Chapter Four
To define libel and slander
To list the elements of libel
To understand libel defenses
To understand rules for public and private
• To define anti-Slapp laws
Libel awards rising!
• 1996: average libel judgment = $2.8 million!!
(that’s AVERAGE!)
– Can put smaller publications out of business
• Largest judgment to date: MMAR v. Wall Street
Journal (1997): award of $222.7 million against
WSJ for publication about
brokerage firm that put
them out of business
– Award reduced and then
eliminated when found that
firm had withheld crucial
evidence from WSJ
Fear of self-censorship
• Tobacco company
whistleblower Jeffrey
Wigand’s interview with Mike
Wallace for 60 Minutes was
not aired after it was initially
made, due to fears that Brown
& Williamson would sue CBS
– Interview was later aired
– Wallace: “We continue to go
after the big ones because it’s the
big ones that count”
Libel and slander
“ … a great deal of the law of defamation makes
no sense. It contains anomalies and
absurdities for which no legal writer ever has
had a kind word…”
William Prosser
Handbook of the Law of Torts
Libel definitions
• Defamation: communication that tends to injure
someone’s reputation
• Libel: written defamation
• Slander: spoken defamation
– We will use “libel” regardless of the action
• Negligence: journalistic malpractice; sloppiness
and mistakes
• Actual malice: worse; knowingly publishing
falsehoods or acting with reckless disregard
How is libel handled legally?
• Civil tort actions, NOT criminal actions
• Usually in state courts, but federal courts
do get cases (diversity jurisdiction) and
will use state laws to
determine outcome
• States vary in their
libel laws, even though
Supreme Court rulings
have made libel actions
more uniform
Overview of libel elements:
Plaintiffs must prove…
• Defamation: statement must tend to hurt
someone’s reputation
• Identification: statement must somehow
identify its intended victim
• Publication: statement must be
heard/seen by someone other than victim
and source
• Fault: at the appropriate level
• Damages: losses that can be monetarily
Elements of libel: Defamation
Defamation is a communication that
damages the reputation of a person, but
not necessarily the individual’s character
Your character is what you are
Your reputation is what people think you
Reputation is what the law protects.
Elements of libel: Defamation
• Libel per se vs. libel per quod
– Libel per se is when words “on
their faces” are libelous:
“crook,” “racist,” “murderer,”
“adulterer,” “prostitute”
• Falsely accuses someone of crime,
immorality, infection by loathsome
disease, incompetence
– Libel per quod is when context is
necessary to be defamatory
• E.g., reporting that man is “steady
dating” a woman when he is in fact
married to someone else
Identification: Who may sue?
• Any living person or other private legal entity
(like corporation): libel is a personal right not
property right, so it dies when person does
– Some states permit heirs to sue (NJ, PA)
– Many states let heirs continue existing suit
• Group libel: no individual
may sue for libelous
statement targeted at group
– Cutoff? Between 5 and 100
– The larger the group, the less
chance individuals have to be
able to sue for libel
Elements of libel: Identification
• At least some readers/listeners must be
able to identify who is being libeled
• Use of name is obvious, but there are other
– Title (president of university); address (1600
Pennsylvania Blvd.); description (lead actor in
Indiana Jones movies); job (Attorney General
of the U.S.); initials (JFK, LBJ)
Elements of libel: Identification
• If identification is vague or
incomplete, other parties
may sue
– Behrendt v. Times Mirror Co.
(CA App. 1939): Ralph A.
Behrend and R. Allen
Behrendt both worked at same
hospital; LA Times reported
Dr. Behrendt had been
arrested for theft and
narcotics—when actually it
was Dr. Behrend who had, so
Dr. Behrendt sued and won
Elements of libel: Publication
• Victim + source + one other party = publication
– Fewer people hearing it = less damages suffered
– Republishing libel, even accurately and with
sources, does not exempt from liability
– Everyone who disseminates can be liable
• Single publication rule: initial publication is one
libel, no matter how many people see it—no
perpetual libel suits
Elements of libel: Fault
• 90% of all cases hang up here
– Pre-Sullivan, fault assumed for
• Different kinds of people have
different levels of fault to prove
– Public officials and public people
must prove actual malice: that
media knew something was false
and published it anyway, or acted
with reckless disregard for truth
(didn’t care)
– Private people need only prove
negligence: journalistic sloppiness
• Much easier for private people
to win libel suits!
New York Times v. Sullivan, 1964
• Starts modern era of defamation
• Introduces concept of requiring fault in
libel actions
• Adds element of actual malice (publishing
with knowledge of falsity or reckless
disregard of the truth)
Changes from common law
• In original common law of strict liability (SL),
defendant had high burden of proof
– Defendant had to show that it did not libel
someone—hard to do
– Plaintiff only showed defamation, publication and
identification took place; media had to demonstrate
that it had not libeled
– Truth not a defense:
“the greater the truth,
the greater the libel”
• After Sullivan (1964),
libel considered as
constitutional question, with 1A protection, and
burden of proof shifted to plaintiff (MAJOR)
Fallout from New York Times v.
