabama coach Paul “Bear” Bryant information in advance about Georgia’s game plans for an upcoming football game between the two schools. The story was based on information provided by an insurance agent in Atlanta who said he had overheard a telephone conversation between Butts and Bryant through an electronic error. Although there was no deadline pressure and the article was published some time after the game, the Post did not double-check the story with anyone knowledgeable about football to see whether the information the insurance man claimed he overheard would in fact have helped Alabama or hurt Georgia.

The Walker case differed in several respects. It resulted from an AP dispatch detailing the activities of former U.S. Army General Edwin Walker, who resigned his command and engaged in conservative political activities, often speaking out against school desegrega- tion. Walker was present at the University of Mississippi during the initial desegregation of the campus. A group of whites attacked the federal marshals who were protecting the first black student enrolled at the university. Walker had addressed the crowd of whites. The AP dispatch, moved over the wires within minutes after the fast-breaking events occurred, said ex-General Walker led the charge of the whites. Walker claimed he called for a peaceful protest, counseled against violence, and denied leading the charge.

Butts and Walker each won a libel judgment of about half a million dollars; both Curtis Publishing and the Associated Press appealed to the U.S. Supreme Court. The Supreme Court voted 5-4 to affirm Butts’ libel judgment against the Saturday Evening Post, but unani- mously overruled Walker’s judgment against the AP. The Court took the occasion to compare the two situations as a way of illustrating what reckless disregard for the truth means.

But first, a majority of the Supreme Court justices agreed that both men were public figures and should be subject to the New York Times v. Sullivan rule, although neither was a public official at the time of the respective libel suits. Walker was no longer an officer in

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the U.S. Army, and Butts received his salary from the Georgia Athletic Association, a private corporation, not from the state.

However, both men were involved in issues “in which the public has a justified and important interest.” Although the court was not unanimous in deciding that the New York Times rule as such should apply to public figures as well as public officials, the precedent has held up in the years since and is now settled law. Thus, both men had to show reckless disregard for the truth to win their libel suits.

Why, then, did Butts win while Walker lost? The Court pointed out that there was a big difference between the types of reporting that went into the two stories. The AP was under intense deadline pressure and had no time to double-check its information; the Post was not. The AP had a reporter with a good reputation for accuracy on the scene; the Post relied on the uncorroborated statements of a non-journalist, a man who was in fact an ex-convict, and the magazine’s staff never checked the story with anyone who had special expertise in football. Further, the conduct AP’s reporter attributed to Walker was consistent with Walk- er’s previous statements on the issue of school desegregation. In short, because the Court found a substantial difference between the Saturday Evening Post’s reporting practices and AP’s, the libel judgment against the Post was affirmed while the one against AP was reversed.

The Supreme Court continued its trend of reversing libel judgments against the media with three cases it handed down on the same day in 1971, Monitor-Patriot Co. v. Roy (401 U.S. 265), Ocala Star-Banner v. Damron (401 U.S. 295) and Time Inc. v. Pape (401 U.S. 279). The Monitor-Patriot case stemmed from a syndicated column that branded a candidate for the U.S. Senate as a “small time bootlegger” because of a conviction in the 1920s. The plaintiff contended the publisher was vulnerable to a libel judgment because the conviction involved his private life long ago and had nothing to do with his public performance. The Supreme Court ruled the actual malice requirement had not been met, and the libel case could not be sustained, to no one’s surprise. After all, the accusation was basically true.

In Ocala, the Supreme Court overruled a libel judgment where a newspaper had confused two brothers, identifying a candidate for office as having been convicted of perjury when in fact it was his brother who had been convicted. The Supreme Court said there was no reckless disregard for the truth in this copy desk error. At the time, this seemed to free the media from liability when a public official or public figure is the victim of an accidental misidentification problem such as those discussed earlier in this chapter.

The Pape case involved a libel contained in a U.S. Commission on Civil Rights report, disseminated in a Time magazine article. Time had changed the reported information some- what, but the Supreme Court found no reckless disregard for the truth in Time’s reporting of a statement charging a Chicago police officer with brutality—even though the story did not make it clear these were mere allegations. Time’s imprecise reporting was forgiven in large part because the report itself was ambiguous and subject to more than one interpretation.

The theme in all three of these 1971 cases seemed clear: the traditional rules of libel must give way when a public official is the plaintiff, lest the threat of libel suits unduly inhibit the reporting of public affairs.

Almost Abolishing Libel: The Rosenbloom Case Moreover, later in 1971 the Supreme Court handed down a decision that was heralded

by some as the ultimate victory for the media over the threat of libel: Rosenbloom v. Metromedia (403 U.S. 29). Although there was no majority opinion, the three-justice plurality opinion

seemed to foreclose libel judgments against the media whenever the plaintiff was involved in an issue of public interest, no matter how private a citizen he or she might be.

George Rosenbloom, a Philadelphia magazine dealer, was arrested during a police campaign against obscenity, and he was called a “smut distributor” and a “girlie-book peddler” on radio station WIP, owned by Metromedia. He was never convicted, and a court granted an injunction ordering the police to leave him alone, since the books were not legally obscene. Rosenbloom sued the station and won a $275,000 libel judgment. An appel- late court reversed, although Rosenbloom contended that he was a private citizen rather than a public figure and should not be required to prove actual malice to win a libel suit.

The U.S. Supreme Court agreed on a 5-3 vote that he should not win a libel judgment, but only three justices (Brennan, Burger and Blackmun) joined in the plurality opinion. Justices Black and White concurred in the result, but on a different rationale. What made Rosenbloom memorable was the sweep of the language in that plurality opinion. Justice Bren- nan, writing for the Court, said the distinction between public officials and public figures on the one hand and private citizens on the other “makes no sense.” He said that in the future the criterion for applying the actual malice requirement should be whether the plaintiff was involved in a matter of “public or general interest.” Thus, the Court seemed to be saying the media could bootstrap themselves out of libel suits by publicizing a private person’s activities so as to generate public interest and then avoid a lawsuit because of that public interest.

After Rosenbloom, it seemed that virtually everyone whose name appeared in a newspaper or in a radio or television newscast might have to prove actual malice. And because proving actual malice turned out to be so difficult, it appeared for a time in the early 1970s that the media were at last virtually free from their most troubling legal problem, the libel suit.

Malice, negligence and Gertz However, three years later the hope that libel was being abolished vanished when the

Supreme Court handed down its famous Gertz v. Welch decision in 1974. Much has already been said of this decision, which profoundly changed the law of libel in all 50 states—and thus laid the foundation for modern libel law when private persons are involved.

Elmer Gertz, a Chicago lawyer, represented the family of a young black man who had been killed by a Chicago police officer (the officer was later prosecuted for the act). With Gertz’s help, the family was seeking civil damages in a suit for wrongful death in the late 1960s.

An article appeared in American Opinion, the magazine of the ultraconservative John Birch Society, claiming that Gertz was part of a communist conspiracy to discredit law enforcement. Gertz was called a “communist-fronter” and a “Leninist.” The article also falsely accused Gertz of various subversive activities.

Gertz sued Robert Welch Inc., publisher of American Opinion, and initially won a $50,000 jury verdict against Welch. However, the trial judge set aside the verdict and ruled that Gertz was a public figure who could not win a libel judgment without proving actual malice, some- thing he had not proved during the original trial. Then the Supreme Court’s Rosenbloom decision was announced, and an appellate court upheld the trial judge’s decision that Gertz would have to prove actual malice to win a libel judgment against Welch. Gertz asked the Supreme Court to review the determination that he was a public figure.

In a narrow 5-4 decision that Justice Blackmun said he joined only because the country needed a clear-cut majority opinion on an issue as important as libel law, the Supreme Court backed away from the Rosenbloom decision and reinstated the distinction between private

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persons and public figures. The Court said that Gertz, although he was a prominent Chicago lawyer, had done nothing to seek public figure status in this context. Thus, he should not be constitutionally required to prove actual malice to win a libel suit.

The Supreme Court said the states should feel free to allow private persons such as Elmer Gertz to win libel suits against the media by proving a level of fault short of actual malice. However, in no case could the media be held on the “strict liability” (or “liability without fault”) basis that had been the prevailing rule of law for at least 200 years. The Court said the media had to be guilty of something beyond merely publishing a falsehood—there had to be some level of fault. Still, the Court didn’t say every state had to allow private persons to prove mere negligence, just that the states could allow this lesser standard of proof for private plaintiffs if they wished. But the Court also said any state that wished to could still require private persons to prove actual malice.

As a result, in all 50 states public figures still have to prove actual malice. But in most states that is not required of private persons. Most states accepted the Court’s invitation and adopted rules under which private persons must prove only some level of negligence to win a libel case against the media. However, some state courts have chosen to require all libel plaintiffs—private persons as well as public figures—to prove actual malice in any libel case involving an issue of public or general concern.

Now both of these terms—actual malice and negligence—have special meanings in law. There is no way we can define them in a way that would be applicable in all states. We already indicated that negligence is a less serious breach of the standards of good journalism than reckless disregard for the truth. Negligence may well mean nothing more than publishing a falsehood as a result of sloppy reporting, or perhaps even because an innocent error slipped past the copy desk. Some states say it means failing to do the kind of checking a “reasonable man” would do under the circumstances.

In addition to ruling that private persons could be allowed to sue for libel without prov- ing actual malice, Gertz had an important effect on damage awards in libel suits, as already noted: the ruling required most private libel plaintiffs to prove at least general damages (sometimes called actual damages). The Court said that in the absence of a showing of actual malice, there could be no punitive or presumed damages. Instead, plaintiffs who could only prove negligence and not actual malice could win only such damages as they could prove, although those damages would not be limited to just out-of-pocket losses (special damages).

As a result of these sweeping changes in American libel law, a new period of reassessment occurred, as the courts and legislatures tried to adapt their rules to the new constitutional boundaries. It quickly became apparent that the crucial issue in future libel suits would often be whether the plaintiff was a public figure or a private person. To help resolve this question, the Gertz ruling offered this observation about public figures and private persons:

For the most part those who attain this [public figure] status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.

Thus, the Supreme Court was saying that many public figures are so classified only because they have thrust themselves into the vortex of a particular controversy. These people

might be called vortex public figures, and the courts were to look mainly to a libel plaintiff’s own conduct in deciding whether the definition applied.

There is one ironic footnote to the Gertz case: after the landmark Supreme Court decision, Elmer Gertz patiently waited as his case meandered through pretrial procedures and finally went to trial again. Although the Supreme Court decision emphasized that non- public figures such as Gertz didn’t necessarily have to prove actual malice, during the second trial a jury agreed that he did prove actual malice and awarded him $400,000 in damages (including $300,000 in punitive damages). The new judgment was affirmed by a federal appellate court in 1982—eight years after the Supreme Court decision and 14 years after the police shooting that led to the original libel (Gertz v. Welch, 680 F.2d 527).

Private Persons and Public Figures

In the aftermath of the Gertz decision, the Supreme Court repeatedly had to decide whether libel plaintiffs were public figures (who had to prove actual malice to win their lawsuits) or private persons (who could win by proving just negligence). The first of these cases, Time Inc. v. Firestone (424 U.S. 448, 1976), involved a divorce in a wealthy and socially prominent Florida family. Russell Firestone, an heir to the tire company fortune, sued his wife Mary Alice for divorce on the grounds of extreme cruelty and adultery, and the case received extensive publicity. When the divorce was granted after a trial in which there was considerable evidence of marital infidelity on both sides (enough evidence “to make Dr. Freud’s hair curl,” the judge said), Time magazine reported that one of the grounds for the divorce was adultery.

However, the judge was vague about the legal grounds for the divorce, and in fact an obscure provision of Florida law would have prohibited the award of alimony if adultery had been a ground for a divorce. Since Firestone had been granted alimony, her alleged adultery couldn’t have been one of the legal grounds on which the divorce was granted. This obscure point of Florida law escaped the Time correspondent—but that could hardly be called publishing a falsehood with reckless disregard for the truth. (Was it even negligent reporting?) Obviously, if Firestone were ruled a public figure she would have less chance to win a libel judgment. There was evidence that she was indeed a public figure and even sought publicity: she held two press conferences to discuss the divorce and subscribed to a clipping service. The story was covered in no fewer than 45 articles in one local newspaper.

However, the Supreme Court ruled that Firestone was not a public figure. She had not voluntarily thrust herself into any public controversy. The Court said: “Dissolution of marriage through judicial proceedings is not the sort of ‘public controversy’ referred to in Gertz, even though the marital difficulties of extremely wealthy individuals may be of interest to some portion of the reading public.” The Court said Firestone had really done nothing more than she was required to do—avail herself of the courts to terminate a marriage.

The Supreme Court seemed to be saying this: while some celebrities and politicians are so pervasively famous that they are all-purpose public figures, most people do not become public figures unless they voluntarily inject themselves into a public debate on a contro- versial issue. As a result, some relatively well-known persons may not be considered public figures should they sue for libel based on a reference to their personal lives. And when it comes to persons involved in a crime, the Court’s Firestone ruling made it clear they will not ordinarily be classified as public figures: “There appears little reason why these individuals should substantially forfeit that degree of protection which the law of defamation would otherwise afford them simply by virtue of their being drawn into a courtroom.”

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After the Supreme Court ruled that Firestone was not a public figure, she chose not to pursue her lawsuit further, and the case was eventually dismissed.

It would be difficult to overemphasize the extent to which the thinking in the Firestone case is a retrenchment from the libel protection the media enjoyed in the late 1960s and early 1970s. However, the Supreme Court continued the same trend away from classifying newsworthy persons as public figures in a pair of 1979 decisions, Hutchinson v. Proxmire (443 U.S. 111) and Wolston v. Reader’s Digest Association (443 U.S. 157).

The Hutchinson case (involving Senator Proxmire’s Golden Fleece Award) was discussed earlier in connection with its adverse effect on the privilege defense. At this point, we will simply add that it offered the media little comfort on the issue of who is a public figure, either. The Court said Dr. Hutchinson was not a public figure, despite the fact that he was the research director of a major state-controlled mental health facility—and had won large grants from tax monies. The Wolston case followed the same policy of narrowing the definition of a public figure, thus freeing more individuals to sue for libel without proving actual malice. Ilya Wolston had an aunt and uncle who had pleaded guilty to charges of spying for the former Soviet Union, and he had been cited for contempt himself when he failed to comply with a Congressional subpoena. Other than that contempt citation, he was never convicted of any offense. Many years later, a Reader’s Digest publication included his name in a list of “Soviet agents” in the United States. He sued for libel and a lower court dismissed his case, ruling that he was a public figure who could not prove actual malice. The Supreme Court reversed, finding that he had done nothing to inject himself into a public controversy.

Once again, a libel plaintiff was ruled to be a private person who did not need to prove actual malice to win his case, thereby reducing the media’s First Amendment protection and making it much easier for the plaintiff to win.

The definition of a public figure or public official was changing. If some of the Court’s early libel rulings were decided under the new standards, would Athletic Director Butts be a public figure—or a public official? What about Pape, the Chicago policeman?

General rule? In the decades since the Firestone, Hutchinson and Wolston decisions, the public figure-private person question has been addressed in literally thousands of lower court cases. If there is a general rule today, it is that many people whose names are in the news are not public figures—unless they inject themselves into a public controversy or take other actions likely to place them in the limelight. Even people who hold newsworthy but non-elective government positions may not be classified as public figures or public officials. For example, in a surprising 1999 decision, the Ohio Supreme Court held that a public high school principal was neither a public official nor a public figure for libel purposes and there- fore did not have to prove actual malice (East Canton Education Association v. McIntosh, 709 N.E.2d 468). In contrast, the Ohio Supreme Court had previously ruled that a public school superintendent was a public official (Scott v. The News-Herald, 496 N.E.2d 699, 1986), while courts in some other states have found principals to be public officials. So who is a public figure or public official today? The answer depends on which court decides the question.

REFINING THE ACTUAL MALICE RULE

Once someone is ruled to be a public official or public figure, he/she faces the difficult challenge of proving actual malice—as defined by the Supreme Court—to win a libel case.

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During the 1980s and 1990s, the high court clarified the scope of the actual malice rule, applying it in several difficult fact situations. Actual malice as a matter of law. One of the most important of these cases to the media was Bose v. Consumers Union (466 U.S. 485). This 1984 case was a strong reaffirmation of the constitutional safeguards journalists enjoy under New York Times v. Sullivan, a decision handed down almost exactly 20 years before the Bose ruling. The case began when the Bose Corporation, a manufacturer of high- fidelity speakers, sued Consumer Reports magazine for a review that commented negatively and hyperbolically about the performance of Bose speakers. In a 1970 article, the magazine said that with these speakers music “tended to wander about the room.” A Consumers Union engineer had written that the speakers made violins seem

“about 10 feet wide.” The manufacturer sued for product disparagement and won a

six-figure damage award. During the trial, the judge concluded that the engineer should have said Bose speakers made music sound as if it wandered “along the wall,” not “about the room.” This, he said, was evidence of actual malice. On appeal, the First Circuit reversed that judgment, ruling that the magazine was not guilty of actual malice in its product review even if some of the engineer’s words and conclusions were debatable.

Normally, appellate courts are not supposed to second-guess a trial court’s assessment of the evidence in deciding factual issues (such as whether there was actual malice in this Consumer Reports article), but that is exactly what the First Circuit did in this case. The Supreme Court upheld that decision, ruling that the media need the additional protection of being able to appeal a trial court’s determination of actual malice. To rule otherwise, the court said, would unduly erode First Amendment freedoms by denying the media the right to challenge some libel judgments that are improperly awarded by trial judges or juries.

In finding a lack of actual malice, Justice John Paul Stevens wrote for the majority, “We agree with the Court of Appeals that the difference between hearing violin sounds move around the room and hearing them wander back and forth fits easily within the breathing space that gives life to the First Amendment.” More- over, “an appellate court has an obligation to ‘make an indepen- dent examination of the whole record’ in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression.”

The Bose case represents a significant expansion of the protec- tion the media enjoy under the New York Times v. Sullivan rule. When a judge or a jury finds actual malice in a publication or broadcast with little or no evidence of “reckless disregard for the truth,” the media now have a second shot at that verdict.

Focus on... Bose v. Consumers Union, 466 U.S. 485 (1984)

The Bose case may be confusing with- out understanding the roles of differ- ent courts. Gener- ally, trial courts with juries are triers of fact (establishing the record of facts to be used in an appeal), and appeals courts are arbiters of law. But these roles are not exclusive in libel cases.

Justice John Paul Stevens wrote, “Judges, as exposi- tors of the Consti- tution, must independently decide whether the evidence in the record is sufficient to cross the constitu- tional threshold that bars the entry of

any judgment that is not supported by clear and convinc- ing proof of ‘actual malice.’”

This means that appeals courts must exercise their own judgments, deter- mining for them- selves whether there was actual malice

or not. A finding of actual malice, then, is a matter of law, not a finding of fact.

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Having the appellate courts empowered to re-evaluate the evidence in libel cases can be vital to the media, as a 1990 decision involving entertainer Wayne Newton illustrated. Newton sued NBC after the network alleged that he had engaged in questionable business dealings and was in contact with persons involved in organized crime, among other things. A federal jury in Las Vegas—where Newton was a popular celebrity—ruled that he was libeled and awarded him $5.3 million in damages. But the Ninth Circuit overturned the verdict and ordered the case dismissed, ruling that Newton did not prove actual malice and that NBC’s statements were basically correct (Newton v. NBC, 930 F.2d 662).

narrowing Gertz In 1985, the Supreme Court took a major step to narrow the scope of the Gertz case: it

ruled that Gertz applies only to issues of public concern, not to libel cases arising from discus- sions of purely private matters. That happened in the case of Dun & Bradstreet v. Greenmoss Builders (472 U.S. 749).

This case began after Dun & Bradstreet (D&B), a credit reporting agency, falsely informed several of its clients that Greenmoss, a Vermont construction company, had filed for bankruptcy. The false credit report resulted from a young worker’s negligent (but not malicious) error in record-checking. Although Greenmoss could not prove actual malice, it won a $350,000 libel judgment against D&B. The award included punitive damages, despite the Gertz case’s holding that even non-public figures must prove actual malice to win puni- tive damages. The judgment was eventually upheld by the Supreme Court.

Affirming the libel verdict, a three-justice plurality ruled that credit rating reports are not a matter of public concern and therefore should not be subject to the actual malice requirement as set forth in New York Times v. Sullivan and expanded in Gertz v. Welch. This represented a new distinction in libel law: the plurality said the actual malice rule from Gertz should continue to apply to libel cases involving issues of public concern, but not to cases involving purely private matters.

While the three justices in the plurality (Lewis Powell, William Rehnquist and Sandra Day O’Connor) voted to create this new exception to the Gertz principle, two others (Chief Justice Warren Burger and Justice Byron White) filed concurring opinions in which they agreed that Gertz was inapplicable to this situation. But both also said they would over- turn Gertz itself if given the opportunity. They were dissenters when the Gertz decision was handed down in 1974. The remaining four justices dissented in the Greenmoss deci- sion, arguing that the Gertz principle should apply to this case. Justice William Brennan, who authored the majority opinion in New York Times v. Sullivan in 1964, joined Thur- good Marshall, Harry Blackmun and John Paul Stevens to argue that credit reporting is a legitimate matter of public concern and therefore should be subject to the actual malice requirements of Gertz.

Nevertheless, the plurality of three justices who carved out this exception to Gertz— together with the two justices who would overturn Gertz altogether—constituted a majority of the Supreme Court, a majority that said Gertz simply does not apply to libel cases involv- ing non-public issues. In such cases, the states are free to allow libel plaintiffs to win without proving either actual malice or negligence. (However, some states have chosen to continue requiring proof of actual malice or negligence in all libel cases, despite this ruling. The five justices were merely saying that the states are not constitutionally required to make plaintiffs prove actual malice or negligence in libel cases involving purely private matters.)

Affirming an Actual Malice Ruling at the high Court

Proving actual malice is usually so difficult that few libel cases are won by public officials or public figures, the people who must prove actual malice to win any libel case that involves an issue of public concern. It is perhaps ironic that in 1989—nearly 25 years after the actual malice rule was created by the New York Times v. Sullivan decision—the Supreme Court upheld a libel decision involving actual malice for the first time since the 1960s.

Ruling in Harte-Hanks Comm’ns v. Connaughton (491 U.S. 657), the Supreme unanimous- ly affirmed a lower court’s finding that the Hamilton (Ohio) Journal-Beacon was guilty of actual malice. The newspaper falsely reported that Daniel Connaughton, who was running for a judgeship in an election, wrongfully tried to discredit an opponent. The Court reaf- firmed the guidelines it had set down in the 1984 Bose case (discussed earlier), requiring appellate courts to independently review the evidence in libel cases involving alleged actual malice. But it then agreed with the appellate court’s conclusion that actual malice was pres- ent in this case. Justice John Paul Stevens noted the newspaper’s failure to check its own news sources—and the fact that an editor declined an opportunity to listen to tape-recorded interviews that could have cast doubts on the accuracy of the story. Those newsroom prac- tices constitute more than just a departure from normal professional standards of jour- nalism; they create evidence of actual malice, the Court concluded. A jury had awarded Connaughton $5,000 in compensatory damages and $195,000 in punitive damages. The Court affirmed that verdict.

Actual Malice and Direct Quotations

Is it possible to libel people by misquoting them? When a book, newspaper or magazine uses quotation marks, do readers assume the words inside the quotes are the speaker’s exact words? Suppose a reporter knows that a quotation is not precisely what the speaker said. Does that mean the reporter has published a knowing or reckless falsehood—and is there- fore guilty of actual malice if a libel suit results from the quotation?

In 1991, the Supreme Court ruled on a libel case that raised those questions, Masson v. New Yorker Magazine (501 U.S. 496). The court said a serious misquotation that hurts a person’s reputation may be libelous. But at the same time, the court upheld the right of journalists to rephrase what a person says without risking a libel judgment, unless the rephrasing results in a “material change in the meaning.”

The case began when Jeffrey Masson, a psychoanalyst who once was the archivist for Sigmund Freud’s papers, sued freelance writer Janet Malcolm and New Yorker magazine, among others, for publishing a lengthy article about him containing at least six quoted state- ments that he denied making. Malcolm conducted 40 hours of tape-recorded interviews with Masson. She also claimed there were additional non-recorded interviews during which she took detailed notes; Masson disputed that claim. He said she took no notes during most of the non-recorded interviews, and Malcolm could not find her notes at the time.

Among other things, Malcolm quoted Masson as calling himself an “intellectual gigolo” and “the greatest analyst who ever lived.” Those phrases were not in the taped interviews, but Malcolm claimed Masson did say those things during the non-recorded interviews. Masson flatly denied making those statements, charging that he was seriously misquoted—and that the resulting misrepresentation of his views injured his reputation.

Lower federal courts dismissed Masson’s libel suit before trial, ruling that the quoted state- ments were “rational interpretations” of things Masson did say on the tape and therefore not

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actionable. But the Supreme Court reinstated the case and remanded it to a federal appellate court to determine if the case should go to trial or be dismissed.

Writing for the Court, Justice Anthony Kennedy said that journalists could not be expected to be absolutely precise in every direct quote. However, he said that the quoted statements in the article differed significantly enough from the taped statements that Masson was entitled to a jury trial (at which he would have to prove that Malcolm did misquote him, did so knowingly or recklessly, and thereby damaged his reputation). He wrote:

We reject the idea that any alteration beyond correction of grammar or syntax by itself proves falsity in the sense relevant to determining actual malice under the First Amendment.... In some sense, any alteration of a verbatim quotation is false, but writers and reporters by necessity alter what people say, at the very least to eliminate grammatical and syntactical infelicities.

Thus, journalists who make minor changes in quotes by public figures are protected by the actual malice rule. But if the meaning is knowingly or recklessly changed in a “material” way, and the change hurts the person’s reputation, then the person may have a case. Private persons would only need to prove they were libeled by a negligent misquote rather than by a knowing or reckless one under the libel law of most states. In short, the Masson decision gives journalists some leeway in handling direct quotes, while holding them accountable for changing the meaning of a quote in a way that harms the quoted person’s reputation.

When he wrote the Court’s opinion in Masson, Justice Kennedy also offered a suggestion concerning the actual malice rule itself—one that might have been drawn from his experi- ence as a law professor. He said the term “actual malice” is confusing and should not be used in jury instructions. Instead, he said judges should merely tell jurors to decide if a falsehood was published knowingly or with reckless disregard for the truth. The problem, of course, is that many people who have never read a media law textbook assume (with the encourage- ment of most dictionaries) that “actual malice” means ill will or evil intentions. In libel cases involving public figures or public officials, it doesn’t usually mean that at all.

Armed with the Supreme Court’s holding that he could win if he could prove he was misquoted in a way that materially changed the meaning and thereby defamed him, Masson got a federal appellate court to refer the matter back to a federal trial court. In a 1993 trial, the jury agreed that he was libeled but deadlocked on the amount of damages to award (if any), and a mistrial was declared. In a second jury trial a year later, the jury ruled against Masson, concluding that he failed to prove his case. Masson then appealed once more, and in 1996 a federal appellate court upheld the jury’s verdict. This ended a complex and costly 12-year legal battle (Masson v. New Yorker Magazine, 85 F.3d 1394).

By 1996, Malcolm’s legal expenses exceeded $2.5 million. Ironically, in 1995 Malcolm said she finally found her long-lost notes from the non-recorded interviews, and they includ- ed several key statements that Masson denied making, including the “intellectual gigolo” quote. She said her two-year-old granddaughter pulled a stack of old books and papers off a shelf, including a red notebook containing the missing notes from the Masson interviews. If she could have produced those notes in 1984, the case might have been disposed of much earlier, saving her and her publishers a fortune in legal expenses.

Context. But what about statements actually made by public figures but presented in a context that changes the viewer’s understanding of the statements? The Ninth Circuit

in 2010 said it didn’t matter that the plaintiff’s statement was actually spoken by him, because the context in which it was presented made it misleading. In Price v. Stossel (620 F.3d 992), Dr. Frederick Price, a televangelist, delivered a sermon in which he said, “I live in a 25-room mansion. I have my own $6 million yacht. I have my own private jet, and I have my own helicopter, and I have seven luxury automobiles.” ABC’s 20/20 program, featur- ing John Stossel, placed the clip in a context so it appeared as though Price was bragging about his own material wealth—when actually Price was speaking from the perspective of a hypothetical wealthy person who is unhappy despite that wealth. ABC broadcast a retrac- tion, but Price sued.

The district court dismissed the case because Price did actually speak the words at issue. But the Ninth Circuit reversed. Relying on Masson, the court said that “the proper compari- son is between the meaning of the quotation as published and the meaning of the words as uttered,” and thus, the court concluded, “the video quotation of Price’s statement materially changed the meaning of Price’s words.” The court remanded the case for consideration of whether Price could meet the other elements of libel.

The Price case might foreshadow what could happen in the case of Shirley Sherrod’s libel claims against conservative blogger Andrew Breitbart. In July 2010, Breitbart posted a video clip of a speech Sherrod made for an NAACP fundraising event while she was Georgia State Director of Rural Development for the U.S. Department of Agriculture. The clip contained quotes that made Sherrod, who is black, look as if she was discriminating against white farm- ers by stating that she might not have done all she could to help a white farmer who was acting superior to her. Sherrod was forced to resign from the Department of Agriculture under pressure from her superiors, and the NAACP and other groups decried her—until it was determined that Breitbart had selectively edited out the context of Sherrod’s speech, in which the major point was that it was poverty, not race, that was key to rural development. She was offered a position in the department but turned it down.

In 2011, Sherrod filed suit against Breitbart, alleging libel, false light and infliction of emotional distress. Breitbart moved to use Washington, D.C.’s new anti-SLAPP law against Sherrod’s suit, and she countered that anti-SLAPP laws don’t apply in federal court—a posi- tion other states have taken, although several circuits have enforced state anti-SLAPP laws in federal cases (the Fifth in Lake Charles American Press discussed earlier, the Ninth in Newsham discussed below, and in 2010, the First Circuit applied the Maine statute in a case involving an elementary school principal, Godin v. Schencks, 629 F.3d 79). Breitbart died in 2012. Sher- rod’s attempt to have the case dismissed was rejected in July 2012, and the case continues, with Sherrod’s 2013 attempt to have Breitbart’s widow named in the suit. In 2013, the D.C. Circuit dismissed Breitbart’s appeal of a denial of an motion under the District of Colum- bia’s anti-SLAPP law, saying that it had not been filed in a timely fashion (Sherrod v. Breitbart, 720 F.3d 932).

State Statutes and “Malice” in Common Law

The First Circuit in 2009 sent shockwaves through media companies and attorneys with its decision in Noonan v. Staples (556 F.3d 20, reh’g en banc denied, 561 F.3d 4) by returning to a state’s archaic interpretation of the “actual malice” standard in libel. Usually truth is considered to be an absolute defense against a libel claim, but the First Circuit interpreted Massachusetts state law to suggest that even truthful statements could give rise to a libel action if they were published with malicious intent.

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Plaintiff Alan Noonan was fired from his sales position at office supply company Staples for padding his travel expense accounts. A Staples executive vice president sent a mass e-mail to 1,500 employees informing them that Noonan had been fired for violating the travel and expense policy and warning them that non-compliance would be taken seriously. Noonan sued for libel. The trial court found for Staples, as did the First Circuit initially. However, after a rehearing, the First Circuit reversed. In what some commentators called the most dangerous libel decision in decades, the First Circuit applied a 1902 Massachusetts law that said that even true statements can result in libel if the defendant acted with ill will or malevo- lent intent—a common law interpretation of “actual malice.” The court said the 1902 stat- ute had been passed before the 1964 New York Times v. Sullivan decision that provided the modern interpretation of “actual malice” and dealt with defenses under traditional tort law.

Since a given statement, even if libelous, must also be false to give rise to a cause of action, the defendant may assert the statement’s truth as an absolute defense to a libel claim. ... Massachusetts law, however, recognizes a narrow exception to this defense: the truth or falsity of the statement is immaterial, and the libel action may proceed, if the plaintiff can show that the defendant acted with “actual malice” in publishing the statement.

After finding that the meaning of “malice” in the 1902 statute should mean publication with ill will, the court noted that the sending of an e-mail naming an employee and saying that the employee had been fired had never been done before, and that it may have been sent to draw attention away from Noonan’s supervisor’s malfeasance. Many of the Staples employ- ees who received the e-mail did not travel and would have no reason to be informed of the policy’s enforcement. These actions, said the court, could be interpreted by a jury to indi- cate that the vice president acted with ill will toward Noonan. The court remanded the libel case back to the trial court. The First Circuit declined to rehear the case en banc. However, on remand, the jury found for Staples, saying that the company did not act with malice in sending the truthful e-mail.

