The issue of libel flows naturally from the discussion of First Amendment because it deals with what an individual can and cannot say and WHY.

The term defamation has been used to encompass all types of libel, both written and spoken.

Def: Defamation: "an invasion of interest in reputation and good name by communication to others, which tends to diminish the esteem in which an individual is held." (can occur by words, pictures or drawings)

Traditionally, LIBEL = written defamation and SLANDER = spoken defamation.

You can be held liable if you REPEAT a libelous statement or distribute it! Reporters who quote a citizen making a libelous statement can be held liable for defamation, as can the editors and the publishers of the paper that publishes it.

To win a libel case -- must prove statements were written/published/broadcast.

Because libel establishes a permanent record, it has traditionally be been considered more seriously (i.e. easier to prove...)

To win a slander case -- must prove actual damage and the amount of damage. In the 50's because of some confusion about WHAT radio and tv defamation was, the term "defamacast" was coined. It has not been widely used.

History of Broadcast Libel:

· 1934: New York Court ruled that defamation occurring in motion pictures could be treated as libel (Brown v. Paramount Public Corp.1934)

· 1947: Hartman v. Winchell -- radio broadcast slander constituted libel, but only if the defamatory comments were read from a script.

· 1949: NBC's Meet the Press was involved in a case, but the court didn't call televised slander libel (a man had been called a communist).

· 1956: Changes begin occurring -- TV slander was considered libel: The Stork Club; -- a comment made about a restaurateur owing money. 1980's--distinction between libel and slander in electronic media had virtually disappeared.

The argument that print media messages were more potent or more permanent in form was challenged in 1980 in First Independent Baptist Church of Arab v. Southerland. WALLA-TV accused an advertising firm of breaking a contract with the city of mobile. The court declared the defamation to be libel because the station had aired the story 40 times during an 11-month period. (I couldn't find how the church was involved...)

This area of law is based mostly on state law and common law, and is VERY confusing. It has evolved over centuries and decades, some of it began with the old seditious libel cases we discussed earlier in the semester.

Regardless of the difficulty in understanding this issue, it is VITAL that communications students DO understand: Libel mistakes COST MONEY --- LOTS of money!

• 1991 largest Libel judgment in U.S. History: $58 MILLION to 'Texas district attorney Vic Feazel, who was falsely accused by WFAA-TV in Dallas of taking bribes to fix drunken driving and drug possession cases. They ultimately settled out out court for a smaller amount. (Smith, p. 413)

• 1993 New York appellate court upheld an $18.5 Million dollar award against Buffalo TV station WKBW for incorrectly associating a restaurant owner with organized crime. Later reduced to $15.5 million. (Smith p. 413) Retrial was ordered because of faulty jury instructions and that jury awarded 11.5 million dollars in damages.

• The Home Shopping Network was forced to negotiate after a jury awarded a $100 MILLION dollar award in damages (IBID)

• 1992 Philadelphia Inquirer hit for $34 Million after accused a former prosecutor of quashing a homicide investigation as a personal favor. (IBID) Court upheld in 1993 but was reversed in 1995.

• Washington apple growers filed a $150 Million suit against CBS for a 60 Minutes piece about ALAR (pesticide). Later asked for $100 Million. Farmers said the pesticide was not dangerous. The case was settled without a trial (summary judgment) FOR CBS on the basis that the scientific community was sharply divided about the effects of the chemical. If that were the case, how could the report be proven false? Appellate Court upheld the ruling in 1995. (See Pember p. 138) Note: This is TRADE LIBEL

• Oprah Winfrey and her fiancé Stedman Graham -- sued Canadian Tabloid for more than $300 MILLION for publishing false allegations of a homosexual act between Graham and a cousin.

• TV NATION 's parent company TRI-STAR has been slapped with a $4.5 Million judgment by a Texas jury (Broadcasting 3/18/96 p.22) concerning an Emmy-award winning segment concerning human waste transferred from New York to Texas to be made into fertilizer.

•   A state representative was awarded $5.5 Million by a jury in Oct., 1996 finding that a TV station libeled him when it cast doubts on his mayoral qualifications. He lost the election. The verdict is being appealed. National Law Journal 10/28/96

•   Alan Levan won a $10 Million libel judgment against ABC and 20/20 in which he claimed they reported he had tricked investors in bogus real estate deals, but that judgment was later thrown out by U.S. Court of Appeals in Atlanta and the Supreme Court refused to hear the case. (Trigoboff, 3/6/2000)

• ABC settled out of court rather than continue to fight a $10 BILLION dollar libel suit brought by Phillip Morris over reports on Day One which alleged the company added nicotine to its tobacco products. According to Broadcasting and Cable (8/28/95p.18), ABC admitted the "Polk-award-winning report on the tobacco industry include a mistake for which is has made two rime time apologies."

• ABC was hit with a 5.5 million-dollar award after the undercover report on the Food Lion grocery chain. (While this was not a libel suit, it was a SLAPP suit associate with an unflattering broadcast. The award was later thrown out.)

•   Publisher Dow Jones & Co. received a $22.7 million dollar judgment against it for an article published in the Wall Street Journal that was associated with the demise of MMAR brokers. The appellate court threw out a 200 million-dollar punitive damage award. (National Law Journal, 12/1/97)

•   Richard Jewell has settled with NBC and CNN for several million dollars and has filed suit against the New York Post and the Atlanta Journal-Constitution for statements that were based on false information and undisclosed facts and damaged Mr. Jewell's reputation. The writings implied Mr. Jewell was the Olympic Park bomber.

• Kato Kaelin is suing the National Examiner for the defamatory headline, "Cops Think Kato Did It!..." The headline was on page one and the story (which dealt with a possible perjury charge, was 17 pages later.

• Sylvester Turner, Texas politician and lawyer, won a $5.5 million-dollar judgment against a Houston TV station which raised questions about his ethics. (The award was later reduced by a judge to 3.25 million)

• In 1999, Sports Illustrated was required to pay $8.5 million to former heavyweight boxer Randall "Tex" Cobb for compensatory damages in connection to a story in which Cobb was said to have fixed a fight and shared cocaine with the loser. (American Lawyer Media, 1999)

• In December, 2000, a weekly newspaper in Virginia avoided a $5 Million libel suit by settling out of court for half a million dollars.  The story in question involved an accusation that a judge had taken a bribe, but there was no substantiation for the claim. (Strupp, 2000)

• In January, 2001, The Philadelphia Inquirer settled with one of its own reporters over a report in the Washington Post that the reporter didn't have facts to back up a story.  The settlement was reported to be in the neighborhood of $7 million. (Strupp, 2001)

In early 2000, the Libel Defense Resource Center reported that fewer libel cases were being filed, but the award have been getting bigger.  Many of the huge awards have been reduced, as you can see above, but the fact that juries are awarding them "hangs like a black cloud" over editorial desks across the nation. Media companies are buying libel insurance with caps at up to $100 million, whereas 10 years ago, a million dollars would have been sufficient.  There were more than 11 $10 million-plus awards in the 1990 and the MMAR v. Dow Jones Co., though thrown out, was $222 million!   (Moses, 2000)

There is serious concern that these suits are being used to CHILL speech, especially investigative reporting. More on that later.

What can cause a libel action?

