Chapter Four: Libel and Defamation

Vocabulary flashcards covering legal definitions, burdens of proof, defenses, and supreme court case precedents in libel and defamation law.

Defamation

An expression that tends to damage a person’s reputation and good name, or a right to enjoy social contacts, or a profession/business/calling.

Libel

Written, printed, or recorded defamation.

Slander

Spoken defamation.

Criminal Libel

Libel where government statutes punish criticism of government.

Civil Libel

A lawsuit between private parties regarding defamation.

Libel per se

Words that on their face are harmful.

Libel per quod

Words that are harmful in the context of other words.

Trade Libel

False statements regarding a product which harms a business.

Public Official (Defamation Standard)

A plaintiff category that must prove actual malice or reckless disregard for the truth in a defamation suit (established in NYT v. Sullivan, 1964).

All-purpose Public Figure

Someone commonly known by the masses (e.g., LeBron) who must prove actual malice or reckless disregard for the truth in libel cases.

Limited / Vortex Public Figure

A private person treated like a public figure due to context, who must prove actual malice or reckless disregard for the truth.

Private Individual (Defamation Standard)

A plaintiff who only has to prove negligence (such as incorrect details or wrong identification) to establish fault.

Falsity (Burden of Proof)

A burden of proof required only for persons suing for defamation related to matters of public concern.

SLAPP

Strategic Lawsuits Against Public Participation; used by plaintiffs to harass their critics into silence, producing a "Chilling Effect".

Negligence (Libel)

Standard of proof for private individuals that may result from failure to try and contact the person being defamed, lack of effort to verify sources, or disregarding contradictory evidence.

Punitive / Exemplary / "Smart Money" Damages

Damages in a defamation lawsuit that are tied to the degree of malice.

Summary Judgement

A legal mechanism to protect a media defendant when an individual cannot prove harm or falsity, making the case impossible to win.

Demurrer

A case dismissal due to legal insufficiency that can occur prior to the litigation process.

Statute of Limitations (Virginia Libel)

1 year and 1 day from original publication in VA.

Innocent Construction Rule

Rule stating that one cannot defame someone through inadvertent page setup, and that the least offensive definition of a word is taken.

Section 230

Law providing that an internet service provider cannot be sued because of what was sent out under their services.

Neutral Reportage

Reading from the news without editorial comment; the original source can be sued but not the reader.

Single-publication Rule

Rule stating that the statute of limitations kicks off when the first publication is published, whether in web or print.

Ollman Test

A four-part test established in Ollman v. Evans (1984) for evaluating opinion pieces, considering whether statement is verifiable, its common/ordinary meaning, journalistic context, and social context.

Farmers Education and Cooperative Union v. WDAY (1959)

• FACTS: W.C. Townley, a colorful independent candidate for the U.S. Senate from North Dakota, accused the FECUA of being controlled by Communists over WDAY broadcast

• IMPORTANCE: USSC declared that broadcasters are immune from liability for defamation by political candidates in political ads

Beauharnais v. Illinois (1952)

• FACTS: Beauharnais distributed racist literature. He was prosecuted under an Illinois group libel statute

• IMPORTANCE: USSC ruled that defamation directed at ethnic and racial groups can be illegal even when not directed at a specific individual (group libel law)

Neiman-Marcus Co. v. Lait (1952)

• FACTS: in a book, USA Confidential, it was asserted that the women working at the Neiman-Marcus department store in Dallas were “hookers” and the men in menswear were “fairies.”

• IMPORTANCE: a court ruled identification can occur when defamation is aimed at a small group; only the men had a small enough group (25 vs 800 women) to be identified

Cosgrove Studio and Camera v. Pane (1962)

• FACTS: Cosgrove ran an ad promising customers a free roll of film for every roll brought in for processing. Pane warned readers in his ad “You Get Nothing for Nothing.” Pane said he would not inflate his film processing prices to give film away

• IMPORTANCE: identification can occur even when the person/business is not specifically named in the defamatory statement

Garrison v. Louisiana (1964)

• FACTS: Jim Garrison, district attorney for New Orleans Parish, attacked judges stating they were lazy, “vacation minded,” and sympathetic to criminals

• IMPORTANCE: USSC said state governments can’t censor critics of government without due process and that the role of the citizen critic of government must be protected by 1A. For all practical purposes declared criminal libel unconstitutional

NYT v. Sullivan (1964)

• FACTS: Montgomery, AL police official sued NYT for a March 29, 1960 advertisement purchased by a committee of civil rights activists. The ad contained several false statements and minor inaccuracies

• IMPORTANCE: USSC declared that public officials may recover for defamation upon proof of actual malice or disregard for the truth. This established the “New York Times Standard.”

Rosenblatt v. Baer (1966)

• FACTS: Rosenblatt, a reporter, wrote a story critical of the manner that a count-owned ski resort was managed by Baer

• IMPORTANCE: USSC ruled that “Public Official” criteria was designated to include those in hierarchy of government employees who have substantial responsibility for the conduct of government affairs

Walker v. A.P. (1967)

• FACTS: A.P. reported that retired army officer Major General Edwin Walker encouraged violence and led a charge against federal marshals during the integration of the University of Mississippi in 1962

• IMPORTANCE: USSC declared courts will seek to determine whether a journalist had, or should have had serious doubts about the truth of defamatory statements. Elements of time to check and verify sources is very important in this case

Curtis Publishing Co. v. Butts (1967)

• FACTS: The Saturday Evening Post reported that Georgia football coach Wally Butts fixed a football game with Alabama. The Post relied on the unsupported testimony of a check forger.

