By Caralyn Greif and Gina Guarini
 Defamation: communication of false statements about a person that
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injure the reputation of or deter others from associating with that
person
Libel: to publish in print (including pictures), writing or broadcast
through radio, television or film, an untruth about another which will
do harm to that person or his/her reputation
Proof of Malice: In a Libel/Defamation lawsuit, one must provide
actual proof that the intention of the statement was to be harmful
“Libel per se”: involves statements so vicious that malice is assumed
and does not require a proof of intent to get an award of general
damages
“Public Figure”: The rules covering libel against a "public figure"
(particularly a political or governmental person) are special, based on
U. S. Supreme Court decisions. The key is that to uphold the right to
express opinions or fair comment on public figures, the libel must be
malicious to constitute grounds for a lawsuit for damages.
www.legal-dictionay.thefreedictionary.com
 Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government
for a redress of grievances.
 Landmark Case:
 In 1960 the New York Times publishes a fundraising
advertisement for the civil rights movement called
“Heed Their Rising Voices”.
 The ad contained several minor errors of fact
 L.B. Sullivan, one of three city Commissioners in
Montgomery, Alabama, becomes aware of the ad. He
sues the New York Times for libel, claiming that the ad
refers to him because he oversees the Montgomery
police department which was mentioned in the ad. The
jury grants him damages of half a million dollars; the
New York Times appeals to the Supreme Court.
www.bc.edu
www.northwestern.edu
 The Court ruled that public officials wishing to prevail
in libel actions have the burden of proving that
defamatory was published with actual malice
 Substantially extended First Amendment protection
for those writing a publishing stories about public
officials
 Some argue that if the Supreme Court ruled in favor of
Sullivan, it would have significantly censored the press
 Associated Press v. Walker (1967)
 The trial court rejected the defense's new trial motion based
on New York Times Co. v. Sullivan, holding that decision
inapplicable to one like petitioner not a public official. It also
held the evidence amply supported the conclusion that the
magazine had acted in reckless disregard of whether the
article was false or not.
 Curtis Publishing Co. v. Butts (1967)
 Under the Times rule it was clear that Walker had not proven
malice, and that the Butts case showed a "degree of reckless
disregard for the truth."
www.law.jrank.org; www.law.umkc.edu
 Gertz v. Welsh (1974)
 The principal issue in this case is whether a newspaper or
broadcaster that publishes defamatory falsehoods about an
individual who is neither a public official nor a public figure may
claim a constitutional privilege against liability for the injury
inflicted by those statements.
 In the absence of a showing of actual malice, private plaintiffs are
limited by the First Amendment--at least with respect to comments
about a matter of public concern-- to recovery only for actual
damages, and not for punitive or presumed damages.
 Hustler Magazine, Inc. v. Falwell (1988)
 The Supreme Court ruled unanimously that the jury award violated
the First Amendment. The Court saw no principled standard for
separating the Hustler ad from, for example, hard-hitting political
cartoons.
www.law.jrank.org
 High School principal removed
information from paper,
claiming it didn’t protect
students’ identities well enough
 Supreme Court decided that
public school officials may
impose some limits on what
appears in school-sponsored
student publications
 Newspapers that have not been
established as student
expression forums are subject to
a lower level of First
Amendment protection than
independent student expression
or newspapers
 Paper was not considered a
“public forum”
 School officials may censor
papers for an educational
purpose
 Actual Malice Standard: inconsistent and flawed
interpretation and application. Heavy reliance on the
Supreme Court’s interpretation
 Many publications fear being sued for
libel/defamation and therefore avoid topics that
require investigation or controversy
 Lawyers becoming highly involved with editing process
 Result: forces us to spend a good deal of time looking at
how journalism is made.
 Promotion of irresponsible journalism
 the public’s interpretation of journalism as sloppy.
Kohler 1225-27
 Absence of Malice
 Tagline: “Suppose you picked up the morning
newspaper and your life was on the front page
headline. Everything they said was accurate but none
of it was true”
 Is this ethical?