Does this case open the door to plaintiffs’ attorneys encouraging courts to apply state statutes’ common law definitions of malice as ill will in cases where the publication was true? Some commentators have suggested that Staples lost at the First Circuit because the plaintiff in this case was not a public official. In Massachusetts, at least, the precedent remains.

A 2014 case. The U.S. Supreme Court granted cert in the first libel case in some time in 2013. The case focused on whether a court can deny civil case immunity under an airline security act without first deciding whether the airline’s report was true. William Hoeper won a $1.4 million judgment from a Colorado court when it found that Air Wisconsin told Transportation Security Administration (TSA) officials that he was “mentally unstable” and may have a gun. The airline argued that the 2001 Aviation and Transportation Security Act (ATSA) protected it from the civil suit, but Hoeper successfully argued that Air Wisconsin gave up its immunity under ATSA when it made a disclosure “with actual knowledge that the disclosure was false, inaccurate, or misleading” or “with reckless disregard as to the truth or falsity of that disclosure.”

The Supreme Court addressed this question: “Whether ATSA immunity may be denied without a determination that the air carrier’s disclosure was materially false.” The Reporters Committee for Freedom of the Press and others argued in an amicus brief that “[i]n this

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case, the Colorado Supreme Court impermissibly removed falsity from the actual malice equation.” The Court unanimously reversed the Colorado Supreme Court’s holding for Hoeper (Air Wisconsin Airlines Corp. v. Hoeper, 134 S. Ct. 852, 2014).

Justice Sonia Sotomayor wrote for the Court, noting that because the language in the ATSA was exactly like that in New York Times v. Sullivan. Because that was the case, Soto- mayor reasoned, and “because we presume that Congress meant to incorporate the settled meaning of actual malice when it incorporated the language of that standard, we hold that a statement otherwise eligible for ATSA immunity may not be denied immunity unless the statement is materially false.” She added: “To hold Air Wisconsin liable for minor misstate- ments or loose wording would undermine that purpose and disregard the statutory text.”

Justice Antonin Scalia, joined by Justices Clarence Thomas and Elena Kagan, concurred in part and dissented in part. Scalia would have ended the case after answering the question before the Court instead of moving on to what he called a “factbound question better left to the lower courts.” He explained, “In short, a jury could find that Hoeper did nothing more than engage in a brief, run-of-the-mill, and arguably justified display of anger that included raising his voice and swearing, but that did not cause anyone, including the person on the receiving end of the outburst, to view him as either irrational or a potential source of violence.” And in his view, a jury should have been permitted to decide.

LIBEL AND PROCEDURAL RIGHTS

The details of courtroom procedure often seem to be arcane and irrelevant technicali- ties—certainly not issues that should concern journalists. However, on three occasions in recent years the Supreme Court has ruled against the media on procedural issues that can be vitally important in libel cases. On the other hand, the Supreme Court has ruled in favor of the media in several other libel cases that were decided on legal technicalities.

Journalists on the stand. The Supreme Court held in 1979 that libel plaintiffs have the right to inquire into journalists’ thought processes at the time when an allegedly libelous story was being prepared. Ruling in the case of Herbert v. Lando (441 U.S. 153), the Court said that since libel plaintiffs often have to prove actual malice or at least negligence on the part of journalists, they are entitled to use the pretrial discovery process (explained in Chapter One) to check on journalists’ attitudes and thought processes.

The Herbert case caused considerable alarm among journalists when the Court ruled that the First Amendment does not excuse journalists from providing state-of-mind evidence to libel plaintiffs who are looking for proof of actual malice. Actually, though, the decision did little more than uphold a long-recognized principle: each party is permitted to use discovery to gather information about the other side’s case. Where the plaintiff must prove actual malice to win his case, the rules have allowed plaintiffs to seek evidence of malice.

The Herbert case arose when a military officer sued the producers of the CBS television program 60 Minutes for libel and then sought state-of-mind evidence during the discovery process. The show’s producers refused to cooperate, citing the First Amendment, but the high court ruled that the First Amendment provides journalists with no special immunity from the normal rules of discovery.

Where does the Herbert case leave the media? Technically, it leaves the media in the same position they were in before this decision: required to cooperate in the discovery process even if it means responding to questions designed to determine whether there really was

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actual malice present when an allegedly libelous story was prepared. However, the decision appears to have had an important psychological impact on libel cases. The Supreme Court has in effect endorsed and encouraged the aggressive use of discovery procedures by libel plaintiffs as a means of ferreting out evidence of actual malice or negligence. Since Herbert, discovery has been an increasing burden for the media in libel cases. Ironically, Herbert eventually lost his libel suit when a federal appellate court dismissed the bulk of his case against CBS in 1986—12 years after the lawsuit began.

Discovery and news Sources

The discovery process has produced a new dilemma for the media in more and more libel suits. If a plaintiff must prove fault on the part of the media, that means he or she must inquire into a journalist’s reporting methods to see if there was negligence or actual malice.

As a result, more and more libel plaintiffs are demanding to know where a reporter got the information that appeared in an allegedly libelous story. That means the plaintiff wants to identify the reporter’s news sources so they can be interviewed and possibly called as witnesses in a libel trial. However, one of the strongest ethical standards of journalism is the principle of keeping confidential sources confidential (see Chapter Eight for further discus- sion of this point). In recent years a number of journalists facing libel suits have refused to reveal their sources during the discovery process.

This has sometimes caused problems for the media. Under the normal rules of discov- ery, if one party to a lawsuit refuses to cooperate in turning over requested evidence to the other side, that evidence may be presumed not to exist. Some judges have responded to a reporter’s refusal to reveal his sources in a libel case by simply ruling that there were no sources. Consequently, the court may conclude that story was published with reckless disre- gard for the truth—no matter how reliable the sources actually were. The result is almost certain defeat in a libel suit.

Many states have shield laws that exempt reporters from having to reveal their sources (see Chapter Eight). However, these laws often protect the reporter only from a contempt of court citation; such laws may not override the rules of discovery in civil litigation. In some instances, there is simply no way a publisher or broadcaster can defend a libel suit without revealing confidential sources, so he or she must choose between violating a promise to a news source and losing a big libel suit. This problem is so severe that some libel insurance policies are invalid unless the publisher or broadcaster agrees to reveal confidential news sources if a libel suit is filed. It may cost a publisher thousands (or possibly millions) of dollars to maintain source confidentiality; the result could even be bankruptcy. This can create a serious ethical dilemma for journalists and their employers.

The Role of Retractions

In at least 33 states, publishing (or in some instances broadcasting) a retraction or correction of a libelous item reduces the likelihood of a successful lawsuit against the media or at least the risk of a news organization facing large damages. One aspect of libel law that a communications professional should understand is his/her own state’s rule on retractions.

In most states that have retraction laws, publishing a timely retraction of a libel (and placing the retraction in as prominent a place as the original libel) limits the damages that may be won. In many states, a retraction restricts the plaintiff to special damages (provable

out-of-pocket monetary losses, which are often difficult to show). Therefore, publishing a retraction may effectively preclude a lawsuit in many instances.

The provisions of the retraction laws vary widely from state to state. Some of the stron- gest ones are found in midwestern and western states, such as Arizona, California, Idaho, Nebraska and Nevada. These states all have laws that require a potential plaintiff to demand a retraction within a fixed period of time (often 20 days after learning of the libel). After that, the media usually have another 21 days to publish or broadcast the retraction.

Under these retraction statutes, if the plaintiff fails to demand a retraction or if a suit- able retraction is published or broadcast, the plaintiff is limited to special damages (prov- able out-of-pocket monetary losses). In these states a plaintiff may win other damages only if: (1) a retraction was demanded in a timely fashion; and (2) a legally adequate retraction was not published or broadcast in a timely fashion. To be legally adequate, a retraction usually must retract all of the libelous charges without further libeling the potential plaintiff. Also, the retraction must be as prominent as the original libel. On the other hand, some states have retraction laws that simply say a libel defendant can show that a retraction was published as a way to “mitigate” damages, or perhaps to defend against charges of malice.

Not all retraction laws are equally comprehensive in their protection of the media, however. About half of the states that have retraction laws specifically include broadcasters within their coverage. Several other states have laws that cover “all libel suits” or “all media.” But several states have retraction laws that apply only to the print media or, more specifically, only to newspapers. California’s retraction law is unusual in that respect: it protects newspa- pers and radio and television stations but not magazines. That was a crucial factor in actress Carol Burnett’s libel suit against the National Enquirer: the trial court ruled the National Enquirer a magazine and not a newspaper, thus denying it the protection of the retraction statute. An appellate court affirmed (Burnett v. National Enquirer, 144 C.A.3d 991, 1983).

Montana’s retraction law, on the other hand, was once so comprehensive that it was ruled unconstitutional. The Montana Supreme Court ruled that the law violated the state constitution because it in effect denied libel plaintiffs any reasonable remedy for the wrongs they might have suffered (Madison v. Yunker, 589 P.2d 126, 1978). The Montana legislature responded by rewriting the retraction law in 1979. As rewritten, the law required a demand for a retraction prior to a libel suit only if the plaintiff was going to seek punitive damages. And publishing a retraction prevented only punitive damages. With or without a retraction, the media might still have to pay general as well as special damages.

Retraction statutes are obviously useful in situations where the media have made an honest error, but they do little good in many of the circumstances that produce lawsuits— situations in which the publisher does not feel he or she made an error and is in no mood to back down. Moreover, there is a natural human tendency to believe the original charge— not anyone’s later denial. To accuse someone of a crime in print and then retract, saying it was all a mistake, is certain to leave some readers with a strong suspicion that it really wasn’t a mistake. For this reason, some people question whether retraction statutes are really fair to libel victims. Nevertheless, many states have such laws, and they have an important impact on libel litigation in those states.

Because retraction laws vary so much from state to state, there has been a movement to standardize and strengthen these laws. In 1994, the American Bar Association approved a model retraction law called the Uniform Correction or Clarification of Defamation Act. While ABA approval does not necessarily lead to a model law being adopted in any particular

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state, it does increase the likelihood that various state legislatures will consider it. The model law, written by the National Conference of Commissioners on Uniform State Laws, gives libel victims 90 days after a defamatory statement is published to request a correction or clarifi- cation. Then the publisher has 45 days to publish a correction or clarification. The model law provides that no libel plaintiff may sue for damages without first seeking a correction or clarification, and limits plaintiffs to special damages (for provable monetary losses) if a suitable correction or clarification is published. Whether the uniform law will ever be widely adopted remains uncertain.

Long-Arm Jurisdiction

Another growing burden for the media—albeit once again not really a new burden—is the cost of defending libel suits in courts thousands of miles from home. The rise of online communication only adds to this issue for anyone who posts anything online.

For many years the law has said persons and companies that engage in interstate commerce may be sued in any state where they have minimum contacts. The Supreme Court so ruled in 1945, in a case called International Shoe v. Washington (326 U.S. 310).

However, some journalists have argued that they should not be forced to defend a libel suit in a faraway state merely because copies of their newspaper or magazine are distrib- uted there or their material is broadcast there. That argument has gotten nowhere with the Supreme Court, which has ruled twice that the First Amendment should not be considered in such cases. Instead, the Court said, lawsuits against journalists should have to meet only the same test of fairness as would a lawsuit against another kind of business. In short, if it would be fair for a company that makes cars or lawnmowers to be hauled into court in a distant state where its products are sold, it is also fair for the media to be sued in that state if their “product” is sold there.

In two cases decided on the same day in 1984—Calder v. Jones (465 U.S. 783) and Keeton v. Hustler (465 U.S. 770)—the high court unanimously rejected the argument that forcing journalists to defend themselves in faraway courts would have any chilling effect on freedom of the press. That means the national media and their employees may be sued in any state— and a libel plaintiff is entitled to engage in forum shopping. A plaintiff can select the state with the most favorable laws and file a libel suit there, regardless of where any of the prospective defendants live or maintain offices.

The Calder v. Jones case arose when the National Enquirer published a story claiming that producer Marty Ingels had driven his wife, actress Shirley Jones, to drink. “[B]y 3 o’clock in the afternoon she’s a crying drunk,” the Enquirer said. Jones and Ingels both sued the sensa- tional tabloid in California, where they live. Although headquartered in Florida, the Enquirer itself did not challenge the California court’s jurisdiction. However, John South, the writer of the story, and Iain Calder, editor of the National Enquirer, both argued that they should not have to defend themselves in a courtroom nearly 3,000 miles from home.

The Supreme Court unanimously ruled that the writer and editor were subject to Cali- fornia jurisdiction even though neither went to California to research or write the story. Justice William Rehnquist, who wrote the Court’s opinion, pointed out that the Enquirer was selling about 600,000 copies of each issue in California—twice as many as in any other state. “An individual injured in California need not go to Florida to seek redress from persons who, though remaining in Florida, knowingly cause the injury in California,” Rehnquist wrote. Shortly after the Supreme Court’s Calder v. Jones decision, Jones and Ingels reached

a settlement with the National Enquirer to terminate the case. The paper agreed to print a retraction and an apology, and to pay a large cash settlement. Neither side would reveal the amount of the settlement, but Ingels released a statement that said the amount took into account the fact that he and his wife had spent $300,000 in attorney’s fees by then.

Although the Supreme Court’s decision in the Jones case was troubling to some journal- ists, the Keeton v. Hustler case seemed far more so. At least Jones and Ingels had filed suit in the state where they lived and worked; they could hardly be accused of “forum shopping.” But in Keeton, neither plaintiff nor defendant seemed to have any particularly good reason for suing in New Hampshire. Rather, the choice of New Hampshire was clearly a matter of forum shopping: it was apparently the only state whose statute of limitations (i.e., the dead- line) for filing libel suits was not past when the suit was filed.

Kathy Keeton, an executive at Penthouse magazine, sued for libel after Hustler ran a cartoon suggesting that she had contracted a venereal disease from Penthouse publisher Robert Guccione. She initially sued in Ohio (where Hustler was then headquartered), but her case was dismissed because she missed the Ohio filing deadline. By then, it was appar- ently too late to sue for libel anywhere but New Hampshire, which permitted libel suits as long as six years after publication (that deadline has since been shortened to three years).

When this case was filed, Hustler was selling about 10,000 copies of each issue in New Hampshire, but it had no other ties to the state. And Keeton had no ties to the state at all: she lived and worked in New York. Both the federal district court in New Hampshire and the First Circuit ruled that the jurisdictional requirements were not satisfied. The appellate court suggested that libel cases should be subject to tougher jurisdictional standards than other kinds of lawsuits in order to protect First Amendment freedoms.

The Supreme Court overturned that ruling and reinstated Keeton’s lawsuit. “[T]here is no unfairness in calling (Hustler) to answer for the contents of that publication wherever a substantial number of copies are regularly sold and distributed,” Justice Rehnquist wrote.

Long-arm jurisdiction online: international cases. Another question that has arisen is whether long-arm jurisdiction should apply when allegedly libelous material is posted on the Internet. Many American media lawyers were alarmed when the highest court in Austra- lia held in 2002 that Australian mining magnate Joseph Gutnick could sue an American company, Dow Jones, publisher of Barron’s and the Wall Street Journal, in the Australian state of Victoria, where he lives. The lawsuit was based on an alleged libel that appeared on the Barron’s website, hosted in New Jersey. The High Court of Australia held that a person who is well-known in Australia can sue for libel there even if the libel appears on a website based in another country and the site owner has little contact with Australia beyond the fact that the site can be viewed there (Dow Jones v. Gutnick, 2002 H.C.A. 56).

The risk of being sued overseas troubles many Internet publishers not only because of the cost and inconvenience of defending a lawsuit in a faraway country, but also because the law of libel is less favorable to media defendants in many other countries than it is in the U.S.

However, British libel law is now moving closer to U.S. law. The House of Lords, acting as the United Kingdom’s highest court, ruled in 2006 that journalists may publish allegations about public figures without having to prove the truthfulness of the charges, as long as the reporting is responsible and in the public interest (Jameel v. Wall Street Journal Europe ([2006] U.K.H.L. 44). A panel of Law Lords said the Wall Street Journal and its European edition could not—and should not have to—prove the truth of a story about the monitoring of bank accounts for links to terrorism by the Saudi Arabian government at the request of the U.S.

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Without a change in British libel law, stories about international terrorism like this could not safely be published, the Law Lords noted, because a media defendant could never prove the truth in a case involving secret government surveillance.

Long-arm jurisdiction online: national cases. American courts are split on the issue. Some U.S. courts have held that libel cases cannot be filed in a distant court just because a news item appeared on the Internet. In Young v. New Haven Advocate (315 F.3d 256, 2002), the Fourth Circuit disagreed with the High Court of Australia’s conclusion. In a decision three days after the Australian ruling, the court held that the warden of a Virginia prison could not sue Connecticut newspapers in Virginia for posting material that allegedly libeled him on their Connecticut-based websites. The Fourth Circuit held that the articles were aimed at a Connecticut audience, denying Virginia jurisdiction over the Connecticut news- papers’ websites. At about the same time, the California Supreme Court held that California cannot take jurisdiction over out-of-state residents merely because their websites are alleg- edly harmful to Hollywood or Silicon Valley businesses. In Pavlovich v. Superior Court (DVD Copy Control Assn.) (29 C.4th 262, 2002), the California court said a Texan could not be sued under California’s long-arm jurisdiction law for posting computer code on the Internet that allows DVDs to be copied.

On the other hand, some courts have extended their long-arm jurisdiction laws to apply online. The Ohio Supreme Court in 2010 said that the state’s long-arm statute applied to the Internet, making it possible for Ohio businesses to sue individuals from other states who defame them online (Kauffman Racing Equipment LLC v. Roberts, 930 N.E.2d 784). And the Tenth Circuit also allowed an online defamation case to proceed in New Mexico (Silver v. Brown, 382 Fed. Appx. 723, 2010). David Silver, a New Mexico investment banker, alleged that he had been defamed by Matthew Brown, the CEO of a Florida corporation, on Brown’s site “DavidSilverSantaFe.com” after their business relationship soured. Brown additionally engaged in search engine optimization to try to ensure that his gripe site would appear in search results before Silver’s site. Using reasoning from Calder v. Jones, the court said that the offending blog was intentionally posted and aimed at New Mexico with knowledge that the brunt of the injury would be felt there.

Foreign libel suits and “libel tourism.” In 2010, the SPEECH Act (Securing the Protec- tion of our Enduring and Established Constitutional Heritage) was signed by President Barack Obama; this law, which applies to courts both state and federal, invalidates foreign libel judgments against Americans that would fail in the U.S. under First Amendment or due process protections. In addition, at least one state has taken action in the area of international libel judgments. California passed a version of the Uniform Foreign-Country Money Judgments Recognition Act, an act that several other states have adopted address- ing the enforcement of foreign judgments in the U.S., that specifically includes defama- tion: the judgment won’t be accepted for a defamation claim “unless the court determines that the defamation law applied by the foreign court provided at least as much protection for freedom of speech and the press as provided by both the United States and California Constitutions.”

Libel and Liability on the Internet

Traditionally, most libel and slander lawsuits have resulted from newspaper and maga- zine articles and radio or television broadcasts. However, recently many lawsuits have been filed by people who say they were defamed by something that appeared online.

Online communication has grown explosively: today there are millions of websites with even more millions of users who post liter- ally billions of words of new material on the Internet every week. Inevitably, some of that material is libelous.

When a libelous message is posted on a website, a “blog,” a “chat room” or a newsgroup, it is obviously disseminated: many persons are likely to see it. But is anyone other than the originator of the message legally responsible?

At first, the answer was yes. In 1995, a New York trial judge ruled that Prodigy, a commercial provider of computer commu- nications, could be sued for libel because a subscriber posted a message accusing an investment firm of criminal conduct (Stratton- Oakmont Inc. v. Prodigy Services Co., No. 11063/94). The judge ruled that Prodigy assumed editorial control and so became the legal equiv- alent of a publisher by attempting to monitor the content of incoming messages with text-scanning software (i.e., software that checks for offensive words or phrases). Therefore, the online service could be sued for libel. Although the ruling caused concern among online service providers, Prodigy eventually settled the case by doing noth- ing more than issuing an apology.

Section 230. However, Section 230 of the Telecommunications Act of 1996 overruled the basic thrust of the Prodigy decision by declaring that Internet service providers are not to be treated as publishers and held liable for the content of the messages they carry, regardless of whether they employ a content filtering system to screen out objectionable material or merely deliver all messag- es without any review. Internet service providers are now free to screen out material they consider obscene or otherwise inappro- priate without assuming liability for everything they do not screen out. Even if an Internet service provider is notified of an alleg- edly libelous posting and does not then delete it, the provider is exempt under this law, according to a 1997 decision of the Fourth Circuit (Zeran v. America Online, 129 F.3d 327). In sweeping terms, the court held that online services are exempt from liability under state libel laws for any message posted by a third party. In 1998, the U.S. Supreme Court denied cert.

The Ninth Circuit later ruled that a provider is exempt even if it does minor editing before a libelous item is posted (Batzel v. Smith, 333 F.3d 1018, 2003).

In recent years dozens of courts have dismissed libel (and other) suits against Internet providers based on Section 230, including sever- al federal appellate courts and the highest state courts in California and Florida. In 2006, the California Supreme Court held that only those who create a libelous Internet message may be sued, not Inter- net providers or even users who post a message created by someone else. The California case, Barrett v. Rosenthal (40 C.4th 33), is so broad

Section 230:

shorthand for Section 230 of the Communi- cations Decency Act of the Telecommunica- tions Act of 1996; gives online service provid- ers strong protec-

tion from liability for libelous material posted by third-parties on their systems—as long as they do not act as publishers of that material.

common law republication rule: rule that says that anyone who repub- lishes libelous material can be sued, not just the original creator or publisher.

certify a question:

a process by which the highest court in a state can answer a question that would affect the outcome of a case

in which there is no controlling legal prec- edent in that state.

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that it seems to exempt traditional newspaper publishers and broadcasters from libel suits for content generated by others on their websites, even when they could be held liable if the same material were disseminated in print or broadcast. (The Florida Supreme Court ruled similarly, but not in such sweeping terms, in Doe v. America Online (783 So.2d 1010, 2001)).

The 2006 California case arose when Ilena Rosenthal, a San Diego women’s health activ- ist, posted materials critical of two medical doctors, including an allegedly libelous e-mail written by another critic of the two doctors, on two Internet newsgroups. The doctors sued Rosenthal for libel. The lawsuit was quickly dismissed because much of what Rosenthal posted was opinion, not provably false statements of fact. However, a California appellate court held that certain statements could be seen as false statements of fact and therefore actionable libels. The appellate court declined to apply the federal Section 230 exemption, triggering an appeal to the state supreme court.

The California Supreme Court reversed the appellate decision, ruling that Rosenthal was protected by Section 230 even though she was only an Internet user and not a provider. As long as she did not create the allegedly libelous content but merely posted materials created by others, her postings are exempt from liability.

This appears to leave Internet publishers with far broader protection than traditional media. Under the common law republication rule, recognized in most states, anyone who repub- lishes libelous material may be sued, not merely the creator. Newspapers can be sued for libelous letters to the editor and for libels contained in direct quotations, among other things. Similarly, broadcasters can be sued for statements made by callers on talk shows. If the material is a defamatory, false, unprivileged statement of fact as opposed to opinion, the media are generally liable for republishing it, regardless of who originated the libel. But under Barrett v. Rosenthal, Internet providers and users are exempt from liability for republi- cations. Under cases like this one, the Internet remains a wide-open forum where messages can be freely forwarded to others, regardless of whether they may be libelous. Only the creator—often someone who is “lawsuit-proof” because he or she has no assets—is liable.

Related Section 230 claims. Section 230 may not immunize online service providers from all claims, however. In Barnes v. Yahoo! Inc. (565 F.3d 560, 2009), the Ninth Circuit said that Section 230 did not insulate Yahoo from promissory estoppel claims (as will be discussed in Chapter Eight, promissory estoppel prevents someone from withdrawing from a promise if the other person has relied upon that promise and acted upon it to his/her detriment).

After Cecilia Barnes broke up with her boyfriend, he created a Yahoo profile under her name with her actual e-mail address, work address and phone number. He posted nude pictures of her and impersonated her in Yahoo chat rooms and directed interested men to the profile—without her permission. Barnes began getting contacted by men interested in sex. She followed Yahoo’s instructions to have the profile removed but Yahoo did not act, even after repeated requests—and after having spoken to a Yahoo director who promised to “walk over” the removal request personally. She filed suit, alleging a promissory estoppel claim.

Judge Diarmuid O’Scannlain, writing for the Ninth Circuit, called the case “a danger- ous, cruel, and highly indecent use of the internet for the apparent purpose of revenge.” In finding that Barnes had a promissory estoppel claim against Yahoo, he noted that she was not framing Yahoo as a publisher “but rather as the counterparty to a contract as a promissory who has breached.” Under these circumstances, Section 230 does not provide immunity. On remand, the district court refused to dismiss; Barnes “alleged sufficient facts to suggest her position substantially and detrimentally changed in reliance on defendant’s promise.”

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Focus on... Publishers vs. distributors under Section 230

Courts have interpreted the protections of Section 230 of the Communications Decency Act very broadly. The statute reads: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any informa- tion provided by another information content provider.” This federal law preempts state laws that hold otherwise. But what does that mean?

Publishers have control over the content they publish, while distributors are the conduits that bring the content to the user. For example, if you buy a newspaper from a vendor, and you read an article that you think libels you, you wouldn’t

be able to sue the vendor—you’d have to sue the paper. The vendor is the distributor, and the newspaper is the publisher.

FIG. 25. Man buying The Evening Star from newsboy, Washington, D.C., April 7, 1917 (headline reads “U.S. at War with Germany”).

Library of Congress.

How does this work online? If you allow comments on your blog, and someone posts a defama- tory comment, Section 230 would likely prevent you from liability for that libel, because you are not the publisher of the comment. You’re simply the distributor. You can edit comments to some degree for civility or accuracy as long as you don’t change the meaning of the original comment. Section 230 doesn’t apply to intellectual property cases, however, or federal criminal liability.

Section 230 has also barred liability for online service providers when underage users are assaulted in person by adults they meet online. In Doe v. MySpace Inc. (528 F.3d 413, 2008) the Fifth Circuit found that Section 230 immunizes MySpace from liability for a minor’s sexual assault by an adult she met on MySpace after lying about her age. Her case centered on the notion that “MySpace should have implemented safety technologies to prevent [her] and her attacker from meeting,” and that MySpace was negligent for not having done so.

The Fifth Circuit did not agree, saying that the plaintiff’s claim was simply a claim against MySpace as a publisher, against which Section 230 immunizes it. The Supreme Court declined to hear an appeal. A California appeals court came to the same conclusion as the Fifth Circuit in a very similar case in 2009; the court said that the plaintiff, a minor who had been sexually assaulted by someone she met on MySpace, wanted MySpace “to ensure that sexual predators do not gain access to (i.e., communicate with) minors on its Web site” and this activity is expressly covered by Section 230 (Doe II v. MySpace Inc., 175 Cal.App.4th 561).

The Fourth Circuit indicated in 2009 that plaintiffs who want to circumvent a website’s Section 230 protection by saying that it is a content provider rather than a distributor must provide sufficient evidence to demonstrate the claim (Nemet Chevrolet v. Consumeraffairs.com, 591 F. 3d 250). Nemet alleged that the consumer review website was actually an “informa- tion content provider” with respect to 20 complaints about it on the website. The court said that Nemet had not provided sufficient evidence to prove its claim, and Consumeraffairs. com’s action of simply providing a forum was not enough: “Even accepting as true all of the facts Nemet pled as to Consumeraffairs.com’s liability for the structure and design of its website, the amended complaint ‘does not show, or even intimate,’ that Consumeraffairs. com contributed to the allegedly fraudulent nature of the comments at issue.”

Several appellate courts at both federal and state levels have recently ruled for the first time on Section 230. The Eighth Circuit’s first opinion on Section 230 was in 2010 in Johnson

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v. Arden (614 F.3d 785). Susan and Robert Johnson owned Cozy Kittens Cattery in Missouri, and they sued a number of individuals and service providers after seeing negative comments about their cattery on ComplaintsBoard.com. The court said that ComplaintsBoard.com’s online service provider, InMotion, could not be held liable due to Section 230 protection: “InMotion did not originate the material that the Johnsons deem damaging.”

In Shiamili v. The Real Estate Group of New York, Inc. (17 N.Y.3d 281), the New York Court of Appeals (the state’s highest court) by a 4-3 vote that Section 230 applied to comments by third parties on a blog site, even if the editorial role taken by the hosts was unusually active. Christakis Shiamili, CEO of Ardor Realty Corp., sued The Real Estate Group for allegedly defamatory comments made by a person calling him/herself “Ardor Realty Sucks” on a blog the group hosted. Despite the fact that The Real Estate Group moved the comments to their own stand-alone post and highlighted them as a story, the court ruled that Section 230 still barred liability. This broad interpretation was not without its critics: the chief judge, while agreeing that such an interpretation was generally acceptable, lamented that on its first Section 230 decision, the court “shielded defendants from the allegation that they abused their power as website publishers to promote and amplify defamation targeted at a business competitor.” In his opinion, the court went too far in extending the protection in this case.

Creative 230 circumvention. As courts continue to extend Section 230 protection in ever-increasing numbers of cases, some plaintiffs have tried creative ways to circumvent it. In a somewhat novel approach to circumvent Section 230 protections, the plaintiffs in Blockow- icz v. Williams (630 F.3d 563, 2010) tried to use Rule 65(d), a federal rule governing injunc- tions. Essentially, the Blockowiczs argued that the operators of the Ripoff Report website, where the alleged defamatory content was posted, aided and abetted the publication of the defamation when the operators refused to remove the offending posts. The district court and the Seventh Circuit both rejected this claim, saying that the Ripoff Report’s “mere inac- tivity is simply inadequate to render them aiders and abettors in violating the injunction.”

However, gossip website TheDirty.com was originally denied Section 230 protection because it encouraged offensive postings that were heavily moderated (the case involved a teacher, Sarah Jones, who was also a Cincinnati Bengals cheerleader allegedly sleeping with the team and her students). But the Sixth Circuit overturned (Jones v. Dirty World Entm’t Record- ings, 755 F.3d 398). Section 230 barred liability for TheDirty.com, the court said, adding that “[c]onsistent with our sister circuits, we adopt the material contribution test to determine whether a website operator is ‘responsible, in whole or in part, for the creation or develop- ment of [allegedly tortious] information.’” This test comes from the Ninth Circuit Fair Hous- ing Council of San Fernando Valley v. Roommates.com case (discussed in Chapter Thirteen) and is defined as “being responsible for what makes the displayed content allegedly unlawful.” Under that definition, the mere fact that Dirty World selected several statements alleged to be libelous about Jones for publication did not mean that it was “materially contributing” to the defamation.

However, those who create libelous online content remain liable. Many have been sued for the content of their websites or e-mails. In 2002, for example, a jury in California’s Silicon Valley ordered two research scientists to pay $775,000 in damages to a high-tech company and two of its managers for posting thousands of defamatory messages on message boards (the California Supreme Court overturned for non-Section 230 reasons and ordered a trial court to reconsider the case (Varian Medical Systems v. Delfino, 35 C.4th 180, 2005)).

In 2012, the state of Washington passed a controversial law intended to combat child sex trafficking. SB 6251 would punish the knowing publication, dissemination or display of (or being the direct or indirect cause of) “any advertisement for a commercial sex act, which is to take place in the state of Washington and that includes the depiction of a minor.” However, several Internet organizations filed suit to enjoin the enforcement of the law, argu- ing that SB 6251, though well intended, conflicts directly with Section 230 protections. A federal judge agreed and issued that injunction in July 2012 (Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, W.D. Wash.). The court said the law was vague and overbroad and that it “criminalizes more than offers to engage in illegal transactions because the statute encompasses transactions that are not illegal.”

“Twibel,” or libel on Twitter. Can one libel, or be libeled, in just 140 characters? The microblogging service Twitter has engendered for several lawsuits; none have generated written opinions. In 2009, Chicago resident Amanda Bonnen publicly “tweeted” a friend of hers, inviting a visit—despite the mold she alleged was in her apartment: “You should just come anyway. Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it’s okay.” Horizon Realty sued Bonnen for $50,000. A Cook county judge dismissed the case; media reports quoted the judge as saying in court that the tweet was “really too vague” to be actionable.

Also in 2009, singer Courtney Love was sued by fashion designer Dawn Simorangkir for statements Love made on her Twitter and MySpace accounts that allegedly threatened Simorangkir after she sent Love a bill for her Boudoir Queen fashions. According to the complain, among other tweets and posts, Love tweeted (complete with profanity and typos), “oi vey dont fuck with my wradrobe or you willend up in a circle of corched eaeth hunted til your dead.” Simorangkir sued for defamation and invasion of privacy, among other actions.