Words: words, phrases can be considered libelous, but they must be taken in context of the work as a whole. A case involving a book, in which there was an error, was not found to be libelous because the overall context was correct. (Ladany v. William Morrow, 1978) when more than one meaning is possible, the least defamatory meaning is to be considered. (Innocent Construction Rule) The implication: you don't even have to say a person's name. More on this later. See also the TV GUIDE case that we'll discuss later.

Headlines: where the entire story may not be read to clarify. Kato Kaelin's case against the National Examiner illustrates this point.

Advertisements: may disparage other business.... Be careful here.

Photographs, cartoons, layout: if they don't accurately reflect what a reporter saw, either because of illusion or because the picture was altered. Michael Schafer's suit against the New York Times for misidentifying him as terrorist and bombing suspect in a photo illustrates this element.

Combinations of words, pictures, etc. are frequently problems.

One of the more interesting libel cases to emerge this year involves the movie Hurricane. Cameron O. Tilelli, 69, argues that his portrayal of in the movie is inaccurate and libelous. Contrary to the move portrayal, the fight in which he was portrayed was not fixed, he was not a racist, nor was he incapable of defending himself. Mr. Tilelli, known in boxing circles as Joey Giardello, is asking that if he wins the case the video and DVD versions of the movie be reedited to include video of the actual bout and provide information how the entire fight could be viewed on the internet. Mr. Tilelli is on a fixed income and claims there is no way he can contact as many people who have seen the film in order to reclaim his reputation. (Duffy, 2/17/99)

Types of libel:

Criminal libel:

These would be statements that would be against the law (as stated in specific statutes).

There have been laws on the books against racial slurs; one in mentioned in your book (Middleton) was used to prosecute a man distributing racist literature. The punishments for these laws would be fines or jail time. But as you know, the Supreme Court has thrown out nearly all statutory law about hate speech. That, along with the sedition laws, pretty much puts an end to criminal libel in this country.

Ashton v. Kentucky: The Court threw out the Ky. law that punished (under a criminal libel law) conduct "calculated to create disturbances of the peace." (This was related to a strike.) Ashton's pamphlet attacked the sheriff and others, accusing them of illegalities and not cooperating with the strikers. The Kentucky appellate court upheld his conviction, but the Supreme Court did not....

Justice Douglas said the law was too vague and dependent more upon the "boiling point of those who read the literature/libel" than the words themselves. Authors/speakers couldn't be expected to predestine or predetermine the moods of their readers/listeners.

The court also threw out a conviction based on Louisiana criminal libel law in Garrison v. Louisiana (1964), saying prosecution couldn't be successful unless the critic of governmental officials knew his/her statements were false...

There hasn't been a successful criminal libel suit in more than 30 years. While some states still have such laws on their books, they are rarely used. (Middleton p. 72)

Thus, most all libel cases that come to trial will be civil cases.

 Civil libel:

These cases fall into the tort category and are civil cases. A wrong has been committed against a person, and retribution of some form is requested of the court.

• Libel per se: some types of words like "criminal, liar, communist..." are universally interpreted as defamatory. No surrounding context or factors need to be considered. Alabama law considers communications imputing a lack of chastity is considered libel per se.

Those standard can and do change. In 1998, a New York court ruled that the use of the word "bitch" was not libel per se. (Alden, Bill 5/7/98)

•   Libel per quod: these are communications that are defamatory only with other facts or contexts are taken into consideration; this is an indirect libel; an implied defamatory comment.

  Classic case: Montandon v. Triangle Publications, 1975 (Smith, p.419) discussed below.

• References to criminal activity: 1993 $15.5 million award made to man who was falsely called a victim of a crime. Another station had correctly identified the victim, so the court found Buffalo stations WKBW-TV and WKBW radio negligent. (These were Cap Cities stations too. Both had aired retractions, but the court didn't find that sufficient) New York Supreme Court reversed that decision in later in 1993 (Update/Middleton p. 13) Prozeralik v. Capital Cities Communication 1993

  • A $50 million lawsuit has been filed against the parents of Jon Benet Ramsey, claiming they unfairly portrayed Chris Wolf as a suspect in their book The Death of Innocence. (AP, 4/29/00) 

• Sexual slurs: falsely accusing someone of rape, incest, child molestation, public nudity, adultery, prostitution or other form of sexual misconduct.   

• Other personal behaviors or characteristics which can be libelous:

    Calling someone dishonest, immoral, cowardly, foolish, financially irresponsible, or stupid; or associating them with ill health or contagious diseases such as Aids or TB.

    Montandon v. Triangle Publications: TV Guide description of a program made the author of a book and guest on the program appear to be a prostitute, and a jury awarded her $251,000.00 as a result. (1975) (Middleton p. 80)

    Whitney Houston filed a $60 million dollar lawsuit against NEW YORK POST for falsely publishing that she had been hospitalized as a result of use of diet pills.

• Political or religious: Falsely associating a person with a group that is controversial; the communication must damage the person's reputation. But racial slurs do not necessarily harm a person's reputation. (Middleton, p. 81)

• Business dealings:
  • Occupation: allegations of incompetence, lack of ethics, etc., lack of credentials, etc. These types of cases form a large majority of libel cases that go to court.
  • Business: businesses can sue for statements that impinge their ability to function in the marketplace. Comments about credit, financial solvency, ethics, See Dun and Bradstreet v. Greenmoss Builders.
  • Trade libel: intentional disparagement of the quality of property, which results in financial damage to the plaintiff. This is product disparagement. Bose speaker case discussed in your book is key example here. Trade libel compensates for loss of sales rather than damage to reputation.

  • In addition to the regular burdens of proof in a libel case, in trade libel, plaintiff must prove financial damage and malice. (Middleton p. 78)

  • Veggie libel laws: some states have enacted laws to protect disparaging comments about particular products that are perishable. These laws have been enacted in more than 12 states, and they came about after the controversy Washington Apple Growers had with 60 Minutes over the possible harm of Alar, a pesticide. Oprah Winfrey was acquitted in February of 1998 of defamation charged was Texas cattlemen, after a 1996 program about Mad Cow Disease. In February, 2000, an appellate court affirmed Winfrey's lower court victory. (Borders, 2000)

  • These agricultural disparagement laws place editors, reporters and publishers in jeopardy if they deal with content that criticizes agricultural products. There is serious concern that these laws chill valid speech. In fact one industry spokesman was quoted as saying, "I think that, to the degree that the mere presence of these laws has caused activists to think twice, then these laws have already accomplished what they set out to do." (Collins, 1998)

• Humor or ridicule: humor can become libelous when it suggests that the individual does not deserve respect. These cases involve things that make subject look "weird, foolish or unnatural."

In 1998 in Nacinovich v. Tullet & Tokoyo Forex, Inc., the court ruled that a defamation suit could go forward. The suit concerned a cartoon in which an individual was portrayed as being involved in a number of homosexual acts with a co-worker. The court ruled that there was sufficient evidence by which a jury could conclude that the drawing was not intended to be humorous, but rather, it was designed to humiliate and degrade the plaintiff's reputation. Cartoons usually are not considered libelous because of their very nature; they are assumed to be exaggerations and humorous and not representations of fact to be taken seriously. (Wise, 1998)

Single mistake rule: adopted by many states, this allows the media to make one mistake in a publication about a business or professional person but not to indicate the mistake is a PATTERN. I.E. You might incorrectly report that tainted meat was sold by a restaurant on a given day and be okay, but if you incorrectly reported that they regularly sold tainted meat, that would be libelous! (Smith p. 422)

No broadcast station, newspaper or other media institution sets out to get into libel trouble -- usually, it happens by accident. It is important for you to know what the issues and the consequences are, so you DON'T get into that kind of trouble.

