Libel-Defenses

Mass Comm Law

What is a summary judgment?

A final decision by a judge upon a party's motion that resolves a lawsuit before there is a trial.

Why is it considered one of the mass media libel defendant's best friends?

...

Does the word "allegedly" shield against a libel lawsuit?

No

What is a better approach than using the word "allegedly"?

If someone has been accused of wrongdoing describe the source and nature of the accusation with specificity.

Why is truth a defense?

If the jury determines that the statement was true then no other issue or defense needs to be considered by the jury. Libel must be FALSE and DEFAMATORY.

Substantial Truth: Do minor inaccuracies or omissions destroy the defense of truth? Why?

No they will be ignored so long as the inaccuracies do not materially alter the substance or impact of what is being communicated some false statements must be protected for the wider purpose of allowing the dissemination of truthful speech

Qualified Privilege What is the underlying rationale for this defense?

If any member of the public were present he/she might see and hear the statements made at a public proceeding so that "the reporter is merely a substitute for the public eye."

Why are journalists granted qualified privilege? Which First Amendment theory best supports this defense?

"The accurate and true reporting of material disseminated on official public occasions is critical to the maintenance of our democratic institutions of government. Without accurate media coverage of official public events it is highly doubtful that the general public would be able to make informed decisions and participate intelligently in their governance... "

Is this an absolute defense or a conditional defense?

Conditional

What elements are necessary for the defense to succeed?

Official proceedings:

How do courts make that determination?

To receive protection under Oklahoma's statute and common law

Does this include reporting the content of public records?

Yes

Fair and true/accurate and complete: Is it necessary that the story be exact in every immaterial detail or conform to the precision demanded in technical and scientific reporting?

No

Has Oklahoma adopted the "substantial accuracy test"?

Yes

What is the "substantial accuracy test"?

It is only necessary that the journalist's reporting "conveys to the persons who read it a substantially correct account of the proceedings."

Is "mild hyperbole" protected by the statutory privilege?

Yes

Are journalists protected if the government information was false?

Yes so long as the reporting of the information was substantially accurate.

Are journalists required to conduct their own investigations to determine the accuracy of statements made in an official document or proceeding?

No

Are journalists required to state that the government information may be inaccurate?

No

Fair Comment and Criticism What is the underlying principle for this defense?

"Predicated upon the principle that the interests of society are furthered through a free discussion of public affairs and matters of public interest."

To be protected must the opinion be reasonable?

no

Does the state's fair-report statute also provide a statutory defense of fair comment and criticism? If so how do those defenses differ?

Yes, while the fair-report privilege protects the accurate and fair reporting of official proceedings or actions, the statutory defense for fair comment and criticism protects "the expression of opinion on matters" related to them.

Does Oklahoma's common law recognize a defense of fair comment and criticism?

yes

What do courts look at to determine if the common law fair comment defense is applicable?

The phrasing of the statement the context in which it appears the medium through which it is disseminated the circumstances surrounding its publication and a consideration of whether the statement implies the existence of undisclosed facts

How is it broader than its statutory counterpart?

It covers "comments or criticism of general public interest."

Does the common law protection apply to false statements of fact?

No

Can the common law defense of fair comment be used in Oklahoma when the libel plaintiff is a private person?

yes

Has the Oklahoma Supreme Court recognized that the First Amendment protects expressions of pure opinion?

Yes

What is pure opinion?

"Judgemental statements that are not factual and therefore cannot be proved true or false."

What are the examples of pure opinion in Oklahoma?

Miskovsky v. Oklahoma Publishing Co. The newspaper editorial's use of the phrases "scurrilous defamation" and "gutter theatrics" was not libelous because those were not statements of fact but statements of opinion."

Does couching a statement in terms of what someone thought believed or felt by itself make the statement an opinion?

No

What is rhetorical hyperbole? Why do Oklahoma courts recognize protection for rhetorical hyperbole?

"A vigorous epithet" or "a lusty and imaginative expression" often stated in a vehement or politically charged debate in which the audience understands the speech to be an unbelievable exaggeration not an assertion of fact. There is a realization that there exists a profound national commitment to the principle that debate on public issues should be uninhibited robust and wide open and that the discussion may well include vehement caustic and sometimes unpleasantly sharp attack on public officials.