In March 2011, Love agreed to pay $430,000 to Simorangkir to settle the case. However, it did not take long for the singer to make headlines for libelous tweets again: this time her target was attorney Rhonda Holmes in San Diego. The May 2011 tweet suggests Holmes was bribed not to represent Love again in a fraud case after Love fired her and then tried to hire her back: “i was fucking devastated when Rhonda J Holmes Esq of San Diego was bought off.” Holmes said in her complaint that Love became angry when she refused to represent her. In 2014, Love won the libel suit brought by Holmes, with the jury saying that Love’s tweet contained false information but that she did not know that it wasn’t true. Holmes’ attorney said she was unhappy with the outcome but at least it had been determined that what Love had said was actually false (even though she couldn’t be held liable for it).

Another question that has produced several court decisions is the extent to which Section 230 exempts Internet services from liability for advertising created and posted by others. That is discussed in Chapter Thirteen.

The same libel defenses that are recognized when other media are involved generally apply when an alleged libel is disseminated online. For instance, in 2003 the Sixth Circuit held that Michigan’s “fair reporting” privilege protects the posting of court documents that are public records even if a company posts its own court filings on its website (Amway Corp. v. Procter & Gamble Co., 346 F.3d 180).

Libel on online review sites. As consumer review services like Angie’s List, Yelp, RateMy- Professors and various doctor review sites become more popular, those who get poor reviews have taken their claims to court. In perhaps the highest profile of these cases, McKee v. Lauri- on (825 N.W.2d 725, 2013), the Minnesota Supreme Court said that negative comments

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posted by a man about the care given to his ailing father by an hospital neurologist were opinion and not actionable. Kenneth Laurion posted comments about Dr. David McKee’s interactions with his father and the family (“Dr. McKee said, ‘When you weren’t in ICU, I had to spend time finding out if you transferred or died.’ When we gaped at him, he said, “Well, 44% of hemorrhagic strokes die within 30 days. I guess this is the better option”) on various “rate your doctor” sites, and McKee sued. The state supreme court evaluated each of six statements and found none of them individually or as a whole were defamatory.

The Sixth Circuit said that a list of “dirtiest hotels” published by TripAdvisor was not defamatory to one of the hotels on the list. In Seaton v. TripAdvisor, LLC (728 F.3d 592), the owner of the number one hotel on the list, the Grand Resort Hotel and Convention Center in Tennessee, alleged that TripAdvisor used a “flawed, inconsistent, unsupported, and improper system or method” in determining the list and so acted at least with negligence as to the truth. Calling the use of the word “dirtiest” to describe the hotels a form of hyperbole, the court pointed out that TripAdvisor was clear about the source of its information: “On the webpage in which the list appears, TripAdvisor states clearly ‘Dirtiest Hotels - United States as reported by travelers on TripAdvisor.’” Moreover, comments about the other hotels on the list (such as “Had to go buy socks so my feet wouldn’t touch the carpet” and “Hold your nose for the garbage smell”) were further proof of the “dramatic examples of TripAdvisor’s users’ experiences at these various hotels and serve the function of entertaining readers.”

Yet don’t feel free to post reviews without fear. Jane Perez found this out the hard way when she posted on Yelp and Angie’s List that her contractor, Christopher Dietz, had not only done shoddy work refurbishing her condominium, but she suspected that he had stolen her jewelry. Dietz retaliated with a $750,000 libel suit, and a judge ordered Perez to revise or take down certain parts of her reviews (including the theft allegations). However, the Virginia Supreme Court reversed that order, saying that “the preliminary injunction was not justified and ... the respondents have an adequate remedy at law” (Perez v. Dietz Development, LLC, 2012 Va. LEXIS 227). But that doesn’t end the $750,000 claim, which continues.

Libel and Summary Judgment

Like several earlier Supreme Court decisions on libel, the Calder and Keeton cases involved attempts by the media to terminate libel suits before trial by means of a motion for summary judgment or a motion to dismiss on other procedural grounds. As explained in Chapter One, a summary judgment is a ruling in which the court decides the case without trial, saving the expense and trouble of a prolonged lawsuit.

However, because a pretrial dismissal denies the plaintiff his/her day in court, it is only supposed to be granted when it is absolutely certain the plaintiff could not win.

In recent years, some courts have recognized that many libel suits against the media are filed not in the hope of winning but as a means of harassment. Thus, libel suits have some- times been thrown out of court under summary judgment proceedings. This procedure has been particularly applicable in situations where a public official or public figure is suing but is clearly unable to prove actual malice.

In 1986 the Supreme Court addressed this problem—and endorsed the idea that many of these questionable libel suits should be dismissed on summary judgment. Deciding the case of Anderson v. Liberty Lobby (477 U.S. 242), the court said that public figures must provide “clear and convincing” evidence that a jury could find actual malice on the part of the media—or have their lawsuits dismissed on motions for summary judgment.

The Anderson case involved magazine articles written by columnist Jack Anderson concerning Willis Carto, founder of the Liberty Lobby (an ultraconservative political orga- nization). Anderson called Carto a “neo-Nazi,” a “racist” and “anti-Semitic,” among other things. Carto sued but a trial judge dismissed the case, ruling that Carto was a public figure who could not prove that the statements were made with actual malice. The judge noted that there had been extensive research to document Anderson’s articles, a fact that would have made it extremely difficult to prove him guilty of “reckless disregard for the truth.” Carto appealed the dismissal. The high court ruled by a 6-3 majority that if a libel plaintiff like Carto cannot show by “clear and convincing” proof that he could win the case if it went to a full trial, it should be dismissed without subjecting the media to the expense of a trial.

Both media lawyers and lawyers for libel plaintiffs agreed that this decision would have an enormous dollars-and-cents effect on libel law. Both sides agreed that it represented a clear invitation to trial judges to dismiss libel suits on summary judgment instead of letting them go to trial. Media attorneys generally predicted that the Anderson case would reduce the high cost of defending libel cases for the news media.

In the years since the Anderson decision, these predictions have generally come true. At least four different federal appeals courts have held that Anderson requires them to conduct an independent review of the record when they decide whether to allow summary judgment in a libel case, and to dismiss the case if the plaintiff is someone who must prove actual malice—but cannot do so by clear and convincing evidence.

However, in 2003 the Ninth Circuit disagreed in a case involving alleged fabrication of product testing results by Consumer Reports magazine. In Suzuki Motor Corp. v. Consumers Union (330 F.3d 1110), the court declined to uphold a trial judge’s grant of summary judg- ment. The appeals court said it would not conduct an independent review of the record and grant summary judgment but would instead allow a jury trial on the merits of the case. Suzuki submitted evidence that the Suzuki Samurai, which Consumer Reports said rolls over too easily, in fact never tipped during 37 tests on the magazine’s test course in 1988 and was rated highest of the SUVs tested, until a senior editor demanded changes to increase the likelihood of a roll. The National Highway Traffic Safety Administration later criticized Consumers Union’s testing as unscientific.

Suzuki also alleged that Consumers Union was doing fund-raising at the time of the tests and needed a “blockbuster” story to bring it national attention. The appellate court held that the claim of financial motivation combined with evidence of rigged testing could allow a jury to find actual malice, something Suzuki would have to prove to win this case. The court declined to reconsider the case en banc in 2003, and that produced an impassioned defense by Judge Alex Kozinski, who argued that it would be impossible for Suzuki to prove actual malice because Consumers Union described its original and revised testing proce- dures in detail and then expressed constitutionally protected opinions about the results.

Getting “SLAPP” Lawsuits Dismissed

A lawsuit can be an intimidating form of harassment, as journalists have sometimes discovered. The whole point of the Anderson case was to allow journalists to get harassment libel suits dismissed quickly on summary judgment. In recent years, it has also become commonplace for citizen activists to be sued for libel or slander by wealthy corporations when they speak against a corporate project at public hearings or circulate petitions to oppose a project. These lawsuits are often nothing more than a form of intimidation—an

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attempt to silence a corporation’s critics. An acronym to describe these lawsuits has gained wide acceptance: SLAPP (strategic lawsuits against public participation).

Because it is costly to defend a lawsuit, citizens who oppose corporate activities in the public arena may have no choice but to back down in the face of a threatened lawsuit. Some- times leaders of a citizens’ group that opposes a project such as a large real estate develop- ment receive letters from the developer’s lawyers telling them they will be sued for libel or slander if they don’t stop criticizing the project. Such lawsuits have been given the SLAPP acronym because they take aim at the very foundation of democracy: the right to speak out on local issues at public hearings where the whole point is to solicit comments from citizens.

The SLAPP acronym was first used by Penelope Canan and George W. Pring, two Denver University professors who advocated legislation to curb these lawsuits in an article published by the California Western University Law Review in 1990. They published a book on the subject, SLAPPs: Getting Sued for Speaking Out, in 1996.

By 2012, anti-SLAPP laws had been enacted in various forms in at least the following states: Arizona, Arkansas, California, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Vermont, and Washington, as well as the territory of Guam and Washington, D.C. There is no federal anti-SLAPP law but several have been considered.

In Colorado, the state supreme court recognized a right of citizen activists to get harass- ment lawsuits dismissed quickly under the common law even without an anti-SLAPP law (Protect Our Mountain Environment v. District Court, 677 P.2d 136, 1984).

California is widely regarded as having the most sweeping anti-SLAPP law in the country. This law requires anyone who sues someone else because of his/her exercise of free speech in the public arena to show at the outset that there is a “probability” the lawsuit has a valid basis and is not a form of harassment. If a court determines there is not a “probability” that the plaintiff has a valid case, the lawsuit is to be dismissed quickly, sparing the defendant the expense of fighting a prolonged legal battle that could have a chilling effect on free speech.

Plaintiffs who file these harassment lawsuits must pay defendants’ legal expenses if such a lawsuit is dismissed before trial. On the other hand, under California’s anti-SLAPP law defendants must pay the plaintiff’s legal expenses incurred in opposing the motion for dismissal if a court rules that the lawsuit is valid enough that it should not be dismissed before trial. Those who get a lawsuit dismissed under the anti-SLAPP law are allowed to countersue for malicious prosecution, among other things.

California’s anti-SLAPP law not only protects individuals who face a harassment lawsuit from a corporation but also protects corporate defendants in some lawsuits filed by individu- als. For example, it has been held to protect the media from meritless libel suits even if the plaintiff is an individual and the defendant is a corporation. Because corporations using the law against individual plaintiffs is the opposite of what its authors envisioned, the California anti-SLAPP law was amended in 2003 to curb its use by defendants in lawsuits filed solely in the public interest and lawsuits alleging false advertising. But it still allows the media to get groundless libel cases dismissed quickly.

Among hundreds of decisions interpreting the anti-SLAPP law, California appellate courts have held that a politician may use the anti-SLAPP law to dispose of a meritless lawsuit based on campaign literature (Beilenson v. Superior Court, 44 C.A.4th 944, 1996), government

officials may use the law to halt lawsuits resulting from their statements about matters in the public record (Bradbury v. Superior Court, 49 C.A.4th 1108, 1996), and an attorney can use the law to protect his use of a company’s name in an ad soliciting clients (Simpson Strong-Tie Co. Inc. v. Gore, 49 Cal. 4th 12, 2010). Courts have also reaffirmed that media corporations may use anti-SLAPP laws to dispose of meritless libel suits filed by individuals (Braun v. Chronicle Publishing Co., 52 C.A.4th 1036, 1997). The Ninth Circuit has ruled that state anti- SLAPP laws may also be used to get meritless cases dismissed when they are filed in federal instead of state courts based on diversity of citizenship (see Thomas v. Fry’s Electronics, 400 F.3d 1206, 2005; and U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 1999).

Most other state anti-SLAPP laws are generally similar to California’s but some are more narrowly drawn. Some do not include the provision requiring plaintiffs to pay a defendant’s legal expenses in all cases. The New York law specifically applies only to those who speak out concerning land-use issues being considered by government bodies such as zoning boards. And the Massachusetts high court in 2010 declined to offer protection under the state’s anti-SLAPP law to a reporter who is also an activist in a libel suit filed against her by a real estate developer (Fustolo v. Hollander, 455 Mass. 861). The Supreme Judicial Court said that the anti-SLAPP law did not apply, as “Hollander did not engage in petitioning activities ‘on her own behalf as a citizen’ because she wrote the articles in her capacity as a reporter, and also because she received compensation for doing so.”

Perhaps typical of many SLAPP cases is one that arose in Minnesota. A retired wildlife biologist was sued shortly before his 80th birthday for speaking out against a developer’s plans to build townhouses across Lake Amelia from his home of 40 years. The biologist contended that the townhouses would disrupt the breeding places of threatened species of birds near the lake. After running up more than $20,000 in legal expenses, he settled the lawsuit—under terms he was forbidden to discuss. Minnesota adopted its anti-SLAPP law amidst the public outcry about this case.

Anti-SLAPP Challenges

From a free-speech perspective, anti-SLAPP laws are an important tool in reducing costs and time of litigation of frivolous lawsuits for engaging in protected speech. But anti-SLAPP statutes are also being scrutinized by courts and legislatures.

The Washington Supreme Court struck down its state’s anti-SLAPP law in 2015, saying in Davis v. Cox (Wash., No. 90233-0), the law gave too much deference to speakers. Washington state’s law was similar to those adopted by 28 other states. The law allowed defendants to delay discovery while allowing a judge to dismiss to the case if the statements were of public concern. Defendants could also recover costs and damages if they prevailed. However, the state’s high court said that juries, not judges, are required to make determinations of fact in trials. “The constitutional conundrum that [the statute] creates is that it seeks to protect one group of citizen’s constitutional rights of expression and petition – by cutting off another group’s constitutional rights of petition and jury trial,” the Court wrote.

In Nevada, lawmakers in 2015 proposed a rollback of its SLAPP statute. The bill was pushed hard by casino mogul Steve Wynn, who has a history of filing libel lawsuits against critics. Wynn lobbied for changes in the law after a judge used an anti-SLAPP law to toss out a defamation lawsuit Wynn filed against a critic.

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SLAPP suit:

shorthand for “stra- tegic lawsuit against public participation,” a suit that is an attempt by a corporation to stop the exercise of First Amendment rights such as petition, assembly, speech and press by threatening high-cost libel suits based on the content of those exercises.

FIG. 26. A historic political cartoon: “The ‘rail splitter’ at work repairing the union,” depicting Vice President Andrew Johnson and President Abraham Lincoln, 1865.

Library of Congress.

OTHER ISSUES IN DEFAMATION LAW

Other questions and problem areas in defamation law have arisen in recent years. This section discusses some of these issues.

Libel and Emotional Distress

Libel is only one of many legal theories on which a lawsuit may be based. When someone sues for libel, he or she may also sue on some other legal theory such as invasion of privacy. It is entirely possible to lose a libel case but win on a different legal basis— because the elements and defenses may be different under the two legal theories. A plaintiff may have a weak libel case (because of the truth defense, for example) but a strong invasion of privacy case (truth is not always a defense in those cases). In recent years it has become common for those who sue the media for libel to add other charges, often invasion of privacy or even the intentional infliction of emotional distress, a trend that is discussed in Chapter Five.

That trend led to a 1988 Supreme Court decision that present- ed about as clear a contrast between plaintiff and defendant as any lawsuit discussed in this book: Hustler Magazine v. Falwell (485 U.S. 46). Although widely reported as a libel case, it was primarily an emotional distress case. But in the end, the high court disposed of it by applying the classic New York Times v. Sullivan doctrine as if it had been a libel case.

The case began when Hustler magazine published a satirical purported advertisement suggesting that the Rev. Jerry Falwell,

founder of the Moral Majority and arch-enemy of Hustler publisher Larry Flynt, had his first sexual experience in an outhouse with his mother. The Falwell pseudo-ad was a take-off on an advertising campaign for Campari liquor that used “the first time” as its theme. Falwell, whose Moral Majority movement vigorously opposed pornography, frequently attacked Flynt, whose magazine is widely regarded as an explicit erotic publication. The purported ad was Flynt’s satirical reply. It was clearly labeled as fiction, not to be taken seriously. (Courts often hold that a satirical statement cannot be libelous even without a disclaimer, provided a reasonable reader would understand that it is satirical. In 2004 the Texas Supreme Court so ruled in New Times v. Isaacks, 146 S.W.3d 144.)

Nevertheless, Falwell sued Hustler on two grounds: libel and the intentional infliction of emotional distress. A jury awarded Falwell $200,000 on the emotional distress rationale and ruled against him in the libel case. Because Falwell was clearly a public figure, he would have had to prove actual malice to win his libel case. And the ad was obviously satirical; it could not be understood as presenting facts that the reader was supposed to take literally. Thus, Falwell could not prove actual malice. However, in affirming the jury verdict, a lower federal court had said Falwell did not need to prove actual malice to win an emotional distress case.

That verdict alarmed many journalists because it suggested that numerous other public figures who could not win libel cases could get around the protection provided by the actual malice rule by suing for intentional infliction of emotional distress instead of libel. However, the Supreme Court voted unanimously to overturn the verdict for Falwell. Writing for the Court, Chief Justice William Rehnquist said that public figures must henceforth prove actual malice to win damages for emotional distress, just as they must in libel cases. To rule other- wise would force political cartoonists, among others, to heavily censor their work. He wrote:

Lincoln’s tall, gangling posture, Teddy Roosevelt’s glasses and teeth and Franklin D. Roosevelt’s jutting jaw and cigarette holder have been memorial- ized by political cartoons ...and our political discourse would have been poorer without them. There is no doubt that the caricature of (Falwell) published in Hustler is at best a distant cousin of the political cartoons described above and a rather poor relation at that.... “Outrageousness” in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.

What encouraged many journalists the most about the Falwell decision was that it was not only a strongly worded defense of freedom of the press, but that it was authored by Rehnquist, who rarely took a broad view of the First Amendment in earlier decisions. Rehnquist often dissented when the court expanded First Amendment rights.

The media still face many emotional distress lawsuits. In fact, media lawyers sometimes call emotional distress a “tag-along tort” because plaintiffs’ lawyers so often toss in this claim when they sue for libel. For example, the Kansas Supreme Court in 2010 reversed judgments against a news organization for outrage (the same thing as emotional distress in Kansas) and defamation in the reporting that a man had been detained in connection with the famous BTK murder investigation (Valadez v. Emmis Communications, 229 P.3d 389). In overturning the awards on appeal, the Kansas Supreme Court said that Valadez had not met the burden of proof for outrage. The media’s conduct must be reasonably considered to be outrageous

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and the plaintiff must have suffered more than just discomfort. The court added, “Conduct that rises to the level of tortious outrage must transcend a certain amount of criticism, rough language, and occasional acts and words that are inconsiderate and unkind.”

But in the years since the Falwell case, as the Valadez case shows, it has become clear that a plaintiff must prove that the media engaged in clearly outrageous conduct that was either deliberate or reckless, and caused severe emotional distress to win this kind of lawsuit. That is not often easy to do. And, of course, public-figure plaintiffs now have to prove actual malice as well if the lawsuit is based on the content of something that appeared in the media. (As Chapter Five explains, the media are often sued for newsgathering torts based on the behavior of media representatives instead of the content of what was published or broadcast.)

Product Disparagement and “Veggie Libel”

During the 1990s, a close relative of libel—product disparagement—became a newsworthy topic after many years of obscurity. Farmers and ranchers in some areas became alarmed about what they considered to be overly sensational media accounts of alleged health hazards associated with food products. They cited examples in which food producers suffered large losses when public demand for a perishable product suddenly dwindled after the media reported claims that the product might be unsafe. Food producers lobbied for state laws allowing them to sue in response; these laws are known as “veggie libel” or “trade libel” laws.

This trend began with a case in which Washington state apple growers sued CBS for a 60 Minutes segment that said Alar, a chemical used by some growers to enhance the growth and appearance of apples, could cause cancer. There was a large decline in apple consumption, and growers claimed the CBS report was false or at least exaggerated—and cost them $130 million. Their lawsuit was eventually dismissed; a federal appellate court ruled that the grow- ers could not prove the CBS report was false—as they must to win a product disparagement lawsuit (Auvil v. CBS 60 Minutes, 67 F.3d 816, 1995).

In response to the CBS story, a number of states passed new laws that were much tough- er than traditional product disparagement laws, authorizing growers to sue whenever false information is published claiming that a perishable food product is unsafe. Such laws were passed in at least 13 states: Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, South Dakota and Texas. Most of these laws define false information as not based on “reliable scientific data.” Allowing growers to sue under these circumstances raises First Amendment questions because growers, journalists and consumer groups are not likely to agree about what is “reliable” scientific data.

Such laws made national headlines in 1997 and 1998 when a group of Texas cattlemen sued talk show host Oprah Winfrey after a guest on her show discussed mad cow disease, an illness that had caused the death of at least 20 persons in Britain, and raised questions about whether this illness could spread to the United States. Cattle prices dropped sharply, and the cattlemen sued Winfrey under Texas’ “veggie libel” law.

Amidst what many called a media circus, the case went to trial in Amarillo, Tex. Winfrey moved production of her show there during the trial. But the case went badly for the cattle- men from the beginning. With no written opinion, the trial judge dismissed the part of the lawsuit that was based on the “veggie libel” law, allowing the cattlemen to continue the case only under a general business defamation law. In the end, the plaintiffs were unable to persuade the jury that Winfrey or her guest intended to harm the Texas cattle industry by making knowingly false statements about it, as required by the business defamation law. The

jury quickly ruled against the cattlemen—in a case more newsworthy than legally significant. In 2000, the Fifth Circuit upheld the verdict (Engler v. Winfrey, 201 F.3d 680). Nonethe- less, media attorneys expressed fears that future “veggie libel” lawsuits could chill the First Amendment right of the media to report legitimate health questions about food products.

In another case on “beef libel,” a South Dakota beef producer, Beef Products, Inc. (BPI) brought suit against ABC News and its reporters for a March 2012 story on lean finely textured beef (LFTB). BPI said that ABC’s calling the product “pink slime” and passing alleged misinformation about the product (like suggesting it wasn’t really meat and was more like dog food) cost the company profits in violation of the state trade disparagement law. ABC attempted to move the case into federal court, but BPI successfully fought the move (Beef Products, Inc. v. ABC News, Inc., 949 F. Supp. 2d 936). After a South Dakota judge refused ABC’s attempt to get the lawsuit dismissed, in late May 2014 the South Dakota Supreme Court allowed the suit to proceed, again rebuffing ABC’s attempts to dismiss. A stay issued in April on depositions and discovery was also lifted. Stay tuned.

Libel and Fiction

The fundamental question in many libel cases is truth or falsity: only if a statement is false can it be the basis for a successful libel case. But what about libelous innuendoes in a work of fiction—which by its very nature is intended to be false? Most media organizations didn’t worry about this problem until the 1980s, because courts rarely allowed libel suits based on works of fiction. A more serious legal problem was the threat of privacy suits by those who recognized themselves—or thought they did—in fictitious works.

However, in the 1970s and 1980s that began to change. Courts started finding suffi- cient identification in works of fiction to support libel judgments. The New York Times v. Sullivan rule sometimes has been applied—some say misapplied—with disastrous results for the media. In a work of fiction, the characters necessarily differ from real people, but some courts have ruled fictionalization equals knowing or reckless falsehood, thus proving actual malice and opening the door to punitive damages.

The case that initiated this trend toward libel judgments for fictionalization was Bindrim v. Mitchell (92 C.A.3d 61, 1979), a California appellate court ruling. As a decision of an inter- mediate appeals court in a single state, it carries little weight as a precedent, but it encour- aged other fiction-based libel cases, including the Wyoming judgment against Penthouse in the introduction to this chapter (Pring v. Penthouse, 695 F.2d 438, 1983).

In Bindrim, novelist Gwen Davis Mitchell described a fictitious “nude encounter mara- thon” similar to therapy sessions conducted by Dr. Paul Bindrim, a psychologist. In fact, Mitchell had attended one of Bindrim’s sessions and signed an agreement not to write about it. But in Mitchell’s book, entitled Touching, the psychologist who conducted the sessions had a different name and did not physically resemble Bindrim. The main thing the real man and the fictional character had in common was that they both conducted nude encounters on the theory that nudity made therapy more effective. Nevertheless, a jury found that Bindrim was identified and libeled by the fictional account in the novel, and awarded Bindrim $75,000 in total damages against Mitchell and her publisher, Doubleday and Company. The award was later reduced to $50,000. Both the California and U.S. Supreme Courts refused to review the lower decision, which affirmed the judge’s determination that Bindrim was sufficiently identified. “The test is whether a reasonable person, reading the book, would understand that the fictional character was, in actual fact, the plaintiff,” the appellate majority wrote.

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The Bindrim ruling was widely criticized by writers and publishers, but no higher court was willing to review it. This was not the first time a libel judgment had ever been based on a work of fiction: as early as 1920 the New York Court of Appeals had ruled similarly (Corrigan v. Bobbs-Merrill, 228 N.Y. 58). Other courts reached similar conclusions later, but none with quite the impact of Bindrim, which caused widespread alarm among writers and publishers.

However, fiction writers could take some comfort in the ultimate decision in the “Miss Wyoming” libel suit against Penthouse. The Tenth Circuit reversed the multimillion-dollar jury verdict, and the Supreme Court declined to hear a further appeal.

The case stemmed from a Penthouse article describing a fictitious “Miss Wyoming” who competed in the Miss America Pageant, a champion baton twirler who had an even more interesting talent: oral sex. The story said she performed an act of oral sex at the pageant before a national TV audience, and the recipient of her favors was levitated—he rose up in the air in defiance of the laws of gravity. Kim Pring, a champion baton twirler who repre- sented Wyoming in a Miss America Pageant, sued, claiming the story was about her and damaged her reputation. A Wyoming jury agreed and awarded $26.5 million in damages ($25 million in punitive damages). The appellate court overturned the jury verdict because it found the story to be “physically impossible in an impossible setting,” and thus not some- thing readers could reasonably understand as describing actual events involving Pring.

The court called the story “gross, unpleasant, crude,” but said the First Amendment is not limited to decent ideas. It also offered guidance on the murky issue of libel and fiction: “The test is not whether the story is or is not characterized as ‘fiction,’ ‘humor,’ or anything else in the publication, but whether the charged portions in context could be reasonably understood as describing actual facts about the plaintiff or actual events in which she partici- pated.” Thus, the court said the Penthouse story was too incredible and obviously false to be libelous to Kim Pring. However, this decision offers little comfort for serious fiction writers. If a story is an accurate portrayal of life, it may be a more powerful (and artistically sound) literary work—but also more likely to be the basis for a libel suit. In effect, the Pring v. Pent- house decision says fairy tales are immune to libel judgments, but realistic literature is not.

Libel and Broadcasting

So far this summary of the principles of libel law has made almost no distinction between the print and electronic media. That was done in the interest of clarity and simplicity—and because it is generally justified. There are, however, some special libel problems when the broadcast media are involved. Not the least of these problems is the question of whether a broadcast defamation is really a libel at all or is in fact a slander. Before broadcasting came along, slander (a spoken defamation) was a limited legal action for the obvious reason that an oral statement was a fleeting thing, while a printed one might be read by thousands of people over many years. In view of slander’s limited nature, the courts generally ruled that one could only win a slander suit by proving special damages unless the slander fell into one of several particularly offensive categories that were sometimes called slander per se. Because of these restrictions, successful slander suits were relatively rare.

But when broadcasting developed, the potential for harm in a spoken defamation became at least as great as in a written one. Recognizing the pervasiveness of a broadcast defamation, some states simply declared that broadcast defamation would be regarded as libel, not slander. Other states such as California classified broadcast defamation as slander but liberalized the requirements for a successful slander suit so there was little difference

between libel and slander. Some states even adopted the rule that a defamation contained in a script would be treated as a libel (since it was written down, after all), while an ad-libbed one would be treated as slander. Only a few states still adhere to that rule today.

These variations in broadcast defamation law may seem quaint—and perhaps they are today. Whatever its name, broadcast defamation is a viable legal action in all states. As noted earlier, some states exempt local broadcasters from liability for defamation occurring during network programs they have no power to edit, but even then the network remains liable. And, as already noted, the Supreme Court has exempted broadcasters from liability for defamation occurring during political advertising that broadcasters are forbidden to censor under Section 315 of the Communications Act.

Aside from these exceptions, a broadcast defamation is as actionable as a printed one, and perhaps more because of the massive audiences the electronic media attract. In evaluat- ing defamation that was broadcast rather than published, the same rules normally apply.

Criminal Libel

Although some states still have criminal libel laws on the books, they have rarely been enforced since two 1960s Supreme Court decisions. Criminal libel laws generally cover situ- ations in which civil libel law is inapplicable. For instance, some states still make it a crime to libel a dead person—a form of libel rarely actionable in civil suits. In addition, some states forbid distributing literature so defamatory that it may cause a breach of the peace.

Shortly after handing down its landmark New York Times v. Sullivan civil libel ruling in 1964, the Supreme Court announced an important criminal libel decision: Garrison v. Loui- siana (379 U.S. 64). That case arose when New Orleans prosecutor Jim Garrison severely criticized a group of judges, calling them sympathetic with “racketeer influences” and “vaca- tion-minded.” Prosecutor Garrison was himself prosecuted under a Louisiana law that made it a crime to defame public officials. The Court said Garrison’s prosecution was not permit- ted by the First Amendment unless it could be proved that he made false statements either knowingly or with reckless disregard for the truth. In short, the court said the same tough standards that apply in civil libel suits by public officials also apply in criminal prosecutions for defamation of public officials: actual malice must be shown.

The Supreme Court dealt another blow to criminal libel in the 1966 case of Ashton v. Kentucky (384 U.S. 195), a decision stemming from circulation of a pamphlet that attacked various local officials. The circulator was prosecuted for criminal libel because the pamphlet allegedly threatened to cause a breach of the peace. The Supreme Court unanimously reversed the conviction, ruling the law overbroad and in violation of the First Amendment.

As a result of these Supreme Court decisions and parallel rulings by a number of state courts, criminal libel prosecutions constitute a minimal legal threat to the media today. If the remaining criminal libel laws were vigorously enforced, few of them could withstand a constitutional challenge at this point in our history.

Prior Restraint to Prevent Libel

Normally, when someone sues for libel and wins, the court awards monetary damages. But may a court instead engage in prior restraint, ordering the defendant not to make any more defamatory statements about the plaintiff? The California Supreme Court ruled in 2007 that a woman who repeatedly made false statements about a restaurant adjacent to her home could be ordered not to do so in the future.

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In Balboa Island Village Inn v. Lemen (40 C.4th 1141), the court said that Anne Lemen could be ordered not to make future statements falsely accusing the restaurant of serving tainted food and engaging in child pornography and prostitution. Lemen had run a long campaign against the restaurant, making those and other charges that were proven false when the restaurant owner sued her for libel and won. Justice Carlos Moreno wrote for a 5-2 court, “A properly limited injunction prohibiting defendant from repeating to third persons statements about the Village Inn that were determined at trial to be defamatory would not violate defendant’s right to free speech.” The dissenting justices were troubled by this nearly unique endorsement of prior restraint: “To forever gag the speaker—the remedy approved by the majority—goes beyond chilling speech; it freezes speech.”

The Kentucky Supreme Court held in 2010, citing Lemen, that a lower court’s “broad- sweeping and vaguely worded injunction against future expression, before final adjudica- tion of its defamatory character, constitutes an improper prior restraint on speech” (Hill v. Petrotech Resources Corp., 325 S.W.3d 302). An investor retained an agency owned by H.C. Hill to recover investments made in Petrotech. As the court put it, Hill’s agency used “highly aggressive collection techniques.” The lower court enjoined Hill from making defamatory statements about Petrotech throughout the case or until further ordered. The Kentucky high court adopted the following rule: “defamatory speech may be enjoined only after the trial court’s final determination by a preponderance of the evidence that the speech at issue is, in fact, false, and only then upon the condition that the injunction be narrowly tailored to limit the prohibited speech to that which has been judicially determined to be false.”

Libel As A Political Question

Courts may decline to decide cases that implicate issues best left to other branches of government—for example, questions dealing with national defense or presidential power. In 2010 the D.C. Circuit dismissed a libel suit filed by owners of a Sudanese pharmaceutical plant as a political question. The owners alleged that the Clinton administration had defamed them by saying they had ties to Osama bin Laden to justify a missile attack on the plant

In El-Shifa Pharmaceutical Industries Co. v. U.S. (607 F.3d 836), the court said that it could not verify the truth of what the government had said about the plant. The court added that “the political question doctrine bars our review of claims that, regardless of how they are styled, call into question the prudence of the political branches in matters of foreign policy or national security constitutionally committed to their discretion.”

AN OVERVIEW OF MAJOR ISSUES

Through most of American history, the threat of being sued for libel has been the most serious continuing legal hazard for the media, and that threat has not disappeared. For a time, it appeared that the libel problem was subsiding. After New York Times v. Sullivan, the Supreme Court handed down several decisions in the 1960s and early 1970s that made it more difficult for plaintiffs to win. By the time of Rosenbloom v. Metromedia in 1971, even private persons involved in public issues were being required to prove actual malice (i.e., that a falsehood was published with knowledge or with reckless disregard for the truth).

