Libel & Defamation
1
Definitions
Communication that injures a
person’s reputation.
 Communication that exposes a
person to hatred, ridicule or
contempt, lowers him in the esteem
of others, causes the person to be
shunned, or injures him in his
business or profession.

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Types of defamation

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Libel — written defamation
Slander — spoken defamation
3
Who can sue for libel?
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Any living person
A corporation
An unincorporated association,
organization or society, including a labor
union, charitable foundation, non-profit
and fraternal organization.
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What a libel plaintiff must
prove to win a libel suit
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Publication
Identification
Defamatory content
Fault
Falsity
Injury
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Re-publication rule

The bearer of tales is as guilty
as the teller of tales.

Each person who participates
in the repetition or republication of a libelous
statement can be held legally
liable.
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ISP exception

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1996 Communications Decency Act:
ISPs are not treated as publishers or republishers of information provided on
their systems by others.
Therefore, an ISP cannot be held liable
for defamation on its system, just as a
library or news vendor is not liable.
7
What constitutes identification

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Is the statement “of and concerning”
the plaintiff?
Identification can be by name, picture,
initials, penname, nickname, sketch,
drawing, even a description.
Do other people
recognize the plaintiff?
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Group Libel


Can a member of a group sue for
libel if the entire group is defamed
but the member is not mentioned
individually?
Maybe. Depends on size of group,
nature of the statement.
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Defamatory content

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Three categories of libelous content:
1. Libel per se, “obviously defamatory”
publications.
2. “Publications which are susceptible of two
reasonable interpretations, one of which is
defamatory and the other is not”.
3. Libel per quod, “publications which are not
obviously defamatory, but which become so when
considered in connection with innuendo,
colloquium and explanatory circumstances.”
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Requirements for double-meaning &
per quod libel


Libel susceptible of two meanings: Plaintiff
must prove the defamatory meaning was
intended by the defendant and understood by
the audience.
Libel per quod: Plaintiff must prove the
special circumstances, that the audience
understood the defamatory connotation, and
special damages, that is, actual monetary
loss.
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Libel per se

•
•
•
•
Four specific types of libel per se:
accusing a person of having committed “an
infamous crime.”
charging that a person has “an infectious disease.”
impeaching a person in his or her trade or
profession.
a catch-all category consisting of communication
that “tends to subject one to ridicule, contempt or
disgrace.”
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Trade libel


Also known as product
disparagement
All the usual elements PLUS
special damages, that is, actual
monetary loss due to the libel
13
Who must prove falsity in libel
cases?

Public officials, public figures and private
persons involved in matters of public
concern must prove falsity.

Whenever the subject of the report that
gave rise to the libel suit is a “matter of
public concern,” the plaintiff, whether
public or private, must prove the falsity of
the defamatory statements.

Philadelphia Newspapers v. Hepps, 1986
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What is “a matter of public
concern”?
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In Hepps, the Supreme court provided no
definition of the term but merely asserted
news about crime clearly was of public
concern.
Lower courts define the concept very broadly
to include anything the public should be
interested in or is interested in.
In a 1985 case (not involving falsity) the Court
said a private credit report on a business sent
to 5 subscribers was NOT a matter of public
concern.
Injury

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Usually intangible, loss of reputation,
standing in community, mental harm,
emotional distress, etc.
Sometimes actual monetary loss.
All plaintiffs must prove some injury
unless they can prove actual malice,
which we’ll define and discuss later.
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Fault: The basic rules

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Public officials and public figures must prove
actual malice to win their lawsuits and collect
ANY damages.
Private persons must prove at least
negligence to win their lawsuits and collect
compensatory damages.
All plaintiffs, public and private, must prove
actual malice to collect punitive damages if
the subject of the report is a matter of public
concern (the same standard are in the falsity
element).
Fault: New York Times v.
Sullivan, the landmark case

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Prior to 1964, libel was a strict liability
tort, no fault required.
In NY Times v. Sullivan, the U.S.
Supreme Court established a fault
requirement for public officials.
16
Sullivan holding
The First Amendment requires that
when public officials sue for libel
they must prove actual malice, that
is, that the defendant acted with
knowledge of falsity or reckless
disregard for the truth.
17
Why?
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National commitment to uninhibited, robust
debate on public issues, and Sullivan-type suits
would stifle such debate.
Sullivan’s suit looked a lot like a seditious libel
claim, designed to punish criticism of
government.
As a public official, Sullivan voluntarily took on
a job that invited public attention and criticism
As a public official, Sullivan had ready access
to the media to rebut defamatory statements.
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Why this high fault standard
when public officials sue?