 Subpoenas:
 commands a person to bring certain evidence, usually
documents or papers to court (including information
obtained from confidential sources)
Journalist rights are deliberately one of the
foremost rights of the US Constitution. But
though journalists are protected under the
first amendment, those rights are too open
to interpretation. Therefore, additional
laws must be put into place.
 Law that provides a
journalist the right
to refuse to testify
information and/or
the sources of
information
obtained from
newsgathering.
Washington Post reports that First Amendment crises
like this have been happening like clockwork every 35
years
 each time resulting in the imprisonment of a reporter
 each time sparking a call for a change in the law to
protect Journalists.
Still, there is currently no national
shield law, only different variations of
shield laws in each individual state.
Some forms of which include:
• protects identity of sources
• info that might lead to the identity of sources
• unpublished info obtained during newsgathering
process
• DOES NOT necessarily protect all online publishers,
such as bloggers, or amateur journalists
• Depends on whether case is civil or criminal
• DOES NOT offer protection to parties of a case
• Provides “absolute” protection in civil cases
• Provides “qualified privilege” in criminal cases (court
can still order disclosure of sources or material)
• DOES NOT include any instance in which the reporter
conceals that he/she is a reporter from the source
• DOES NOT include any situation in which a reporter
is eyewitness to or participant in any act involving
violence or property damage
• Wording does suggest protection for amateur and nontraditional journalists, such as bloggers
• Protects only “professional journalists”
• Book authors specifically excluded from protection
• Wording of law is unclear for online news publication
• DOES NOT include physical evidence, eyewitness
accounts or recordings of crimes
• FL shield law is more qualified privilege, because a
court can still force a reporter to reveal info in some
cases, civil or criminal
 Shield laws apply only if reporter receives a subpoena
as part of a Grand Jury proceeding or as part of a
criminal investigation
 DOES NOT give protection for civil cases
 DOES NOT apply when a criminal defendant seeks
information from a reporter
 Covers amateurs and non-traditional journalists
 Freedom of Information Act (2007)
 “AN ACT to maintain the free flow of information to
the public by providing conditions for the federally
compelled disclosure of information by certain
persons connected with the news media.”
• A court determines by
overwhelming evidence
that all other reasonable
sources have been
exhausted
• The information sought is
critical to the investigation
or prosecution or defense
against the prosecution
• The public interest in
disclosing the information
outweighs the public
interest in gathering or
disseminating it as news
• Broaden the definition of
who is covered
• Lower the standard of
evidence the federal
government is required to
show before it is allowed to
require a journalist to
provide testimony or
produce documents
• Lower the standard for how
important the information
sought needs to be to the
successful completion of
the case in which the
information sought.
Privacy Protection Act (PPA) (1980)
• Prohibits government officials from searching or
seizing the documents of people "reasonably
believed to have a purpose to disseminate to the
public a newspaper, book, broadcast, or other
similar form of public communication."
• Can be seized if there is probable cause to believe
the publisher is involved in the criminal offense.
• Forces law enforcement to use subpoenas to obtain
evidence from journalists, due to protection from
the first amendment
 Branzburg vs.Hayes (1972)
 Court decided that the first amendment does not
provide immunity from having to testify before a jury
 As a result, 10 states adopted shield laws
 Nixon Administration voluntarily adopted internal
guidelines discouraging issuing subpoenas to
journalists
• www.bc.edu
• Kohler, David “Forty Years After New York Times v. Sullivan:
The Good, the Bad, and the Ugly”
• www.law.jrank.org
• www.law.umkc.edu
• www.legal-dictionay.thefreedictionary.com
• www.northwestern.edu
•http://www.washingtonpost.com/wpdyn/content/article/2005/10/02/AR2005100201237.html
•http://www.spj.org/shieldlaw-2102.asp
•http://www.privacilla.org/government/privacyprotectionact.
html