However, the 1974 Gertz v. Welch decision reversed that trend. While Gertz rewrote the common law of libel in all 50 states by forcing even private plaintiffs to prove at least negligence in most cases (something not usually required before), it also reclassified many people as private persons when they were previously considered public figures.

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The high cost of defending a libel suit grew even higher after the Supreme Court’s Keeton v. Hustler and Calder v. Jones decisions, which permit forum shopping in libel cases. Few people would question the fairness of requiring a major corporation to defend a lawsuit in a state where it injures someone while doing business. Years ago the Supreme Court autho- rized states to exercise long-arm jurisdiction over companies having minimum contacts with a particular state. Some of today’s most controversial questions involve long-arm jurisdiction on the Internet and related online issues. Does operating a website constitute minimum contacts sufficient to allow a libel plaintiff to sue anywhere the site can be viewed, includ- ing foreign countries? And is the exemption from liability for everyone except the creator of a defamatory online message, enshrined in Section 230, fair to those who are defamed online? Libel suits over Twitter will likely become more common.

Other issues remain controversial. The Supreme Court’s Milkovich v. Lorain Journal deci- sion sent a message to the states to give expressions of opinion less protection in libel cases. While statements of pure opinion are still exempt from libel suits, that is not necessarily true of mixed statements that include false factual allegations within an expression of opinion. Editorials, letters to the editor, columns, reviews and “op-ed” pieces often combine factual assertions with expressions of opinion; now they enjoy less protection from libel suits.

But the Court has given the media some help in libel cases. Philadelphia Newspapers v. Hepps declared the burden of proof in virtually all libel cases involving the media falls on the plaintiff. The media need not prove the truth of an allegedly defamation; the plaintiff must prove it is false. And Bose v. Consumers Union told appellate courts to review evidence in libel cases to be certain that actual malice was really shown when it was required to be.

The adoption of anti-SLAPP laws in many states to curb strategic lawsuits against public participation has been helpful to the media. Although these laws are intended primarily to protect citizen activists who speak out on controversial issues, in some states they also protect the media from harassment lawsuits. Even in states lacking an anti-SLAPP law, of course, media defendants can always seek to have nuisance libel suits dismissed before trial by seek- ing summary judgment, a tactic encouraged by the Court’s Anderson v. Liberty Lobby decision. Unfortunately, a summary judgment motion cannot be made until later in a lawsuit than a dismissal motion under most anti-SLAPP laws, running up the legal expenses for both sides.

Another scary current development for media organizations is the First Circuit’s deter- mination in Noonan v. Staples that truth may not always be an absolute defense for libel cases. And does the filing by BPI of a trade libel suit in South Dakota suggest the start of a trend in which media organizations will be forced to watch their criticisms of food products much more closely for fear of legal penalties? Where does this leave the watchdog role of the press over private companies that control our food supplies?

Ultimately, the discussion of libel must end where it began: with the observation that the system is costly and cumbersome—and that libel is and will remain a serious legal problem for the media.

•

• •

•

What does my state’s libel law say; how does it define terms like “actual malice” and “negligence”?

What is my state’s statute of limitations for libel? What defenses does my state recognize for libel? Does my state

recognize the neutral reportage defense, for example? Does my state have an anti-SLAPP or trade libel law? If so, how

have they been interpreted?

WhAT ShOULD I knOW ABOUT MY STATE?

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SUMMARY

A SUMMARy OF LIBEL AND SLANDER

What Are Libel and Slander?

Libel and slander are legal actions to compensate someone whose reputation has been wrongfully damaged. Traditionally, a written defamation was called libel and a spoken defamation was called slander, but in many states the two are virtually identical.

Who May Sue or Be Sued for Libel?

Individuals and corporations—but not government agencies—may sue. Unincorporated associations may sue in some states but not in others. An individual may sue for group libel if the group is very small and the libel refers particularly to that individual. Usually anyone who contributes to the publication—or republication—of a libelous statement may be sued, even if the libel is in a direct quote, a live interview, an advertisement or a letter to the editor.

To Win a Libel Suit, What Must a Plaintiff Prove?

To win, the plaintiff (the person who initiates the lawsuit) must prove all of the elements of libel, which are: (1) defamation; (2) identification; (3) publication/communication; (4) in cases involving issues of public concern, fault on the part of the publisher or broadcaster (i.e., dissemination of a falsehood due to either negligence or actual malice); (5) in many instances, actual damages.

What Defenses Are There?

Even though all of the elements of libel may be present, the plaintiff will not prevail if the defendant can prove that any of the recognized defenses apply. The major ones are: (1) truth; (2) fair comment and criticism; (3) privilege. The Supreme Court has ruled that the plaintiff usually bears the burden of proof; he/she must prove the falsity of a libelous statement—the defendant does not have the burden of proving truth. In many states, publishing a timely retraction—as prominently as the original libel—limits the plaintiff to special damages (i.e., provable monetary losses).

Are There Different Rules for Public Figures and Private Persons?

The Supreme Court has ruled that public officials and public figures must prove actual malice, meaning the publication of a falsehood with knowledge of its falsity or with reckless disregard for the truth. With the Supreme Court’s blessing, most states now permit private persons to win libel cases by proving merely negligence on the part of the media, not actual malice. In cases involving purely private matters rather than issues of public concern, the high court has held that the states may allow private persons to win libel cases without proving any fault at all.

Chapter 5

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The Right of Privacy

The legal concept called the right of privacy has much in common with libel and slan- der. Like libel, invasion of privacy is usually a tort action—a civil lawsuit in which an injured party sues for monetary compensation. Moreover, privacy, like libel, is basi- cally a state legal matter, although the U.S. Supreme Court has sometimes stepped in to place constitutional limits on state actions in this area just as it has in libel law. In fact, some of the major Supreme Court decisions on libel are cited in privacy lawsuits—and Supreme Court decisions on invasion of privacy are sometimes cited in libel cases.

Invasion of privacy and libel are so similar that persons offended or embarrassed by media publicity often sue for both, hoping to win on at least one of the two legal theories. Libel and invasion of privacy overlap enough to invite this sort of double-lawsuit strategy, particularly because the two actions have slightly different defenses. It is possible to have an excellent libel defense in a situation, but a weak defense against an invasion of privacy suit.

However, there are important differences between libel and invasion of privacy, includ- ing their histories. Libel was incorporated into the English common law hundreds of years ago, but invasion of privacy is a relatively new legal action. It was not widely recognized by the courts or legislatures until the twentieth century.

The Supreme Court continues to delve into the implications of government violations of personal privacy, and some of the cases do not implicate the First Amendment. For exam- ple, in 2012, the Court addresses privacy issues raised by the Fourth Amendment. The Court ruled that attaching a global positioning system (GPS) device to a person’s car without that person’s knowledge counted as a “search” under the Fourth Amendment. Thus, the defen- dant’s drug conviction must be reversed because the GPS evidence that was used against him was not lawfully obtained (U.S. v. Jones, 132 S. Ct. 945). Still, because privacy is a derived right, based in amendments other than the First Amendment, it is important to follow the Court’s movements in these related areas. (The Court in 2012 also ruled on a Privacy Act case dealing with medical privacy, FAA v. Cooper, discussed in Chapter Nine.) And in 2014, the Court ruled in Riley v. California (134 S. Ct. 2473) that police may not, “without a warrant, search digital information on a cell phone seized from an individual who has been arrested.” As Chief Justice John Roberts put it, “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is ... simple—get a warrant.”

Although privacy law developed only recently, it has become one of the most important and controversial aspects of communications law. However, much of privacy law in the 2000s is concerning issues of data privacy rather than the four torts we’ll discuss in this chapter. The ability of our technological gadgets to gather and transmit information, as well as our affection for online social networks, contribute to these new developments.

THE HISTORY OF PRIVACY LAW

The legal concept of a “right of privacy” developed only after the media, corpora- tions and government agencies became powerful enough—and technically sophisticated enough—to threaten individual privacy. That happened early in the twentieth century.

By 1900, the biggest newspapers had achieved circulations of nearly a million copies a day, and they did it with a heavy emphasis on stories about crime and scandal, stories that were not always truthful and tasteful. It became obvious that the media could destroy

190 The Right of Privacy

FIG. 27. Justice Louis Dembitz Brandeis, between 1905 and 1945.

Library of Congress.

someone’s reputation, sometimes in a way that did not make a libel suit a good remedy. Suppose, for instance, that a sensational newspaper revealed intimate (but truthful) details of a person’s private life. The truth defense would preclude a successful libel suit, but shouldn’t there be some way for the injured party to win justice in court?

Brandeis’ law review article. In one of the most widely quoted law review articles of all time, Samuel D. Warren and Louis D. Brandeis addressed this issue in 1890. (Brandeis later served on the U.S. Supreme Court and wrote several well-known opinions on freedom of expression in America.) Their essay in the Harvard Law Review contended that there should be a right of privacy either under the common law or state statutory law. Such a right, they felt, should protect prominent persons from gossipy reporting of their private affairs. The article was prompted at least in part by the experiences of Warren’s family, which had occa- sionally found its name mentioned in unflattering ways in the Boston press.

“The press is overstepping in every direction the obvious bounds of propriety and of decency,” they wrote. “Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery.”

Earliest privacy law. Influential as that law review article became later, it did not create an overnight legal revolution. In fact, it was a dozen years later when a case based on the Warren-Brandeis theory finally reached a New York appellate court, and the court didn’t buy the idea. The case (Roberson v. Rochester Folding Box Co., 64 N.E. 442, 1902), was brought by Abigail Roberson, whose picture was used with- out her permission in a flour advertisement. She sued, but the court ruled that “the so-called ‘right of privacy’ has not yet found an abiding place in our jurisprudence....” However, Roberson’s defeat in court quickly was turned into a victory in the New York legislature, which responded to a public outcry over the court decision by pass- ing the nation’s first statutory law on privacy. Acting in 1903, the legislature enacted what are now Sections 50 and 51 of the New York Civil Rights Law, which read in part: “[T]he name, portrait or picture of any living person cannot be used for advertising purposes or for purposes of trade, without first obtaining that person’s written consent.”

Obviously, this was not a sweeping law: it didn’t address the sort of invasion of priva- cy Warren and Brandeis had in mind. All it did was outlaw commercial exploitation of a person’s name or likeness without consent—a separate legal wrong we call misappropriation

or invasion of the right of publicity today. It said nothing about situations in which the media reveal intimate details about a person’s private life or engage in intrusive newsgathering.

Two years after the New York privacy law was enacted, a state supreme court judicially recognized a right of privacy in connection with the media for the first time. In that 1905 case (Pavesich v. New England Life Insurance Co., 50 S.E. 68), the Georgia Supreme Court upheld the right of an artist named Paolo Pavesich to sue New England Life for using his likeness in an advertisement without permission. The ad included a photo of Pavesich and a testimonial implying that he endorsed the company’s insurance.

Another famous early privacy case raised a different question, one that has plagued the courts (and journalists) ever since: can a public figure return to a private life and then sue for invasion of privacy if the press does a “where-is-he-now” story years later? In Sidis v. F-R Publishing Co. (113 F.2d 806, 1940), William J. Sidis sued the publisher of the New Yorker magazine for doing an article about him. He was a one-time mathematical genius who graduated from Harvard University at age 16. The article, published some 20 years later, revealed that he was living in a shabby rooming house and working as a low-salaried clerk. It ridiculed him and even included a cartoon with a caption calling him an “April fool.”

Should someone like William Sidis be able to sue the New Yorker for invading his privacy? A federal appellate court ruled that the case should be dismissed, pointing to the newswor- thiness of the story. The court said that someone who becomes a celebrity even involuntarily (as Sidis had) cannot completely avoid publicity later in life.

The Sidis case did not settle this issue, of course. Old-but-true-facts cases continue to arise, and the media defend coverage of such stories by citing the continued public interest in the subject and by pointing out that the coverage is often based on truthful reporting of public records. Publicity-shy plaintiffs, of course, argue that they should not be forced to have their past deeds revealed to people who have forgotten (or never knew) about them.

However, two legal concepts were emerging from these early privacy cases. First, there is the idea that the news media do not need anyone’s consent to do stories about news- worthy subjects. But, on the other hand, when a person’s name or likeness is used for commercial purposes (as in advertising), it must be with the person’s permission. Most states have now recognized at least these aspects of the right of privacy, either by statute or court decision.

A Constitutional Right of Privacy

Meanwhile, the U.S. Supreme Court began to recognize that there is also a constitu- tional right of privacy, although none of those early decisions actually involved the media. Rather, the early cases all involved the right of individuals to be free of excessive government intrusions into their private lives. The high court acknowledged the right of privacy in a law enforcement context as long ago as 1886, in Boyd v. U.S. (116 U.S. 616). In that case, the Court said the Fourth and Fifth Amendments provide protection against governmental invasions of the “sanctity of a man’s home and the privacies of life.”

Then in 1928, Louis Brandeis—by then a Supreme Court justice—wrote a famous dissenting opinion in which he urged recognition of the right of privacy in Olmstead v. U.S. (277 U.S. 438). That case involved government eavesdropping to gain evidence against suspected bootleggers in the prohibition era, and the majority opinion held that there was no violation of any right of privacy unless the federal agents committed a physical trespass in order to listen in. But in his dissent, Brandeis called for a “right to be let alone.” He said the framers of the Constitution intended “to protect Americans in their beliefs, their thoughts,

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their emotions and their sensations.... They conferred, as against government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized man.” Since then, the Supreme Court has specifically recognized the right of privacy, both in media cases and in other areas. For instance, the Olmstead majority opinion, which allowed government eavesdropping as long as there was no physical trespass, was reversed some 40 years later in Katz v. U.S. (389 U.S. 347). In that 1967 case, federal agents had used monitor- ing devices atop a public telephone booth to gather evidence against alleged bookmakers (i.e., persons taking illegal bets on horse races). The Court said a person’s right to privacy extends to all areas where there is a justifiable expectation of privacy. Unauthorized law enforcement surveillance activities need not involve a physical trespass to constitute a viola-

tion of the Fourth Amendment, the Court ruled. In the decades since Katz, the Supreme Court has repeatedly ruled on the privacy

issues raised by the use of other technologies by law enforcement investigators to conduct searches without a search warrant. In 2001, the Court ruled against federal agents who used heat-sensing equipment to detect an indoor marijuana farm. In Kyllo v. U.S. (533 U.S. 27), a 5-4 majority declared that the use of thermal imaging equipment violated the right of privacy guaranteed by the Fourth Amendment even though there was no physi- cal intrusion into the home. This was true even though the imaging equipment merely detected heat radiating out from the home, and did not involve looking into the house, the Court said.

Birth control. The Supreme Court also relied largely on a privacy rationale in reaching its famous decisions on birth control, abortion and homosexual rights. In the 1965 ruling that overturned state laws against contraceptive devices (Griswold v. Connecticut, 381 U.S. 479), Justice William O. Douglas said the various rights listed in the Bill of Rights, taken together, add up to a right of privacy that bars the state from involving itself in individuals’ sexual relations in marriage. Although some of the other justices based their decision on a different rationale, Douglas’ view was widely quoted later in support of a limited constitu- tional right of privacy. A couple’s decision to use contraceptives was a private matter and none of the state’s business, Douglas claimed. Thus, the Connecticut law banning the use of contraceptives (even by married couples) was ruled unconstitutional.

Abortion law. In the landmark 1973 decision overturning state laws against abortions (Roe v. Wade, 410 U.S. 113), the Supreme Court focused on concepts related to personal privacy in reaching the decision that abortions were a private matter between a woman and her physician, at least during the early months of pregnancy. While this book cannot be a comprehensive review of all state and federal laws and cases, several key and recent decisions will be covered. In the years since 1973, Roe has become the most controversial Supreme Court decision of the twentieth century. Millions of Americans vehemently disagree with the ruling that a state cannot prohibit abortions during the first six months of pregnancy when the fetus is not viable outside the womb. Millions of others strongly support the court’s hold- ing that there is a right of privacy in this area. It was inevitable that the Supreme Court would have to revisit the abortion question again and again.

In 1989, a deeply divided Court stopped just short of overturning Roe v. Wade in a case called Webster v. Human Reproductive Services (492 U.S. 490). In that case, the Court did uphold some restrictions on abortions that had been adopted in Missouri. The Court affirmed Missouri’s ban on abortions in public hospitals and abortion counseling by public employees as well as a law requiring doctors to test the fetus for viability before performing an abortion if the fetus appeared to be at least 20 weeks old.

By 1991, two liberal justices who were strong supporters of Roe v. Wade (William Brennan and Thurgood Marshall) had been replaced by more conservative justices (David Souter and Clarence Thomas). Many on both sides of the abortion controversy expected the Supreme Court to overturn Roe v. Wade in a 1992 case. But to almost everyone’s astonishment, a new coalition of moderate conservatives led the Court in a 5-4 vote to reaffirm the basic holding of Roe in Planned Parenthood of SE Pennsylvania v. Casey (505 U.S. 833). Justice Sandra Day O’Connor formed a coalition with Justices Anthony Kennedy and David Souter to rule that the states may not place an undue burden on a woman’s right to choose an abortion during the early months of pregnancy. When the decision was announced, O’Connor said she was personally very opposed to abortions, but she added, “Our obligation is to define the liberty of all, not to mandate our own moral code....”

The Court upheld Pennsylvania laws establishing a 24-hour waiting period for adult women who want an abortion and requiring teenagers to get a parent’s or a judge’s permis- sion for an abortion. But the justices overturned Pennsylvania’s requirement that married women had to notify their husbands of their plans. That, they said, was an undue burden.

Justice Harry Blackmun, who wrote the Court’s opinion in Roe v. Wade 19 years earlier, concurred in the 1992 decision to reaffirm it, as did Justice John Paul Stevens. Chief Justice William Rehnquist and three other conservatives dissented, indicating that they would over- turn Roe v. Wade. Blackmun, who had been widely quoted as predicting that the court would overturn Roe, was at least as surprised as anyone else. In what may be among his most memo- rable words as a Supreme Court justice, Blackmun wrote: “[N]ow, just when so many expect- ed the darkness to fall, the flame has grown bright.... Make no mistake, the joint opinion of Justices O’Connor, Kennedy and Souter is an act of personal courage and constitutional principle.” Blackmun also included a surprisingly candid and personal statement:

I am 83 years old. I cannot remain on this court forever, and when I do step down, the confirmation process for my successor may well focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made.

Of course, the confirmation battles involving Justices Kennedy, Souter and Thomas had all focused on this issue. All three were appointed by Republican presidents opposed to abortions, but two of them voted to uphold the basic tenets of Roe v. Wade. Ironically, when Blackmun did leave the court two years after the Planned Parenthood decision, the debate over the confirmation of his successor (Stephen Breyer) focused mainly on other issues.

In 2000, the Supreme Court ruled that a Nebraska law forbidding “partial birth abor- tions” placed an undue burden on a woman’s constitutional right to terminate a pregnancy and was therefore unconstitutional (Stenberg v. Carhart, 530 U.S. 914). The Nebraska law defined partial birth abortion as a procedure in which a person “...intentionally delivers into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure” that the person knows “will kill the unborn child.”

The Court said this law (and laws banning partial-birth abortions in about 30 other states) was too broad, precluding methods that are safer for the mother than alternative methods used in late-term abortions. Four justices dissented, writing four separate opinions. They argued that a state should be free to ban partial-birth abortions for various reasons. Justice Antonin Scalia said, “The method of killing a human child...proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion.”

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In 2003, Congress approved a federal Partial Birth Abortion Ban Act, forbidding certain partial-birth abortion procedures. This federal law is similar to the Nebraska state law over- turned in the Stenberg v. Carhart decision, but legal challenges to it had a very different outcome: the Supreme Court eventually upheld the law. Initially, the federal law was over- turned by three different federal appellate courts. However, in 2007 the Court overturned all three appeals court decisions, voting 5-4 to uphold the constitutionality of the Partial Birth Abortion Act. Justice Samuel Alito provided the fifth vote to restrict abortion rights in the new decision, Gonzales v. Carhart (550 U.S. 124). A year earlier, he replaced Justice Sandra Day O’Connor, the architect of the “undue burden” test and frequently the fifth vote to uphold abortion rights on the Court.

Writing for the majority, Justice Anthony Kennedy now took what appeared to be a different approach than he had in joining O’Connor’s opinion in the 1992 Planned Parent- hood case. This time, he wrote for the court, “The government has a legitimate and substan- tial interest in preserving and promoting fetal life.” He said the government may regulate “the medical profession in order to promote respect for...the life of the unborn.”

The 5-4 majority in the 2007 decision upheld the federal ban on essentially the same procedure that was forbidden in Nebraska in the law overturned by a 5-4 majority in Stenberg v. Carhart seven years earlier. In this ruling, Kennedy focused more on “the life of the unborn” and not on women’s privacy rights or the right of doctors to choose the safest procedure for women. This 2007 decision was applauded by abortion opponents, who launched a campaign to win restrictions on abortions state by state—and condemned by abortion-rights advocates and some doctors. The media quoted one doctor and professor of medicine: “It is patronizing. And for them to tell us how to practice medicine is dangerous.”

Carhart overshadowed a 2006 Supreme Court decision that unanimously but on narrow grounds ordered a lower court to reconsider a New Hampshire ban on abortions without parental consent because it lacked an exception for medical emergencies (Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320). On the eve of her retirement, Justice O’Connor wrote her last decision on abortion—and the only one for a unanimous Court. But the Court did not overturn the New Hampshire law. Instead, it merely ordered the First Circuit to reconsider whether the law could be salvaged by judicially adding a medical emer- gency exception to the requirement of a 48-hour delay to allow for parental notification.

A year before its 1992 Planned Parenthood decision, the Supreme Court addressed a related issue: whether the federal government can order health care providers who receive federal funds not to mention abortions to their patients. In Rust v. Sullivan (500 U.S. 173), the Court upheld such federal regulations. In so ruling, the Court’s 5-4 majority ruled that doctors do not have a First Amendment right to inform their patients about abortions. (However, the federal rules were later rewritten to eliminate this ban on federally-supported doctors mentioning abortions to their patients). Dissenting in the Rust case, Justice Harry Blackmun called the case a major retreat from previous decisions protecting First Amend- ment rights as well as the right of privacy. Blackmun wrote, “One must wonder what force the First Amendment retains if it is read to countenance the deliberate manipulation by the government of the dialogue between a woman and her physician.”

The Second Circuit, however, found that a funding policy saying that “[n]o funds... may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution” was impermissible because it compelled recipients to take on the government viewpoint. In Alliance for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev.

(651 F.3d 218, 2011), the court said a provision of the U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 violated the “unconstitutional provisions” test, which says that “the government may not place a condition on the receipt of a benefit or subsidy that infringes upon the recipient’s constitutionally protected rights, even if the government has no obligation to offer the benefit in the first instance.” The case differs from Rust, the court said, because the recipients must “voice the government’s viewpoint and to do so as if it were their own”—not just remain silent if they do not agree.

“Fetal pain” laws. As of 2013, eight states (Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, Nebraska, and Oklahoma) have laws that forbid abortions after 20 weeks of gesta- tion—even though these laws conflict with Roe v. Wade. These laws are based on the notion that a fetus can feel pain at 20 weeks. However, the Ninth Circuit enjoined a similar law in Arizona (Isaacson v. Horne, 716 F.3d 1213, 2013), saying that it was “unconstitutional under a long line of invariant Supreme Court precedents.” And an Idaho “fetal pain” law was struck down in 2013; the judge said the law “embodies a legislative judgment equating viability with twenty weeks’ gestational age, which the Supreme Court expressly forbids” (McCormack v. Hiedeman, 900 F. Supp. 2d 1128).

State laws. Courts continue to wrestle with state laws regulating abortion. In 2011 and 2012, courts examined abortion laws in North Dakota (Planned Parenthood v. Rounds, 653 F.3d 662) and Texas (Texas Medical Providers Performing Abortion Services v. Lakey, 667 F.3d 570). In North Dakota, the Eighth Circuit removed an injunction against the enforcement of the law, which includes provisions that mandate giving a woman seeking an abortion information in very emotionally charged terms, such as the language that to have an abortion would be to “terminate the life of a whole, separate, unique, living human being.” On an en banc review in 2012, the Eighth Circuit said that the part of the law requiring physicians to disclose to patients the potential of increased risk of suicide was not an unconstitutional requirement. Because the court believed that the information was truthful, the state “can use its regulatory authority to require a physician to provide truthful, non-misleading information relevant to a patient’s decision to have an abortion” (Planned Parenthood v. Rounds, 686 F.3d 889). In Texas, the Fifth Circuit upheld a “sonogram bill” that must be offered to women considering having abortions. Under the law, a woman could decline to listen to the fetus’ heartbeat or view images of the fetus in the sonogram, but under most circumstances she must listen to a doctor’s explanation of that sonogram. Relying on Casey, the court said that “such laws are part of the state’s reasonable regulation of medical practice...”

The Supreme Court in 2013 refused to rule in Cline v. Okla. Coal. for Reprod. Justice (134 S. Ct. 550) on Oklahoma’s request to find constitutional a law restricting a doctor’s use of drugs such as RU-486 (mifepristone, or “the abortion pill”), rather than a surgical proce- dure, to perform abortions. Opponents had claimed the law would bar all such abortions.

Gay relationships. While the Supreme Court was considering the constitutional right of privacy in connection with abortions, another privacy issue was looming in the back- ground—the issue of gay rights and same-sex marriage. On a 5-4 vote, the Court ruled in 1986 that there was no constitutional right of privacy to protect even private, consensual homosexual acts by adults. But in 2003 the Court reversed itself and held that a law banning private homosexual acts by adults violated the constitutional right of privacy.

In 1986 the Supreme Court declined to recognize constitutional privacy rights for homo- sexuals in Bowers v. Hardwick (478 U.S. 186). In Bowers, the Court upheld a Georgia law forbid- ding sex acts such as sodomy, even between consenting adults in private. The Georgia law,

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similar to laws then in effect in more than 20 other states, made sodomy a crime for everyone including heterosexual married couples, although it was primarily enforced against homo- sexuals. Georgia officials said there had been few modern prosecutions.

In refusing to overturn the Georgia law in 1986, the 5-4 majority said that the authors of the Constitution were surely not trying to protect the rights of gay men and lesbians when they wrote the Bill of Rights. Although the Court earlier had held that the Constitution includes a right of privacy in connection with contraception and abortion, the majority in Bowers ruled that the same privacy rights do not exist when the private sex lives of gay people are concerned. Writing for the Court, Justice Byron R. White said, “We think it is evident that none of the rights announced in those cases (involving contraception, abortion, and similar questions) bears any resemblance to the claimed constitutional rights of homosexuals to engage in acts of sodomy.”

Interestingly, Justice Lewis Powell, who said at the time that he had joined the five- member majority reluctantly, later said he had changed his mind. Speaking to New York University law students in 1990 (after his retirement from the Court), Powell said of his vote in the Bowers case, “I think I probably made a mistake.” With Powell’s vote on the other side, of course, the 5-4 decision would have gone the other way, and the Court would have recog- nized a constitutional right of privacy for gay men and lesbians in 1986.

After Bowers, a number of states recognized a right of privacy for gay men and lesbians under their own state constitutions, ruling that these state constitutions provided broader rights than the U.S. Constitution. And in 1996, the U.S. Supreme Court ruled that the voters of Colorado could not legalize discrimination against gay men and lesbians by passing a ballot initiative to invalidate existing state and local laws protecting gay rights (Romer v. Evans, discussed in Chapter Three).

In 2003, the U.S. Supreme Court revisited this issue, taking the highly unusual step of reversing one of its own prior decisions only 17 years later. In Lawrence v. Texas (539 U.S. 558), the Court voted 6-3 to overturn a Texas law similar to the Georgia law that it had upheld in Bowers. By a narrower 5-4 majority, the Court also voted to overturn Bowers.

The Lawrence case arose when Houston police entered John Lawrence’s apartment to investigate what turned out to be a false report of a disturbance. But they found Lawrence and another man engaged in anal sex. The two men were arrested, jailed overnight and fined $200 each for violating Texas’ anti-sodomy law. They challenged the law’s constitutionality.

Writing for the majority, Justice Anthony Kennedy said the two men “are entitled to respect for their private lives” in upholding their privacy. “The state cannot demean their existence or control their destiny by making their private sexual conduct a crime,” he added. The decision overturned not only the Texas sodomy law but also laws in 12 other states that still prohibited acts of anal and oral sex. At the time of Lawrence, four states (Texas, Oklahoma, Kansas and Missouri) banned sodomy only between gay couples. Nine other states had laws banning such acts between any two people. The Lawrence decision was widely hailed by gay-rights attorneys as the most important Supreme Court decision in many years.

Justices Antonin Scalia, Clarence Thomas and Chief Justice William H. Rehnquist dissented. Scalia said, “The court has taken sides in the culture war.” Thomas said he would vote against the Texas sodomy law if he were a Texas legislator, but as a justice he could not overturn it because he does not think the Constitution includes any general right of privacy.

Same-sex marriage. By the time the Supreme Court recognized a constitutional right of privacy for gay men and lesbians in the Lawrence case, another question involving their

FIG. 28. President Barack Obama signs the Don’t Ask, Don’t Tell Repeal Act of 2010 at the U.S. Department

of Interior in Washington, D.C., Dec. 22, 2010.

Official White House photo by Chuck Kennedy.

constitutional rights had become a major issue: whether they have a right to marry. By 2010, 29 states had enacted laws or constitutional amendments defining marriage as a union of a man and a woman. Several state supreme courts upheld these amendments.

Prop 8. In 2008, the California Supreme Court ruled that gay men and lesbians have broad constitutional rights under the state constitution, including the right to marry (In re Marriage Cases, 43 C.4th 757). However, Proposition 8 (Prop 8), a measure to amend the California Constitution to define marriage as a union between a man and a woman, passed in a 2008 election and was promptly challenged in the courts. In 2009 in Strauss v. Horton (46 Cal. 4th 364), the California Supreme Court upheld Proposition 8, saying. “Proposition 8 must be understood as creating a limited exception to the state equal protection clause.” The court however, said the ruling could not be applied retroactively to annul the marriages of 18,000 gay marriages that took place in California prior to the passage of Proposition 8.

But in August 2010, federal district judge Vaughn Walker struck down Proposition 8 as unconstitutional under the due process and equal protection clauses of the Fourteenth Amendment in Perry v. Schwarzenegger (704 F.Supp.2d 921). In a lengthy opinion, the judge noted that marriage is a fundamental right, and fundamental rights cannot be voted upon. Moreover, he said, Prop 8 could not even survive rational basis scrutiny, much less the much stricter test that abridgments of fundamental rights must surmount. Thus, he wrote, “Propo- sition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Prop 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.” He ordered a permanent injunction against Prop 8.

Judge Walker’s decision was promptly appealed, but there was a question as to whether the appellants (two pro-Prop 8 organizations) had standing to bring the appeal; if they didn’t, then only the named parties could appeal, and Schwarzenegger and Attorney General (now Governor) Jerry Brown both opposed Prop 8. The California Supreme Court refused to force Schwarzenegger or Brown to defend the proposition, so the appellants asked the Ninth Circuit for a stay pending appeal. The Ninth Circuit granted the stay, heard oral arguments, and then certified a question (asked the highest state court a question of that state’s law) to the California Supreme Court: Under California law, do the pro-Proposition 8 organizations have the right to defend the proposition if the named parties will not? The California Supreme Court said yes, in Perry v. Brown (52 Cal. 4th 1116, 2011).

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DOMA. The federal government was prohibited from recognizing gay marriage by the 1996 Defense of Marriage Act (DOMA), which said that no state must recognize a same- sex marriage even if it is recognized in other states and defines marriage as a legal union between a man and a woman for the federal government.

In 2011, Attorney General Eric Holder notified House Speaker John Boehner that the Obama administration believed DOMA to be unconstitutional and so would no longer defend the statute in court. Several courts declared DOMA unconstitutional, including the First Circuit in Commonwealth of Massachusetts v. U.S. Dep’t of Health and Human Services (682 F.3d 1), in which the court pointed out the impact of DOMA on states like Massachusetts that permit same-sex marriage: “Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.”

The Supreme Court granted cert, and in the most awaited decisions of the year, struck down DOMA on equal protection grounds and dismissed the case against Prop 8 on stand- ing issues. In the DOMA case, U.S. v. Windsor (133 S. Ct. 2675), Justice Anthony Kennedy, writing for a 5-4 majority, said:

By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy

of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage.

In dissent, Chief Justice John Roberts said that the Court did not have standing to decide the case, and in any case DOMA was constitutional: “Interests in uniformity and stability amply justified Congress’s decision to retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world.” Justice Antonin Scalia went further in his dissent, calling the majority’s opinion “jaw-dropping:” “It is an asser- tion of judicial supremacy over the people’s Representatives in Congress and the Executive.”