What exactly has to be there for libel to exist?

ELEMENTS of DEFAMATION

• A FALSE STATEMENT that Diminishes a person's reputation: this can be considered "good name"; something which "incites bad feelings toward a person."

  · Keller v. Miami Herald (1985) I defined defamation as a communication which "tends to subject one to hatred, distrust, ridicule, contempt or disgrace."

Defamation harms:

· Reputation

· Ability to enjoy social contact with others

· Ability to work or engage in business practice

The meaning must APPARENT

The meaning MAY be INFERRED -- Thus, a defamatory statement might not actually contain the name of the person defamed.

Some states have adopted an innocent construction rule. That means that if there is a way to interpret a statement in a non-defamatory way, it will be interpreted in that way.

Also, a person's reputation must be damaged among a significant number of reasonable people in order for libel to have occurred.

Remember, defamation can occur with words, pictures, video or the juxtaposition of those that infer a defamatory meaning.

There is some indication that what is NOT reported may also constitute libel. In a recent New York case, the judge declared that "selective non-reporting of favorable facts might constitute malice" under the New York libel laws. (Alden, 7/27/98)

• THE PERSON DEFAMED MUST BE  IDENTIFIABLE by name, clear reference or inference which would cause reasonable people to associate the statements to the person.

If defamation is directed a members of a group, the members of that group may sue. That's called GROUP LIBEL.

• SIZE of the group is usually the determining issue: Over 100 members, usually not considered actionable. Under 100 may definitely be actionable. More recent cases have reduced the number of a group. Recent cases have demonstrated that groups of 29, 30 or even 12 were too large to permit identification. (Pember 1997 p. 132)

CASES demonstrate that complete identification may help avoid suits.

• Washington Star avoided suit when it identified an accused murderer by his FULL NAME (with NO MIDDLE INITIAL), age and his full address. A man by the same name tried to sue, but was denied because he was not 22 years old and didn't live at the address listed.

. REMEMBER, complete and accurate identification is absolutely essential!

• Neiman-Marcus Co. v. Lait --book stated that the salesmen in the department store were "fairies" and the "salesgirls" were all prostitutes. Since there were only 25 salesmen, they were allowed to sue, but there were 325 saleswomen, and the court said that group was too large.

• Oklahoma case: In 1962, a jury awarded a member of the Oklahoma football team $75,000 because of an article that accused the U. of Oklahoma team of using amphetamines to increase aggressiveness. There were around 60 members of the team at the time. The team member who sued was not named. Court upheld.

• Schafer v. Time Inc involved Michael Schafer who sued for libel over Time's 4/27/92 cover story concerning the crash of Pan Am flight 103. A bomb explosion caused the crash and in an accompanying article, a picture of Mr. Schafer was shown an identified as David Lovejoy, a man supposed to be a double agent for Iran and the U.S. who told the terrorists which plane to bomb. The jury trial awarded Schafer nothing, but on appeal, that verdict was thrown out. (NLJ, 6/22/98)

• Kentucky Fried Chicken, Inc. v. Sanders (1978): re: Bowling Green franchise. The franchise owner was upset because Sanders said the crispy recipe was a "damned fried ball stuck on some chicken" Court said the Colonel's reference was to ALL KFC's, and did not identify the one in Bowling Green. Suit denied.

Media lawyers recommend three categories of identification to avoid problems:

· Full name with middle initial

· Address

· Occupation

But be careful. Non-obvious characteristics could be identifiers and peripheral individuals in a story could be potential plaintiffs. For example if a shot of a street in a story discussing crack houses shows several houses, the owner of one of the homes might say the shot implied THEIR home was a crack house. You might obscure the face and distort the voice of an individual, but if you show their house, car, tattoo, etc., you might have identified them. Be very careful!

• PUBLICATION: Defined as "communication of the defamatory statement to a third party on purpose or unintentionally." This is not an issue in media because even the most limited station will have at least one listener.

  • Over the air, radio, television, satellite or cable

  • Released for sale

  • Over P.A. system, or in conversation would be slander, a private issue, not media issue

  • Over the Internet or online service

SINGLE PUBLICATION RULE: any single integrated publication such as one broadcast is treated as a unit; only one cause of action may occur regardless of how many people are exposed to it.

Headlines and a story are usually considered ONE entity under the single publication rule, but there may be an exception when the headline is oversized and which might lead the reader to a different conclusion than is in the story AND where the plaintiff can show the publisher did so on purpose to mislead the audience. Sprouse v. Clay Communications, 1975 (Francois, p. 107)

Date of Publication: is very important because it establishes:

•   When the publication occurred

•   When the statute of limitations expires

  • Depends on state: usually 1 to 3 years; ALABAMA statute is 2 years

  Sometimes court is flexible regarding this issue, but not usually
  

Sometimes the publication isn't even public:

· Dunn & Bradstreet v. Greenmoss Builders. (1985) -- case in which a memo to the justice department about an investigation resulting in a communication about a construction company with a bank which subsequently refused loans and credit to James Green and his company. Green lost business and sued. He was awarded 6.7 million in damages and 2.5 in punitive damages and the newspaper had to file bankruptcy to protect its assets. The settlement was later reduced to 1.5 million to Green and $1.00 to his company. A million was paid by the paper's insurance company, and it had to come up with the rest. (ouch!)

Other types of publications also have to be concerned with libel issues:

Wire Services: The courts have ruled that wire services have an excellent reputation for accuracy and that local stations and papers are not expected to double check the accuracy of stories which appear on them.   

Radio Call-In Shows: Laws vary from state to state, but some states have adopted a reasonable care approach. If the station does what it can to limit defamatory statements by callers, the station is protected. Other states have provided immunity to radio stations for defamatory statements while others require Times malice be proved for a station to be liable.

Online Services and Internet Libel:

Libel issues for online services such as AOL and Prodigy and Internet sites have become significant in the last few years.

Online Services and bulletin boards are liable for defamation on their services if they exert any editorial control over the content. Prodigy, in another case, was held responsible for libel because it did exercise control over content of bulletin boards and the like, advertising itself as a "family oriented service." CompuServe was found NOT liable in a similar case because it did NOT restrict content on its service and was therefore operating as a common carrier for those bulletin boards.

The Communications Decency Act which was passed in 1996 provided that online services were conduits through which information passed, and they could not be considered publishers of information.

In 1998, AOL was cleared of a $30 million defamation suit involving Matt Drudge and the Drudge Report  which, though available through other Internet providers, was supported in part by AOL who paid Drudge $3,000 each month.  Drudge retracted the story, but could have still been personally liable for the story.

This ruling was very important to ISPs because it supported the statute and interpretation of the statute in protection of the ISPs and open discourse on the Internet. (Swartz, 1998)

Currently the big issue is whether libelous statements can be made anonymously and the ISP not be required to reveal the writer.    In December, 2000, a doctor was awarded $675,000 as a result of a message posted anonymously.  The author was later determined and is responsible for the award. (AP, 2/11/00)

People who are libeled believe the identity of anonymous posters need to be revealed in order for justice to be done.  Others contend anonymity is necessary for free speech.  Most cases are settled out of court, but judges want the Congress to do something and establish statutory guidelines. (Rodger, 2000)

•  THE FALSE STATEMENT MUST CAUSE HARM or DAMAGE:

Damages may include:

          Damage to esteem or social standing  

Damage through ridicule (more than an innocent joke)

Damage to trade, occupation, professional ability (reference to university as a "degree mill")

Damage through imputing disease or mental illness.