Sullivan, 1964
• Actual malice rule applied to public
figures who held no office (Curtis
Publishing Co. v. Butts and Associated
Press v. Walker)
• Actual malice rule applied to private
citizens involved in matters of “public
interest” (Rosenbloom v. Metromedia,
New York Times v. Sullivan, 1964
• States could allow a lesser standard
of proof (negligence not malice) for
private persons (Gertz v. Welch,
• Private persons thrust into the
limelight do not have to prove actual
malice (Time inc. V. Firestone, 1976)
Elements of libel: Damages
• Any plaintiff MUST prove some damages to
win (no damages, no case)
• Varies based on award sought and whether
public or private
– Punitive damages
require proof of
actual malice, at
all levels
Defenses to libel: hard-line
• Truth: absolute defense
– Plaintiff must prove falsity—but if you can prove
truth, you win—it’s hard!
– Not a defense to print accurate account of what
someone else falsely said (unless from a gov’t
proceeding or document)
• Privilege: three kinds
– Absolute: rare for media
– Conditional/Qualified: like private facts defense of
public record/public proceeding: truthful coverage
of gov’t proceedings or documents
• Before 1964, falsity assumed, defendant had to
show otherwise—now plaintiff must prove
• Philadelphia Newspapers v. Hepps (1986):
Maurice Hepps alleged by Inquirer to be linked
to organized crime; he couldn’t prove falsity,
but PI couldn’t prove truth
– Hepps lost: Where speech of public
importance is concerned, all plaintiffs,
public or private, have burden of
proving falsity (in favor of speech)
• Truth an absolute defense—but
very, very hard to prove to jury
• Hutchinson v. Proxmire (1979): Sen. William
Proxmire of WI issued “Golden Fleece” awards to
people he thought wasted taxpayer money
– Dr. Hutchinson studied teeth-clenching monkeys,
sued for libel on
Proxmire’s press release
– Court said he wins:
privilege does not cover
press release, only
Proxmire’s remarks on
Senate floor recorded in
Congressional Record
(even if verbatim)
• So this defense is limited
Defenses to libel: hard-line
• Fair comment and criticism: similar to opinion
– Must be based on facts and not published with
• Consent (of course!): but be careful—could be
setup if someone permits publication of info
defamatory of them
• Statute of limitations: if libel action not filed
within set period of time, statute “runs” and
claim cannot proceed (1-2-3 years usually,
varies by state)
Fair comment and criticism
• Milkovich v. Lorain Journal Co. (1990): HS
wrestling coach sued newspaper that alleged he
lied under oath about fight at wrestling match
– Court said no constitutional privilege for opinion
when based on false statements of fact, unsupported
facts, or implied facts
– To write “in my opinion, Jones
is a liar” is no defense—charge
implies knowledge of facts
• Court affirmed Hepps in that
plaintiff must prove falsity
• If something can be proved, probably not
protected: “X is bad” vs. “X did a bad thing”
• Good protection for pure opinion, however
Defenses to libel: mitigating
• Correction/retraction: “I take it back!”—timely
– Might satisfy plaintiff; usually prevents punitive
• Libel-proof plaintiff: plaintiff’s reputation so bad
already that couldn’t be further harmed
• Neutral reportage: reporting all sides of
controversial issue of public importance fairly
(2CA opinion, few states recognize, not CA)
• Right of reply: when one media sues another, first
claims it was merely replying to attacks by second
• Usually reliable source (a.k.a. wire-service
defense): source was reliable in past
Trade libel (a.k.a. “veggie libel”)
• 13 states have “food disparagement laws” for
growers/ranchers to help recover damages from
anyone who alleges health risks associated with
their product
• Texas Beef Group v. Oprah
Winfrey (Tex. 1998):
discussion about mad-cow
disease prompted Oprah to
say, “It has just stopped me
from eating another burger”
– TX cattle owners sued, claiming beef prices dropped as
result of her comment
– TX court said couldn’t use TX food disparagement law
Libel on the internet
• Telecommunications Act of 1966
– Internet service providers are not to be
treated as publishers
– Thus, the are not liable for content of
messages they carry
– Thus, they can not be sued for libel
– Providers free to screen materials they
consider inappropriate
SLAPP lawsuits
• Strategic lawsuits against public
– Legislation that says if a plaintiff files a
merit less lawsuit to discourage the
defendant, the defendant can require the
plaintiff to pay attorney fees
– Allows the court to dismiss frivolous lawsuits
• Defamation is an expression that damages
a person’s reputation. Printed defamation
and most broadcast defamation are
considered to be libel.
• Slander is spoke defamation.
• Civil libel—whereby one person or
organization sues another for monetary
damages is most common.
• Libel elements include defamation,
identification, publication, fault, damages.
• Libel defenses include truth, privilege, fair
comment and criticism, consent, statute of
• In New York Times v. Sullivan, the U.S. Supreme
Court ruled for the first time that the First
Amendment protects the publication of false
statements that damage reputation.
• Public officials suing the media for statements
about their conduct must prove that defamation
was published with knowing falsehood or
reckless disregard for the truth.