• IMPORTANCE: USSC declared that they will examine the credibility of sources, believability of the defamatory allegations and the effort made to investigate the statements in question. The media had plenty of time to verify the facts of this story but didn’t

Goldwater v. Ginzburg (1969)

• FACTS: Ralph Ginsburg, editor of Fact, asserted Goldwater suffered from a mental disease. In a second article he edited responses to a mail survey from psychiatrists to distort their comments about Goldwater.

• IMPORTANCE: U.S. Court of Appeals for the Second Court ruled that creating false statements to support one’s predetermined view is evidence of actual malice

Cohen v. New York Herald Tribune (1970)

• FACTS: Jimmy Breslin wrote a satirical article on a mob hit that was witnessed by Cohen

• IMPORTANCE: A NY court ruled that “mere exaggeration, irony or wit” does not make an article defamatory

Greenbelt Cooperative Pub. Assn. v. Bresler (1970)

• FACTS: The Greenbelt News Review wrote a story in which Bresler, a land developer, was charged with blackmail because he offered to sell land to the city only after the city rezoned a different parcel he owned

• IMPORTANCE: USSC stated that use of words such as “blackmail” when used in a public forum was determined to be non-actionable

Rosenbloom v. Metromedia (1971)

• FACTS: George Rosenbloom, a little known businessman, was arrested for selling obscene material. News of his arrest was aired over the radio

• IMPORTANCE: USSC ruled that burden of proof imposed on public officials extends to anyone in a matter of public concern, regardless of whether they were famous or unknown

Ocala Star-Banner Co. v. Damron (1971)

• FACTS: Leonard Damron, running for office of mayor of Crystal River in FL, was falsely reported by the Star-Banner of having been charged with perjury

• IMPORTANCE: USSC decided that no matter how remote in time or place, a charge of criminal conduct against a public official is always relevant to his/her fitness for office

Gertz v. Welch (1974)

• FACTS: Elmer Gertz, an attorney, was libeled by an American Opinion article which charged that he had engineered a “frame-up” of a policeman convicted for shooting a young boy

• IMPORTANCE: USSC defined a public figure as one who thrusts oneself into the public area involuntarily or assumes a role voluntarily in which publication is expected or assumed. State may define level of proof for a private person

Time v. Firestone (1976)

• FACTS: Mrs. Firestone sued Time after a ”Milestones” item incorrectly reported that Russell Firestone had won a divorce on the grounds “of extreme cruelty and adultery”

• IMPORTANCE: USSC ruled that Mrs. Firestone did not assume any role of special prominence in the affairs of society

Herbert v. Lando (1979)

• FACTS: 1973 “60 Minutes” broadcast questioned allegation by Colonel Anthony Herbert of an official cover-up of atrocities committed by US Troops in Vietnam

• IMPORTANCE: USSC held that a journalist’s mind and video processing and editing may be probed in a libel case in order to establish actual malice

Wolston v. Reader’s Digest Association (1979)

• FACTS: Ilya Wolston refused to testify in 1958 before a federal grand jury investigating Soviet spy activities. Reader’s Digest reported this event 20 years later on a story concerning famous spy cases

• IMPORTANCE: USSC said that Wolston did not thrust himself into the forefront of the controversy, but was “dragged unwillingly” into the spotlight and is treated as a private individual (negligence)

Gazette v. Harris (1985)

• FACTS: This litigation involved three cases:

  • Misidentification of sex offender

  • Mididentification of married/pregnent sexual assault victim as “Miss”

  • Misidentification of a child’s accidental death as a case of abuse

• IMPORTANCE: Virginia State Supreme Court declared that negligence is the legal standard of proof for private individuals in Commonwealth of Virginia

Dun and Bradstreet v. Greenmoss Builders (1985)

• FACTS: Greenmoss Builders, a construction company, had a credit-reporting agency falsely say the company had filed for bankruptcy. In reality an employee of D&B confused records of a former Greenmoss employee with the firm

• IMPORTANCE: USSC held that credit reports are a private matter and not a matter of “public concern”

Philadelphia Newspapers v. Hepps (1986)

• FACTS: a corporation that franchised a chain of Thrifty stores sued the Philadelphia Inquirer for linking the chain to organized crime

• IMPORTANCE: USSC stated that private individuals seeking damages on matters of public concern have the burden of proving that the offending statements are false

  • Overturned laws in 8 states

Harte-Hanks Communication v. Connaughton (1989)

• FACTS: Hamilton (Ohio) Journal News published a front-page story charging a judicial candidate, Daniel Connaughton, with planning blackmail and promising favors for help in smearing his opponent

• IMPORTANCE: USSC ruled that this newspaper made a “deliberate decision not to acquire knowledge” that would have revealed the falsity of charges against Connaughton

Milkovich v. Lorain Journal (1990)

• FACTS: News-Herald published a sports column stating wrestling coach Michael Mikovich lied under oath to the Ohio Athletic Commission concerning his role in a fight that broke out during a wrestling match

• IMPORTANCE: USSC held that fact-based opinions expressed in editorials do not enjoy special protection under 1A

Masson v. New Yorker (1991)

• FACTS: Freudian scholar Jeffery Masson sued New Yorker author Janet Malcolm for falsely quoting him as calling himself an "intellectual gigolo” and “the greatest analyst who ever lived”

• IMPORTANCE: USSC ruled that minor changes in quotations fail to constitute defamation; the plaintiff has a burden to show that altered words substantially damages his/her reputation