Damage to corporate integrity, credit or ability to carry on business (I hear store xyz is about to go under....)

Damage by imputing unlawfulness

Damage by imputing lack of virtue, temperance or truthfulness

• THERE MUST BE FAULT OR NEGLIGENCE involved:   The private libel plaintiff must establish that the communication was false and published with negligence. The media defendant must be AT FAULT. This is usually the primary issue in libel cases, and it's hard to prove. (Smith p. 424)

Court ruled in Gertz v. Robert Welch (1974) that a state can't hold a media defendant liable if there was no fault on the part of the media defendant.

Negligence can constitute fault:

Fault/negligence is defined in two ways:

• Published without reasonable care

• Published with behavior not typical of a reasonably prudent person in the same occupation. (i.e. no attempt to verify information, etc.)

In 1986, the Supreme Court ruled that in addition to fault, the plaintiff must also rule that the defamatory information is FALSE--IF the communication involves a matter of public concern. Philadelphia Newspapers v. Hepps (1986)

Fault is defined differently in cases where the plaintiff is a private person or a public person.

• Plaintiff who is a private person: must prove falsity, negligence or mistake (that's easier to prove)

• Plaintiff who is a PUBLIC person: must prove reckless disregard for the truth and/or malice. (this is much more difficult to prove)

Television Evangelist Robert Tilton lost a Supreme Court appeal in Feb., 1997, concerning an ABC News Prime Time Live segment which said he accepted the contributions but threw away the prayer request of those wrote him. Some of his followers sued him for fraud after the broadcast. After a 5-day evidentiary hearing, the a federal judge threw out the suit, saying Tilton had failed to prove malice on some points, and did not prove others were false. The Supreme Court refused to hear the case on appeal. (Tilton v. Capital Cities, 1997) Thus, Tilton had failed to prove FAULT.

The history of libel in America is closely tied to concepts of fault and how it is defined. We'll discuss that development of thought when we discuss New York Times v. Sullivan and other related cases. Make note that they could be included right here under FAULT.

• LACK OF PRIVILEGE: This refers the privilege news media are given to cover things which might be defamatory so that the public's right to know is preserved in the marketplace of ideas. Media privilege is applied to such things as government proceedings, etc. (more about this later) Privilege may also involve freedom from libel suits for public officials and some public proceedings.

If you want to sue someone for libel, what do you have to prove in order to win? If you are being sued, how can you determine if those suing you have a chance of winning?

PLAINTIF's BURDEN OF PROOF:

All of the elements of libel must be proven to exist in order for the plaintiff to win: false and defamatory statement; publication, identity, harm, fault and lack of privilege

Remember, the burden of proof is different for a PUBLIC person who claims to have been libeled and a PRIVATE person who has been libeled.

If successful, plaintiffs may collect damages:

· Compensatory damages: (also called actual damages) are paid for injury to a person's reputation, for mental anguish, and for pecuniary losses. You don't have to prove specific damages to collect this type of award.

· Actual damages: not limited to monetary loss; may be due to reputational loss, suffering, etc. (Gertz was awarded $100,000 in actual damages) These are the most commonly awarded damages.

· Special damages: awarded for specific monetary losses. These damages can be awarded even if the defamation was not committed with malice. Must prove association between defamation and specific monetary figures.

· Punitive damages: awarded by juries to punish the perpetrator for what was done. Malice must be proved for this type of award to be made. These awards can run into MILLIONS of dollars. Several states have eliminated or limited them. Alabama has considered such a move as part of tort reform. (See Pember 1997,p. 209)

· Presumed damages: These were allowed before Times and Gertz. It was presumed that if you were defamed, you were also damaged. Since those cases, must prove malice to get presumed damages.

Example: Weller v. ABC (1991) Michael Weller who was a private person was awarded $500,000 for presumed damages, $500,000 for proven damages and $1 MILLION for mental suffering because KGO-TV was found to have acted with malice. Malice must be proved if the issue is a public one (as it would be if broadcast on TV) but if it is a private matter, malice may not be necessary.

Note: Remember the standards differ for private and public persons. A private plaintiff can collect presumed and punitive damages without having to prove actual malice when the false defamatory statement is not a matter of public concern. (See Middleton p. 125-7)

Damages can be avoided in many cases by issuing a retraction, the more quickly the better. Many states have retraction statutes that offer varying degrees of protection to media practitioners if a retraction is made quickly and appropriately. The principle is that if a retraction clarifies the error, little or no harm may have been done (and harm is a component of defamation). (Pember 1997, p. 210) More on retractions later.

Now, let's go back and look at the development of libel law and some of the key issues.

We'll start with Times v. Sullivan, which was the most significant case in this area. We're going to examine what determines if a person is a PUBLIC or PRIVATE individual, and finally, we'll examine the types of defenses, media organizations can use in a libel case.

The New York Times published an editorial ad which communicated information, opinion, cited grievances, protested claimed abuses, and sought financial support for the Negro Right to Vote Movement and the Negro Student Movement. City officials of Montgomery, AL charged the paper with libel. The allegedly libelous statements were:

"In Montgomery, Alabama, after students sang "My Country T'is of the Thee" on the State Capitol steps truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire Student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission....

'Again and again the Southern violators have answered Dr. King's peaceful protests with intimidation and violence. They have bombed his home, almost killing his wife and child. They have assaulted his person. They have arrested him seven times--for "speeding," "loitering," and similar "offenses." And now, they have charged him with "perjury"--a felony under which they could imprison him for TEN years. "

Plaintiffs were awarded $500,000 judgment that was reversed by the Supreme Court.

High court ruled that freedom of speech and press prohibit a public official from recovering damages for a defamatory falsehood relating to his official conduct, unless he proves that the statement was made with "actual malice." That is, with knowledge that it was false or in reckless disregard of its falsity.

[See the excellent discussion in Middleton, p. 95; Pember 2000, p. 158]

Many of the elements in the ad were false.

A.B. Sullivan was commissioner of police in Montgomery, and he asked the Times to publish a retraction. The Times wanted to know why he thought the article concerned him? They refused. Sullivan was then joined by three other Montgomery officials and the Gov. of Alabama (Jim Patterson) and they sued for $3 million. The jury awarded $500,00, and was held by Alabama Supreme Court. U.S. Supreme Court reversed the decision in what is now the famous ruling.

Justice Brennan said the free and robust debate necessary for the government to operate was more important than the plaintiff's reputations. The ALA libel law didn't adequately protect that first Amendment Freedom, and compared it to Seditious Libel legislation that had been found contrary to the First Amendment.

Sullivan had argued, that because the communication appeared in an advertisement, it was not protected under the First Amendment because advertising wasn't considered to be the type of speech that added to the market place of ideas. The court rejected that argument because the ad contained more than purely commercial speech. Brennan said this was editorial advertising and that was on a higher plane than commercial advertising. [Regular commercial advertising wouldn't get First Amendment Protection until 1975 (Bigelow v. Virginia)]

Thus, three important issues were presented by Times v. Sullivan:

· The efficacy of a seditious libel case

· The importance of free and robust debate on public issues (and the idea that successful libel suits would "chill" such debate).