What does the wire service defense protect?

Protects the accurate republication of information from a reputable news service.

What are the elements?

1. The information is from a reputable news gathering agency 2. Defendant did not know the story was false 3. Nothing on the face of the story could have reasonably alerted the defendant that the story was incorrect 4. Original wire service story was published without substantial change.

What is a SLAPP? What is its purpose? purpose?

Strategic Lawsuits Against Public Participation meritless lawsuits typically filed as libel claims meant to silence those who exercised their First Amendment rights to criticize the plaintiffs on issues of public concern.

How many states have an anti-SLAPP statute?

30 states and the District of Columbia

What does an anti-SLAPP statute allow the defendant to do? How does the anti-SLAPP statute help the defendant?

Defendant can make the case early on for why the claim doesn't hold up on its face and the case can be dismissed. They can receive court costs and attorney fees.

Understand the American and British rules.

American rule: you pay for your own attorney whether you win or lose British rule: the winner of the lawsuit gets their attorneys fees back as damages

Which rule better protects against unmeritorious lawsuits?

British rule!

How does Oklahoma's Citizens Participation Act negate that problem?

If the court dismisses the SLAPP, the defendant is awarded "court costs, reasonable attorney fees and other expenses incurred in defending against the legal action as justice and equity may require," as well as any sanctions against the plaintiff "as the court determines sufficient to deter" the plaintiff from filing similar lawsuits in the future.

SLAPP suits

are basically a way for people with power to sue journalists (or anyone really) for comments they think are libelous, defamatory, or unflattering. It creates a chilling effect because defendants don't want to deal with the lawsuit or the process of appeals (draining the defendant's time and resources), so they may simply take away any statements previously made. Punishes someone for exercising their free speech right

Anti-SLAPP statutes

make it so that this isn't successful in court. Basically the defendant can make a case early on in the process for why their speech isn't libelous/defamatory BASED ON THE CLAIM ITSELF AND WITH NO EVIDENCE and the case will be dismissed AND the defendant will receive court costs and attorney fees. Plaintiff files a complaint and everything in the complaint is assumed true (all the allegations) but it is NOT evidence. Defendant must prove the allegations hinder free speech rights. Burden shifts to plaintiff must present competent evidence

Understand John Oliver's defenses against Bob Murray's libel lawsuit.

Oliver's defenses pure opinion defense and rhetorical hyperbole. Or fair comment and criticism? He used the fair report privilege because he reports true facts about the legal happenings

Why would John Oliver's song-and-dance routine likely be protected against another Bob Murray libel lawsuit?

As Oliver so kindly puts it... "If we discuss Bob Murray in a way no reasonable person could strue as factual we can say whatever the **** we like." It's rhetorical hyperbole because it's "A vigorous epithet" or "a lusty and imaginative expression" often stated in a vehement or politically charged debate in which the audience understands the speech to be an unbelievable exaggeration not an assertion of fact.

John Oliver argues for a federal what and why?

Federal anti-SLAPP laws to deter other powerful people like Bob Murray from using the courts to shut down people's legitimate dissent.

The OCPA mirrors the anti-SLAPP statute of which state?

Texas

Why is that important?

Courts in Oklahoma can look to rulings in Texas when interpreting Oklahoma cases

How is it to be construed?

"Liberally to effectuate its purpose and intent fully"

It cannot be used to dismiss what kind of cases?

Lawsuits brought against a person primarily engaged in the business of selling or leasing goods or services if the statement or conduct the action is based upon arises out of the sale or lease of goods services or an insurance product insurance services or a commercial transaction in which the intended audience is an actual or potential buyer or customer

The Oklahoma Court of Civil Appeals in Krimball said the statute is intended to weed out which lawsuits while protecting the plaintiff's right to file what?

Meritless suits while protecting the plaintiff's right to file meritorious lawsuits for demonstrable injury

Understand the inherent contradiction in the statute between sections 1431(7) and 1439(2) involving commercial speech. Understand how the Court of Civil Appeals resolved that contradiction in Krimbill.

