libel study guide

six essential elements in a libel action

defamation
identification
publication
fault
falsity
injury

who can sue for libel?

a living individual, a business, a nonprofit group or organization, NOT THE GOVERNMENT

who can be sued for libel?

writers / editors / companies, students, website operators, graphic artist / headline writers, ad writers, public relations writers

what is libel

defamation + falsity that is written

What is libel per se?

obviously defamatory

what is libel per quod?

not readily apparent or obvious; libelous because of context or unrevealed circumstances

what is seditious libel?

the act of publishing statements that criticize or insult the government or its officials in a way deemed to incite rebellion, disrupt public order, or undermine authority.

What is the republication rule

holds that each person who repeats or republishes a defamatory statement can be held just as liable as the original publisher.

What is the CDA's Sec. 230 about?

Section 230 is a law that shields online platforms from legal responsibility for most user-generated content, allowing them to host it without being liable for what users post.

When can ISPs receive sec. 230 protection?

filter or moderate content
can remove or edit user-generated content (without changing the meaning)
Selecting content for publication
Platforms can invite users to post content
Paying a third party to create content
Providing forums for UGC (User-Generated Content.)

When can't ISPs receive sec. 230 protection?

Editing of content that alters meaning
Engaging with user to create discriminatory content
Failing to comply with promises to remove material

definition of actual malice

Knowledge of falsity or reckless disregard for the truth

definition of negligence

the failure to exercise ordinary or reasonable care.

who is a public official?

Government employees (who are responsible for developing public policy or making government decisions, have control over the expenditure of public funds, are directly responsible for public health, safety, welfare, exercise power or control over citizens, or have high public visibility.)

definition of an all purpose figure

an individual with widespread fame or notoriety who has special prominence in society and commands public and media attention

definition of a limited public figure

someone who has gained public attention or fame in relation to a specific issue, event, or controversy, rather than being widely known in general. Plaintiff must have voluntarily thrust him or herself into that public controversy. Plaintiff must have tried to affect the outcome of the controversy

How does one get to be a private plaintiff in a libel action?

a person must generally not be a public figure or a public official. This means they have not sought public attention or willingly entered a public controversy, nor do they hold a prominent role in government or public affairs.

standard of fault for each category

public figure: MALICE
all purpose public figure: MALICE
limited public figure: MALICE
Private Person: NEGLIGENCE

explain reckless disregard for truth and the types of damages

high degree of awareness of the probable falsity of accusations
journalist has serious doubts about the truth of the story
accusations so improbable that only a reckless person would have published
purposefully avoiding the truth by ignoring obvious sources

what does negligence look like in a libel case

discrepancy between what a reporter says he was told by a source and what the source said he told a reporter
a journalist makes little or no effort to contact the subject of the defamatory charges
a story is based on only one source or when information is not verified through official or reliable sources

New York Times vs. Sullivan

Court ruled that libelous statements made about public officials with actual malice is illegal. When a statement concerns a public figure, the Court held, it is not enough to show that it is false for the press to be liable for libel. Instead, the target of the statement must show that it was made with knowledge of or reckless disregard for its falsity. Brennan used the term "actual malice" to summarize this standard

Gertz v Welch

The Supreme Court ruled in favor of Gertz and held that the "actual malice" standard didn't apply to private individuals in the same way it does to public figures. it established that the First Amendment provides different levels of protection in defamation cases based on the plaintiff's status as a public or private figure.

Milkovich v. Lorain Journal

Article claimed that the wrestling coach lied under oath, coach sued for libel, court said even an opinion piece must consider object facts and factual connotation to not be considered fair comment. The Supreme Court held that there is no special constitutional privilege for opinions. The statements in the newspaper were sufficiently factual to be proved true or false.

Hustler v. Falwell

The Court held that public figures cannot recover damages for intentional infliction of emotional distress without showing that the content was made with "actual malice" (knowing falsity or reckless disregard for the truth). The Court reasoned that satire and parody, even when offensive, are protected forms of free speech, especially when they concern public figures.

Fox vs dominion

In April 2023, shortly before the case was set to go to trial, Fox News agreed to a historic settlement with Dominion for $787.5 million. The case also underscored how defamation law can be used by companies like Dominion to protect their reputations against misinformation.