In the Prop 8 case, Hollingsworth v. Perry (133 S. Ct. 2652), the majority, led this time by Chief Justice Roberts, put it bluntly: “That party [who brings a case] must also have ‘stand- ing,’ which requires, among other things, that it have suffered a concrete and particularized injury. Because we find that petitioners (the defenders of Prop 8) do not have standing, we have no authority to decide this case on the merits, and neither did the Ninth Circuit.” Only the state, then, has the standing to defend the law.

The Court did not reach the question whether same-sex marriage laws in every state are constitutional or not (although the majority opinion in Windsor sends a signal that there may be equal protection issues). Justice Kennedy dissented, saying that the certification the high court sought from the California Supreme Court determined who could have standing to defend laws, and so the defenders should have that right. Within a few days of the deci- sion, the Ninth Circuit lifted a stay on the ban on same-sex marriage licenses, permitting them to go forward.

Constitutional right to same-sex marriage. After the Wind- sor and Hollingsworth decisions, dozens of cases flooded the lower courts seeking to strike down same-sex marriage bans. Most lower courts struck down bans, although the Sixth Circuit of Appeals held that states did not have to recognize same-sex marriages.

In a 2015 decision that was immediately described as a land- mark Supreme Court decision, Obergefell v. Hodges (No. 14-556), the Court on a 5-4 vote overturned the Sixth Circuit’s ruling and held that same-sex couples have a constitutional right to marriage in all 50 states. Justice Kennedy was again the swing vote between the Court’s liberals and conservatives. The majority found that the Fourteenth Amendment’s rights of due process and equal protec- tion made it unconstitutional to deny same-sex couples marriage rights that heterosexual couples received. “It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality,” Justice Kennedy wrote.

In Obergefell, the judicial philosophies of different justices were on stark display over one of the most controversial social issues of their generation. While Justice Kennedy’s opinion articulated a “living document” view of the Constitution that protects fundamen- tal rights, including liberty, privacy and equal protection, that are sometimes not obvious without the wisdom of history and experi- ence. “The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how consti- tutional imperatives define a liberty that remains urgent in our own era,” Justice Kennedy wrote. “The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth

FIG. 29 & 30: Protestors outside the Supreme Court on Mar. 26, 2013, the day of same- sex marriage oral arguments.

Author’s collection.

The four privacy torts:

intrusion: a physical unauthorized entry into a person’s private space.

private facts: publica- tion of facts that are actually private that would be embarrassing to the victim.

false light: publica- tion of distorted or fabricated information about a person that would cause others to believe things about that person that were not true.

appropriation: the unauthorized use of a person’s name or like- ness for some kind of gain, either financial or otherwise.

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Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.”

The four dissenters chastised the majority for inventing a new fundamental right that they said is neither provided in the text or original understanding of the Constitution. They also said the right to marry should be left to the people and legislative branches to decide, not unelected judges. “Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law,” Chief Justice Roberts wrote in his dissent. “Steal- ing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.”

Gay men and lesbians in the military. “Don’t Ask, Don’t Tell” (DADT) made the news in 2010 as President Obama signed an act repealing the policy, which prohibits the military from discriminating against closeted gay or bisexual service members or applicants, while forbidding openly gay or bisexual persons from serving. The DADT policy had been upheld in four circuit courts. But in 2010 a federal judge said that it violated the First and Fifth Amendments in a case filed by the Log Cabin Republicans, the largest Republican gay orga- nization (Log Cabin Republicans v. U.S., 716 F. Supp. 2d 884), saying that it did not further the government’s interests in unit cohesion or military readiness and is a content-based regula- tion. President Obama signed the Don’t Ask, Don’t Tell Repeal Act of 2010. DADT was no longer policy as of September 2011.

Despite all these advances, some are still disappointed in the Obama administration’s commitment to gay rights. President Obama vacillated in his feelings about gay marriage; when he was a senator, he supported it, and then when running for president he backed off. In the wake of New York’s legalization of same-sex marriage, he said his position on the issue was “evolving.” But Obama in May 2012 said that he believed same-sex marriage should be valid, a reversal from some of his earlier comments.

While the Supreme Court’s decisions about privacy rights in these controversial areas have generated more headlines, the Court has also recognized a right of privacy in several areas that directly affect the media. The rest of this chapter concerns the purely media- related aspects of privacy law, including data privacy.

AN OVERVIEW OF PRIVACY LAW

While the Supreme Court was wrestling with constitutional questions concerning the right of privacy, the states were developing their own concepts, often in cases involving the media.

The four torts. In 1960 William L. Prosser, one of the greatest legal scholars of his era, published an analysis of privacy law in which he said the concept of invasion of privacy breaks down into four different legal rights. His classification has been widely accepted and is the basis for many of the court decisions in this field that have followed. Prosser wrote:

The law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by a common name, but other- wise have almost nothing in common except that each represents an interfer- ence with the right of the plaintiff ... “to be let alone.” Without any attempt to (write an) exact definition, these four torts may be described as follows:

1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs; 2. Public disclosure of embarrassing private facts about the plaintiff; 3. Publicity which places the plaintiff in a false light in the public eye; 4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or

likeness. (48 Calif. Law Review 383, 1960)

Courts in a number of states had recognized these four kinds of invasion of privacy before Prosser wrote his classic analysis; many others have done so in the years since. Even today, though, not all states recognize all four kinds of invasion of privacy as a legal wrong that may be remedied in a civil lawsuit. For example, about 10 states have declined to recog- nize Prosser’s third kind of invasion of privacy, false light. The false light concept closely parallels libel, and some states have chosen not to recognize it as a separate action. But for the most part, Prosser’s four-category breakdown of privacy law remains valid.

The intrusion concept is based on a journalist’s conduct as a newsgatherer. Reporters— and especially photographers or video crews—who pursue someone too aggressively may face this kind of lawsuit. The late 1990s saw an explosion in litigation of this kind.

Private facts cases usually result from the dissemination of intimate or embarrassing information about a person’s private life or past—information that may be factually correct, thus precluding a successful libel suit.

Lawsuits based on holding a person before the public in a false light resemble libel suits because there must be an element of falsity in the communication. The basic difference between libel and false light privacy is that the latter does not necessarily require proof that the false statement is defamatory.

The fourth tort occurs most often in advertising and entertainment-related communi- cations. Alternately called misappropriation (or appropriation) or an invasion of the right of publicity, it prohibits the unauthorized use of a person’s name, likeness, voice or some other element of his/her public persona for someone else’s commercial gain.

Defenses. As in libel law, there are defenses that the media may assert to escape liability in lawsuits for invasion of privacy. The two most widely recognized ones are newsworthiness (also called the public affairs or public interest defense) and consent. If the media show that the subject matter of a news story or broadcast is newsworthy, the plaintiff in a private facts lawsuit will normally lose in court.

However, the newsworthiness defense is of little help when the alleged invasion of privacy involves an intrusion or holding someone before the public in a false light. Even celebrities have some right to be free of harassment by journalists, although that right is limited. And no amount of newsworthiness will excuse a story that holds someone up before the public in a false light. Newsworthiness is not helpful when the issue is an unauthorized commercial use of a person’s name or likeness (in an advertisement, movie or poster, for instance). In fact, the more newsworthy a person is, the greater the potential injury is likely to be if his/ her name or likeness is used commercially without consent.

The consent defense is most applicable in misappropriation cases: celebrities regularly give their consent to commercial uses of their names and likenesses, but for a fee. The consent defense could also be useful in other kinds of privacy lawsuits, provided it could be shown that the person suing actually gave consent.

In addition to these two common law defenses, the Supreme Court has created constitutional defenses in privacy cases, just as it has in libel cases. In fact, the New York Times

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newsgathering tort:

torts that involve how news is gathered rather than what is published; can include wiretapping/phone recordings, ride- alongs, fraud, breach of duty of loyalty, tres- pass, and other torts.

ride-along:

when a media profes- sional accompanies the police on official duties.

v. Sullivan principle has been transplanted from libel to privacy law and applies in certain kinds of privacy cases. In addition, the Court has also recognized a constitutional right of the media to publish the contents of many public records that are lawfully obtained, notwithstanding anyone’s claim that publishing the information is an invasion of privacy.

Although these defenses often enable the media to defeat inva- sion of privacy claims in court, the fact remains that serious legal hazards exist in this area. For that reason, the four major categories of invasion of privacy warrant a more detailed summary.

INTRUSION

The concept of intrusion is based more on the conduct of a reporter, photographer or video crew than on the content of the media. It is a legal action to compensate a person when a journalist unduly intrudes into his or her physical solitude or seclusion or private affairs. It often involves snooping, eavesdropping, using a hidden camera or simply being in the way when someone has a reasonable right to expect a little peace and quiet.

In general, journalists have a right to ask questions or take pictures in public places without risking a lawsuit for this kind of invasion of privacy. In fact, in this era of miniaturized electronic listening devices and long telephoto lenses, technology has creat- ed a variety of new newsgathering opportunities (or threats to personal privacy, depending on your point of view). While the law affords journalists a good deal of latitude in gathering the news, there are limits to this right: journalists are sometimes sued for stepping over the bounds of propriety in their pursuit of a story or visual image. The growing popularity of “tabloid television” shows led to a number of new controversies and lawsuits in this area, as video crews aggressively pursued their subjects—often into their own private homes during “ride-alongs” with law enforcement offi- cers. This has led to a series of new court decisions holding that the media may sometimes be sued for intrusive newsgathering, includ- ing two notable U.S. Supreme Court decisions in a two-year period.

Early Intrusion Cases

Long before cellphone eavesdropping and media ride-alongs with law enforcement officers became national issues and led to Supreme Court decisions, a number of individuals charged that intrusive newsgathering invaded their privacy. These early cases played a major role in shaping the modern concept of intrusion.

The pioneering case of Dietemann v. Time Inc. (449 F.2d 245, 1971) is a good example of an intrusion by journalists that violated someone’s privacy. Two reporters for Life magazine investigated

a man suspected of practicing medicine without a license by posing as a patient and her husband. They visited the man at his home—where he practiced his craft—and surrep- titiously took photographs. They also carried a hidden transmitter so law enforcement personnel nearby could monitor and record the conversation. The result was a criminal prosecution and an article in Life called “Crackdown on Quackery.”

The man accused of medical quackery sued for invasion of privacy and ultimately won $1,000 in general damages. In a 1971 decision the Ninth Circuit agreed that the pictures and story were newsworthy but said the reporters had intruded upon Dietemann’s privacy in gathering the information. The magazine had a right to publish the story but did not have the right to use hidden electronic devices in the man’s home to get the information.

If the news media may not surreptitiously enter a private home to get a story, may journalists go into a private home that is the scene of a fire and take pictures at the invitation of a public official? The Florida Supreme Court addressed that question in a 1976 case, Florida Publishing Co. v. Fletcher (340 So.2d 914). A photographer took a picture of a silhouette left on the floor by a girl’s body after a fire, and the girl’s mother sued, claiming a trespass and an invasion of privacy, among other things. But the Florida Supreme Court found no actionable trespass or invasion of privacy in the photographer’s actions. In fact, a fire marshal had asked the photog- rapher to take the picture when the marshal’s own camera ran out of film. The court noted that it was customary for journalists to accompany public officials to the scene of such disasters. The U.S. Supreme Court refused to review this case. However, as noted earlier, in 1999 the high court ruled that when law enforcement officials enter private property with a search warrant and allow the media to go along, they are violating the Fourth Amendment and inviting a lawsuit.

Photographers’ rights. These cases raise questions about the rights of photographers under privacy law. It is difficult to generalize because the rules vary somewhat from state to state, but in most states photographers who trespass to get a picture may face both civil and criminal sanctions unless they have consent to be there from someone authorized to give it. On the other hand, photographers in public places may generally shoot any subject within view for news purposes—but not for commercial or advertising purposes, for reasons that will be explained later in this chapter. There are occasional exceptions, but the general rule is that anything within camera range of a public place may be photographed for journalistic purposes. If the picture has even a little newsworthiness, and if no false impression is created with a misleading caption, it is usually safe.

Nevertheless, even in public places a photographer may not lawfully be so offensive in taking pictures as to seriously interfere with the subject’s right to be left alone. The classic example of harassment by a photographer is the case of Galella v. Onassis (487 F.2d 986, 2d cir., 1973). Ron Galella, a freelance photographer who made something of a career of photographing the late Jacqueline Kennedy Onassis and her children in the late 1960s and early 1970s, was ordered by a federal appellate court to stay 25 feet away from Onassis and even farther from her children. This was by no means a typical case: Galella’s conduct prior to the court order had been outrageous. He had engaged in a variety of offensive activities, some of which actually endangered the safety of Onassis and her children. He followed her and her children, bumped into other people while taking pictures, spooked a horse her son was riding, and was generally underfoot at all hours.

In fact, a decade after the original lawsuit Onassis again hauled Galella into court for invading her privacy. She contended that he had repeatedly violated the original order by failing to stay far enough away, among other things. The court agreed and found Galella in

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contempt (Galella v. Onassis, 533 F.Supp. 1076, 1982). The court emphasized—again—that Galella had a right to photograph Onassis (or any other celebrity) in public places, or to write articles about her if he wished. But Galella’s conduct was so outrageous as to justify some restrictions on his activities, the court said. This was, in short, an unusual situation.

In more typical circumstances, there is little that celebrities can do about those who photograph them in public places, except perhaps to surround themselves with bodyguards whose job is to make it impossible for anyone to get a good shot. (Several state anti-paparazzi laws exist, however, and will be discussed later in this chapter.) Occasionally, in fact, those who try to photograph the famous encounter violence from bodyguards. In those cases, photographers may have grounds to sue—the celebrity’s guards. But that does nothing to salvage the pictures that the guards destroyed or prevented the photographer from taking.

In recent years, however, the ability of journalists using powerful microphones and tele- photo lenses to see and hear the activities of people in their own homes and other private places without trespassing has led many to rethink whether journalists should be free to report everything they can see or hear from a public place.

The hazards of Intrusion: Ride-Alongs

Many lawsuits have been filed in state and federal courts charging journalists—partic- ularly photographers, television crews and reporters with hidden cameras—with various wrongful acts while gathering the news. These lawsuits often alleged not only an invasion of privacy (intrusive newsgathering) but also an intentional infliction of emotional distress (see Chapter Four). The resulting court decisions have raised questions about the proper line between the First Amendment freedoms of journalists and the privacy rights of celebrities and others who are involved in newsworthy situations such as accidents.

In fact, this area of law has acquired a new name: newsgathering torts, a term that encom- passes a variety of different legal theories advanced by those who want to sue because of jour- nalists’ newsgathering behavior—as opposed to suing because of the content of what appears in the media. Those who are angry about journalists’ newsgathering activities may sue for intrusion, of course, and for the infliction of emotional distress. In addition, the media are being sued for trespass, fraud and “outrage,” which some states recognize as a tort.

The U.S. Supreme Court’s Wilson v. Layne (526 U.S. 603) decision in 1999 made it clear that the media—and law enforcement officers—risk liability for media ride-alongs that allow journalists to enter a private home, even if the officers have a search warrant. The court held that while a search warrant gives officers the right to enter a private home, it is nevertheless a violation of the Fourth Amendment’s ban on illegal searches and seizures for journalists to go into a home without the consent of residents.

The Court reached this conclusion in considering appeals by several people whose homes were invaded by the news media during ride-alongs with officers. The Wilson case began when law enforcement officers, armed with an arrest warrant, entered the home of Charles and Geraldine Wilson at 6:45 a.m. to arrest their son, who turned out not to be living there. A Washington Post reporter and photographer entered the home with the officers and observed a scuffle between officers and Charles Wilson, who came out of his bedroom wearing only briefs to ask the officers why they were in his home. No photographs of the incident were ever published, but the Wilsons sued the officers for allowing journalists to enter their home. The Supreme Court ruled that law enforcement officials are violating the Fourth Amendment in most instances when they allow the media to accompany them onto private property to conduct a search or make an arrest. Chief Justice William Rehnquist

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Focus on... “Big Brother is watching you”

If you’ve spent any time playing with Google Maps (maps.google.com), you know that by using Google’s Street View, you can, as Google says, “zoom, rotate and pan through street level photos of cities around the world.” Google creates these maps by sending cars through neighborhoods with panoramic cameras to take pictures from public streets. But what if the cameras capture something illegal or private? At least one image has been captured of a drug deal going down, for exam- ple. How have the courts responded to privacy claims?

FIG. 31. A circa 1818 map of the city of Washington in the District of Columbia.

Aaron and Christine Boring lived on a private road in Pittsburgh, Penn. In browsing Google Maps, they found color images of their home, car, and swimming pool that they had given no permission for Google to obtain or use. They sued for trespass, publication of private facts and intrusion upon seclusion. A lower court found for Google, and the Third Circuit agreed, at least on the privacy claims. The court, in an unpublished (non-precedential) opinion, agreed that the Borings were not entitled to recov- ery for private facts or intrusion, because Google’s conduct “would not be highly offensive to a person of ordinary sensibilities.” But the Borings were entitled to pursue the trespass claim, and the case was remanded to the lower court (Boring v. Google, Inc., 38 Media L. Rep. 1306, 2010).

Library of Congress.

wrote for the Court that the Fourth Amendment’s protection against unreasonable searches and seizures “embodies centuries-old principles of respect for the privacy of the home.... It does not necessarily follow from the fact that the officers were entitled to enter (a suspect’s) home that they (were) entitled to bring a reporter and a photographer with them.”

The Court stopped short of ruling that the officers could be sued in Wilson v. Layne—as opposed to future cases. Rehnquist noted that the law on ride-alongs may not have been clear before this definitive Supreme Court ruling. But in the future, there can be no doubt that officers who allow the media to accompany them onto private property to conduct searches or make arrests are inviting lawsuits for violating the Fourth Amendment.

Another case that troubled many journalists (and contributed to the Supreme Court’s decision to hear Wilson v. Layne) was Berger v. Hanlon (129 F.3d 505), a 1997 decision of the Ninth Circuit. In the Berger case, Cable News Network (CNN) arranged to send a television crew with federal wildlife agents on a raid of a 75,000-acre ranch in Montana. The federal agents suspected that Paul Berger, the elderly owner of the ranch, had killed American bald eagles in violation of the Endangered Species Act. An agent wearing a hidden microphone searched the ranch and questioned Berger and his wife inside their home.

A lower court said that by agreeing to cooperate with CNN, federal agents had “trans- formed the execution of a search warrant into television entertainment.” The judge held that the federal agents and CNN could both be sued for an allegedly unlawful intrusion, adding, “Law enforcement authority was used to assist commercial television, not to assist law enforcement objectives.” Berger was later acquitted of charges of killing protected species and convicted only of a misdemeanor pesticide charge. In turn, the Bergers sued the federal agents—and CNN—for $10 million for the alleged invasion of privacy.

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The Berger case was appealed to the U.S. Supreme Court. The high court considered it along with Wilson v. Layne and then sent the Berger case back to the appeals court to reconsider the issue of law enforcement liability based on Wilson v. Layne. The high court said that the federal officers should be given qualified immunity for allowing the Berger ride- along because the law was not clear when the ride-along occurred. The appellate court then followed that reasoning, granting legal protection to the officers who authorized the ride-along, while holding that CNN itself was not entitled to qualified immunity, thereby leaving the network in a difficult legal position (Hanlon v. Berger, 526 U.S. 808).

Even before Wilson v. Layne, media attorneys were warning of the legal hazards of intru- sive journalism based on earlier adverse court decisions. In 1998, the California Supreme Court alarmed many media lawyers by ruling that a television producer may be sued when a crew shoots video of an accident victim being freed from a car and receiving emergency medical care in a rescue helicopter. In Shulman v. Group W Productions (18 C.4th 200), the court ruled that Ruth Shulman, the accident victim, had a right to go to trial with her claim that the video crew’s coverage of her auto accident was unduly intrusive. Although the state high court was deeply divided in its reasoning, five of the seven justices agreed that the media can be sued for intruding on an accident victim’s privacy, even if the accident itself is newsworthy. On the other hand, the justices agreed that the media could not be sued for the revelation of private facts in a situation as newsworthy as an accident near a major highway.

Writing the court’s lead opinion, Justice Kathryn Mickle Werdegar said, “A jury could reasonably believe that fundamental respect for human dignity requires the patient’s anxious journey be taken only with those whose care is solely for them and out of sight of the prying eyes of others (via cameras).” What troubled the justices most about the case was that the video crew secretly recorded Shulman’s post-accident conversations with emergency workers at the scene and in the helicopter by using microphones hidden on paramedics.

Bottom line. The use of hidden cameras or microphones has been central to several other cases in which the courts have ruled that journalists could be sued for intrusive news- gathering. In the aftermath of these cases, most media attorneys are cautioning their clients that it is legally hazardous ever to do photographic or video coverage during a law enforce- ment ride-along in which journalists accompany officers onto private property, even if the photos are never published and the video is never aired. And now very few officers are will- ing to risk being sued by allowing ride-alongs that enter private property (unless someone with authority to do so gives consent for the media’s presence).

The hazards of Intrusion: hidden Cameras and Secret Taping

The courts are also growing impatient with the use of hidden cameras in private or semi- private places. In a widely noted 1999 decision, the California Supreme Court ruled that ABC could be sued for having a reporter pose as a psychic and use a hidden camera to video- tape the conversations of workers who were paid to give psychic advice via telephone. Ruling in Sanders v. ABC (20 C.4th 907), the state high court ordered a lower court to consider reinstating $1.2 million in damages and attorney’s fees that had been won by two employees of the telepsychic operation who were shown on ABC’s PrimeTime Live.

Writing for a unanimous court, Justice Kathryn Mickle Werdegar said that even workers who talk openly to co-workers can have “a limited, but legitimate, expectation that their conversations and other interactions will not be secretly videotaped by undercover tele- vision reporters.” However, she also said that the Sanders decision does not preclude all use

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of hidden cameras by journalists in the state; rather, a violation of privacy only occurs if the intrusion is “highly offensive to a reason- able person,” and that the determination of reasonableness should include consideration of the motives of newsgatherers.

In the Sanders case, the telepsychics worked in cubicles in a large room off-limits to nonemployees. Stacy Lescht, the ABC reporter, sometimes stood on her chair and looked around the room. Unbeknownst to other employees, she had a camera hidden in a flower on her hat and a microphone attached to her brassiere. That, the court concluded, was unduly intrusive even though the resulting story revealed the newsworthy fact that the telepsychics did not always take the advice they were giving to 900-line callers very seriously.

The same ABC undercover investigation also led to a Ninth Circuit decision in 1999. In this case, the court ruled that the subjects of hidden-camera exposés cannot sue for federal wiretap violations unless they can show that a news organization intended to commit a crime or a civil wrong. This ruling came in Sussman v. ABC (186 F.3d 1200).

In Sussman, 12 employees of the telepsychic operation claimed that by surreptitiously recording their conversations and airing them on PrimeTime Live, ABC violated the federal anti-wiretapping statute, the Electronic Communications Privacy Act. By adopting this strategy, their attorneys hoped to establish a precedent that would permit lawsuits against the media even in states that do not follow the Sanders precedent. But it didn’t work. Writing for a unan- imous panel, Judge Alex Kozinski seemed to be saying that Sand- ers defines the outer limit of media liability for a hidden-camera exposé. He wrote: “Although the ABC taping may well have been a tortious invasion of privacy under state law, plaintiffs have provided no probative evidence that ABC had an illegal or tortious purpose when it made the tape.”

The Sanders and Sussman cases are reminiscent of another case in which ABC was slapped with a $5.5 million jury verdict for having two PrimeTime Live staffers take jobs at the Food Lion grocery store chain in North and South Carolina—and use hidden cameras to record alleged health hazards. As noted in Chapter Four, that verdict was reduced to $315,000 by the trial judge and later reduced to a token amount ($2) by a federal appellate court. But ABC spent at least a million dollars for its legal defense.

A mixed bag of outcomes. On the other hand, some recent court decisions have upheld the right of journalists to use hidden cameras and microphones. A notable example is Deteresa v. ABC (121 F.3d 460), a 1997 decision in which the Ninth Circuit interpreted Califor- nia privacy law to allow a TV network to secretly tape a conversation between a producer and a reluctant news source on her front porch

Focus on... Blogger privacy

As noted in Chapter Three, American bloggers have some protections for their privacy. Some courts have said that for an anonymous blogger to be revealed, the plaintiff must make a case that he/she will prevail if the case is brought.

But British blog- gers have no shield of anonymity, an English court ruled in 2009. In the first British case dealing with the privacy of Internet bloggers, Richard Horton, a Lancashire detec- tive and author of a popular blog, “NightJack: An English Detective,” had requested an injunction to prevent The Times (London) from revealing his name, which had been found out by a Times reporter.

Horton, said Mr Justice Eady of the High Court, had no “reasonable expecta- tion” of anonymity because “blogging is essentially a public rather than a private activity” (The Author of A Blog v Times Newspapers Ltd, [2009] EWHC 1358 (QB)).

208 The Right of Privacy

and then use a small portion on the air. The court dismissed a lawsuit against ABC by Beverly Deteresa, a flight attendant who worked the flight that carried O.J. Simpson to Chicago the night of the murders of Nicole Brown Simpson and Ron Goldman. A week after the murders, an ABC producer went to Deteresa’s condominium to ask her to appear on an ABC program and discuss the flight. She declined, but she also volunteered that she was “frustrated” to hear news reports about the flight that she knew were false. After further conversation, she said she would “think about” appearing on ABC. The producer called Deteresa the next day and again asked her to appear. When she declined, the producer told her he had recorded their conver- sation the previous day on her porch, and that an ABC cameraperson had videotaped them talking from a public street nearby. She hung up on the producer; later her husband called the producer and demanded that the tape not be aired. ABC did air a five-second clip on Day One, with a summary of her recollections of Simpson’s behavior during the flight.

The Ninth Circuit held that Deteresa had no reasonable expectation of privacy when she talked to a TV producer on her front porch, in plain view of a nearby street. The court said ABC did not violate California’s wiretap law, which forbids surreptitious taping of any “confi- dential communication” because that law applies only when someone reasonably expects the content of a conversation to be confidential. Deteresa knew she was talking to a media representative and that others could see and hear the conversation. And she continued to talk to him about what she saw on the flight. Based on these facts, there was no violation of the wiretap law. Nor was there an actionable invasion of privacy by intrusion, the federal appellate court concluded. The U.S. Supreme Court declined to hear an appeal.

Illustrating the complexity of the evolving law of hidden-camera journalism, the same court later ruled against another news organization on similar facts. In 1999, the Ninth Circuit ruled in Alpha Therapeutic Corp. v. Nippon Hoso Kyokai (NHK) (199 F.3d 1078) that it may be an invasion of privacy for a broadcaster to secretly tape an interview on someone’s doorstep and then air it without consent. This time the court said a medical director and his company could sue because NHK, Japan’s government-backed network, did the same thing that ABC did—but aired much more of the tape.

In Alpha Therapeutic, the appellate court said a jury could conclude under California law that the surreptitious taping was an invasion of privacy because the director knew only that he was talking to a reporter—he did not know the conversation was being taped. (Like Dete- resa, this was a federal case based on diversity of citizenship, which requires the federal court to apply state law.)

Unlike most state laws and the federal wiretap law, the wiretap laws in California and 12 other states require all parties to a “confidential communication” to consent to the taping or monitoring of a conversation by others. Most state laws require the consent of only one party, which means a company can record all of its incoming calls in those states. The California Supreme Court in 2002 adopted a very broad definition of the term “confidential communi- cation,” increasing the number of conversations that would be considered confidential and therefore off limits for secret taping or monitoring. In Flanagan v. Flanagan (27 C.4th 766, 2002), the Court said a communication is confidential, and therefore cannot be secretly taped, whenever any party believes it is not being taped or monitored by anyone else. Under this definition, even a party who knows the content of a conversation is not confidential may have a reasonable expectation of privacy that precludes secret taping.

Again illustrating the complexity and contradictions on this area of law, another federal appellate court upheld the right of ABC to use hidden cameras for newsgathering in another

circuit in a 1995 decision, Desnick v. American Broadcasting Co. (44 F.3d 1345). ABC’s PrimeTime Live equipped seven persons with hidden cameras and had them pose as patients at clinics that did cataract procedures. The resulting story suggested that the Desnick Eye Centers, a chain of 25 eye clinics in the upper Midwest, did unnecessary cataract surgeries for Medi- care patients. The Seventh Circuit held that Desnick did not have a right to sue for intrusion even though ABC had people posing as patients enter the clinics with hidden cameras. The Desnick decision was notable because the court’s opinion was written by Richard A. Posner, one of America’s best-known appellate judges and a widely quoted expert on privacy law.

ABC won another hidden-camera case in 2003, when the Ninth Circuit dismissed a lawsuit against the network for using hidden cameras to show questionable procedures in an Arizona medical lab that evaluated pap smear samples (Medical Laboratory Management Consultants v. ABC, 306 F.3d 806). The court said ABC did not violate anyone’s reasonable expectation of privacy under Arizona state law in the 52-second video clip of the lab that was aired on PrimeTime Live. The video revealed only lab procedures and related business matters, not anyone’s personal affairs.

The hazards of Intrusion: A Supreme Court Ruling

The question of surreptitious monitoring and recording of telephone conversations— and then broadcasting them—resulted in a Supreme Court decision in 2001. In Bartnicki v. Vopper (532 U.S. 514), the high court ruled that a broadcaster had a First Amendment right to air a newsworthy but pirated tape recording of a private cellphone call. By a 6-3 vote, the Court rejected the argument that airing such a tape is a violation of the federal wiretap law.

In this case, a Pennsylvania broadcaster, Frederick Vopper, was given a tape of a conver- sation between two teacher’s union officials. Whoever made the tape gave it anonymously to a local anti-tax crusader amidst a controversy over teachers’ salaries. The anti-tax crusader then passed it on to Vopper, who broadcast it on his talk show several times. The tape includ- ed some fiery rhetoric aimed at local school leaders. At one point, one union official said to the other, “we’re going to have to go to their homes...to blow off their front porches” if school board members resisted the union’s demands for a pay raise. Gloria Bartnicki and another union leader sued Vopper for airing the tape of their conversation.

No one disputed that whoever monitored the phone call and made the tape violated the law. But the court ruled that when such a tape concerns an issue of public concern and the media lawfully obtain it from a third party without participating in or encouraging the illegal taping, the media have a First Amendment right to air the tape. Justice John Paul Stevens relied heavily on the “Pentagon Papers” case (New York Times v. U.S., discussed in Chapter Three), in which the Court allowed the Times to publish excerpts from the so-called Pentagon Papers even though they had been illegally copied and given to the Times. “A stranger’s illegal conduct does not suffice to remove the First Amendment shield about a matter of public concern,” Stevens said. However, two justices, Stephen Breyer and Sandra Day O’Connor, wrote a concurring opinion in which they took a narrower view of the media’s rights in such cases. They said the media wouldn’t have the right to air a tape that reveals gossip about someone’s private life, as opposed to a discussion of a major local issue such as teachers’ salaries. And there were three dissenters, Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas. They said the media should not be free of liability for airing a bootlegged tape of a private phone conversation, even if it addresses an issue of public concern.

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210 The Right of Privacy

Thus, the result was a victory for the media, but a narrow one. The right to air a pirated tape extends only to a tape of a conversation about an issue of public concern—usually a political or social issue. Also, new telephone technologies have made the interception of private phone calls much more difficult in recent years. Media lawyers generally hailed the Bartnicki decision as good—while emphasizing that it may have little real impact on personal privacy because of improvements in telephone privacy protection in the digital age.

Limits on Bartnicki. But a Dallas television station that played a more active role in ille- gal taping was liable for intrusion: Peavy v. WFAA-TV (221 F.3d 158, 2000). The Fifth Circuit said the station could be held liable because a reporter cooperated with a family that ille- gally monitored and taped a neighbor’s telephone conversations. The neighbor, Carver Dan Peavy, was an elected Dallas school trustee. The tapes led the reporter to believe that Peavy had taken kickbacks on school insurance purchases. They were not aired, but they were used by WFAA-TV in preparing stories about alleged wrongdoing by Peavy (a series that won a Peabody award for excellence). Peavy sued, and a trial court dismissed on First Amendment grounds. The appellate court reinstated Peavy’s case, and the Supreme Court denied cert.

In 2007, the D.C. Court of Appeals also declined to apply Bartnicki to a case involving disclosure of an illegally intercepted cellphone conversation. In Boehner v. McDermott (484 F.3d 573), the court held that a Congressperson violated the law by giving to the media a recording of a conference call involving other members of Congress, even though he played no part in making the illegal recording. The tape, concerning an ethics probe of then- House Speaker Newt Gingrich, received wide publicity. A divided court said a public official has no First Amendment right to disclose even a newsworthy tape lawfully obtained from someone else (who recorded it illegally); this disclosure is a violation of the public trust.

