Defamation and
Misc. Free Speech Issues
Fall 2014
Resources:
Harvard’s Berkman Center
http://www.citmedialaw.org/legal-guide/defamation
EFF
http://www.eff.org/issues/bloggers/legal/liability/defamation
Defamation
• Defamation required elements to prove:
1. False statement of fact about plaintiff by
defendant
2. Publication - communicated to a third party
3. Damages the reputation of the plaintiff
• Defamation forms
– Oral: slander
– Written: libel
• Negligence standard, Gertz (1974)
Can you defame someone with a true,
dark secret?
A. Yes
B. No
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A defamatory tweet would be an
example of
A. Slander
B. Libel
el
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Defamation per se:
• If it’s defamation per se, proving harm to
reputation is not required
• Per se categories:
– disease;
– criminal actions;
– misconduct related to profession or business;
– sexual misconduct.
• False statements involving these items are
always actionable
If you are bring a lawsuit claiming the statement was
defamation per se, you will not have to prove
A. That the statement
was communicated to
a third party
B. That the statement
was false
C. That the statement
harmed your
reputation
D. All of the above
E. None of the above
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Defenses, Exceptions to Defamation
•
Is it a statement of fact?
–
•
Facts: capable of being objectively verified.
Is it an opinion?
–
–
•
Generally, opinions are protected speech.
Stating false information ≠ opinion
Other exceptions:
–
“merely” offensive statements
•
The “Dumb Ass” example in Vogel v. Felice
–
–
Hyperbole
•
–
“… if the meaning conveyed cannot by its nature be proved false”
Hustler v. Falwell
Libel proof plaintiff
Which of the following is NOT a per se
category for defamation?
A.
B.
C.
D.
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Bu
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Disease
Hyperbole
Criminal conduct
Business
misconduct
E. Sexual misconduct
Defamation and public figures
• Public figure: celebrity, politician, public official
– Examples:
http://www.citmedialaw.org/legal-guide/examples-public-and-private-figures
• In addition to the three requirements, public
figure plaintiff must prove that the defendant
acted with actual malice (NY Times v. Sullivan)
– Knowing that it was false or with active disregard to
statements truth.
• Regular defamation tests merely for negligence
– Reasonably prudent person, reasonable care
– Ex. David Beckham’s $25 M suit against In Touch
• http://www.guardian.co.uk/football/2011/feb/15/davidbeckham-magazine-libel-judge
Public figures who sue for defamation have an
additional element to prove about the statement.
What is it?
A. the statement was
communicated to a
third party
B. the statement was false
C. the statement was
made with actual malice
D. the statement harmed
his/her reputation.
E. the statement was
made with negligence.
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Suppose that each of the following statements is untrue and was
communicated to a third party. Is the statement defamation? Why?
1. “Bob smells bad.”
2. “Alice is as dim as a 20
watt bulb.”
3. Nurse Ellen tells Nurse
Sam “Dr. Steve had a 3
margarita lunch before
performing that surgery.”
4. “George took the money.”
5. “Vivian has herpes.”
6. “Charlie Sheen, Lindsey
Lohan called and she
wants her smack back.”
7. “Bridget slept with the
entire offensive line.”
8. “Bridget slept with Frank.”
9. “I think Bridget smoked
weed at the party this
weekend because I saw
her coming out of her
room, and when I went in I
could smell it, and I found
a roach.”
10. “Amy Winehouse had
AIDs.”
Can you sue Twitter & Facebook
over a member’s defamatory
comments?
See § 230 of the Federal
Communications Decency Act
http://www.eff.org/issues/bloggers/legal/liability/230
Your former friend defames you on Instagram.
Can you successfully sue Instagram as Instagram
was the online publisher?
A. Yes
B. No
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No
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What Courtney Love can Teach Us
about Defamation
• The first defamation lawsuit
– http://www.techdirt.com/articles/20090329/2229
284297.shtml
• Resolution: settlement
http://artsbeat.blogs.nytimes.com/2011/03/04/courtn
ey-love-settles-twitter-defamationcase/?_php=true&_type=blogs&_php=true&_type=blo
gs&emc=eta1&_r=1
Courtney Love cont’d
• The second lawsuit:
– http://www.hollywoodreporter.com/thresq/courtney-love-sued-again-defamation-192727
– The case went to trial. January 2014 verdict for
Love
• http://www.huffingtonpost.com/eugene-k-chow/whycourtney-love-twibel_b_4688426.html
Courtney Love cont’d (2)
• The third lawsuit:
– Pinterest comments
• include "you stole 36 bags of clothing on cctv" and "you
stol;e 36 bags of my txtiles and designs and are still using my
designs.“
– http://www.hollywoodreporter.com/thr-esq/courtney-love-hitdefamation-lawsuit-630423
– Feb 20, 2014, the judge ruled the case can continue
http://www.spin.com/articles/courtney-love-dawnsimorangkir-libel-lawsuit-howard-stern/
@midnight – Yelp reviews
http://www.cc.com/video-clips/szn7jo/-midnight-chuck-e--cheese-s-or-jail---gang-banging-daddies
Business Interests
& Online Defamation
Unfavorable reviews of businesses:
– Restaurant Yelps: http://nyti.ms/fII6iP
– T & J Towing v. Kurtz, Facebook group: Kalamazoo Residents against T&J Towing
• http://www.citmedialaw.org/blog/2010/tj-towing-v-kurtz-weve-got-court-documents
• Update & what is S.L.A.P.P.? http://nyti.ms/d7C2so
– Trip advisor: Dirtiest hotels list
• http://www.mondaq.com/unitedstates/x/264642/Libel+Defamation/Sixth
+Circuit+Affirms+Dirtiest+Hotel+Defamation+Ruling
Unfavorable tweets against businesses:
– “Worst car dealership in the world”
• http://www.citmedialaw.org/sites/citmedialaw.org/files/2009-12-04Route%206%20Hyundai%20Demand.pdf
• http://www.citmedialaw.org/sites/citmedialaw.org/files/2009-12-19-Alascio%20Response.pdf
– Apartment Mold:
•
http://consumerist.com/2010/01/twitter-defamation-lawsuit-dismissed.html
What is your opinion? A blogger should get the
same protections as a traditional journalist.