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Public officials voluntarily take on
jobs that invite public attention and
criticism
Public officials have ready access
to the media to rebut defamatory
statements.
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Who is a public official?

The public official category includes
“at the very least … those among the
hierarchy of government employees
who have, or appear to the public to
have, substantial responsibility for or
control over the conduct of
governmental affairs.”

Rosenblatt v. Baer, 1966
20
What about public figures?

AP v. Walker & Curtis Publishing Co. v.
Butts, 1967: Public figures also have to
prove actual malice, but no definition of
public figure provided.

Gertz v. Robert Welch, Inc., 1974:
Defined the term “public figure.”
21
There are two kinds of
public figures:

all-purpose public figure

limited-purpose (or vortex)
public figure
22
All-purpose public figure

An individual with widespread
fame or notoriety or special
prominence in society, one
who has “persuasive power
and influence” or occupies a
position of continuing news
values.
23
Limited-purpose public figures

Individuals who “have thrust
themselves to the forefront of
particular public controversies
in order to influence the
resolution of the issues
involved.”
24
Questions courts ask in deciding who is a
limited-purpose public figure
1. What is the subject of the report,
and is that subject a public
controversy?
A public controversy is a “real dispute” over an
issue affecting a segment of the general
public, the resolution of which will have
“foreseeable and substantial ramifications
for nonparticipants.”

D.C. Court of Appeals
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Questions courts ask in deciding who is a
limited-purpose public figure (cont’d)
2. Did the plaintiff voluntarily inject himself
or herself into the controversy?
3. What was the nature of the plaintiff’s
involvement in the controversy? Did he
or she try to affect the outcome or
influence public opinion?
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More on limited-purpose
public figures
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If there is no “public controversy,” there can
be no limited public figure status.
Public controversy is NOT the same as
matter of public concern.
Although the Supreme Court recognized the
possibility — albeit a rare one — of an
involuntary public figure, courts generally
require voluntary involvement for public figure
status.
27
More Gertz holdings
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Under the First Amendment, only public
officials and public figures must prove actual
malice to win their libel lawsuits.
The First Amendment also requires private
figure plaintiffs to prove some degree of fault,
at least negligence, but states can require a
higher fault standard if they choose.
All plaintiffs — public and private — must
prove actual malice to win punitive or
presumed damages.
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What is actual malice?
Publishing with
1. knowledge of its falsity
OR
2. reckless disregard for the truth.
29
When does changing the words of a direct
quote constitute knowledge of falsity
(actual malice)?
When “the alteration results in
a material change in the
meaning conveyed by the
statement.”

Masson v. New Yorker Magazine,
U.S. Supreme Court, 1991
30
What constitutes reckless
disregard for the truth?

The U.S. Supreme Court has defined
reckless disregard for the truth as:

Serious doubts as to the truth of the
publication.

A high degree of awareness of probable
falsity.

Purposeful avoidance of the truth.
31
In determining whether actual malice is
present, courts look at 2 types of
evidence.
1. Direct, state-of-mind evidence -- what
the journalist(s) thought, believed, felt,
said at the time the story was being
produced.
In Herbert v. Lando, 1979, the U.S. Supreme
Court said a libel plaintiff could inquire into a
journalist’s state of mind.
32
In determining whether actual malice is
present, courts look at 2 types of evidence
(cont’d)

2. Indirect or circumstantial evidence, typically
including (but not limited to):

a. the source(s) used or not used;

b. the nature of the story, especially whether
the story was “hot news” being prepared
under deadline pressure;

c. the inherent probability or believability of
the charges.
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What is NOT reckless
disregard for the truth?
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Carelessness
Failure to verify facts
Sloppy reporting
Ill will or intent to harm or bad motives.
Failure to retract s story.
None of those things, standing alone, is
enough to prove reckless disregard for truth
— although each may be used to support a
finding of actual malice in combination with
other factors.
34
What about private people?

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In Gertz, the Supreme Court said
even private people had to prove
some level of fault to win libel suits.
The Court said states could decide
what that fault level would be, as
long as it was at least negligence.
36
What is negligence?