The hazards of Intrusion: Other Problems

With only a few exceptions, the trend today is for the courts to take a narrow view of aggressive newsgathering methods that allegedly intrude upon one’s physical solitude. After the death of Princess Diana in 1997, journalists began to face laws restricting their right to pursue newsworthy persons or use high-tech hardware to observe people in private places.

Anti-paparazzi laws. A pioneering anti-paparazzi law was enacted in 1998 in California. Under this law, it is a constructive invasion of privacy for journalists even to attempt to capture images or sounds of “personal or familial activities” on private property where there is a reasonable expectation of privacy if “enhancing devices” such as a boom microphone or telephoto lens are used to capture images or sounds that could not be obtained without these devices. And if journalists trespass to obtain such images or sounds, that is also an inva- sion of privacy—regardless of whether they use enhancing devices. In either case, victims may sue for treble damages (three times the actual damages). The law was expanded in 2005 to allow treble damages and the seizure of profits in lawsuits by celebrities who are assaulted by paparazzi. That provision was signed into law by Gov. Arnold Schwarzenegger—who with his wife, Maria Shriver, was once blocked in a car by paparazzi at their son’s pre-school. While the mainstream media try to distance themselves from paparazzi tactics, it doesn’t foster journalistic freedom when a celebrity who ends up being the governor has firsthand experi- ence with paparazzi who chase and trap him in a car.

Even in states without this kind of law, aggressive journalists may risk not only civil lawsuits but also criminal sanctions. At various times journalists have been charged with trespassing, assault and reckless driving, among other things.

A California court in 2013 threw out parts of the anti-paparazzi bill as unconstitutional while considering against a photographer who allegedly chased singer Justin Bieber; Paul Raef, the photographer, was the first person charged under the California law. The judge said the statute was overbroad and could have affected wedding or other non-paparazzi photographers. In Hawaii, Aerosmith lead singer Steven Tyler has pushed a similar anti- paparazzi bill, which flew through the state Senate but stalled in the House.

In 2015, the California state Legislature added three new laws to its books aimed at curtail- ing aggressive activities by paparazzi. One law prohibits individuals from using drones to capture a person engaged in a personal or familial activity. The two other laws expand the definition of stalking to make it a crime to place someone under surveillance in ways that cause emotional distress and make it illegal to block someone from entering public buildings.

Recording police. But in a bright spot, several appellate courts have answered the ques- tion of whether openly recording a police officer in public is a form of wiretapping in the negative. Absolutely not, said the First Circuit in 2011 in Glik v. Cunniffe (655 F.3d 78). Simon Glik openly recorded three police arresting someone in Boston in 2007 with his cell phone, and he was charged with violating the Massachusetts wiretapping law, disturbing the peace and aiding the escape of a prisoner. The district court dismissed the charges, and the police appealed. The First Circuit unequivocally held that Glik was exercising his First Amendment rights to record the officers in a public place. “[A] citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amend- ment,” the court wrote. While the right to record may be regulated in acceptable ways as time, place and manner, the court noted, Glik was well within his rights. Moreover, because Glik openly recorded the officers, the recording was not “secret” as targeted by the wiretap- ping statute.

The Seventh Circuit agreed by a 2-1 vote in 2012 in ACLU v. Alvarez (679 F.3d 583). The ACLU sought to enjoin the enforcement of an Illinois wiretapping law that would make public recording “a class 1 felony—with a possible prison term of four to fifteen years—if one of the recorded individuals is performing duties as a law-enforcement officer” (it would be a class 4 felony otherwise). Video recording was acceptable, but audio recording was not. The Seventh Circuit first established that “[a]udio recording is entitled to First Amendment protection” and then went on to evaluate the law under intermediate scrutiny. In finding that the law was too broad, the majority said, “The ACLU wants to openly audio record police officers performing their duties in public places and speaking at a volume audible to bystanders. Communications of this sort lack any ‘reasonable expectation of privacy’ for purposes of the Fourth Amendment.” The court allowed the preliminary injunction. Judge Richard Posner dissented, saying that the majority’s interpretation of the right to record “is likely to impair the ability of police both to extract information relevant to police duties and to communicate effectively with persons whom they speak with in the line of duty.”

Other issues. Some journalists have also been accused of misrepresenting their identity to gain information from news sources. Sometimes they do just that (in violation of most media codes of ethics). But often a source has second thoughts about granting an interview and then claims to have been misled, misquoted or both. To the alarm of the news media, the California Supreme Court in 2007 allowed an intrusion lawsuit to go to trial where a news source accused a psychology professor and author of misrepresenting her identity, a charge she denied (Taus v. Loftus, 40 C.4th 683).

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212 The Right of Privacy

Many tabloid television cases have been litigated, but few are as notable—and trou- bling—as Clift v. Narragansett Television (688 A.2d 805), in which a news person spoke by phone with a man barricaded in his home, threatening to commit suicide. The man appar- ently watched the television news, which included a taped excerpt from the phone call, at 6:04 p.m. and then killed himself at 6:07—with his television still on and tuned to the station that aired the newscast. His widow sued the station on various grounds, and in late 1996 the Rhode Island Supreme Court denied the station’s motion to have the case dismissed.

DISCLOSURE OF PRIVATE FACTS

The second widely recognized kind of invasion of privacy is the public disclosure of private facts. A legal action for the revelation of private facts provides a remedy for a person who has been embarrassed by a publication but may have little chance to win a libel suit because the facts revealed are accurate. In many states this type of invasion of privacy causes problems for journalists, often because it is hard to anticipate which stories may lead to lawsuits. What may seem clearly newsworthy to journalists may seem to be a flagrant instance of revealing private facts to someone else. Perhaps a summary of some of the situations that have led to lawsuits will help illustrate the problem.

Legal test; state differences. In many states, to win a private facts case, a plaintiff has to prove that (1) there was a public disclosure of a private fact (2) that is not newsworthy and (3) was done in a manner that is offensive or objectionable to a reasonable person. A few states including Oregon allow private facts lawsuits only if the revelation is truly outrageous (outrage as a legal concept is discussed later in this chapter). And several, including New York and North Carolina, do not recognize this tort. In 1997, a plurality of the Indiana Supreme Court rejected private facts as a legal action in that state (Doe v. Methodist Hospital, 690 N.E.2d 681). On the other hand, in 1998 the Minnesota Supreme Court broke new legal ground by recognizing not only private facts but also intrusion and misappropriation as actionable forms of invasion of privacy in that state (Lake v. Wal-Mart Stores, 582 N.W.2d 231).

In some states, publishing or broadcasting information about a person’s shady past has produced litigation, especially if the person later changed his/her way of life. For nearly 75 years California courts allowed those whose unsavory pasts were revealed to sue even if the information was true and in the public record. However, in 2004 the California Supreme Court joined courts in many other states (and the U.S. Supreme Court) in holding that accurate reports of public records are constitutionally protected, even many years later. The earliest—and perhaps still the best known—of these “old-but-true-facts” cases is a 1931 Cali- fornia appellate court ruling, Melvin v. Reid (112 C.A. 285).

The case resulted from a motion picture that revealed the past activities of a former prostitute who was charged with murder and acquitted. Her maiden name was used in the movie advertising. However, after the murder trial the woman had moved to another town, married and adopted a new lifestyle. She said her new friends were unaware of her past. The court ruled that she was entitled to sue for invasion of privacy. In so doing, the court created a social utility test to determine whether the newsworthiness defense should apply. In Melvin and some later California cases, courts held that if a communication had little social utility or social value, the newsworthiness defense might not apply. In several cases after Melvin, California courts reiterated the principle that a person’s privacy may sometimes be invaded by the republication of old news if the republication has little social utility.

California courts allowed several other “old-but-true-facts” cases to go to trial; it was not until 2004—long after the U.S. Supreme Court had recognized a constitutional right to publish information lawfully obtained from public records, that California held that the media may publish truthful information obtained even from old public records. In the 2004 case, Gates v. Discovery Communications (34 C.4th 679), the California Supreme Court held that the news media and entertainment industry may now disseminate truthful information lawfully obtained from public records even when the information exposes a rehabilitated ex-convict to new hatred or ill will. Steven Gates sued the Discovery Channel for airing a documentary about a San Diego murder in which he had been convicted as an accessory after the fact. The murder occurred 12 years before the television program was broadcast. By then Gates had served his time, moved to a new community, become a successful sales- man and opened a business with his wife. Gates said that the program caused him to lose friends, quit his business and move, and contributed to his divorce.

The state supreme court rejected Gates’ claims. “(C)ourts are not freed by the mere passage of time to impose sanctions on the publication of truthful information that is obtained from public official court records,” Justice Kathryn Mickle Werdegar wrote for a unanimous court. The media may do reenactments of historical events under this principle. “Any state interest in protecting, for rehabilitative purposes, the long-term anonymity of former convicts” does not justify abridging the First Amendment, she wrote. The court said lawsuits based on the truthful publication of public records should be allowed unless there is a “need to further a state interest of the highest order.”

Supreme Court resolves the issue. The U.S. Supreme Court made the Gates decision inevitable by upholding the constitutional right to publish truthful information lawfully obtained from most public records. In Cox Broadcasting v. Cohn (420 U.S. 469), a 1975 case, and in several later cases, the high court rejected lawsuits against the media for publishing such information. The Cox decision resulted from a news broadcast that identified a rape victim in Georgia. A Georgia law prohibited publishing or broadcasting the identity of rape victims, but a reporter was given a copy of the court records during criminal proceedings against several young men accused of the rape. The victim, Cynthia Cohn, was identified in these public records, and Cox Broadcasting used the name in its coverage of the trial. The victim’s father, Martin Cohn, sued Cox Broadcasting, contending that the broadcasts identi- fying his daughter invaded his privacy.

The Georgia Supreme Court upheld the law against publishing rape victims’ names and also ruled that the father could sue under common law invasion of privacy principles. However, the U.S. Supreme Court reversed that decision. Writing for an 8-l majority, Justice Byron White ruled that a state may not impose sanctions against the media for accurately reporting the contents of open court records such as those involved in this case. Quoting an earlier opinion by Justice William O. Douglas, Justice White said: “A trial is a public event. What transpires in the courtroom is public property.”

At the time, this decision was viewed as a victory for the media. As noted in Chapter Three, the Court has also applied this principle in some other circumstances. A later Supreme Court decision suggested that the Cox rule was not limited to court records: “Our holding there (in Cox) was that a civil action against a television station for breach of privacy could not be maintained consistently with the First Amendment when the station had broadcast only information which was already in the public domain” (Landmark Commu- nications v. Virginia, 435 U.S. 829, 1978). However, in a 1989 decision, Florida Star v. B.J.F.

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214 The Right of Privacy

(491 U.S. 524), the Supreme Court avoided more broadly interpreting the Cox rule, as Chap- ter Three explains. While the 1989 case also overturned an invasion of privacy judgment against a news organization for publishing a rape victim’s name, this decision is more limited in scope. In fact, this time the Court said that the media are not necessarily exempt from all lawsuits even when they accurately report information that they lawfully obtain. If the infor- mation is obtained lawfully from court records, it is safe to publish.

But the Court stopped short of saying that the same thing is always true when the infor- mation is obtained elsewhere. On the other hand, state laws banning the publication or broadcast of sex crime victims’ names have also faced constitutional challenges in state courts. As noted in Chapter Three, the Florida Supreme Court overturned such a law in 1994 in Florida v. Globe Communications Corp. (648 So.2d 110).

If the Cox and Florida Star cases give the media the right to publish information they lawfully obtain from court records, does that mean state laws against publishing the names of juvenile offenders are invalid? The U.S. Supreme Court has also addressed that issue.

naming Juveniles and Other Ethical Issues

Obviously, there are ethical as well as legal issues involved in publishing the names of sex crime victims and juvenile offenders. But in both areas, many of the legal issues have now been resolved in favor of the media. The Supreme Court in 1979 ruled that no state may impose criminal sanctions where the media have disseminated the names of juvenile offend- ers, even if that information was secured from sources other than public records. The high court didn’t rule out civil invasion of privacy lawsuits where such information is secured from unofficial sources, but at least criminal prosecution of journalists was forbidden.

The 1979 case (Smith v. Daily Mail, 443 U.S. 97) was a test of a West Virginia law making it a crime for a newspaper to publish the name of any young person involved in juvenile court proceedings. The case arose when two newspapers were indicted after they identified a 14-year-old boy charged with fatally shooting a schoolmate. The shooting occurred at a junior high school, and journalists learned the name from eyewitnesses. They also heard the name by monitoring a police band radio.

After the indictments, the West Virginia Supreme Court overturned both the indict- ments and the state law, and the U.S. Supreme Court agreed. Chief Justice Warren Burger wrote: “At issue is simply the power of a state to punish the truthful publication of an alleged juvenile delinquent’s name lawfully obtained by a newspaper.”

Burger warned that the Court might uphold a similar law if there were an issue of “unlaw- ful press access to a confidential judicial proceeding” or an issue of “privacy or prejudicial pretrial publicity,” or if the publication were false. Still, this represented another instance when the Supreme Court intervened to protect the right of the media to disseminate lawful- ly obtained information. The Daily Mail case did not create a new defense, but it did make it clear that criminal prosecution of the media is not an appropriate way to prevent the dissem- ination of juvenile names (and presumably other kinds of embarrassing information).

Another important point to remember about Smith v. Daily Mail is that it did not prohibit invasion of privacy lawsuits for publication of personal information that is not part of a public record; the Supreme Court only banned criminal sanctions. Moreover, the Court has not created any special right of access to the names of rape victims and juvenile offenders. It is still constitutionally permissible for a state to keep that kind of information secret—and many states do so. But if the media do obtain the information lawfully, it may be published

without fear of criminal prosecution. And, as just explained, the Cox case and several later Supreme Court decisions generally protect the media from civil suits for invasion of privacy when they lawfully obtain the names of sex crime victims from public records. But there are several unresolved problems in this area—particularly where the media obtain the informa- tion from confidential sources instead of public records.

Still another case that raised powerful ethical questions as well as legal ones is M.G. v. Time Warner (89 C.A.4th 623, 2001), in which a California appellate court allowed Little League parents to sue because Sports Illustrated published a photo of their children along- side their coach, who turned out to be a child molester. Although none of the children was named, they were identifiable. The appellate court refused to dismiss the lawsuit, ruling that the photo was not necessarily newsworthy and that publishing it could be an “intrusion” that “outweighs the values of journalistic impact and credibility.”

There are still other limitations on the right of the media to publish truthful informa- tion that was lawfully obtained. For example, there was a troubling 1988 case about the naming of a woman who could identify a murderer: Times Mirror Co. v. Superior Court of San Diego County (198 C.A.3d 1420). In this case, a woman returned home just after her room- mate had been raped and murdered. As she arrived, she saw the murderer leaving. The Los Angeles Times published her name and said she had discovered the body, but did not identify her as the person who also saw the fleeing suspect. Nonetheless, she sued, contending that publishing her name while the suspect was at large endangered her safety.

The Times argued that the use of the name was absolutely privileged because the name was in the official coroner’s report, a public record. However, a California appellate court declined to order the case dismissed on a 2-1 vote. Although the dissenting judge said the ruling could have a chilling effect on First Amendment freedoms, the other two judges who heard the appeal concluded that the First Amendment does not necessarily apply here. They were clearly troubled by the facts of this case: a major newspaper published the name of someone who could identify a suspected murderer who was not in custody. When no higher court was willing to hear the Times’ appeal, the newspaper settled the case by paying an undisclosed sum of money to the woman.

Bottom line. Given compelling facts such as these, courts are likely to continue creat- ing exceptions to the principles upheld in Supreme Court decisions such as Cox Broadcast- ing and Florida Star. But as a general rule, the media may disseminate truthful information lawfully obtained from public records.

FIG. 32. The Wedge in Newport Beach, Calif., where Mike Virgil surfed.

YoTuT, “The Wedge, Newport Beach,” July 25, 2009 via Flickr, Creative Commons attribution license.

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Private Facts: Other Contexts

In addition to the kinds of cases discussed so far, there are other situations that produce private facts lawsuits. Often the facts are contemporaneous and correct but simply embar- rassing for some reason. In these cases, the crucial issue is usually whether the facts fall within the newsworthiness defense.

There have been many such cases litigated over the years, most of them ultimately won by the media. However, the litigation is often protracted and costly, and the threat of such a lawsuit is often a deterrent to publishing stories containing embarrassing personal informa- tion. A good example is Virgil v. Time Inc. (527 F.2d 1122, 1975). This case involved Mike Virgil, a surfing enthusiast who was profiled in an article in Sports Illustrated. The writer of the article had interviewed Virgil at great length and had also received Virgil’s permission to photograph him. Before the article was published, Virgil revoked all consent for publica- tion of the article and photographs because he feared the article would focus on bizarre incidents in his life that were not directly related to surfing.

Withdrawn consent. The fact that Virgil revoked his consent for the publication did not mean the article could not be published. The news media routinely publish and broadcast stories about people who don’t want publicity. When an item is published or broadcast with- out the subject’s consent, it merely means the publisher or broadcaster must be certain it is newsworthy enough to preclude a successful lawsuit for invasion of privacy.

The article about Virgil was published over his objections, and it contained this quota- tion: “Every summer I’d work construction and dive off billboards to hurt myself or drop loads of lumber on myself to collect unemployment compensation so I could surf at The Wedge.” The article also said he had extinguished a cigarette in his mouth and had eaten spiders and insects. Virgil sued for invasion of privacy, and his lawsuit reached the Ninth Circuit on a motion to dismiss the case before trial. The court said that unless a subject is newsworthy, the publicizing of private facts is not protected by the First Amendment. The court said: “In determining what is a matter of legitimate public interest, account must be taken of the customs and conventions of the community, and what is proper becomes a matter of the community mores.” The court ruled that Virgil could take his case to trial.

The U.S. Supreme Court denied cert, and the case went back to a federal district court, which ruled that Sports Illustrated published a “newsworthy” article that in fact generally portrayed Virgil in a positive way in the context of prevailing social mores (424 F.Supp. 1286, 1976). Thus, the magazine eventually won the Virgil case, but only after a protracted and expensive legal battle. Moreover, the appellate court’s ruling left much room for uncertainty about which stories are protected by the newsworthy defense and which ones are not. News- worthiness is a broad but vague privacy defense.

Unintendedly public intimate life details. But suppose an ordinary citizen happens to be in the right place at the right time to do something heroic, and as a result the whole world learns intimate details of his or her life. Has that person’s privacy been invaded? A good example of this problem is the case of Oliver Sipple, who may have saved former President Gerald Ford’s life during an assassination attempt in 1975.

When Sara Jane Moore, the would-be assassin, took aim at the president, Sipple struck her arm and caused her shot to miss. He was hailed as a hero, but soon the media also revealed the fact that he was gay, an active member of the San Francisco gay community. He sued for invasion of privacy, but the California Court of Appeal ruled that the stories about his sexual preferences were newsworthy, given all of the circumstances (Sipple v. Chronicle

Publishing Co., 10 Media L. Rep. 1690, 1984). However, the court ordered that its decision in the Sipple case not be published in the official reports of California appellate court decisions. Under California law, unpublished decisions may not be cited as legal precedents. This is, nonetheless, an interesting case that raises difficult ethical and legal issues.

Another case that raises troubling ethical as well as legal issues is Diaz v. Oakland Tribune (139 C.A.3d 118, 1983). Toni Ann Diaz was originally a male, but she underwent surgery to change her sex. Then she enrolled at a community college and was eventually elected student body president. Apparently no one on campus was aware of the sex change opera- tion until it was revealed in a column in the Oakland Tribune. She sued for invasion of priva- cy and won a jury verdict of $775,000. But an appellate court overturned the verdict and ordered a new trial, ruling that the trial judge erred in requiring the newspaper to prove the story newsworthy. Instead, the burden should have been on Diaz to prove that the story was not newsworthy, the appellate court held. As student body president, Diaz had often been in the news; she dropped the case rather than go through a second trial at which she would have to prove that the story was not newsworthy. Nonetheless, the newspaper’s decision to reveal the fact of Diaz’ sex change raises ethical questions.

Perhaps equally troubling—and a good illustration of the legal hazards of journalistic sensationalism—is an Orlando, Florida case in which a television station showed a video of a police officer holding the skull of a six-year-old girl who was kidnapped and murdered. The girl’s family—and thousands of other viewers—were shocked by the video, shown on the evening news without any warning, even to the family. In Armstrong v. H&C Communications (575 So. 2d 280, 1991), a Florida appellate court ruled that showing the skull was not an actionable invasion of privacy because of the public interest in the girl’s abduction and the discovery of her remains. On the other hand, the court ruled that the family could sue the station on the legal theory that showing the video was an outrageous act.

Outrage as a tort. Like a number of other states, Florida recognizes outrage as a sepa- rate basis for a lawsuit—a legal wrong somewhat akin to the intentional infliction of emotional distress (see Chapter Four). In states that recognize outrage as a legal wrong, a person may be sued for engaging in a course of conduct that would make a reasonable person angry enough to say, “that is outrageous,” even though the wrongful act may not fit into any other category that is recognized as a basis for a lawsuit. In the Armstrong case, there was evidence not only that the video angered many viewers but also that it was shown over the objections of some members of the station’s staff, and that the station later expressed regrets when it became clear that many viewers were offended. Those facts could form the basis for a lawsuit against the station, the Florida court held. A California appellate court reached a similar conclusion in a case where a television reporter confronted several children and told them two neighborhood children were killed by their mother, who then killed herself. The reporter asked the children for their reaction to this news. The court said the reporter and the television station could be sued for the intentional infliction of emotional distress under these circumstances (KOVR-TV v. Superior Court of Sacramento County, 31 C.A.4th 1023, 1995).

Do surviving family members of the dead have privacy rights in outrageous cases? In Catsouras v. State of California Highway Patrol (181 Cal. App. 4th 856, 2010), a California appeals court said that they do, at least in some cases. Nikki Catsouras was killed in a terrible car accident in which she was decapitated. Photos of the accident taken by the California Highway Patrol were leaked; those images went viral online, and cruel pranks were played on Catsouras’ family (for example, the family received e-mails with the images with such

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captions as “Hey Daddy, I’m still alive”). The trial court dismissed the Catsouras’ claim, and the appeals court overturned. Saying that there was no press freedom at issue here, the appeals court said, “The dissemination of death images can only affect the living. As cases from other jurisdictions make plain, family members have a common law privacy right in the death images of a decedent, subject to certain limitations.” Does this finding elevate the privacy rights of the dead over rights of the living, as some critics have suggested?

These cases involving outrage or emotional distress are often reminiscent of the situa- tions that may lead to lawsuits for the intrusion form of invasion of privacy. There is clearly an overlap among the various areas of privacy law and some of the similar legal actions that have evolved in recent years.

Bottom line. To summarize, the private facts area of privacy law is by no means clearly defined. Usually the media win private facts lawsuits by asserting the newsworthiness defense, but even then, a court may allow the lawsuit to go to trial on some other legal basis. Also, no one—not the courts, not legal scholars, and not even journalists—can precisely define news- worthiness. Another unresolved issue is when the media may be sued for revealing allegedly private facts contained in public records, given Cox’s strong affirmation of the constitutional protection for news reports of information lawfully obtained from public records.

The conflict between the individual’s right to keep private facts private and the media’s right to report the news raises a number of other ethical questions, too. For instance, should the media be able to make a person a celebrity by intensive coverage and then defend against a privacy lawsuit by citing that celebrity status? Does mere publicity make a person newswor- thy, or must one already be newsworthy before publicity is permitted? Moreover, when the media make the judgment that someone is newsworthy and publicize his or her activities, should the First Amendment permit the courts to second-guess that judgment?

FALSE LIGHT AND FICTIONALIZATION

The third area of privacy law that has produced litigation for the media is referred to as false light invasion of privacy. It involves publicity that places the plaintiff in a false light before the public. This kind of privacy case might be described as a libel case but without the defamation. As noted earlier, false light is recognized in most states, but it has been rejected as a valid basis for a lawsuit in about 10 states. By 2000, appellate courts in Massachusetts, Minnesota, Mississippi, Missouri, Ohio, Virginia, Washington and Wisconsin had joined the Texas and North Carolina courts in refusing to recognize false light invasion of privacy. In 2002, the Colorado Supreme Court also rejected false light as a basis for a lawsuit (Denver Publishing Co. v. Bueno, 54 P.3d 893). But in 2007, the Ohio Supreme Court, which had previ- ously rejected false light, recognized it as a valid legal action as long as the person suing can prove actual malice (Welling v. Weinfeld, 866 N.E.2d 1051).

Supreme Court cases. Where it is recognized, a person may sue when (1) portrayed falsely (2) in a manner that would be highly offensive (3) to a reasonable person. Photogra- phers (and those who write captions for photographs) have been especially vulnerable here, but other journalists should also be aware of the pitfalls in this area. Two false light privacy cases stemming from inaccurate reporting reached the U.S. Supreme Court many years ago.

The first of these false light Supreme Court decisions came in 1967. The case, Time Inc. v. Hill (385 U.S. 374), involved the James J. Hill family, which gained notoriety when it was taken hostage in its own home by three escaped convicts in 1952. The incident was clearly newsworthy, especially because two convicts were eventually killed in a shoot-out with police.

A year later, novelist Joseph Hayes published The Desperate Hours, a story about a family taken hostage by escaped convicts. Later the novel was made into a play and a movie. The story differed in significant ways from the Hills’ experiences, although there were similari- ties. For example, the convicts were not brutal to the Hill family during the real situation, but in the book the escapees did commit acts of violence on the fictional hostage family.

An invasion of privacy suit was filed by the Hill family in 1955 after an article was published in Life magazine reviewing the play based on Hayes’ book. Life directly stated that the play was based on the Hill family incident. The Hills sought damages on grounds that the magazine article “was intended to, and did, give the impression that the play mirrored the Hill family’s experience, which, to the knowledge of defendant ...was false and untrue.”

The Hill family won a $30,000 judgment in the New York state courts, but Time Inc., appealed the case to the U.S. Supreme Court, which in 1967 reversed the New York judg- ment. Justice William Brennan, writing for a divided court, applied the New York Times v. Sullivan libel rule to this kind of privacy lawsuit. Brennan said persons involved in a matter of public interest could not win a false light privacy suit unless they could show that the falsehood was published either knowingly or with reckless disregard for the truth. Although some have suggested that the Hills could have proven reckless disregard for the truth if they had opted to pursue the case through a second trial, they dropped the case instead.

In transplanting the New York Times v. Sullivan actual malice rule into privacy law, Justice Brennan emphasized that it was to be applied only in the “discrete context of the facts of the Hill case.” Nevertheless, Brennan’s opinion has often been applied by state courts and was cited in a later U.S. Supreme Court ruling on false light invasion of privacy.

That later ruling, Cantrell v. Forest City Publishing Co. (419 U.S. 245, 1974), presented the high court with the chance to abandon the Time Inc. v. Hill requirement in privacy cases the same year the Court limited application of the Sullivan rule to public figures in libel cases, but it didn’t address that issue. Instead, the Court upheld an invasion of privacy judgment against a newspaper by saying the paper was guilty of “calculated falsehoods” and “reckless untruth.” The justices did not say what the outcome of the case would have been if the news- paper had been guilty of nothing more than negligence.

The Cantrell case resulted from coverage of the consequences of the collapse of a bridge across the Ohio River. A man named Melvin Cantrell was among 44 victims, and Joseph Eszterhas, a Cleveland Plain Dealer reporter, followed up the tragedy with a feature story about how the man’s death affected his widow and children. Several months after the accident, Eszterhas and photographer Richard Conway visited the Cantrell residence to gather infor- mation for the follow-up. Margaret Cantrell, the widow, was not home, so Eszterhas talked to the children and Conway took many pictures. The resulting feature appeared as the lead story in the Plain Dealer’s Sunday magazine. It stressed the family’s abject poverty and contained a number of inaccuracies including a description of Margaret Cantrell’s mood and attitude, with statements clearly implying that Eszterhas had talked to her.

Mrs. Cantrell brought an action for invasion of privacy against the publisher of the newspaper. When the U.S. Supreme Court reviewed the case in 1974, it upheld a $60,000 judgment in her favor. The Court said the evidence showed that the newspaper “had published knowing or reckless falsehoods about the Cantrells.” The Court also said much of what was published consisted of “calculated falsehoods and the jury was plainly justified in finding that...the Cantrells were placed in a false light through knowing or reckless untruth.”

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Interestingly enough, the Supreme Court ruled that the photographer who took the pictures should not be held liable since there was no misrepresentation inherent in his pictures. In comparison, there was an obvious misrepresentation in the feature story itself.

The Hill and Cantrell cases are notable because they reached the U.S. Supreme Court— but they are not necessarily representative of all false light privacy suits. As indicated earlier, another common source of false light privacy lawsuits is misleading photo captions. Two California Supreme Court decisions in the 1950s nicely illustrate the problem in this area.

Lower court cases. Both lawsuits were initiated by John and Sheila Gill, a couple who operated a candy and ice cream store at Farmer’s Market, a tourist attraction in Los Ange- les. Noted photographer Henri Cartier-Bresson caught the couple sitting side by side at the counter in their shop. John had his arm around Sheila, and they were leaning forward with their cheeks touching. The photo, taken without permission on private property open to the public, was published in both Harper’s Bazaar, a Hearst publication, and Ladies Home Journal, a Curtis publication. The Hearst publication used the photo to illustrate an article entitled, “And So the World Goes Round.” The couple was described as “immortalized in a moment of tenderness.” However, the Curtis publication used the photo in a different context. There, it illustrated an article on the dangers of “love at first sight,” with statements such as this one: “Publicized as glamorous, love at first sight is a bad risk.” Further, the article went on to condemn this sort of thing as love based on “instantaneous powerful sex attrac- tion—the wrong kind of love.”

The Gills sued both publishers, but the two lawsuits produced opposite results. In Gill v. Hearst Corporation (40 C.2d 224, 1953), the couple lost. The California Supreme Court found no misrepresentation of their status, and thus no basis for an invasion of privacy lawsuit. But in Gill v. Curtis Publishing (38 C.2d 273, 1952), the couple won: the court found that the Gills had been held up before the public in a false light, since there was no basis for saying their relationship was “love at first sight” or based merely on “instantaneous ...sex attraction.”

The two Gill cases are typical of many others that have been filed since. If there is a general rule in these situations, it is that a photograph is reasonably safe if the caption is not misleading, provided it was taken in a public place and is used in a manner that falls within the newsworthiness defense. However, if the caption creates a false impression about the subjects, or if it is used for a commercial purpose such as advertising (as opposed to a journalistic purpose), the risk of a lawsuit for invasion of privacy is often much greater.

One last example. Perhaps one of the most memorable examples of a false light claim is Linda Duncan’s case. Her face was shown in a Washington, D.C. television report on the spread of herpes with a voiceover saying, “for the 20 million Americans who have herpes, it’s not a cure.” She claimed that a reasonable person would believe she had herpes, and the court said she had a valid false light claim (Duncan v. WJLA-TV, 106 F.R.D. 4, DDC 1984).

MISAPPROPRIATION

The fourth type of invasion of privacy protects people from unauthorized commercial use of their names, photographs and other aspects of their “public personas.” This concept has been given several names, including misappropriation or commercial appropriation. Today it is often referred to as a violation of the right of publicity. Perhaps it has more than one name because it is a very broad legal concept; no one term really describes all of the kinds of legal issues involved in this field. Whatever its name, this concept is quite different from the other

three kinds of privacy law: it involves the economic rights of people whose names are well known, not the personal rights of private individuals who just want to be left alone.

Misappropriation and right of publicity. Although right of publicity lawsuits are occa- sionally filed by private persons whose names or photographs were used for someone else’s commercial gain, more often the plaintiffs in these lawsuits are celebrities, people whose names have great commercial value. Usually the problem isn’t that the celebrity objects to publicity per se; what he or she objects to is not being adequately paid—or perhaps having his/her name or image used commercially in an objectionable way. An endorsement or an appearance by a celebrity may be worth thousands (or even millions) of dollars, and the celebrity’s lawyers want to make sure their client collects. There are times, of course, when a celebrity doesn’t want to endorse a particular product at all, regardless of what fee may be offered. And some celebrities simply refuse to do any endorsements.

The media have the right to do news stories and publish newsworthy photographs of celebrities as often as they wish—with or without permission. No celebrity has the right to keep his or her name or picture out of the news media. The newsworthiness or public affairs defense protects the right of the media to cover news about celebrities. What the right of publicity prevents is the unauthorized commercial exploitation of the celebrity’s name or like- ness (in advertising or product endorsements, for example).

The right of publicity is the oldest privacy right to be recognized by the law. The 1902 Roberson case, discussed in the section on the history of privacy, would be called a right of publicity case if it were decided today. The New York statutory privacy law that was enacted in response to the Roberson decision is fundamentally a right of publicity law—it protects a person’s name and likeness from unauthorized commercial exploitation.

