Unprotected Speech :
Libel,
Invasion of Privacy, and
Obscenity
What is libel?
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A false printed statement of fact
Spoken statements of fact are called slander
4 elements of libel: Publication,
Identification, Injury (aka Harm), Fault
All 4 elements must be present in order for a
journalist to be guilty of libel
Publication
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The statement must be published to be
libelous
Private letters are not libelous
Would a posting on a comments page on
myspace be considered libel?
Identification
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The libeled individual must be clearly
identified
Identification does not necessarily mean
naming the individual
If even a small group can identify the person,
you may be guilty of libel
Injury/Harm
The statement must harm a person’s reputation
 Things that may constitute harm:
-Statements regarding improper sexual conduct
-Statements that associate someone with a vile
disease
-Statements that accuse someone of illegal behavior
-Statements that hurt someone's livelihood
-Statements that allege racial or religious bigotry
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Fault
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Most difficult element to prove
You did something you were not supposed to
do or did not do something you should have
done
Public officials and figures have to prove
malice as well as fault (see NY Times v.
Sullivan on p.141)
Defenses against libel
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1)
2)
3)
4)
4 ways to defend yourself should you be
charged with libel
Truth
Consent
Privilege
Fair Comment
Truth
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As decided in the Zenger trial, the truth can
never be libelous
An infallible defense
Consent
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A person who, prior to publication, consents
to the media’s use of a libelous statement,
cannot sue after publication
This may not be true if the libeled person is
under 18 years of age
Privilege
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The media is protected when they publish fair
and accurate accounts of official public
proceedings and reports, even if later the
information turns out to be false
The source of the statement must also be
clearly noted in the report to avoid a charge of
libel
Fair Comment
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Protects writers of reviews and editorials from
being sued for stating their opinions
Statements of pure opinion cannot be libelous
Only statements presented as facts can be
libelous
Invasion of Privacy
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1)
2)
3)
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Second form of unprotected speech
4 kinds of invasion of privacy:
Intrusion
Appropriation/Right of publicity
False Light
Private, embarrassing information
Intrusion
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Unwelcome entry in some way, usually
physically, into a private area
People in public spaces, such as parks,
sidewalks, and school hallways have no
expectation of privacy
May also be intrusion if you quote someone
without their consent
What would be examples of private areas?
Appropriation/Right of Publicity
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Unauthorized use of someone's name or
photograph for commercial purposes
Need signed releases to use anyone's name or
photo to advertise or sell something
False Light
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Involves using true information in a way that
it implies something false
Happens often with placement of photographs
Private, Embarrassing Information
Includes facts that are private, intimate and
which the disclosure of would be highly
offensive to a reasonable person
 Examples:
-Facts about a person’s sexual conduct
-Medical or mental condition
-Addiction recovery
-Educational records
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Embarrassing Information cont.
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Truth is not a defense
Only consent and newsworthiness (public
interest) would be a defense to this charge
Obscenity
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3rd form of unprotected speech
Defined by the Supreme Court as something
that by community standards arouses sexual
desire, depicts sexual conduct in a patently
offensive way, lacks any serious literary,
artistic, political, or scientific value