· When Sullivan became a public official, he should have expected to scrutinized and even criticized (even unfairly).

The court argued that since public officials are granted immunity from libel prosecution in the operation of their duties, critics of those officials should have the same privilege if they are to effectively challenge such officials and encourage robust debate on public issues.

Brennan also said that the Times didn't lose its protection just because parts of the ad were false. Constitutional protection did not depend on the "truth, popularity, or social utility" of the ideas or beliefs that were expressed. Again, he said that robust debate would at times include falsehood, but to limit such expressions would result in "chilling" of government critics. (If you have to have proof that what you say is positively true, you might not say it. [Is that necessarily a bad thing......? What do you think?])

Then, the final result.... Public officials would only be allowed to collect damages for libel connected to their official duties IF the defamation was published with ACTUAL MALICE that they could prove.

Malice was defined as:

•   Knowing the statement was false

•   Exercising reckless disregard for the truth

The Times was guilty of neither of the above because:

· Employee testified that they believed the ad to be true

· They didn't check it out because

• They trusted the reputation of the group submitting it

• It was not a news story, so it was subject to different rules than regular news

This case affected three significant changes in libel law:

· Previously statements were libelous per se if they accused a public official of doing something illegal or unethical or other type of misconduct. The defendant had to prove the statements were true or were fair comment based on truth. Otherwise the statement fell under common law malice and both punitive and compensatory damages could be awarded.

· Court ruled that free and open debate had to exist regarding pubic officials and issues of public debate; otherwise the media would be "chilled."

· Court ruled that in order to WIN a libel case, public officials must prove that statements were made with actual malice.

· This case emphasized the difference between public officials and private persons in libel cases.

· It shifted the burden of proof as mentioned above. Before, public officials would win if a defamatory statement were false.

The case also left some serious questions unanswered:

1. What exactly is malice?

2. How does one define a public official?

What is Malice?

Subsequent cases helped clarify the issue of malice:

Garrison v. Louisiana (1964) "knowledge of falsity" means that communications which are published are done so with a "high degree of awareness of their probably falsity." That's malice.

Fabrication or making up a story means the journalist KNOWS it is not true! That's malice!

Goldwater v. GInsburg (1969) --Editor of "FACT" magazine made up story about Barry Goldwater's psychological health. Decided what they were going to say before they ever began their research!

Burnett v. National Enquirer, Inc. (1981) Enquirer printed a story they knew was false about her behavior at a Washington party. Court ruled that the writer of the story could not verify the facts and that he had embellished the story, and probably made some of it up.

Changing direct quotations?

Masson v. New Yorker Magazine (1993) Author of a book, Jeffrey Masson sued because of altered quotations form his book. Janet Malcom was the author of the article in question. The New Yorker Magazine has been removed from liability because they didn't know she had altered the quotes, and had no reason to doubt her. She was a freelance writer. The case went all the way to the Supreme Court that ruled that readers do assume words in quotation marks are the actual words of the person quoted. However, to say that if a quote is changed slightly is actual malice may be holding the press to an unfair standard because of editing needs, etc. The case was sent back to the lower court for a jury trial with a mandate to answer three questions:

• Were the statements quoted false?

• Did the false statement defame Masson?

• Did Malcom know the quotes were false or had been altered and publish them anyway, thereby acting with malice or reckless disregard for the truth? (Pember, 1997, p. 170)

There were two jury trials. The first found against Malcom, but the jury members couldn't agree on a damage award. The second found FOR her, finding that she believed what she wrote was actually what Masson had told her. In 1996, the U.S. Court of Appeals upheld the verdict.

• In St. Amant v. Thompson (1968) the court said that "reckless disregard for the truth" meant that the defendant had "serious doubts bout the truth of the defamatory comments." See Middleton p. 110, Smith 426, Pember 1997, p. 172

• In 1985, (Tavoulareas v. Washington Post Co.) a U.S. Court of Appeals offered the following examples of what could be considered reckless disregard:

  A journalist deliberately slants and ignores evidence contrary to the false premise of the story.

  A journalist is, in the opinion o the court, out to get the plaintiff.

  The journalist's notes contradict the published statements of interviewees.

  The mass medium refuses to retract the story or publish a letter written by the plaintiff in response to the story.
  

1989 (Hartke-Hanks Communications v. Connaughton) an award of $200,000 was given after it was ruled that the Hamilton, OH Journal News had failed to adequately investigate a story about a candidate whom they accused of dirty tricks. When the candidate lost the election, he sued.

• The court said that the news staff had made a "deliberate decision not to acquire knowledge" that would have shown the statements of the people on whom the information for the story was based were false. They had in their possession information that cast doubt on the truthfulness of the story, but neglected to examine it.

• It appeared in this case, that the paper was actually "out to get" the candidate in question. (See Text p. 111-112) -- That's malice!!!

Another element of MALICE is "extreme departure from standard journalism practices.

Curtis Publishing Co. v. Butts (1967) reckless behavior included not checking sources, using an obviously unreliable source, and failure to further investigate allegations, even when there were obvious reasons to do so.

Background: GA. athletic director Wally Butts sued the POST for accusing him of game-fixing in the U. of GA. and ALA football game in 1962. Supposedly Butts had revealed game secrets to Bear Bryant. They got the story from an insurance salesman who had been on probation for writing bad checks. The guy said he had been accidentally connected to a phone line and overheard the conversation between Butts and Bryant.

The POST didn't even do basic checking on the story. None on the staff were football experts, no one looked at game films to see if there was evidence of a fix, and they didn't do any further checking after Butts and his daughter told them the story was false.

Supreme Court upheld a verdict of $460,000 for Butts. Note the difference between this case and another one decided on the same day....

Associated Press v. Walker (1967) See Middleton p. 113. Pember 1997, p. 174

Here the court REVERSED at $500,000 damage award. In this case Maj. Gen. Edwin Walker was reported as leading a charge against Federal Marshals during a riot on the U. of Mississippi campus during enforced integration during 1962. Walker, in fact, spoke to the crowd, urging peaceful protest. The Supreme Court reversed the initial award and differentiated it from Butts in the following ways:

• Sources were reliable. Stringer with some journalism experience was used in Walker, compared to Insurance Salesman on probation.

• Standard Journalistic Practices were used. No evidence of inadequate fact-checking.

• Believability of the Story: AP had no obvious reason to doubt the accuracy of the story. Walker had earlier advocated "violent vocal protest." On the other hand, there was nothing in Butt's past to indicate he could have done such a thing, and no football experts were questioned to further see if the story were believable.

• Deadline Pressure: The riots at U. of Miss were a hot story for immediate release; the Butts story was not on deadline and writers had opportunity to check facts if they wanted to do so.

• Motivation: Post was in serious financial trouble and had announced a new muckraking editorial policy to involve readers and boost circulation. Here was the reason to latch onto the Butts story.

THE BOTTOM LINE: IF a journalist should have or does have serious doubts about the truth of a story and publishes it anyway, MALICE exists in the form of "reckless disregard for the truth."