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Failure to exercise ordinary care or to
act as a reasonably prudent person
would under similar circumstances (the
reasonable person standard) OR
Failure to follow accepted professional
standards and practices (the
professional standard or journalistic
malpractice standard)
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How is negligence proven?
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Same factors considered as with reckless disregard
— sources used or not used, nature of story,
believability of allegations — but lower threshold.
Is there a discrepancy between what source says he
told the journalist and what the journalist reported?
Did the journalist try to contact the subject of the
allegations?
Did the journalist get all the information he/she
should have?
38
Gertz recap
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Two types of public figures — all-purpose and limitedpurpose; both,along with public officials, must prove
actual malice to win.
Private people must prove at least some fault, but the
level is left up to the states. (Most have chosen
negligence)
All plaintiffs, including private people, must prove
actual malice to collect presumed or punitive
damages. (This was later modified in Dun &
Bradstreet v. Greenmoss Builders, 1985). The rule
applies only when the defamation involves a matter
of public concern.
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Libel defenses
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truth
fair report privilege: based on common law
privilege for communication of mutual
interest: based on common law
neutral reportage: based on First Amendment
fair comment and criticism: based on
common law
constitutional protection for opinion: based on
First Amendment
40
Fair report or reporter’s
privilege

Fair report or reporter’s privilege protects
reports of official government proceedings and
records if the reports are:

1. Accurate

2. fair or balanced

3. substantially complete

4. not motivated by malice

Courts in some states have said the report
must be attributed to the officials record or
meeting for privilege to apply.
41
LaComb v. Jacksonville Daily News,
2001: the case of the misplaced
semicolon

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Police report: The defendants “did knowingly …
cause, encourage and aid [2 juveniles] to commit an
act, drinking beer and smoking cigarettes, and
engage in a sex act.”
Daily News story: “The two were both accused of
encouraging cigarette smoking; beer drinking and
engaging in sex acts involving a 15-year-old boy and
16-year-old girl.”
Court: Despite the misplaced semicolon, the article
is substantially accurate; the fair report defense
applies.
42
Privilege for communications
of mutual interest
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A statement is privileged if
1. it is about something in which the speaker
has an interest or duty;
2. the hearer has a corresponding interest or
duty;
3. the statement is made in protection of that
interest or performance of that duty;
4. the speaker honestly believes the statement
to be true.
43
First Amendment protection for neutral
reportage of controversial charges
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The charges must be:
1. newsworthy and related to a public
controversy,
2. made by a responsible person or
organization,
3. made against a public official or
public figure,
4. accurately reported with opposing
views, AND
5. reported impartially.
44
Fair comment and criticism

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Protects non-malicious statements of opinion
about matters of public interest.
The opinion must be “fair.” Often courts say
that means the opinion must have a factual
basis either
1. provided
2. generally known OR
3. readily available to the public
Some courts have ruled that the defense
protects only the originator or an opinion, not
a repeater.
45
Constitutional protection for
opinion
Key case: Milkovich v. Lorain Journal, 1990,
U.S. Supreme Court
 Columnist said a coach lied under oath about
his his role in a brawl.
 Newspaper argued the column was
constitutionally protected as a statement of
opinion.
 Supreme Court said calling someone a liar
was an assertion of fact, not opinion.
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Constitutional protection for
opinion


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In Milkovich, Supreme Court said two types of
opinion statements are protected by the First
Amendment:
1. exaggerated, loose, figurative language,
rhetorical hyperbole or parody, e.g., calling a
worker who crossed picket lines “a traitor to
his God, his country, his family and his class.”
2. statements incapable of being proven true
or false, such as imprecise evaluations like
good, bad, ugly.
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Opinion, cont’d

However, even unverifiable statements of
opinion can lose their protection if they

imply the existence of false, defamatory but
undisclosed facts

are based on disclosed but false or
incomplete facts OR

are based on erroneous assessments of
accurate information.
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Damages: compensatory
•
actual: compensation for intangible harm,
i.e., loss of reputation, mental suffering,
emotional distress.
•
special: compensation for actual monetary
loss.
•
presumed: requires proof of actual malice in
most cases
•
nominal: plaintiff wins but jury feels no real
harm suffered.

plaintiffs claiming libel per quod must show
special damages. In trade libel suits,
plaintiffs show special damages.
50
Damages: punitive

Designed to punish the libeler rather than
compensate the person libeled.

All plaintiffs, public and private, must prove
actual malice to collect punitive damages if
the libel suit resulted from publication of a
report on a matter of public concern.
51