In the years since that pioneering New York case, most states have recognized the right of publicity in some form, either by statute or court decision. The concept was given its contemporary name in a 1953 Second Circuit decision, Haelan Laboratories v. Topps Chewing Gum (202 F.2d 866, 1953). The case involved the right of baseball players to control the commercial use of their names and photos on baseball trading cards, and the court said:

...[I]n addition to an independent right of privacy ... a man has a right in the publicity value of his photograph, i.e., the right to grant the exclusive privilege of publishing his picture.... This right might be called a “right of publicity.”

A variety of state laws and court decisions have reiterated the point made in the Haelan case: no one may commercially exploit a person’s name, public persona, or likeness without consent. Various courts have said the right protects sports figures, entertainment celebrities, and even people who would be classified as public figures only because of their involvement in controversial public issues.

Celebrities and advertising. Nor does the right of publicity just protect a person’s name and likeness. A number of courts have ruled that the right extends to the commercial exploi- tation of other aspects of a celebrity’s public persona. A memorable illustration of this point is the 1983 federal appellate court decision in Carson v. Here’s Johnny Portable Toilets Inc., 698 F.2d 831). The case arose after Here’s Johnny Portable Toilets Inc. began marketing its prod- ucts in 1976. Entertainer Johnny Carson, longtime host of NBC’s Tonight Show, was intro- duced to viewers with the phrase “Here’s Johnny” from the time he became the host in 1962 until he retired 30 years later. Carson was obviously not amused when the toilet company

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not only called its product “Here’s Johnny” but also added the phrase, “the world’s foremost commodian.” Carson sued, alleging a violation of his right of publicity, among other things. Overruling a trial judge who had dismissed Carson’s lawsuit, the appellate court held that the use of “Here’s Johnny” as a brand name violated Carson’s right of publicity. The court emphasized that a person’s full name need not be used for the right of publicity to be violated, especially involving a celebrity as well known as Carson. Clearly, the phrase “here’s Johnny” was associated with Carson in the minds of millions of TV viewers. In fact, at one

point the company conceded that it was trying to capitalize on Carson’s reputation. In deciding the Here’s Johnny case in this way, the appellate court cited another case it had ruled on about 10 years earlier: Motschenbacher v. R. J. Reynolds Tobacco (498 F.2d 821, 1974). In that case, the court held that a race car driver’s right of publicity was violated by an advertisement in which R. J. Reynolds used a photo of his car, even though the driver’s face was not visible. The car’s markings were so distinctive that the car fell within the driver’s public persona, the court ruled. Thus, the right of publicity protects celebrities and others from the commercial use of far more than just their names and likenesses. Catch phrases and even tangible objects that are closely associated with a celebrity in the public mind may

be off limits to advertisers (unless permission is negotiated and paid for). However, there are limits to this rule. Another federal appellate court decision permitted a tire company ad to use actresses dressed in miniskirts and boots, a style that singer Nancy Sinatra had popularized, even though the advertisements also featured a revised version of “These Boots are Made for Walkin’,” one of her popular songs. In Sinatra v. Goodyear (435 F.2d 711), the court said it was clear that Nancy Sinatra was neither singing the song nor appearing on camera in the ad, which promoted Goodyear’s “Wide Boots” tires. The court said Sinatra’s right of publicity had therefore not been violated. (Note that the use of the song itself was not an issue. The advertiser had made arrangements with the copyright owner

for use of the song.) A similar question arose in a 1988 right of publicity case much like the Sinatra v. Good-

year case—but with a different result. In Midler v. Ford Motor Company (849 F.2d 460), singer- actress Bette Midler sued Ford and Young & Rubicam, Ford’s ad agency, for using a Midler sound-alike vocalist in advertising for the Mercury Sable. The ad agency asked Ula Hedwig, who was Midler’s backup singer for a decade, to sing a Midler hit song, “Do You Wanna Dance,” and to “sound as much as possible like the Bette Midler record.” Before employing Hedwig, the agency had asked Midler’s agent to have Midler sing—and was turned down.

Although the ad agency had obtained permission to use the copyrighted song, Midler contended that the recording sounded so much like her performance that many listeners would believe it was her. Citing Motschenbacher as a precedent, a federal appellate court said there were adequate grounds for Midler to pursue her lawsuit. Like the cigarette ad showing the race car driver’s auto, this ad campaign might lead many people to conclude that Midler was endorsing the product, the court said. The case was sent back to a trial court to assess damages; in 1989, a jury awarded Midler $400,000. The Supreme Court denied cert.

Why was this case decided differently than the Sinatra case? Perhaps the most significant reason was that there was more likelihood of the public being deceived into believing there was an endorsement by Midler. In reality, Midler was based on the idea that the impersonation itself was wrong; there was no actual misappropriation of Midler’s name, likeness or voice. However, there was no impersonation in the Sinatra case: it was obvious in the Goodyear ad

that Nancy Sinatra was neither on camera nor doing the singing—although the Goodyear ad used a song closely identified with Sinatra, just as the Ford ad did with Midler.

The Sinatra and Midler cases raise the question of how far an advertiser can go in using celebrity impersonations. Traditionally, the rule has been that celebrity imitations do not violate a celebrity’s right of publicity as long as the public is not deceived into thinking the celebrity is actually appearing in the ad or endorsing the product.

Advertisers have often relied on the phrase, “celebrity voice impersonated,” for protec- tion when they did sound-alike ads. However, the Midler decision led many advertising agency lawyers to believe that a disclaimer may not be enough. They are becoming especial- ly wary of celebrity impersonations—with or without a disclaimer—in the aftermath of an even bigger damage award to a celebrity in an impersonation case: more than $2 million. In Waits v. Frito-Lay (978 F.2d 1093, 1992), the Ninth Circuit upheld almost all of a $2.5 million jury verdict against the manufacturer of Doritos brand corn chips for doing commercials featuring a song made popular by singer Tom Waits, using a close imitation of his vocal style.

At about the same time as the Waits case, the Ninth Circuit also ruled that game show hostess Vanna White could sue Samsung Electronics and its advertising agency, David Deutsch, for ads featuring a blond robot wearing a gown and jewelry reminiscent of White’s on-air style, standing in front of a large game board. Although one judge dissented, arguing that there was little likelihood of the public mistaking a mechanical robot for Vanna White, the 2-1 majority ruled that this could be a wrongful commercial exploitation of White’s public persona and allowed her to go to trial (White v. Samsung, 971 F.2d 1395, 1992).

A Kozinski dissent. Samsung asked the Ninth Circuit to rehear the case en banc. That request was denied, but it gave one of the nation’s most quotable appellate judges, Alex Kozinski, a chance to issue a colorful opinion objecting to the court’s decision not to rehear the case. Kozinski blasted the court for its expansion of the right of publicity:

Something very dangerous is going on here.... Concerned about what it sees as a wrong done to Vanna White, the panel majority erects a property right of remarkable and dangerous breadth: Under the majority’s opinion, it’s now a tort for advertisers to remind the public of a celebrity. Not to use a celebrity’s name, voice, signature or likeness; not to imply the celebrity endorses a product; but simply to evoke the celebrity’s image in the public’s mind. This Orwellian notion withdraws far more from the public domain than prudence and common sense allow. ... It raises serious First Amendment problems. It’s bad law, and it deserves a long, hard second look.

Perhaps encouraged by Kozinski’s passionate arguments, Samsung appealed to the Supreme Court, but as in the Midler and Waits cases, the Court refused to hear an appeal of this case. White then took her case to trial, and in 1994 a jury awarded her $403,000 in damages, which Samsung and its ad agency agreed to pay instead of appealing again. In return, White agreed not to appeal for a chance to seek an even larger judgment.

Another similar dispute led to Wendt v. Host International (125 F.3d 806, 1997). George Wendt and John Ratzenberger, the actors who played Norm and Cliff in the “Cheers” televi- sion series, sued Host for placing animatronic robotic figures resembling them in airport bars modeled after the set of “Cheers.” They contended that the robots resembled them sufficiently to be a possible misappropriation, and a federal appellate court agreed, ruling

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that they had a right to take their case to trial. In a series of rulings, various courts held again and again that Host could be sued for invading the two actors’ right of publicity even though Host had purchased the right to depict the “Cheers” bar scene from Paramount Studios, the copyright owner. Eventually the U.S. Supreme Court refused to review this case, clearing the way for a trial. In 2001, Paramount and the actors settled under undis- closed terms.

Separate legal rights. In essence, the courts were saying in Wendt that a copyright and the right of publicity are separate legal rights: a copyright clearance does not give someone the right to depict the actors who appeared in the copyrighted show. To depict actual people without consent and for commercial gain is a violation of the right of publicity.

Although the Midler, Waits, Wendt and White cases were all federal cases, they were based primarily on California state law—either the statutory right of publicity in the California Civil Code or state common law principles. However, the recent trend toward courts refusing to allow celebrity impersonations in advertising began in New York. In 1984 a New York judge ruled that the use of a celebrity look-alike in an ad violated Jackie Onassis’ right of publicity, and he ordered an ad agency to stop using an Onassis look-alike to promote Christian Dior clothes. The judge issued this order without finding that anyone was actually deceived into thinking Onassis was appearing in the ad or endorsing the product.

Right of publicity cases still often come before the courts. In a 2012 case, General Motors was sued in California by Hebrew University of Jerusalem, recipient of famed physicist Albert Einstein’s “manuscripts, copyrights, publication rights, royalties and royalty agreements” for pasting Einstein’s head on the body of a muscled, topless model in an ad for a terrain vehi- cle, with the caption “Ideas are sexy too.” GM won, even though the court thought the ad “tasteless.” New Jersey courts had not formally ruled on how long a right of publicity should survive a person’s death, but in an earlier state case, a federal court in New Jersey (the state whose laws would govern here) had predicted that the right would last for 50 years after death (shorter than California’s, which lasts for 70). So, said the California federal court, under the 50-year limit, Einstein, who died in 1955, would no longer have rights of public- ity (Hebrew Univ. of Jerusalem v. Gen’l Motors LLC, 903 F. Supp. 2d 932). The court did wax rhapsodic on how important Einstein is to the American public, calling him “the symbol and embodiment of genius” and adding that his “persona should be freely available to those who seek to appropriate it as part of their own expression, even in tasteless ads.”

On the other hand, the Third Circuit gave athletes a win when it said that the First Amendment did not protect game company Electronic Arts from using the likenesses of athletes in its video games without licenses. In Hart v. Electronic Arts, Inc. (717 F.3d 141), the court said in this case of first impression, it needed to balance the First Amendment against the New Jersey right of publicity. Using a test of transformation usually used in copyright law, the court evaluated the use of Rutgers quarterback Ryan Hart’s likeness in the NCAA Football game. Hart and his avatar were very similar: “Not only does the digital avatar match Appellant in terms of hair color, hair style and skin tone, but the avatar’s accessories mimic those worn by [Hart] during his time as a Rutgers player.” This similarity, plus that of the gameplay, in which Hart plays football as he did in real life, was not transformative. Not even Electronic Arts’ attempt to introduce customizability (like changing hair colors and faces) was enough; the court noted that if it found that it were, “acts of blatant misappropriation would count for nothing so long as the larger work, on balance, contained highly creative elements in great abundance.”

These cases were all based on state law because the right of publicity is an area of state, not federal, law. There have been proposals for a federal right of publicity law, including one from the American Bar Association, but Congress has not acted on any of these proposals.

Misappropriation and the news

If celebrities have a right to prevent the unauthorized commercial use of their names and likenesses—and sometimes even the right to prevent advertisers from reminding the public of them (as Judge Kozinski put it)—where does that leave a journalist who wants to write news stories about the famous?

That is an important issue, and the answer is relatively clear: the right of publicity does not apply to news situations, even though the media are commercial enterprises. The print and broadcast media are free to use a person’s name and likeness whenever the situation creates newsworthiness—and the courts have tended to be very liberal in defining newswor- thiness for these purposes. Even if a news medium engages in advertising to promote itself and reproduces a photograph of someone famous that appeared in print or on the air, that advertisement does not usually fall within the right of publicity.

Implied endorsement. However, if a newspaper, magazine, or radio or TV station uses the name or photograph of a celebrity in a way that implies an endorsement, it is a different matter. Cher, the singer and actress, was involved in a case that illustrated this point in 1982.

In Cher v. Forum International (692 F.2d 634), Cher had granted an interview to a free- lance writer who hoped to write an article for Us magazine. The article was rejected by Us, and the writer then sold it to the publishers of two other magazines, Star and Forum. Both published it. Star carried the article with a headline that offended Cher. The headline read, “Exclusive Series ...Cher: My life, my husbands, and my many, many men.”

Cher disliked the idea that the interview ended up in Star instead of Us, and she disliked the headline even more. But what apparently offended Cher the most was that Forum not only ran the article but also used her name and likeness in advertising that implied she endorsed and read the magazine. One ad in the New York Daily News included Cher’s photo- graph and the words, “There are certain things that Cher won’t tell People and would never tell Us. She tells Forum.... So join Cher and Forum’s hundreds of thousands of other adventur- ous readers today.” What Forum did was to promote the article in a way that clearly implied an endorsement by Cher. Although Forum’s publication of the article itself did not violate Cher’s right of publicity, the advertising for it did, the court ruled in finding for Cher.

This case illustrates the principle that the media may freely publish stories about news- worthy people—but not advertisements that imply an endorsement—without violating their right of publicity. On the other hand, if the ad had promoted the story by saying something like “Read an interesting article about Cher in Forum,” it would probably have been safe.

The Montana and Cher v. Forum decisions were both based in part on the Booth Rule, an old principle of privacy law that says the media may use previously published newsworthy materials in later advertising of the publication itself as long as no endorsement is implied. This concept originated with Booth v. Curtis Publishing (182 N.E.2d 812), a 1962 New York Court of Appeals decision that allowed Holiday magazine to use a previously published photo of actress Shirley Booth in later advertising for the magazine.

A different legal issue was raised when the Coors brewery did advertising that included a drawing based on a news photograph of baseball star Don Newcombe pitching for the Brooklyn Dodgers in the 1949 World Series. The Ninth Circuit said Newcombe had the

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right to sue Coors and its ad agency for misappropriation (Newcombe v. Adolf Coors, 157 F.3d 686, 1998). A newspaper that published the photo in 1949 could republish it to advertise itself later, but others cannot. Newcombe objected to the use of his image in beer advertising because of his own acknowledged problems with alcoholism.

Another case that raised questions about the boundary between public affairs or news and commercial exploitation of a celebrity’s public persona arose soon after Arnold Schwarzenegger was elected California governor in 2003. An Ohio company that had made “bobblehead” dolls depicting various public officials, including George W. Bush, Bill Clinton, Hillary Rodham Clinton and John Kerry, started selling a doll featuring Schwarzenegger with a gun—an obvious reference to his most famous role in the Terminator movies. He sued, alleging a violation of his right of publicity. The product used his name and a photo from his days as an actor without consent. But the company’s defenders pointed out that when an actor becomes a public official, the rules change. An actor can prevent someone from using his or her name or image on a product without consent; a politician probably cannot. In the end, the lawsuit was settled with an agreement under which the company could sell bobblehead dolls depicting the California governor, but without the gun.

Although this is unusual, a celebrity won a lawsuit stemming from news coverage in a 1997 case, Eastwood v. National Enquirer (123 F.3d 1249): the Ninth Circuit upheld a large damage award won by actor Clint Eastwood against the National Enquirer for merely publish- ing an article about him when he had not submitted to an interview with that publication. On its face, this seemed very similar to the case Cher lost against the Star. The National Enquirer billed the story as “exclusive” when in fact it had appeared earlier in a British tabloid, but the Enquirer pointed out that it had purchased exclusive U.S. rights to the story from the British author. Eastwood objected to the implication that he would grant an exclusive interview to the Enquirer (just as Cher did when she sued the Star), but Eastwood won $150,000 in damag- es, plus at least $650,000 in attorney’s fees. Eastwood claimed that the purported interview never occurred at all, and that his quotes were fabricated by a British journalist (and then reprinted in the Enquirer). Eastwood apparently prevailed because the court thought calling the story “exclusive” was a misappropriation of his name (an argument that the court did not accept in Cher’s case). The only real difference between the Cher and Eastwood cases may be the fact that Cher admitted being interviewed by the writer of the article, while Eastwood denied even sitting for an interview. But both publications claimed they had an “exclusive” story when the celebrity never agreed to be interviewed by that publication.

Perhaps the best conclusion here is that anyone can write and publish an article about Cher or Clint Eastwood (or reprint someone else’s article with permission of the copyright owner), but saying it’s “exclusive” is dangerous—sometimes. And don’t even consider using the celebrity’s name in an advertisement that implies an endorsement of the publication— that goes beyond what the Booth Rule allows. Virtually every other form of commercial advertising (as opposed to news coverage) falls within the restrictions of the right of public- ity. In most advertising, you cannot include photographs of recognizable people, be they famous or unknown, unless you get their consent. This rule applies equally to advertising in the print and electronic media: you can be sued if you use a street scene in a television ad without getting the consent of everyone recognizable on the street.

Digital photo alteration. May a magazine digitally alter a photo? Actor Dustin Hoffman won a $3 million jury verdict against Los Angeles Magazine in 1999 after the magazine used a digitally altered photo of Hoffman’s head superimposed on a model in a designer dress. The

jury concluded that the magazine’s use of Hoffman’s image was commercial misappropriation, not news coverage, even though it was one of a series of digitally altered photos depicting celebrities in modern, fashionable attire. In 2001 the Ninth Circuit reversed the jury verdict, holding that the magazine had a First Amend- ment right to publish the altered photograph of Hoffman as news, particularly because he made Tootsie, a movie in which his charac- ter cross-dresses (Hoffman v. Capital Cities/ABC, 255 F.3d 1180).

The right of publicity also applies to the entertainment media. When someone produces a motion picture, all of the people appearing on the screen who are recognizable must give their consent—which is why producers commonly use “extras” who are on the payroll instead of just photographing anyone who happens to be walking past for use in scenes showing public places. These rules do not apply, of course, to most news and public affairs productions. Nor do they ordinarily prevent accurate portrayals of newsworthy persons in docudramas based on news events. But in movies produced for entertainment purposes, the unauthorized use of a person’s likeness invites a lawsuit.

Life stories and docudramas. Nonetheless, major television networks routinely broadcast docudramas without obtaining the consent of every single person depicted. Where the story is based on facts that have already been reported by the news media, there is little risk of a successful right of publicity lawsuit by anyone who was involved in the story. This is especially true where the facts are in the public record (in court documents, for example).

A noteworthy 1994 federal court decision reaffirmed the right of authors and motion picture producers to tell a person’s life story without violating that person’s right of publicity. In Matthews v. Wozencraft (15 F.3d 432), the Fifth Circuit upheld the right of author Kim Wozencraft to use a character based on her ex-husband and fellow police officer Creig Matthews in her book, Rush. Their story received extensive media publicity: they served as under- cover narcotics officers in Texas, became romantically involved, used marijuana and cocaine themselves (but later denied it under oath), and falsified evidence to win a drug conviction. They eventu- ally served time in federal prison and were divorced.

Wozencraft later earned a master’s degree at Columbia Univer- sity and published Rush, based on their life stories. She eventually sold the movie rights to Rush for $1 million and Matthews sued, alleging that she violated his right of publicity by using his life story without permission. The court held that a person’s life story does not fall within Texas’ right of publicity and affirmed a lower court dismissal of Matthews’ lawsuit. It also held that Wozencraft had a First Amendment right to publish a book about these events with- out Matthews’ consent.

right of publicity:

a form of the misap- propriation tort that permits individuals to control the commer- cial aspects of their names and likenesses; protected differently state by state.

Booth rule:

the media may use previously published newsworthy materials in later advertising of the publication itself as long as no endorse- ment is implied.

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But, the Eleventh Circuit said, there must actually be a news story to qualify for protec- tion. That court found a right to privacy in old nude images of a dead woman. Professional wrestler Chris Benoit killed his wife, Nancy, and their son, and then killed himself in 2007. Hustler magazine published stills from a nude video that Nancy had made 20 years earli- er, accompanying an article on the deaths. Nancy’s mother, Maureen Toffoloni, brought a claim based on her daughter’s right of publicity. The trial court dismissed the claim, saying that the images were newsworthy. The Eleventh Circuit disagreed (Toffoloni v. LFP Publish- ing Group, 572 F.3d 1201, 2009). Asking “whether a brief biographical piece can ratchet otherwise protected, personal photographs into the newsworthiness exception,” the court answered no, saying the article was “incidental” to the photos. In 2011, a federal judge reduced Hustler’s penalty to $375,000, down from nearly $20 million awarded by a jury.

The Supreme Court case. On the other hand, even a news presentation may lead to a lawsuit for invasion of the right of publicity under some circumstances. An excellent exam- ple is a case that produced a U.S. Supreme Court decision—the only one to date dealing with the right of publicity. The case was Zacchini v. Scripps-Howard Broadcasting (433 U.S. 562, 1977), and it involved Hugo Zacchini, who called himself “the human cannonball” and had an “act” in which he was shot from a cannon into a net at fairs and other exhibitions. His entire “act” was filmed and broadcast as news by Scripps-Howard Broadcasting despite his objections to the filming. He sued for invasion of his right of publicity under Ohio law, but the state supreme court said the First Amendment precluded any recovery by Zacchini because the newscast covered a matter of “legitimate public interest.”

However, in 1977 the U.S. Supreme Court modified the Ohio ruling by declaring that the First Amendment did not protect a broadcaster who took a performer’s entire act and showed it without consent as news. The Court didn’t rule that Zacchini’s rights had neces- sarily been invaded: that was a matter for Ohio state courts to decide. But the high court did say that Scripps-Howard was not constitutionally exempt from being sued if the state courts cared to entertain such a suit. The case was returned to the Ohio courts, and Zacchini won. To deny him a right to sue when his entire act was broadcast without his consent would deny him the economic value of his performance, the state court said. The Zacchini decision is troubling to many journalists, particularly because it seems to suggest that other people whose ability to earn money is somehow damaged by a news story could also sue.

There is obviously a fine line between news coverage of a celebrity’s activities and the commercial exploitation of the person’s name and likeness. Normally the courts give the news media considerable leeway in this area, but the rule is different in a situation such as the Zacchini case where all or most of a performer’s act is broadcast without consent.

Copyright vs. right of publicity. The test of what is improper commercial exploitation versus legitimate news coverage is somewhat like the test used to determine what is a fair use under copyright law (discussed in Chapter Six). Thus, a purported news story or broad- cast that seriously impairs a celebrity’s ability to make a profit by exercising his/her right of publicity is less likely to be considered proper than one using only a small portion of a performance and having little effect on the celebrity’s profit.

Even news coverage of people who aren’t celebrities sometimes produces right of public- ity lawsuits. A number of people whose photographs have been used in newspapers and news programs without their consent have sued for an alleged invasion of their right of public- ity, but they have almost always lost in court if the photograph was taken in a public place and the use was even minimally newsworthy. The news media clearly have the right to use

people’s names and show their likenesses in covering the news—without violating anyone’s right of publicity. Of course, there is still the danger that the combination of a photograph and text matter may place someone in a false light. If that happens, a false light invasion of privacy lawsuit may result, even though there may be no basis for a right of publicity lawsuit.

One more question that often arises is whether an artist may sell products featuring a rendering of a celebrity—on T-shirts, for example. In 2001 the California Supreme Court ruled against an artist who sold T-shirts bearing his sketch of the Three Stooges. The court unanimously ruled that the sketches were far more “imitative” than “creative,” and there- fore a violation of the comedy trio’s heirs’ rights. Artist Gary Saderup’s “undeniable skill is manifestly subordinated to the overall goal of creating literal, conventional depictions of The Three Stooges so as to exploit their fame,” the court wrote, rejecting the artist’s claim of a First Amendment right to draw (and sell) sketches of celebrities (Comedy III Productions v. Gary Saderup Inc., 25 C.4th 387). On the other hand, the California Supreme Court reached the opposite conclusion in a 2003 case, upholding the right of a comic book publisher to do cartoons that were caricatures of musicians Johnny and Edgar Winter. The comic miniseries, published by DC Comics, featured characters named Johnny and Edgar Autumn. The court said these were “fanciful, creative characters, not pictures of the Winter brothers,” ruling that the depictions had transformative value lacking in Saderup’s depictions of the Three Stooges (Winter v. DC Comics, 30 C.4th 881). Thus, the commercial use of a photograph or other almost-literal image of a celebrity is more likely to be a violation of the right of public- ity than a depiction that adds transformative value to the image.

A Personal or Property Right?

One unsettled point about the right of publicity is whether it is a personal right or an inheritable property right. Courts in various regions of the United States have taken conflict- ing positions on this question.

In a widely noted case involving Bela Lugosi, the star of the original Dracula film, the California Supreme Court ruled that the right is a personal right and dies with the person. In the 1979 case, Lugosi v. Universal Pictures (25 C.3d 813), the court had to mediate a long- standing dispute between Universal and the widow and son of the late actor. The Lugosis contended that Universal was violating their inherited publicity rights by marketing T-shirts and other “Dracula” souvenirs using the actor’s likeness after his death. The state supreme court said they had no right to sue, because the right of publicity could not be inherited. Even if a person builds a business marketing his name or likeness during his lifetime, the court said the most his heirs could inherit would be monies from the use of his name or likeness during his lifetime—not the right to control his right of publicity after his death. The California state legislature later passed the Celebrity Rights Act, a law giving the heirs of deceased celebrities the right to profit from the commercial use of their names and like- nesses for 50 years (later extended to 70 years) after their deaths. That law effectively over- turned Lugosi and made the right of publicity a fully inheritable property right in California.

The death of an even more famous celebrity, rock-n-roll musician Elvis Presley, produced conflicting federal appellate court decisions. Almost as soon as Presley died, unauthorized commercial exploitation of his name and likeness began. In a 1978 decision (Factors v. Pro Arts, 579 F.2d 215), the Second Circuit ruled that Presley’s right of publicity was a property right and survived his death. Moreover, the court said that the right could be transferred to a business, which could maintain its exclusive right to exploit Presley’s name after his death.

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Defenses to invasion of privacy:

newsworthiness: a claim that a story or image is newsworthy is excel- lent for private facts cases because judges interpret the defense broadly.

plain view: information gathered in plain view in a public place is usually protected from intrusion claims.

consent: permission for the publication of the material, best if written.

truth: may eliminate an actual malice finding in a false light claim.

However, two years later another federal circuit court ruled in just the opposite way regarding Elvis Presley. The Sixth Circuit ruled, in Memphis Development Foundation v. Factors (616 F.2d 956, 1980), that Presley’s right of publicity did not survive his death. Thus, the court said Factors did not have an exclusive right to exploit the rock and roll star’s name and likeness. At issue was the foundation’s right to sell $25 pewter replicas of a statue of Presley it planned to erect in Memphis. The court said, “After death, the opportunity for gain shifts to the public domain, where it is equally open to all.”

Further confusing matters, after the Memphis Development Foun- dation decision was published, the court that decided the case (the Second Circuit) reversed itself. In a 1981 ruling (Factors v. Pro Arts, 652 F.2d 278), the court followed the Sixth Circuit’s lead, conclud- ing that Presley’s right of publicity did not survive his death. The Second Circuit made this abrupt switch because it felt obligated to follow the law of Tennessee, Presley’s home state, as it had been interpreted by a court in that region (the Sixth Circuit).

The Factors decision did not settle the matter: Tennessee and several other states joined California in enacting statutory laws forbidding the unauthorized commercial exploitation of a deceased celebrity’s name or likeness for 50 years or longer. In Indiana, celebrities’ publicity rights are protected for 100 years. In Tennessee, the law has no cutoff date, giving the owners of Presley’s right of publicity the exclusive right to exploit his name and like- ness in perpetuity. New York, on the other hand, refused to recog- nize that the right of publicity extends beyond a celebrity’s lifetime, although legislation that was proposed in 2007 would change that. California’s right of publicity law was amended in 2007 to extend its coverage retroactively to celebrities who died as early as 1915, giving their heirs the right to control and profit from the use of their public personas for 70 years after their deaths.

Copyright is always a property right. The court decisions and laws governing the inheritability of the right of publicity do not affect the copyright on a celebrity’s recordings or motion pictures. As the next chapter explains, copyrights are always property rights rather than personal rights, and they do not terminate at the artist’s death. Only the inheritability of the right of publicity, not that of copyrights, is at issue here.

Another difference between copyrights and the right of publicity is that the latter does not extend to non-residents, at least under the California law. That became clear when a charity trust fund estab- lished to control uses of the late Princess Diana’s public persona tried to stop the Franklin Mint from selling a Princess Di commem- orative doll. The Ninth Circuit held that the trust fund could not prevent the sale of the dolls, in part because the trust fund is based in Great Britain (Cairns v. Franklin Mint, 292 F.3d 1139, 2002).

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PRIVACY DEFENSES

Throughout this chapter we have repeatedly talked about the legal defenses available to the media in various kinds of privacy cases, but in the interest of completeness we should separately reiterate them here.

Newsworthiness. In most cases where the media are defendants, the best defense is news- worthiness, often called public affairs or public interest. If it is possible to convince a court that a given story, broadcast, or photograph is newsworthy, the plaintiff will not win a private facts lawsuit. The trend just about everywhere is for the courts to define newsworthiness liberally, recognizing that even sensational reporting is permissible as long as it is not inaccurate. Therefore, the media do not often lose private facts cases, although the cost of defending a lawsuit alone may deter coverage of some kinds of stories.

Truth. However, if there are inaccuracies, it is a different matter. False light privacy cases against the media are more often successful, with the constitutional standards first estab- lished in libel cases sometimes used to evaluate the media’s conduct. The Supreme Court created a limited First Amendment defense for false light privacy cases in Time Inc. v. Hill. That defense protects the media from false light privacy suits for non-malicious but errone- ous publications involving matters of public interest. If a journalist has not been guilty of actual malice, a person involved in a newsworthy event has little chance of winning a false light privacy suit. If, on the other hand, there has been wrongful conduct by the media, plaintiffs fare about as well in false light privacy cases as in libel cases.

Plain view. In intrusion cases, the inquiry focuses on the conduct of the media when a court tries to decide if someone’s right of privacy has been invaded. The newsworthiness of a story is not a defense for unscrupulous reporting methods. A journalist who resorts to unlawful acts in getting a story (or otherwise intrudes upon some-one’s right to be let alone) may face a privacy lawsuit. The use of telephoto lenses, boom microphones and other enhancing technology can lead to intrusion lawsuits in some states. The fact that someone or something is in plain view of a public place is generally a valid defense, although sometimes the use of image or sound enhancement technology may offset that defense.

Consent. In areas other than news-editorial journalism, the best (and often the only) privacy defense is consent. Persons who consent to a use of their names or likenesses have no recourse when the use to which they consented occurs. But even then, there are a few legal technicalities about consent. First, the consent must be legally enforceable, and that means there must be a contract that complies with the formalities of contract law. The person who enters the contract must be of age, and the contract must be supported by some form of consideration. Consideration is often thought of as another way of saying money, but it can be other things, even intangibles. Any time the person who is giving the right to use his or her likeness commercially gets something of value in return, that is consideration enough. For instance, photo release forms are one of the most common kinds of contracts granting consent, and they sometimes simply say that the person posing gives his or her consent for publication of a picture in return for the free publicity that may result. Publicity is a valid form of consideration.

To be valid, the consent must be voluntarily entered into. And it must be given in a manner that lends itself to proof in court, if necessary. For that reason, a written consent is much better than an oral one, and infinitely better than the implied consent a photographer tries to establish when he says, “...but he posed willingly.”

232 The Right of Privacy

Another caution is that the consent must be all-encompassing enough to apply to all situ- ations in which a person’s name/likeness is likely to be used. A consent for one commercial use may not imply any consent for subsequent uses of the same photograph. And a consent to use a picture at one time may not be a consent to use it later. All these problems are contract law problems, and the solution lies in writing a contract that leaves no loopholes.

Public records. In addition to the newsworthiness and consent defenses, the Supreme Court has, in effect, created another separate constitutional defense for publication of infor- mation lawfully obtained from court records. The Cox Broadcasting v. Cohn and Florida Star v. B.J.F. decisions included language assuring the media’s right to report information lawfully obtained from court records and possibly other public records. That right may not include a right to report on rehabilitated criminals’ past activities—additional decisions are needed to clarify that issue—but in other respects the right to report the contents of lawfully obtained court records appears to be firmly entrenched.

These, then, are the major defenses in privacy law. Because they differ somewhat from the defenses in libel cases, it is possible to publish something that is safe from a libel stand- point but risky under privacy law (or vice versa). In evaluating stories that may defame or embarrass someone, you should keep that point in mind. Once you have analyzed any sort of material that you plan to publish or broadcast for potential libel and concluded it is safe, you must also run through the possible invasion of privacy problems.

