Libel
 What is Libel? What is Defamation?
 Tort – Civil Wrong
 Why sue for libel?
 What harm is there in defamation?
 What qualifies as libelous?
 What are the explicit goals of bringing a libel
case? Are there any implicit, or unstated
goals?
Truth and Consequences
 Large awards / settlements
 Barricade Books = 3 million
 Hundreds of millions not unheard of
 Time and Money
 1990 average award against media, just over $1
million, 1996 = $3 million
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Reflects awards in personal injury cases
Typically mass media loses, but can win on appeal
Only 30% of libel cases won still stand at the appellate
court level
 Media is often punished for being the messenger,
even if they did not construct the message
Why the Media Loses Libel Trials
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Libel law is complicated
Bias against the press
Belief that the First Amendment goes too far
 Usually the cases are modified
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Between 1980 and 200 just over ¼ cases
appealed by the press were left standing
without modification, or being overturned
Libel as a WMD
Weapon of Message Destruction
 SLAPP (Strategic Lawsuits Against Public
Participation)
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Upside, defendants win 90% of the time, but at
what cost?
 SLAPP Suits target whom?
 SLAPP Back Lash – at least 20 states bar
SLAPP suits in some form or another
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Protection ranges from plaintiff must prove
they are likely to win the case to protecting
only certain circumstances against SLAPP
Fix it or Forget It
 Publish Retractions or Apologies
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Do they always satisfy plaintiffs?
Press dislikes retractions
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Why?
 Retractions Statutes
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30 States thus far
Example page 237
Elements of Defamation
 Defamation damages reputation, not character
Rep. v. Character
 To be Actionable, actual damage to reputation must occur
 At least a significant minority must believe that the plaintiff's
reputation has been damages
 Who can sue?
 The dead, nor their family can’t sue for libel
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except in the case of Survival Statutes
Corps. can sue, government agencies can’t
 Burden of proof – Plaintiff must establish all 5 elements
 Publication
 Identification
 Material is defamatory
 Material is false
 Defendant was at fault
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Laughable Larry
 Not to be outdone by Kay Anderson’s offer of $25,000 to UVSC
to rescind their invitation to Michael More. Larry Lowe, owner of
The Happy Homemaker, a bar outside of Provo offered
$26,000.99 if they would keep the invitation.
 The following day, the SL Trib reports that an anonymous friend
of Larry Lowe gave said in an interview that Larry had previously
been convicted of drug trafficking and was a an active member
of the communist party.
 Larry is suing the Trib for $45 million, stating that he was
arrested for drug trafficking, but never convicted, and was
actually had been a member of a hippie commune in the 60’s,
not a communist.
 Does Larry’s claim meet the elements of libel?
 Does Larry stand a snowball’s change in Nevada (Not that Nevada
matters) of winning? Support your claims!
Publication
 Hornby v. Hunter – if it is in the paper, broadcast, or
internet then it usually qualifies
 Publishers and Vendors
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Distributors cannot be held libel, unless they knew, or
had reason to know, they were distributing libelous
materials
Scienter
 Internet
 ISPs usually not treated as publishers
 except in other countries
 Bloggers tend to enjoy the same protections as ISPs
Identification
 Must Happen
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i.e. you can’t be defamed for not being named
 Can be explicitly named
 Can be identified by the facts
 Can be idenified by other reports
 Geisler v. Petrocelli
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if those in the know know, then it counts
 Members of small groups can claim
identification
Defamation
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Two types
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Is the speech capable of defamation
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implications of criminal activity are tough ‘alleged’ doesn’t always cut it
material about personal habits can be dangerous
Sexual implications are risky
Ridicule that goes to far can be defamatory
Business Reputation
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McBride v. Merrell Dow
Innuendo can be defamatory
Cannot take words out of context
Opinion is not defamatory if it cannot be proven true or false
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Budget Termite v. Bousquet
If fact finders find the words capable of libel, they must then ask if they actually are
defamatory
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Words are defamatory on their face
Words defamatory only in light of other facts
single mistake rule
Product Criticism / trade libel – difficult to win
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must prove statements are false
must prove monetary loss
Falsity
 Public v.s Private Persons (next chapter)
 Material must be false, even if the truth hurts
 Substantial Truth
 Schwartz v. American College of Emergency
Physicians
 Minor details can carry the same weight as major
assertions
 What is said, not what is meant is what matters
 Major: Does learning the truth change the impression
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Fleckstein v. Friedman