When examining the issue of malice and "reckless disregard for the truth" the court will look for the following things:

• Use of reliable sources

• Ignored warnings that story may be false

• Was the story investigated adequately for the time available?

• Mistakes in interpretation

• Use of wrong terms

• Biased selection of the facts

• Ill-will toward subject of the story

• Motive to be sensational to attract readers

• Willingness to print a retraction

• Didn't investigate properly

Pember offers a three-point checklist for RECKLESS DISREGARD: (Pember 2000, p. 189)

• Was the defamatory material contained in a breaking news story?

• Was the source of the defamatory material reliable, responsible or credible?

• Were the defamatory allegations probable or improbable?

How do you know that some of these things exist? Must examine the journalist's state of mind.... What were they thinking when they worked on the story?

1979 Herbert v. Lando a Court ruled that journalists could be required to testify regarding their thought processes during the preparation of a story. While Col. Herbert could not prove actual malice against the crew on 60 Minutes, the court ruled that investigations into a journalist's "state of mind" were appropriate, that such inquiry would NOT "Chill" journalists. However, "state of mind" inquiry should only occur when the issue of malice is at stake, not for mere curiosity.

A more recent case illustrates this motivation issue with regard to "reckless disregard":

Jane Doe v. Daily News (1997) The New York Supreme Court ruled that columnist Mike McAlary did not libel an unidentified woman when said she had lied about being raped in a park. The Justices said no libel was involved because he believed the erroneous information provided by police sources and had "reported that misinformation accurately and drew reasonable inferences from it." Mr. McAlary had been told by another reporter in an off-the-record conversation that police had doubts about the woman's testimony. [New York Law Journal, 2/7/97]

Esquire magazine won a lawsuit against it by former national security advisor Robert McFarlane who charged that the magazine had called him a spy for Israel. The judge ruled that McFarlane did not prove malice because the magazine never had doubts about the credibility of its source. McFarlane wanted the court to reexamine Times. In 1996, the Supreme Court refused to hear the case.

In the boxing libel suit mentioned earlier, the author of the story testified that she had little evidence that the boxer, Cobb, was inclined to fix a fight.  That was enough to prove malice or reckless disregard for the truth which was necessary because Cobb was considered a public person. (American Lawyer Media, 1999)

It is also important to note that absolute verification of a story may not be necessary. If a reporter TRIES to verify the facts but is unable to (especially due to lack of cooperation) and runs the story anyway, that is not necessarily "reckless disregard." (Chang v. Mischiana Telecasting, 1990) [Pember 1997, p. 177]

Also important is the fact that ill will alone does not support a claim of malice or reckless disregard. While it may be considered, it is not sufficient alone.

TALK RADIO and malice:

The FCC once considered requiring stations to use a delay system to avoid libel (and other problems) but has not done so. Courts have mixed opinions about whether non-use of a delay system indicated reckless disregard for truth.

Cases in different states have opposing verdicts: One found use of the delay system would restrict speech (Adams v. Frontier Broadcasting 1976) and another found the lack of a delay system "reprehensible" (Snowden v. Pearl River Broadcasting Corp.,1971) Smith p. 428

Talk radio hosts are at some risk as well:

Embrey v. Holly (1981) Radio host Johnny Walker made the comment on his show about a black television commentator's recent knee injury. "Wonder how he hurt his knee. Probably fell down carrying a TV during the blizzard last week, right?" While there was no tape of the comment, so content is approximate, there were several reasons Mr. Walker lost the case.

• He usually made comments about current events during his radio talk show.

• There had been a blizzard and considerable looting during the event.

• When he announced that the Late Elvis Presley had registered at the local hospital, the switchboard at the hospital was swamped.

• He should have expected that some of his listeners would believe what he said to be true.

Murray v. Scholsser (1990): Radio station alleged to have inflicted emotional distress and defamed a woman by naming her "dog of the week" in their "Berate the Brides" segment. Following publication of her picture in the newspaper, DJ supposedly said she was "too ugly to even rate" and said she had won a case of Ken-L-Ration and a dog collar. Court awarded the damages to the plaintiff.

"Some states have passed laws that either provide broadcasters with absolute immunity for live third-party statements or require private -person plaintiffs to prove New York Times malice when libelous statements are made during controversial programs (Middleton, p. 121)"

In general, good faith efforts will protect you, but find out what the libel laws are regarding each state.

What is a public official?

In 1971, it looked like the distinction between private and public persons might disappear after the Supreme Court ruled in Rosenbloom v. Metromedia that actual malice standard should be applied to all people, public and private. That would have made things a lot easier, but....

1974 Gertz v. Welch changed all that. Gertz represented the parents of a Chicago youth shot by police, and the John Birch Society magazine, American Opinion attacked him viscously, calling him a communist and Leninist, and charged that the police had prepared a file on him (it never existed). Obviously false statements had been made.

Gertz had defended Jack Ruby and was well known in legal circles, and so he was ruled a public figure and would have to prove malice to win. The Supreme Court overturned the decision: it said only public officials and people who become involved in matters of interest by their own choosing have to prove actual malice.

Gertz had two effects:

1. Redefined public person: "Absent clear evidence of general fame or notoriety in the community and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life."

2. Eliminated the doctrine of STRICT LIABILITY: after Gertz, every person suing the media for libel must prove some form of fault. Private persons must prove negligence in most states.

As a result, TWO TYPES OF PUBLIC PERSONS have been defined:

• All-purpose public persons: those who have achieved widespread notoriety and who exercise general power of influence and occupy a position of continuing news value. Examples: Michael Jackson, Dan Rather, Oprah Winfrey, or Michael Jordan.

•   Vortex or Limited Purpose public persons: those who have voluntarily thrust themselves into a discussion of a public controversy with specific intent to affect the outcome of that controversy.

•   Vortex public persons must prove actual malice ONLY in defamation sits directly related to the voluntary activity.

• For libel suits related to other aspects of their lives, they are classified as Private Persons.

•   A local citizen circulating petitions for or against an ordinance would be an example.

TEST for Vortex Public Persons:

• Define the precise controversy involved

• Determine the plaintiff's role in the controversy

• Determine if the defamatory communications were relative to the plaintiff's role in the controversy (Smith p. 433)

Three classic cases illustrate:

Time Inc. v. Firestone (1976): Russell Firestone (heir to tire fortune) divorced his wife and the magazine ran a brief article saying she was accused of adultery. However, adultery was not mentioned in the divorce decree. She sued. Time said she was a public figure because of her social standing, but the court disagreed because SHE did not thrust herself into the public eye in order to influence a particular outcome.

Hutchinson v. Proxmire (1979): Sen. Wm. Proxmire gave his Golden Fleece award to Dr. Hutchinson who had received at $500,000 grant to study animal aggression. Hutchinson sued, saying his reputation and ability to obtain future grants had been damaged. Supreme Court said he was NOT a public figure since he had not tried to get any type of prominence or publicity. He was involved in a public controversy ONLY because of Sen. Proxmire's comments.

Wolston v. Reader's Digest (1979): The digest accused him of being a Russian spy, and said he was a public figure because he had previously been in headlines for refusing to testify before a grand jury. Court said NO because he had not sough the publicity.  