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Strongly Agree
Agree
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Neutral
Somewhat Disagree
Disagree
Strongly Disagree
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G.
Bloggers as Journalists
• In the past, some courts have been hesitant to
extend protections to bloggers.
• A recent decision may change that
– Obsidian Finance Group v. Cox, 9th Circuit 2014
• “The protections of the First Amendment do not turn
on whether the defendant was a trained journalist … As
the Supreme Court has accurately warned, a First
Amendment distinction between the institutional press
and other speakers is unworkable.”
Misc. Free Speech Issue:
Anonymous Speech
• Anonymous publishing as a First Amendment
right
– McIntyre v. Ohio Elections Commission US S. Ct
1995
– http://gilc.org/speech/anonymous/
• Online speech, accomplished using remailers
– A series of servers that strip our identifying info &
sub in anonymous code or random numbers.
(chained remailing)
Does the First Amendment give you the
right to speak anonymously online?
• Yes, but you do not have the right to speak
falsely & injuriously.
• example below:
Misc. Free Speech Issue:
Students’ right to free speech
• “Faked” profiles
– Mix of rulings
• Fake MySpace profile for a Texas principal Draker v. Schreibner
• Facebook parody profile of principal Trosch by high school student
Layshock v. Hermitage School District
• 14 y o middle school student created fake MySpace J.S. v. Blue
Mountain School
• http://blog.ericgoldman.org/archives/2012/03/suspension_for_1.htm
– Application of Tinker v. Des Moines (1969 US S. Ct. case). Black
armbands & school ban
• Students are persons under the Constitution
• Rights not left at the school house gate
• School must base decision on the likelihood of disruption of education
environment and intrusion of others.
Students rights cont’d
• Fraser standard (1986) student lewd speech
– distinguishing "vulgar" speech from the pure
"political" speech in Tinker
• Hazelwood standard (1988) school paper case
– “educators do not offend the First Amendment by
exercising editorial control over the style and
content of student speech in school-sponsored
expressive activities so long as their actions are
reasonably related to legitimate pedagogical
concerns."
Finkel v. Dauber
• 2010, NY case
• Secret Facebook group
– Victim of the bullying
sues for defamation
– http://blog.ericgoldman.
org/archives/2010/07/pr
ivate_faceboo.htm
– Outcome?
Free speech challenges for student
speech consider
A. The kind of speech (political,
vulgarity)
B. The likelihood of disruption
to the academic environment
C. The rights of those around
the student
D. All of the above
E. Nothing. Students do not
have free speech rights
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Misc. Free Speech Issue:
Employee’s right to free speech
Article http://www.hrexaminer.com/is-there-free-speech-atwork/
• Some right to discuss working conditions
– EMT fired; found firing was improper
• http://nyti.ms/djca6U
• Distinguish conditions discussion from mere venting
– NJ first grade teacher properly fired for saying she “felt like a warden
overseeing future criminals”
• http://blog.ericgoldman.org/archives/2013/01/tenured_school_1.htm
– Bartender example (see next slide)
•
http://www.nytimes.com/2013/01/22/technology/employers-social-media-policies-come-under-regulatory-scrutiny.html?pagewanted=all
Bartender, unhappy about receiving no
raise in 5 years, posts on Facebook that
his customers are rednecks and hopes
“they choke on glass as they drive home
drunk.” Classify this.
A. Discussion of
working conditions
B. Personal venting
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Free Speech Issue: When beliefs
contradict law
• Amish stance on technology adoption.
• Wisconsin v. Yoder exemption for school
• What about requiring the Amish to use
“technology”?
– Mandatory, reflective traffic triangles on buggies
– Traffic triangles. Watch:
• http://www.foxnews.com/us/2012/01/02/amish-sects-buggies-traffic-burdenfor-some-kentucky-residents/
Opinion: Should the Amish be required to
display the triangles when on public roads?
A. Yes
B. No
C. I’m conflicted (unsure)
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Reasoning:
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Result: Kentucky Supreme Court
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