One is the answer to " It cannot be used to dismiss what kind of cases?" and the other says the state protects speech on a matter of public concern related to a good product or service in the marketplace. They applied two requirements used in Texas (1) the parties are involved in the same general area of business and (2) the statements forming the basis of that suit were made at least partially for the purpose of promoting sales of the goods or services of the person making the statement. If both requirements are met Texas held that the anti-SLAPP statute does not apply and cannot be interposed as a defense.

How does it define First Amendment rights and communication? Broadly.

Exercising the right of association is "a communication between individuals who join together to collectively express promote pursue or defend common interests." The right to petition includes "a communication in or pertaining to ... a public meeting dealing with a public purpose including statements and discussions at the meeting or other matters of public concern." which the statute defines as "an issue related to health or safety environmental economic or community well-being the government a public official or public figure or a good product or service in the marketplace." "Communication is broadly defined by the statute as "the making or submitting of a statement or document in any form or medium including oral visual written audiovisual or electronic."

Are the speech and associational rights protected by the statute limited to communications relating to participation in government?

No

What are the basic steps to applying the OCPA? Under what circumstances is the lawsuit dismissed or not dismissed?

The legal action is suspended when the defendant files a motion to dismiss under the OCPA. If the defendant "shows by a preponderance of the evidence" that the lawsuit is "based on relates to or is in response to" the defendant's exercise of the rights to free speech

Under what circumstances are attorney fees and expenses awarded to whom?

If the court dismisses the SLAPP

Additional sanctions be levied against the plaintiff for what reason?

If the court determines that the defendant's motion to dismiss under the statute is "frivolous or solely intended to delay

The threat of a libel lawsuit has what kind of effect on speech?

Chilling effect

The term "political" refers to what?

"The policy or the administration of government" or to "the influence by which individuals of a state seek to determine or control its public policy."

Which First Amendment theory best supports this defense?

Political self-government

In what way does the Oklahoma Citizens Participation Act provide more protection against SLAPPs than does protection for political speech?

The state cannot impede political speech?

Neutral Reportage Privilege Do Oklahoma courts recognize this defense?

No

What is this defense?

It protects journalists when they accurately report newsworthy statements.

What are the elements?

The defense was created in 1977 by the U.S. Court of Appeals for the Second Circuit which expanded the common law fair report privilege by holding that the First Amendment provides a defense to libel when The source relied upon by the reporter is "responsible and prominent" The statements are about a public figure or official The reporting was accurate The reporting was "fair" "disinterested" "reasonable" and in "good faith"

Under what circumstance are websites protected by Section 230 of the Communications Decency Act against libel claims?

If the information is provided by third parties

What is the language in Section 230(C)(1)? (Read the footnotes in your textbook.)

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. No provider or user of an interactive computer service shall be held liable on account of (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene lewd lascivious filthy excessively violent harassing or otherwise objectionable whether or not such material is constitutionally protected or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph 1.

Understand the background of Section 230.

Part of the Communications Decency Act of 1996 which was struck down because it was constitutionally overbroad however Section 230 remained in effect

The CDA's "Good Samaritan" defense in Section 230 was a response by Congress to judicial reasoning in the early 1990s indicating what?

Online service providers assumed liability for content provided by third parties if the OSPs exercised editorial control over the material

Congress feared the liability would deter companies from doing what? (Read the footnotes in your textbook.)

Blocking and screening offensive material from children

Congress intended for Section 230 to do what?

to enable online platforms to engage in good faith community moderation without fear of taking on undue liability for their users posts

In other words Section 230 aimed to make it possible for companies such as Twitter and Facebook to do what?

remove content for almost any reason if the companies believed that removing the content made their forums better or protected users more

Does Section 230 permit privately owned social media sites such as Facebook and Twitter to exercise censorship not permitted by the government Why?

Yes if it's making the platform better

President Trump's executive order attempts export the "good faith" language from (C)(2) into (C)(1) based on what reasoning?

if the social media companies restrict certain voices on their platforms the companies should be stripped of their legal immunity opening the doors to a wave of lawsuits over content seen as defamatory