Communications Law. COMM 407, CSU Fullerton
DEFAMATION
CHAPTER 4: LIBEL AND SLANDER
Protection of Person’s Reputation
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Basic human dignity: protection of one’s
reputation from unjustified invasion and
wrongful hurt
Defamation of character
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Wrongfully hurting a person’s good reputation
Slander (spoken) and Libel (written)
Defamation is a civil wrong (tort)
Any living person or legal entity (e.g.,
corporations) may sue for defamation.
Special case: groups (members must be affected
as individuals)
Government organizations/agencies may not sue
Tort: A civil wrong which can be
redressed by awarding damages
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These wrongs result in an injury or harm constituting
the basis for a claim by the injured party.
Torts fall into three general categories:
intentional torts,
negligent torts,
strict liability.
There are numerous specific torts: trespass, assault,
negligence, products liability, intentional infliction of
emotional distress, nuisance, defamation, invasion of
privacy.
Libel suits are troublesome
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The most common legal problem faced by a person who
work in the mass media: about 75% lawsuits filed against
the media are in this category
Lawsuits take a lot of money and time
Damage claims are often outrageous
Libel law is complicated and confusing (often judges
make erroneous decisions)
Some plaintiffs file frivolous libel lawsuits to silence the
critics in the media
Erroneous decisions
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For most judges a libel case is a new experience
Jurors are confused by the legal concepts: e.g.,
actual malice
Thus:
75% of libel cases are overturned by appeal
courts
The Lawsuit as a weapon
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“Strategic Lawsuits Against Public Participation”
(SLAPP): Run that story and we will take you to
court
Although 90% of SLAPP lawsuits fail, they are
intended to intimidate and silence a less powerful
critic by so severely burdening them with the cost
of a legal defense that they abandon their
criticism.
In 1992 California enacted a statute intended to
prevent the misuse of litigation in SLAPP suits.
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It provides for a special motion at the outset of a lawsuit to
strike a complaint where the complaint arises from conduct
that falls within the rights of free speech and lacks any
basis of genuine substance, evidence, or prospect of
success.
If this is demonstrated then the burden of proof shifts to
the plaintiff, to present evidence demonstrating a
reasonable probability of succeeding in their case by
showing an actual wrong would exist as recognized by
law, if the facts claimed were borne out.
The filing of an anti-SLAPP motion stays all discovery.
Elements of defamation
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Defamatory content
Identification
Publication
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Falsity
Fault
Harm / Compensation
Defamatory content
A communication which has the tendency to so harm
the reputation of another as to lower him/her in
the estimation of the community or to deter third
persons from associating with him/her
Defamatory content
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Imputations of criminal behavior
Sexual references and implications
Personal habits (honesty, integrity, etc)
Ridicule (showing someone “uncommonly
foolish or unnatural”)
Business reputation
Disparagement of property (product)
Defamatory content
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Libel per se (in itself: damages are implied).
A statement that is defamatory on its face
(regardless of context): murderer, rapist, etc.
Libel per quod: depending on the situation /
context: communist, liberal, right-winger, etc.
Today the distinction is not important: the
plaintiff needs to prove damages in both…
Fair Comment and Criticism:
Fact versus Opinion (p. 145)
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Expressions of pure judgments are not subject
to libel lawsuits
But:
Expressions of “opinion” may often imply an
assertion of objective fact. Couching such
statements in terms of opinion is often not
sufficient.
Distinguishing facts from opinions
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The precision and specificity of the statement
The verifiability of the statement
The literary context in which statement is made
(e.g., satire)
The “public context” of the statement
Identification
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At least some of the readers or listeners must
understand to whom the defamatory statement
refers.
Plaintiff explicitly named
Suggesting plaintiff’s actual name
Picture, drawing, description
Similarities to fictional characters
Publication
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Who made the statement?
Who disseminated it?
Who repeated it?
It must be communicated to a ‘third person,’
someone other than the plaintiff or defendant
Internet services are generally exempt from
liability
Fault: standard for truth/falsity
The old strict liability standard (now unconstitutional)
Strict liability on the part of the defendant:
a defendant could be liable for defamation merely
for publishing a false and defamatory statement
 The rules did not require that the defendant knew
that the statement was false or defamatory in
nature.
 The only requirement was that the defendant
must have intentionally or negligently published
the information.
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New York Times v Sullivan (1964)
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An ad in the N.Y. Times alleged that the arrest of the Rev. Martin
Luther King, Jr. in Alabama was part of a campaign to destroy King's
efforts to integrate public facilities and encourage blacks to vote.
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L. B. Sullivan, the Montgomery city commissioner, filed a libel
action against the newspaper claiming that the allegations against the
police defamed him personally.
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Under Alabama law, Sullivan did not have to prove that he had been
harmed; and a defense claiming that the ad was truthful was
unavailable since the ad contained factual errors. Sullivan won a
$500,000 judgment.
New York Times v. Sullivan (1964)
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Question
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Did Alabama's libel law, by not requiring Sullivan to
prove that an advertisement personally harmed him,
unconstitutionally infringe on the First Amendment's
freedom of speech and freedom of press protections?
New York Times v. Sullivan (1964)
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Decision: 9-0 for New York Times
The Court held that the First Amendment protects
the publication of all statements, even false ones,
about the conduct of public officials except when
statements are made with actual malice:
“that the statement was made with… knowledge
that it was false or with reckless disregard of
whether it was false or not.”