THE INTERNET AND PRIVACY

Perhaps no technical advance of the twentieth and twenty-first centuries created greater concern about personal privacy than the explosive growth of personal computer technolo- gy—and especially the Internet. Internet privacy has become a major national issue. This led to legislation and calls for legislation in many places. Certain aspects of this question involve the privacy issues of the sort addressed in this chapter, including legislation to protect the public from hackers and unscrupulous data-gatherers and the legal questions surrounding the use of people’s names and images on the Internet without consent.

Internet Privacy: MySpace, Facebook and Social networking Sites

As the popularity of social networking sites like MySpace, Facebook, YouTube and Twit- ter continues to rise, the courts are regularly being asked to address questions of how infor- mation on those sites is protected, managed, and used. These sites are facing privacy lawsuits and outrage from privacy advocates. A 2009 report by two computer scientists found that online social networks (OSNs) “leak” private information; the report said that “most users on OSNs are vulnerable to having their OSN identity information linked with tracking cook- ies. Unless an OSN user is aware of this leakage and has taken preventive measures, it is currently trivial to access the user’s OSN page using the ID information.”

In 2010, Facebook faced two possible class-action lawsuits alleging it disclosed personal information like real names, schools and friends lists to advertisers. Facebook had said that it revised its code so that personal information in profile tags is no longer sent to advertisers. The social network had already revised its privacy rules once in May 2010, providing new settings to control what information is seen by whom. The Federal Trade Commission has been very active in privacy issues in the past few years. In perhaps the highest profile of these cases, data broker Spokeo settled with the FTC for $800,000 for data privacy allegations (the case is discussed in Chapter Thirteen).

In 2011, Facebook settled charges with the agency that it had made user information public that it had promised to keep private, agreeing, among other things, to 20 years of privacy audits. In 2012, the company also agreed to pay $10 million and make changes to its terms to settle a lawsuit alleging that its “Sponsored Stories” feature violates members’ rights of publicity. Now the site’s policies state that members’ names and likenesses could be used as sponsored stories, as well as provide users with options regarding this use and obtain parental permission to use minors’ information in this way.

Privacy on social media sites. Are social networking sites private or public? In 2009, a California appeals court said that MySpace is more like a bulletin board than a private room, at least if the individual page is set to be public. College student Cynthia Moreno posted a hostile “ode” to her hometown of Coalinga, Calif., on her MySpace page. The high school principal in Coalinga saw the ode and sent it to the editor of the local paper, the Coalinga Record, who published it as a letter to the editor with Moreno’s full name. Moreno’s family, still living in Coalinga, received the brunt of the community’s ire; their home was shot at and they had to close the 20-year-old family business. In Moreno v. Hanford Sentinel Inc. (172 Cal. App. 4th 1125), the court considered whether Moreno had a cause of action for publication of private facts and intentional infliction of emotional distress.

The court said that the posting on MySpace was not private; anyone could see it, and Moreno had her picture and first name on her profile, so her identity was not private, either. Nor did Moreno’s family have a cause of action because privacy rights are personal rights. The court did say that a jury should decide whether there was intentional infliction of emotional distress and remanded the case for consideration.

The Stored Communications Act makes it a crime for anyone who “intentionally access- es without authorization a facility through which an electronic communication service is provided” or “intentionally exceeds an authorization to access that facility,” and by doing so “obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system.” Employees of a New Jersey restaurant who were fired after supervisors saw their MySpace “gripe group” page venting about the workplace brought suit in Pietrylo v. Hillstone Restaurant Group (29 I.E.R. Cas. 1438, 2009). The supervi- sor got the password to the group from another employee who said she gave it up because she was afraid of being fired. The fired employees alleged that their participation in the gripe group was private and that their employer violated the Stored Communications Act by accessing the invitation-only group. Hillstone’s motion for summary judgment was denied. A jury found that Hillstone managers violated the Stored Communications Act by intention- ally accessing the MySpace gripe group without authorization. But the managers prevailed on the privacy claims, as the jury said that the employees had no reasonable expectation of privacy in the MySpace group.

In 2011, Twitter settled with the Federal Trade Commission a privacy complaint alleging that the micro-blogging site had lied to its users and put their privacy at risks by failures to protect their privacy personal information. The FTC claimed that lax e-mail and account security procedures at Twitter allowed hackers to break in and send out false tweets between January and May 2009. The settlement ordered Twitter to create and maintain a compre- hensive security system that will be audited regularly. Google also settled with the FTC in 2011 over allegations that its social networking tool, Buzz, violated privacy policies by using information provided by users in their use of Gmail accounts for another purpose, social networking through Buzz, without getting permission to do so. Google must create and implement a privacy policy and be audited.

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A defunct Facebook app, Beacon, which would notify a user’s friends of transactions made on third-part websites but without asking users to agree to participate, cost the social network $9.5 million in 2013. One of the plaintiffs who objected to the class action settle- ment appealed to the Supreme Court after the Ninth Circuit approved the settlement, and the Court denied cert (Marek v. Lane, 134 S. Ct. 8). However, Chief Justice John Roberts issued a statement on the allocation of the settlement money. He wrote, “And while Face- book also agreed to pay $9.5 million, the parties allocated that fund in an unusual way. Plain- tiffs’ counsel were awarded nearly a quarter of the fund in fees and costs, while the named plaintiffs received modest incentive payments. The unnamed class members, by contrast, received no damages from the remaining $6.5 million.” This is called a cy pres remedy (from the French, “so near/close”), and Roberts expressed concern that these kinds of awards are becoming common in class action suits, with the large number of class members receiving little or no compensation and the money going into funds or foundations—often managed by the settler. Roberts agreed with the denial of cert but said that it may be necessary for the Court to examine future cy pres arrangements.

Employee passwords. In 2012, Maryland became the first state to pass a law that forbids employers to demand the passwords for their employees’ social network sites. The Maryland law reads in part: “An employer may not request or require that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service through an electronic communications device.” Nor can an employer refuse to hire a poten- tial employee because the applicant refuses to turn over passwords.

In 2014 Louisiana, Oklahoma, Tennessee and Wisconsin passed laws to restrict employer access to employee social media accounts, according to the National Conference of State Legislatures. (Maine and Vermont have authorized studies.) These states join California, Delaware, Illinois, Maryland, Michigan and New Jersey (all in 2012) and Arkansas, Colo- rado, Nevada, New Jersey, New Mexico, Oregon, Utah, and Washington (in 2013) in the protection of employee social media from the eyes of employers.

States are becoming more aggressive in pursuing sex offenders on social networks as well. Louisiana passed a law, effective in 2012, that all sex offenders must post that status on their Facebook profiles (Facebook already forbids sex offenders to use the site in its Terms of Service). An earlier version of the law forbidding nearly all Internet access by sex offenders was struck down by a federal judge. It remains to be seen if this new version will be constitutional.

Internet Privacy: Protecting Children—and Adults

Responding to concerns expressed by many parents and community groups, Congress passed the 1998 Children’s Online Privacy Protection Act (COPPA) to limit the collection of information from children under age 13 without parental consent. (This law should not be confused with the Child Online Protection Act (COPA), a different 1998 law intended to curtail access to adult materials by minors. That law is discussed in Chapter Ten.)

COPPA limits the ability of children under 13 to have e-mail accounts without parental consent, and it requires those who gather data to deal with parents before dealing with their children. A website cannot simply have children fill in personal information on an elec- tronic form and then click “send” when they’re finished. The act includes federal preemption: states may not enact conflicting laws governing the collection of information from children. Websites that collect personal information about children must post their privacy policies

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prominently. The law also includes provisions for self-regulation by industry groups that develop their own programs to protect children’s privacy. The Federal Trade Commission is charged with supervising and approving these self-regulation programs. In 1999, the FTC adopted regulations to implement this law.

A company that operated virtual worlds for children agreed to pay a fine of $3 million to the FTC in 2011 to settle charges that they violated COPPA by illegally collecting information about children under 13 without parental consent—the largest penalty to date under COPPA. Playdom, Inc. operated a number of chil- dren’s sites, including one called “Pony Stars” on which the FTC said 821,000 children registered to play.

The FTC proposed updates to COPPA, and the final amend- ments, set to go into effect on July 1, 2013, include, among other changes, a modification in the list of “personal information” that cannot be collected without parental notice and consent; stream- lined, voluntary and transparent approval processes for companies to get parental consent; closing of a loophole in apps and websites that allowed personal information to be sent through plug-ins; inclusion of “persistent identifiers” that can recognize users over time and across websites; and stronger data security provisions.

New adult privacy issues. The FTC issued the final version of a new privacy report in March 2012. Titled “Protecting Consumer Privacy in an Era of Rapid Change,” it includes a number of recom- mendations for both online and “brick-and-mortar” businesses. Some things the report recommends:

• regulations that extend to “all commercial entities that collect or use consumer data that can be reasonably linked to a specific consumer, computer, or other device;”

• “privacy by design,” meaning that companies need to incorporate principles of privacy into all their baseline practices;

• companies should limit their gathering of informa- tion using mobile devices and geolocation data, regularly purging unnecessary information from their records and to give consumers a choice before collecting “sensitive data” (defined as data about children, health, finances, Social Security numbers, and some geolocation data);

• development of “Do Not Track” mechanisms to let consumers opt out of online tracking; and

• consumers’ ability to affirmatively consent (or “opt in”) to material changes to privacy regulations and transparency in companies’ data practices.

Focus on... E-mail privacy

People are starting to understand that e-mail is neither completely private nor secure. The Electronic Freedom Foundation, an organization that has advocated for free speech and privacy online since 1990, has a few recom- mendations to keep e-mail communica- tions safe and clean.

* Use a secondary or “side” e-mail account for posting in chat rooms, mailing lists and newsgroups, and keep your “main” account for trusted contacts.

* Don’t reply to spammers for any reason; this tells them that the e-mail is “live,” and your address may well

be sold to other spammers.

* Avoid sending highly personal e-mails to mailing lists, and keep your private business on your private home computer.

For more tips and other information about online security and e-mail, check out www.eff.org.

236 The Right of Privacy

In 2012, the agency also held an open meeting to consider revisions and updates to its 2005 guidance document, “Dot Com Disclosures,” on advertising and privacy issues online. The new report is discussed in Chapter Thirteen.

Although the United States has not enacted a comprehensive Internet privacy law, the European Union has done so—and placed U.S. corporations in the position of having to comply with European standards if they wish to do business in Europe. The EU law requires member countries to implement data-protection standards to prevent the inappropriate use of personal information obtained over the Internet. In 2008 an EU privacy panel decided search-engine providers, including Google, Yahoo and Microsoft, must reduce the time they keep search records to six months from 18 months in most cases.

In 2010, the Fourth Circuit held that someone posting child pornography has no reason- able expectation of privacy from the FBI seeking personal information from his ISP (U.S. v. Bynum, 604 F.3d 161). Marques Bynum was observed by an FBI undercover agent to be uploading child pornography in an online chat group. The agent subpoenaed Yahoo! for Bynum’s subscriber information and used that to obtain a search warrant for his home, where more child pornography was found. The Fourth Circuit said when Bynum “voluntari- ly conveyed all this information to his internet and phone companies” he “assumed the risk that th[os]e compan[ies] would reveal [that information] to police.” The court added that “[e]very federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment’s privacy expectation.”

Focus on... “Pulling plug on privacy”

That’s the title of a 2011 essay by Alex Kozinski, former chief judge of the Ninth Circuit, well known for his quotable decisions. He and one of his law clerks, Stepha- nie Grace, wrote a eulogy for privacy on The Daily, an iPad-only magazine.

The judge and his clerk blame all of us for the death of the Fourth Amendment, the amendment that guards against unreasonable searches and seizures, as we gave up little bits of our privacy for convenience and

a few pennies saved: “It started with the supermarket loyalty programs. They seemed innocuous enough—you just scribble down your name, number and address in exchange for a plastic card and a discount on Oreos. The problem, at least constitutionally speaking, is that the Fourth Amendment protects only what we reasonably expect to keep private.” Thus, say Kozinski and Grace, we’ve forfeited our expectations of privacy by giving away so much of it.

The eulogy concludes: “With so little left private, the Fourth Amendment is all but obsolete. Where police officers once needed a warrant to search your bookshelf for ‘Atlas Shrugged,’ they can now simply ask Amazon.com if you bought it. ... Someday soon we’ll realize that we’ve lost everything we once cherished as private. And as we grieve the loss of the Fourth Amendment, we’ll be forced to look deep in our hearts—and at the little pieces of plastic dangling from our keychains—and ask ourselves if it was all worth it. R.I.P.”

FIG. 33. Customer loyalty cards.

Public domain image by Mattes, via Wikimedia Commons.

California passed a law that went into effect in 2014 that requires websites to disclose all their privacy practices, including how a site “responds to Web browser ‘do not track’ signals or other mechanisms that provide consumers the ability to exercise choice regarding the collection of personally identifiable information about an individual consumer’s online activities over time and across third-party Web sites or online services.”

Internet Privacy: E-mail and Text Messages

Other controversial aspects of Internet privacy concerns the interception and review of e-mail or other electronic communications and surreptitious monitoring of closed discus- sion groups, often by an employer. Employers have defeated challenges to the practice of monitoring e-mail that passes through a corporate server, and in 2010 the Supreme Court said employees’ text messages can be monitored for legitimate work purposes.

Both government and private employers often monitor e-mail, and there is little that employees can do about it, aside from using an outside e-mail server to avoid having their messages read by supervisors. Even if an employer provides a computer to an employee for home use, but with the provision that it is to be used for company business only, the employee has no reasonable expectation of privacy that would prevent the employer from getting a court order to examine files on that computer (TBG Insurance Services v. Superior Court, 96 C.A.4th 443, 2002).

The Supreme Court in 2010 said that if an employer monitors employees’ communica- tions on company equipment pursuant to legitimate work-related concerns, those commu- nications are not private. At issue were sexually explicit text messages sent by a SWAT team member on his city pager. The Ninth Circuit ruled that the Fourth Amendment’s ban on unreasonable searches and seizures protects employees from searches of their e-mail and text messages that are handled by an outside provider, not an in-house system. That court declined to hear the case en banc, but the Supreme Court granted cert—and disagreed.

In City of Ontario v. Quon (560 U.S. 746), the Court said that the search of the text messages was reasonable. Justice Anthony Kennedy, writing for the Court, said that the department’s policy made it clear that the text messages were not private. Kennedy did, however, acknowledge that new technologies suggest the need for a new examination of how companies deal with unofficial uses.

Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own.

Justice Antonin Scalia concurred but took Kennedy to task for suggesting that new tech- nologies require new legal interpretations: “The Court’s implication...that where elec- tronic privacy is concerned we should decide less than we otherwise would...or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions— is in my view indefensible. The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.”

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The federal Electronic Communications Privacy Act was at the center of another contro- versy in 2006, when USA TODAY and other news media reported that several of the largest telephone companies had handed over telephone and e-mail records of millions of Ameri- cans to the National Security Agency, in violation of the ECPA’s ban on such disclosures. Not only was calling information given to federal investigators, but the content of telephone calls and e-mail was apparently monitored by the federal government on a massive scale without court authorization. The Electronic Frontier Foundation and others sued over this contro- versial and seemingly unlawful government surveillance. Some defended the surveillance as necessary to fight terrorism—and said revealing that the monitoring program even existed was a crime by journalists. Others said domestic surveillance on this scale is a fundamental violation of American civil liberties. This issue is also discussed in Chapter Two.

The California Supreme Court in 2003 ruled that Intel Corp. could not use a trespass rationale to prevent a former employee from sending e-mail messages hostile to the compa- ny to current employees at work, upholding his free expression rights (Intel. Corp. v. Hamidi, 30 C.4th 1342). The court held that the company would have a case for trespassing only if the e-mail in some way damaged the company’s computer system.

The Eleventh Circuit supported a very limited view of e-mail privacy when it held that e-mails sent to and received by a third party result in the expectation of privacy being lost (Rehberg v. Paulk, 598 F.3d 1268, 2010). Investigators used a state subpoena to an Internet service provider to access Charles Rehberg’s e-mails. The court said that “Rehberg’s volun- tary delivery of emails to third parties constituted a voluntary relinquishment of the right to privacy in that information.” In 2011, the U.S. Supreme Court granted cert to address a different question: whether a government official can be sued for causing someone to be wrongly prosecuted by giving false testimony to a grand jury. The Court unanimously ruled in 2012 that a witness in a grand jury proceeding is entitled to the same absolute immunity as a witness who testifies at a trial (Rehburg v. Paulk, 132 S. Ct. 1497).

Misappropriation and the Internet

As the Internet has become a pervasive medium of communication, many questions have arisen concerning the unauthorized use of the names and images of celebrities and sometimes others. This question has led to many lawsuits but few precedent-setting appel- late court decisions. In one of the first cases to be resolved, television actress Alyssa Milano won a $238,000 default judgment against a Minnesota man and got several other website operators to pay undisclosed settlements for posting nude photographs of her. In a series of lawsuits, she accused website operators of violating her right of publicity, claiming that they were making thousands of dollars a month in access fees paid by users to view their websites.

As explained earlier, the news media have a First Amendment right to use the name and image of anyone, including private persons as well as celebrities. This is true regardless of wheth- er the news medium is delivered to the public at no charge, as is broadcast television, or sold, as are newspapers and magazines. The mere fact that a fee is charged for a newspaper or maga- zine (or access to a website) does not automatically make its use of someone’s name or image a commercial misappropriation. But there have been many lawsuits that questioned where the boundary should be drawn between coverage of the news and commercial misappropriation.

At this point, the few courts that have addressed the unauthorized use of someone’s name or likeness on the Internet have generally found the uses to be misappropriations, not journalistic uses. However, it remains clear that news coverage is not a form of misappropria-

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tion. Where a website is clearly engaged in covering the news, it can use celebrities’ (and other people’s) names and images without permission. If a website is not covering the news, its owner can be sued for the unauthorized use of peoples’ names or images.

Still another factor that must be considered when images are posted on a website is copyright ownership, which is discussed in the next chapter. It may not be a misappropriation to publish someone’s picture on the Internet in a journalistic context. But whoever owns the copyright to the picture may sue for copyright infringement even if the person in the picture has no recourse under privacy law.

A Right to be Forgotten?

Outside of the United States, the right privacy is increasingly trumping the rights of publication. In 2014, the European Court of Justice upheld a court decision requiring Google to remove links to an old story about an individual’s past debts. The decision provid- ing a so-called “right to be forgotten” gave citizens the right to prohibit Google from linking to some offensive content about a person’s past. Within months, Google reported more than 120,000 takedown requests and now employs a team of lawyers to decide cases. Based on the longstanding First Amendment principles in the United States, Europe’s approach would be unconstitutional in the United States.

DATA PRIVACY DEVELOPMENTS

Sometimes, as Chapter Nine suggests, the government wants to keep information private that the media wants to be public, but in many cases, individuals are fighting to retain their informational privacy from the government or from private companies. As we’ve noted earlier, the area that seems to be growing most quickly in the courts as well as in the minds of legislatures, government regulatory agencies and the public is data privacy. The Internet makes it all too easy for information to be gathered, stored, aggregated, and searched.

But is there an actual constitutional right to data privacy? Some justices on the U.S. Supreme Court would say no, as they did in a 2011 case. The Court ruled in favor of the National Aeronautics and Space Administration’s (NASA) background checks for employ- ees of companies working under contract in NASA v. Nelson (562 U.S. 134). Robert Nelson, a contract employee of Jet Propulsion Laboratory (JPL), objected to a background question- naire intended to eliminate differences between contract employees who had worked at JPL for years without background checks and those newly hired. Two sections, one asking about treatment or counseling for recent illegal drug use and another with open-ended questions for references to answer, were under consideration. Justice Samuel Alito, writing for a unani- mous Court, upheld the questions as not violating the constitutional rights of the employ- ees. The government, he said, has “an interest in conducting basic employment background checks.” But Alito did not address the major question in the case: is there a constitutional right to informational privacy? Alito assumed there was for purposes of the case (without actually ruling that there is) and said that if the right did exist, it was not violated here.

But Justices Clarence Thomas and Antonin Scalia in their concurring opinions made no secret of their position on the informational privacy right: there isn’t one. Scalia wrote bluntly: “A federal constitutional right to ‘informational privacy’ does not exist.” Thomas, going even further, quoted himself from Lawrence v. Texas: “I can find neither in the Bill of Rights nor any other part of the Constitution a general right of privacy.”

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These justices’ opinions notwithstanding, following are a few major developments in data privacy.

Data hacking

Two major hacks in 2014 and 2015 underscored the dangers of computer hacking and the privacy vulnerabilities for people whose data is stored on computers.

In the spring of 2015, personal data of an estimated 18 million current and former government employees and contractors maintained by the Office of Personnel Management was allegedly stolen by Chinese hackers. Government officials described the cyber intrusion as the worst ever against the U.S. government. The hackers gained access to highly sensitive personal information, including background check information, addresses, and social secu- rity numbers.

The unprecedented government hacking followed the 2014 hack of Sony Pictures Enter- tainment and the release of highly sensitive and embarrassing information about the film studio. In that case, hackers allegedly allied with North Korea stole and then disseminated data from Sony’s internal computers to punish Sony for its film The Interview, a Seth Rogen and James Franco comedy that ridiculed North Korean leader Kim Jung-un. In addition to personal employment and financial data of employees, the hackers released emails among Sony executives and movie stars, as well as feature films yet to be released. Sony aggres- sively policed the pirated films using copyright law, but also threatened news organizations with lawsuits for reporting information disclosed by the hackers. Wikileaks was among the websites to publish the hacked Sony emails.

Medical Privacy: hIPAA

In 1996, with little fanfare, Congress enacted a privacy law governing medical records: the Health Insurance Portability and Accountability Act (HIPAA). That law, implemented by regulations adopted by the Clinton administration, imposed new restrictions on the release of medical information to protect the privacy of patients’ medical records. Some portions of the rules were opposed by health insurers and others in the health care industry who said they were too restrictive and too costly to implement. Privacy advocates also lobbied for changes in the rules, as did media representatives who said information that has been reported for years will now be off limits to journalists.

The regulations require that doctors and other health-care providers obtain written consent from patients before sharing their health records. The rules also allow patients to see their own files and request corrections of errors. Patients must also be told how their health information will be used when possible.

Of most concern to journalists are provisions of the regulations that restrict the release of once-public information such as the identity of well-known hospital patients and the medi- cal condition of those admitted after an accident, natural disaster, crime or terrorist act. There are criminal penalties of up to 10 years in prison and fines of $250,000 for revealing confidential medical information, which may cause potential news sources to avoid taking a chance of revealing information to journalists even when it may not be restricted.

A number of states already had medical privacy laws that included some of these provi- sions, but HIPAA established nationwide standards for medical record privacy. However, HIPAA also has a loophole: it says health information can be disclosed “to the extent that such...disclosure is required by law.” In 2006, the Ohio Supreme Court ruled that HIPAA

does not preempt the Ohio Public Record Act’s provisions requiring disclosure of some health information that HIPAA seemingly made secret (State ex rel. Cincinnati Enquirer v. Daniels, 844 N.E.2d 1181).

HIPAA also underwent revisions in 2013, focused primarily on health care providers, health plans and others that process health insurance claims. The revisions are in three areas: privacy, security, and breach notification policies and procedures, notification of privacy practices, and agreements with business associates.

Does the type of medical condition suffered change the amount of privacy to which someone is entitled? Apparently it does in the Second Circuit. At issue in Matson v. Bd. of Educ. of the City Sch. Dist. of N.Y. (631 F.3d 57, 2011) was this question: “[D]oes the Constitu- tion protect Matson’s right to maintain the confidentiality of her fibromyalgia?” (This case was not brought under HIPAA.) Dorrit Matson, a music teacher, claimed that the board of education violated her privacy rights by disclosing that she suffered from fibromyalgia (chronic pain often brought on by anxiety or stress) in an online report. A divided panel said the interest in privacy varies with the medical condition; for example, HIV/AIDS would require the highest level of confidentiality. But, said the court, “although fibromyalgia is a serious medical condition, it does not carry with it the sort of opprobrium that confers upon those who suffer from it a constitutional right of privacy as to that medical condition.”

Recent Congressional Actions

Congress has been busy drafting laws to protect data privacy, but few of them get out of committee. A few notable examples of recent times: Sen. Patrick Leahy (D-Vt) announced the Personal Data Privacy and Security Act of 2011. The bill would require some data hold- ers to disclose personal electronic records to individuals for a fee and to include informa- tion on how to correct errors in those records. Sen. Leahy also proposed the Electronic Communications Privacy Act Amendments Act of 2011 to update ECPA, a major federal online privacy law. Several online “do not track” bills were also announced: the Do Not Track Me Online Act of 2011, to make the FTC “prescribe regulations regarding the collec- tion and use of information obtained by tracking the Internet activity of an individual, and for other purposes” and Do Not Track Kids Act of 2011, to “amend the Children’s Online Privacy Protection Act of 1998 to extend, enhance, and revise the provisions relating to collection, use, and disclosure of personal information of children.”

In 2015, Congress continued to debate additional proposals, including Cybersecurity Information Sharing Act, to allow data-security information to be shared between govern- ment and the private sector; the Personal Data Notification and Protection Act, requiring the private sector to notify users of data breaches; the Identifying and Preventing Identity Theft Act, making credit reporting free to access to help identify theft early; and the Student Digital Privacy Act, restricting student data and advertising targeting. None of these bills had become law at the time of this writing. Stay tuned.

Other Data Privacy Cases

Other pieces of personal data have had their days in court. The Fourth Circuit found that the First Amendment protected a blogger’s right to post Social Security numbers (SSNs) of public officials in Virginia as a protest to the state’s postings of land records online with- out first redacting (removing) SSNs (Ostergren v. Cuccinelli, 615 F.3d 263, 2011). Virginia passed a law ordering the redaction of SSNs but did not appropriate enough funds, and

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242 The Right of Privacy

many records contained SSNs. In protest, B.J. Ostergren, owner of ”The Virginia Watch- dog” website, posted public records that contained SSNs she got while searching govern- ment records. The Virginia general assembly changed a statute so that Ostergren could be charged with knowingly disseminating SSNs online. She filed suit, alleging that she had a right to engage in protected government criticism. The Fourth Circuit said the district court didn’t go far enough to remedy the constitutional problems of Virginia’s law. The court relied on the “Pentagon Papers” line of cases (Cox Broadcasting, Florida Star, Daily Mail and others), saying that “the First Amendment does not allow Virginia to punish Ostergren for posting its land records online without redacting SSNs when numerous clerks are doing precisely that.” The court was essentially saying that Virginia had to clean up its own act first.

ZIP codes. In Pineda v. Williams-Sonoma Stores, Inc. (51 Cal. 4th 524, 2011), the Cali- fornia Supreme Court said that stores could no longer require customers to provide ZIP codes when buying something with a credit card. Jessica Pineda claimed that Williams- Sonoma stored her ZIP code and then used it with her address to engage in marketing. Williams-Sonoma claimed that this practice did not abridge Pineda’s privacy under state law because her ZIP code was not unique to her. Justice Carlos Moreno wrote, “The Legisla- ture intended to provide robust consumer protections by prohibiting retailers from solicit- ing and recording information about the cardholder that is unnecessary to the credit card transaction.”

Video Privacy Protection Act. In 2010, Amazon fought off an attempt by the North Caro- lina Department of Revenue to turn over names, addresses and transaction data of all North Carolina residents who purchased anything from Amazon between 2003 and 2010—50 million transactions, according to Amazon—in an investigation of Amazon’s tax liability. Amazon argued that this would be a serious privacy violation under the First Amendment and the Video Privacy Protection Act (VPPA), a 1988 federal law that prohibits the “wrongful disclosure of video tape rental or sale records” (which also includes DVDs, CDs and other media). The law had been passed after the failed Supreme Court nomination of Robert Bork, when a newspaper published his video rental history obtained from a video store clerk (which was unremarkable but resulted in the law’s passage). A federal judge agreed with Amazon: “Citizens are entitled to receive information and ideas through books, films, and other expressive materials anonymously” (Amazon.com LLC v. Lay, 758 F. Supp. 2d 1154). The court also agreed that the VPPA also prohibited the release of the data.

In 2013, President Barack Obama signed the Video Privacy Protection Act Amendments Act of 2012 into law. These amendments to VPPA changed the consent requirements for disclosing consumers’ viewing information online. Users of social media sites like Facebook could share information like what songs they were listening to, but they could not share video information under VPPA without the site getting specific information for each shared history. Now users can set their permissions to be good for up to two years of sharing.

AN OVERVIEW OF MAJOR ISSUES

The right to privacy has many dimensions, and legislatures and the courts continue to redefine them. The media are often caught up in these questions but have their own privacy concerns. The trend toward “tabloid television” has produced new ethical and legal dilem-

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mas. When is it acceptable for journalists to go undercover or use hidden cameras to get a story? Does it matter if the story is truthfully reported when the newsgathering is really intrusive?

What about law enforcement ride-alongs? The Supreme Court has now ruled that it violates the Fourth Amendment for officers to take journalists with them when they enter private property with a search warrant or arrest warrant. Was this decision right? Which should take priority—the right of privacy inside one’s own home or the news value of showing people who are suspected of serious crimes at the moment of their arrest?

And what about paparazzi? There are media willing to buy these pictures because a large segment of the public wants to see candid pictures of celebrities—and is willing to pay for the privilege. Do celebrities abandon all privacy rights when they become famous?

What about the right of publicity? Where does a celebrity’s right to profit from the use of his/her name or likeness end? Is there enough First Amendment protection for those who want to use some element of a celebrity’s right of publicity? Where do the cases involving Bette Midler, Tom Waits and Vanna White leave advertisers? Is federal appellate Judge Alex Kozinski correct in saying that it is now illegal for advertisers to create an image or sound that merely reminds the public of a celebrity?

There are other contexts in which the rules on privacy remain unclear or controversial. When, for example, may a journalist report embarrassing but truthful private facts? Should the media be free to report any facts that they lawfully obtain? Do the Supreme Court’s Cox Broadcasting and Florida Star decisions go too far, or perhaps not far enough? Should there be any private facts that are off-limits to the press?

The constitutional status of privacy is still up for grabs. Two justices on the Supreme Court are on record as staunchly opposing it. Finally, what about Internet privacy? Should the U.S. adopt something like the European Union’s strict privacy standards to govern the collection of personal data? When should e-mail or other electronic communications be able to be monitored or obtained by employers or courts? And what precautions should social networking sites like Facebook take when dealing with infor- mation on their sites?

•

What privacy torts does my state recognize (intrusion, private facts, false light, and misappropriation [and what about right of publicity])? The Reporters Committee for Free- dom of the Press has an excellent resource: www.rcfp.org/ photographers-guide-privacy

What are my state’s rules about recording conversations on the phone or in person? Who has to know that the recording is taking place? See a Reporters Committee resource: www. rcfp.org/reporters-recording-guide

WhAT ShOULD I knOW ABOUT MY STATE?

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The Right of Privacy

SUMMARY

A SUMMARy OF THE RIGHT OF PRIVACy

What Is Invasion of Privacy?

Invasion of privacy is a legal action to compensate persons whose right of privacy has been interfered with. There are four generally recognized types of invasion of privacy: (1) intrusion upon a person’s physical solitude; (2) publication of private facts, causing embarrassment; (3) placing a person before the public in a false light; (4) misappropriation, or unauthorized commercial exploitation of a person’s name or likeness.

Are These Rights Universally Recognized?

No. Some states have recognized all four kinds of invasion of privacy, while others allow lawsuits for only some of them. However, statutory laws or court decisions in virtually all states recognize that a person’s name or likeness may not be exploited in commercial advertising without permission.

What Is the Right of Publicity?

Misappropriation and violation of the right of publicity are terms for the fourth type of invasion of privacy listed above (the commercial exploitation of a person’s name or likeness). The right of publicity is fundamentally different from the other types of privacy in that it involves a property right that is inheritable in many states rather than a personal right that is extinguished when the victim of an invasion of privacy dies. Those who use a person’s name, voice, photograph or any other element of his/ her public persona for a commercial purpose must have consent.

What Defenses Are There?

The courts have recognized several defenses as applicable to one or more of the four kinds of invasion of privacy. The primary ones are: (1) newsworthiness or public interest (which applies mainly in private facts cases); (2) consent; and (3) a constitutional public record defense (which also applies mainly in private facts cases).

Is Invasion of Privacy a Serious Legal Problem for the Media?

Compared to libel, invasion of privacy was traditionally a less serious legal problem for the news media. While the media lose privacy lawsuits on occasion, courts have broadly interpreted the newsworthiness defense to protect the media from many types of privacy lawsuits. However, right of publicity lawsuits are an increasingly serious problem for advertisers, the entertainment industry and others who exploit celebrities’ public personas for commercial gain. And “tabloid television” has created new controversies and lawsuits that raise difficult questions about hidden cameras and intrusive or undercover newsgathering.