Unprotected Speech : Libel, Invasion of Privacy, and Obscenity What is libel? 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 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 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 Fault 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 1) 2) 3) 4) 4 ways to defend yourself should you be charged with libel Truth Consent Privilege Fair Comment Truth As decided in the Zenger trial, the truth can never be libelous An infallible defense Consent 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 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 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 1) 2) 3) 4) Second form of unprotected speech 4 kinds of invasion of privacy: Intrusion Appropriation/Right of publicity False Light Private, embarrassing information Intrusion 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 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 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 Embarrassing Information cont. Truth is not a defense Only consent and newsworthiness (public interest) would be a defense to this charge Obscenity 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