Richard Jewel, who we often think of in terms of privacy cases, sued the Journal-Constitution of Atlanta for libel in regard to its reporting of the Olympic Park bombing and subsequent investigation.  In February, 2002, the Georgia Supreme Court elected not to hear an appeal of his case.  The lower court decided in October, 2001, that Jewel was was a public person because he granted interviews  following the bombing and thereby injected himself into the public eye, making himself a limited-purpose public person.  His lawyers argue that with all the news media around, it would have been difficult for him not to have answered any of them....They will appeal to the Supreme Court.  (Ringel, 2002)

Private Persons:

Media outlets have an interest in proving the person who is suing them is a public person, because it's easier for the media folks to get off the hook. Public persons must prove malice (which we've already discussed), but private persons have to prove more than that they were just defamed.  While it depends on the state, they have to prove at least negligence or in some states Times malice in order to win.  It wasn't always that way.  At one time a private person only had to prove the defamation had taken place and been published in order to win the suit.  But no more....

• Since GERTZ, private persons cannot assume STRICT LIABILITY: that is, publishers or editors are not automatically liable for any defamatory material they publish.

• Each state could determine its own standards for burden of proof as long as an editor who is trying to be fair is not held liable.

• Some states have in fact adopted the New York Times standard of malice for private persons.

• Most require the proof of negligence.

Negligence: issue is whether the writer used reasonable precautions or ordinary care to determine whether the story was true or false.

Two ways of determining that:

AVERAGE PERSON STANDARD: Used by some states; what a reasonable person would do...No understanding of journalism required.

PROFESSIONAL PERSON STANDARD: What an ordinary person in the same profession would do... Understanding of professional standards is assumed.

Examples of Negligence:

• typos

• errors in note taking

• misuse of jargon

• reliance on wrong sources

• inadequate fact-checking

• failure to contact the person being investigated

• failure to verify info through the best sources available

• disagreement between source and reporter over what was told to the journalist (see Middleton p. 120 or Pember 1997 p. 167 for more details)

Reporter is okay if several sources tell the same story. News media are also okay if take story from the wire service. Wire services have excellent reputations

 Defenses against libel:

· Summary Judgment: When a media defendant is sued for libel, he must develop a defense based on the elements of libel that we discussed earlier. The case can be handled two ways. The defendant can present his/her case to a judge and request a Summary Judgment: The judge hears the situation and thinks the case is clear enough that he can make a decision before a jury trial takes place. This concludes the case before it goes to trial. Media defendants like these because they are quicker and cost must less in lawyer fees. The defendant "moves" for a summary judgment, and a judge can grant it if there is no real dispute over the facts of the case. Plaintiffs must prove New York Times actual malice in order to defeat a motion for summary judgment, and if they can't, then the judge can make a decision. Middleton cites Anderson v. Liberty Lobby (1986) p. 130.

· Jury Trial: The case goes to trial before a jury. This is not good for the media defendant generally, because media have lost more than 73% of liable cases before juries since 1980.

DEFENSES:

Statute of limitations: legal action must occur within a certain period of time after the publication; usually 1 to 2 years. In most places, that time limit is under the SINGLE PUBLICATION RULE: clock starts with the original defamatory publication. -- Usually the first date the publication was available for sale or broadcast. (not the date on the corner of the magazine but the date it appeared on the newsstands for sale!) However, each new edition of a newspaper, and each broadcast news update is a new "clock start." A few states still hold that every publication is actionable and this makes it very dangerous for media. Smith p. 434, Middleton p. 130

Truth: In most states if you can prove truth, you're off the hook. Less important than it was PRIOR to Times. The public person must show the defamatory statement was FALSE. That 's different than the defendant proving it was TRUE. If the plaintiff cannot prove falsity, the defendant can WIN without ever having proved the statement was TRUE. The burden of proof is on the plaintiff! But, if you CAN prove truth, you will "almost always" win.

How do you prove truth? Witnesses, etc. under oath. EVIDENCE. But sometimes witnesses may not be available:

• confidential source

• witness may not be credible

Not every detail has to be true, as we've discussed before. Context is taken into consideration.

Sometimes truthful statements may leave an erroneous impression. Middleton cites Memphis Publishing Co, v. Nichols (1978) wherein the newspaper neglected to mention other people at a shooting incident and gave the impression that two of the people who WERE mentioned were having an adulterous affair. Mrs. Nichols sued and won.

Absolute Privilege: Public officials and certain other persons have absolute privilege against being sued for libel for any statements made during official proceedings.

Total immunity regardless of purpose or justification in the following situations:

• judicial proceedings

• legislative proceedings, (hearings, speeches on the floor of Congress, etc.)

• executive communications within the scope of official duties (gossip doesn't count)

• publications made with consent of the plaintiff ("released" material)

• communication between husband and wife

• political broadcasts--under section 315 (broadcasters can't censor AT all; we'll discuss this more later.)

This type of privilege exists even if the statements are made with ill will, ulterior motive, etc. The government interests established in these situations are deemed to be more important than the libel issue.

For example: Courts have decided it's more important to have open and free discussions to assess the truth and reach a just end in a court of law than to protect an individual's reputation.

So how was Senator Proxmire's statement about Dr. Hutchinson's research libelous? Those statements were protected when they were made on the floor of the Senate, but they were NOT protected when he made them in a press conference, in his newsletter or on a TV talk show.

Administrative officials actually have more freedom than members of Congress:

Barr v. Matteo (1959) when acting within the scope of their duties, they are absolutely protected. In 1978, that immunity was limited to "unless they deliberately violate a citizen's constitutional rights." As long as they operate in good faith, they're okay.

In general, a public official is protected from libel suit when the communications made are required by or within the scope of his official duties. Middleton p. 140, Smith p. 435, Francois, p. 110

However, what the public official says outside of that scope is a different story. A Los Angeles Judge made libelous statements about a plaintiff in a hallway outside his courtroom. He discussed the incident in a newspaper interview later and was sued by the plaintiff. The court ruled that the judge made the statements in the hallway in his role as a judge and was therefore entitled to immunity for those statements. However, when he repeated them in the interview, he was NOT acting as a judge because it was not a normal judicial function to speak about a pending case to a newspaper. (Fried, 1999)

Qualified Privilege: Sometimes called "conditional privilege" or "Fair reports privilege." or...

Reporter's Privilege: report of defamatory comments in official proceedings are protected as long as they are made in a fair and accurate way. This protects reports of government actions as well as proceedings. It protects reports of OFFICIAL proceedings at all levels

Legislative: (legislatures to country commissions).

• A quorum must be present for protection to exist.

• Minutes must be taken.

• Official business must be apparently being conducted.

•   MAY NOT be privileged to report defamatory comments made in the halls, parking lot, etc. These are NOT part of an official proceeding, so not protected.

Judicial Privilege: Almost anything presented in a court has defamatory potential, so this is very important. It applies to fair and accurate reporting of any and all court proceedings.

• depositions

• pretrial hearings

• NOTE: in some states, the JUDGE must have begun action on a case and so filing of civil suits is not privileged.

• privilege applies to PUBLIC proceedings

• closed courtroom situations (for juveniles or sex offense) are not privileged in many cases

Executive Privilege: this is a "muddier" area (Pember,1997, p189) Reports based on official reports are privileged.

• If government documents aren't available to public, they're probably not privileged.

• BE CAREFUL: informal remarks aside from official report or proceeding may NOT be protected.

• Arrest reports are privileged only AFTER suspect has been booked.

• Informal reports by officers of arrest, may NOT be privileged, and sometimes are verifiable if something goes wrong.