New York Times v. Sullivan (1964)
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“The debate on public issues should be
uninhibited, robust, and wide open, and that it
may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on
government and public officials”
(from Justice Brennan’s opinion)
Public persons and officials
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Public figures are those who thrust themselves
“into the forefront of particular public
controversies in order to influence the
resolution of the issues involved”
Public officials are those who have substantial
government responsibility
Gertz v. Welch (1974)
(the new private person standard)
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Gertz was an attorney hired by a family to sue a police
officer who had killed the family's son.
In a magazine American Opinion, the John Birch Society
accused Gertz of being a "Leninist" and a "Communistfronter" because he chose to represent clients who were
suing a law enforcement officer.
Gertz lost his libel suit because a lower court found that
the magazine had not violated the actual malice test for
libel which the Supreme Court had established in New
York Times v. Sullivan (1964).
Gertz v. Welch (1974)
(the new private person standard)
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Question
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Does the First Amendment allow a newspaper or
broadcaster to assert defamatory falsehoods about
an individual who is neither a public official nor a
public figure?
Gertz v. Welch (1974)
(the new private person standard)
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Decision: 5 to 4 for Gertz
The Court reversed the lower court decision.
The application of the New York Times v. Sullivan
standard in this case was inappropriate because Gertz was
neither a public official nor a public figure.
Ordinary citizens should be allowed more protection
from libelous statements than individuals in the public
eye.
However, the actual malice standard could be used in
assessing claims for punitive damages by private persons.
The Gertz Ruling (1974)
(the new private person standard)
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As long as they do not impose liability without
fault (strict liability), states are free to establish
their own standards of liability for defamatory
statements made about private individuals.
Most states use negligence (lesser degree of fault)
A few states use actual malice
Negligence: failure to do something that he/she
has a duty to do, and that a reasonable person
would do. E.g., in journalism checking the facts
Negligence Standard
and Private Figures
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A plaintiff can establish negligence on the part of
the defendant by showing that the defendant did
not act with a reasonable level of care in
publishing the statement at issue.
basically: whether the defendant did everything
reasonably necessary to determine whether the
statement was true
Some factors that the court might
consider include:
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the amount of research undertaken prior to
publication;
the trustworthiness of sources;
attempts to verify questionable statements or
solicit opposing views; and
whether the defendant followed other good
journalistic practices.
Classifying the Plaintiff:
A Rough Guide
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Public Official: Government Employee + Substantial
Control or Responsibility
All-Purpose Public Figure: Career of Courting Media +
Pervasive Fame and Influence
Vortex Public Figure: Public Controversy + Voluntary
Leadership Role
Involuntary Public Figure: Pattern of Notorious
Conduct + Prior (Undesired) Media Coverage
Private Persons: Most Others
Damages
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The sum of money the law imposes for a breach of some
duty or violation of some right.
Presumed (before Gertz’s case: the court assumed that
any defamation would be harmful)
Compensatory damages (special, actual) compensate the
claimant for the quantifiable monetary losses suffered by
the plaintiff
Punitive damages are intended to reform or deter the
defendant and others from engaging in conduct similar to
that which formed the basis of the lawsuit
Limits on damages
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Large awards inhibit the vigorous exercise of First
Amendment
Private plaintiffs must provide solid evidence of
their injuries or prove actual malice
Punitive damages only when actual malice is
proven (even in private persons cases).
Privilege
(also in Chapter 8)
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Absolute privilege:
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members of Congress engaged in congressional debates
Also: most government officials while conducting their
official duties
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Qualified (conditional) privilege:
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a libel defense that allows the media to report on
government proceedings and records without fear of libel
suit
Libel and emotional distress
Hustler Magazine v. Falwell (1988)
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In a parody that appeared in Hustler magazine the
prominent fundamentalist evangelist Reverend
Jerry Falwell was depicted as a drunk in a sexual
liaison with his mother in an outhouse
From the “Campari Ad”
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But your mom? Isn’t it a bit odd?
I don’t think so. Looks don’t mean that much to
me in a woman.
Go on.
Well, we were drunk off our God fearing asses on
Campari, ginger ale and soda… And mom looked
better than a Baptist whore with a $100 donation.
From the “Campari Ad”
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Did you try it again?
Oh, yeah. I always get sloshed before I go out
to the pulpit. You don’t think I could lay
down all that bullshit sober, do you?
Hustler Magazine v. Falwell (1988)
Falwell sued for:
1. libel,
2. invasion of privacy,
3. intentional infliction of emotional distress.
 In the trial court he lost on (1) and (2) but
prevailed on (3). He was awarded $200,000
damages for emotional distress
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Hustler Magazine v. Falwell (1988)
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The Supreme Court reversed (8 to 0):
a public figure or official may not recover for
intentional infliction of emotional distress arising
from a publication unless the publication contains
a false statement of fact that was made with actual
malice.
Hustler Magazine v. Falwell (1988)
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That the material might be deemed outrageous and
that it might have been intended to cause severe
emotional distress were not enough to overcome
the First Amendment.
Hustler Magazine v. Falwell (1988)
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Vicious attacks on public figures are part of the
American tradition of satire and parody, a tradition
of speech that would be hamstrung if public
figures could sue them anytime the satirist caused
distress.