Don't use the word "alleged" when you're not sure if a person has been charged. It should be used when a person HAS been charged, but has not been convicted. You must have an official source to use this word and it must attributed. Therefore you should always say, "Police allege," "the grand jury...", or "an indictment.." etc. Many reporters avoid the word all together, and they use instead the less legally charged word, "charged."

Quasi-judicial proceedings like hearings are usually protected (i.e. a hearing by the FCC regarding policy-making). Middleton ( 1997) has an excellent chapter on these issues.

Unofficial proceedings: These are privileged in some states: open meetings to discuss public concerns. union meetings, church meetings, medical associations, etc. (see Middleton p. 150)

CONDITIONS OF PRIVILEGE:

ACCURACY and FAIRNESS: must reflect what was said at the proceeding. Firestone case is an example. Story can't reflect only one side of the story; if it does, privilege is lost and you could lose your case.

ATTRIBUTION AND COMMON LAW MALICE:

Attribution: you MUST identify the privileged venue from which you got the information. IF you don't, you lose privilege (i.e. at the hearing, from the report, etc.).

Common law malice: proof of an improper motive for defamation such as vindictiveness, ill will, etc. This is not used much, because it's very hard to prove.

Neutral Reportage: protects reporters who accurately report defamatory statements about public figures.

A reporter may report newsworthy comments made by reliable sources, even if the reporter doubts the truthfulness of the statement. This is seen as important for the furthering of public debate and discussion of controversial issues. Charges must have the following characteristics to be privileged:

• newsworthy and related to a public controversy
• made by a responsible person or organization
• about a public official or public figure
• accurately reported alongside opposing views
• reported impartially
• Not all statements have adopted the neutral reportage privilege. Has Alabama? (Middleton, p. 153)

Consent: If the plaintiffs consent to any portion of the content, they may not have a case. Some states recognize "implied consent" in which plaintiffs agree to talk to a reporter or was called for comment. If the plaintiff initiated the report, that is also problematic. These cases are very rare, however.

Statement of Opinion and Fair Comment: This defense is useful for critics and others who are asked to comment on performances. The most famous case occurred in 1901.

Addie Cherry v. DesMoines Leader . This case involved a review of an entertaining group called the Cherry Sisters. It was not a flattering review....

"...Their long skinny arms, equipped with talons at the extremities, swung mechanically, and anon waved frantically at the suffering audience. The wailing of damned souls issued therefrom....Strange creatures with painted faces and hideous mien...."

The judge viewed a command performance of the sister's talents, and then agreed with the newspaper reviewer. ..The judge said the newspaper had the privilege and perhaps the duty to report on those things of public interest, as long as they do so without malice. When the sisters put themselves on stage in public exhibition, they invited comment on their actions. "Surely if one makes himself ridiculous in his public appearances, he may be ridiculed by those whose duty or right it is to inform the public regarding the characters of the performance."

The Illinois court established a four-point test for fair comment and criticism:

• It is an opinion.

• It relates to an action, not an individual.

• The reader can see a factual basis for the comment and draw his own conclusions.

• It relates to a matter of public interest.

Problems with this defense:

• It's easy to go beyond the line from the area of public interest into someone's private life.

• The facts may be misrepresented or the story could be based on false information.

• Critics could be mean or unreasonably vicious in their comments.

• Comments could be made about things which were not a part of public interest.

• These problems made defense very tricky. (Francois p. 116)

In 1984, in Ollman v. Evans, the courts clarified the issue in a case in which Evans and Novak (the columnists and television pundits) criticized the appointment of Bertrell Ollman, an avowed Marxist, as head of the Department of Government and Politics of the University of Maryland.

They generally questioned his teaching ability and motives. He was refused a retraction, but a letter was published in the Washington Post. When he sued, the case was dismissed, and the judge established the following four-part test in his opinion on the case.

Four Factor Test to distinguish Fact from Opinion:

• Common Usage: do the words have commonly accepted, definite meanings or are they ambiguous. As words are more ambiguous, they are more likely to be construed as opinion.
• Verifiability: Can you prove the statement true or false?
• Linguistic Content: How does the context of the piece effect the meanings of the words
• Social context: What do the words mean in a broader social context? What might not be defamatory in one situation may definitely BE so in another. Later, a fifth part was added to the test...
• Political or Public Speech: This fifth test to distinguish fact from opinion was provide by Judge Robert Bork; political speech and opinion was protected. (Gilmore, 1996)

A key case on opinion as a libel defense occurred in 1990 and changed the way libel was approached.

A two-step test offered in the Milkovich case clarifies the situation:

• Determine whether the comments are verifiable.
• Determine whether a reasonable reader would think that would think that the article implies defamatory facts.

The Milkovich case is significant because in the past, say "I think..." or "in my opinion" protected a critic or columnist from a liable suit. No more.

• Are statements in the story true? Can you prove it?
• Knowing something is true and being able to prove it in a court of law are two different things. Also you can get yourself in trouble for unjustified disclosure of private facts.
• Has the time passed for bringing a law suit? (check state laws)
• Did the plaintiff consent to publication?
• Was the published statement a "fair report" of an item of public interest and made without malice? (court trials, etc.-- check state laws re: privilege)
• If the plaintiff was a public official or public figure, was the publication made without malice?
  • Knowledge of falsehood
  • Reckless disregard for truth/falsity
  • Malice - i.e. ill will
• General Practices that will help:

• Generate awareness in news department. Have attorneys meet with staff at least once per year.
• Work with a sense of preparation. "Approach every story as if it were going to court."
• Keep accurate records/notes and records of phone calls, etc.
• Keep trying to get people "on the record"
• At least one producer should read every script. News managers need to be in on investigative pieces very early.
• Watch editing decision: matching video and audio can be a BIG problem.
• Promos for stories should be carefully examined: because they are abbreviated, there is potential for giving false impressions.
• Avoid pejorative slugs: these could cause trouble if the case goes to court.
• Don't use file footage carelessly. (Broadcasting 4/7/87)
• KEEP CURRENT with libel law. Read the TRADES. Get the LIBEL PRIMER form NAB and use those resources.
  

• Alden, Bill. "Felon's Portrayal in Film Ruled to be Not Libelous," The National Law Journal, 1/16/98. 
• Alden, Bill "Potential Liability for Libel Expanded". New York Law Journal 7/27/98.
• Alden, BIll. "Use of Epithet 'Bitch' Held Not to be Defamation Per Se." New York Law Journal, 5/7/98. 
• American Lawyer Media. "SI Hit with $8.5 M Judgment inBoxer's Libel Suit"  6/11/99.
  Associated Press. "Doctor Wins Internet Libel Case." USA TODAY.  12/11/00.
• Associated Press. "Oprah Not Liable in Mad Cow Lawsuit." USA TODAY 2/26/98.
• Associated Press. "Suit Alleges Mom Killed JonBenet." Denver Post. 4/29/00.
• Babineck, Mark. "Texas Cattlemen take Beef with Oprah to Court." Times Daily. 2/20/98 p. 3A. Benjamin, Burton. Fair Play: CBS, General Westmoreland and How a Television Documentary Went Wrong. Harper-Row (New York: 1988)
• Borders, Joe. "Winfrey Wins Another Round Against Cattlemen. Texas Lawyer. 2/10/2000.
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