Media Law: Libel and access to information

test 3

def of libel (kinda)

civil claim for money damages about a statement made or published, injury to reputation caused by false statement

tensions of libel law

1st amend right of free speech vs right to protecting reputation

how many catatgories must be met for a libel suit to be able to happen

all or nothing (6)

name all 6 things that must be true for libel case to be valid

1) statement is defamatory

2) statement is false

2.5) statement is a matter of facts (as opposed to)

3) statement is about an identifiable person

4) statement has been PUBLISHED

5) defendant is at fault

6) did the plaintiff suffer damages

#1 statement is defamatory

defamatory = false

repetitional harms: criminal behavior, moral failings, bad business man, aids, sexual promiscuity

Kaelin v Globe Comm

globe runs misleading story about Kaelin and association to OJ simpson trial —> shoes defamation & that form does not matter

#2 statement is false

speaker intentionally lies/muddys the water or simply made an error (more common)

journalist must be careful, they are held liable for the mistakes of their sources

“substantial truth”: court looks at most of it to check truth, you got critical facts rights

#2.5 statement is a matter of fact (as opposed to)

libel claims must be based on factual assertions, not opinions, jokes, satire… which the 1st amendment protects

ex: hustler magazine vs. falwell & gagle v collegiate times

substance over form

#3 statement is about identifiable person

this can be an individual, group or corporation (for and non profit), individual gov workers

this cannot be: gov entities, dead person (no descendibility), group libel (some states yes)

identifies by: directly (name, address…), indirectly (descriptive), in fiction (characters that are based on real people), by error

Bindram v. Mitchell

case that now forces shows to put disclaimers that their fictional character do not represent anyone in real life

#4 Statement has been published

revealing info to any 3rd party

republication rule

Republication rule

you are liable for republishing defamatory statements (NOT like privacy)

exceptions: privilege based on section 230 of CDA (like the DMCA of copyright), if you have an interactive computer service (and can simply prove it) you are not liable for your users

#5 defendant is at fault (woozy)

nyts v. sullivan

actual malice principle: you have to prove defendant knew statement was false OR made statement with reckless disregard to truth

& have to be a public official (?)

NYT v. Sullivan

CONSTITUTIONALIZES LIBEL LAW AND BRINGS IT UNDER 1ST AMEND (federalizing it so it cant be different state by state)

civil rights activist buy advertisement in nyt

use that space to print “Head Their Rising Voices” which describes civil rights movement + how badly they treated MLK

LB Sullivan who is city commissioner in alabamian city thinks they have delibrelty identified him and ruined rep

trial court in alabama, people hate NYT, the loose and are awarded $500,000 in damages (could have bankrupted them)

NYT appeals to USSC, NYT argues that there should be a relationship between 1st amendment and state libel law

USSC overturns trial verdict and implements actual malice —> debates on public issues should be robust and protected … that is the price of being a public official

“breathing space” around public issues necessary for democracy

does Public Figure (UGA Football coach) = public official

yes, you are subject to same treatment

what counts as public figure

1) all purpose: household name, basically a public official

2) limited purpose: famous in context (a climate activist that is famous to other climate activist)

• has to prove actual malice when the defamatory statement is made to the thing they are famous for

• —> lowers standard than actual malic

What is a public official

has or appears to have substantial amount of authority over government policy

Did the plaintiff suffer damages?

usually financial

it can be hard to measure this…

how many recognized defenses for libel

10

what are the 10 recognized defenses of libel

1) libel proof plaintiff

2) statue of limitation

3) absolute privilege

4) consent

5) fair report privilege

6) neutral reporting

7) wire services defenses

8) common interests

9) anti-slapp statues

10) retraction statues

#3 absolute privilege

officials acting in their official capacity

ex: congressman giving a speech on senate floor is not at liability for libel

why? robust room for debate

#5 fair report privilege

ability to repeat what an official acting in their official capacity said without facing libel suites,

a counter to republication rule

• you must report it both accurately and attribute source correctly

• MUST be a public official acting in official capacity

#6 neutral reportage

*only applies to like 6 states one being GA

if a prominent person/org makes a serious charge on a matter of public concern to another prominent person or org, you can repeat it as long as you do it accurately and source correctly

Anti-slapp statues

** 35-40 states have them, important that not all

these states give the target of the slap the ability to file a motion for a judge to determine if its a slap, if it is judge dismisses the case and the plantiff gets billed the cost of defenses from target —> deter people from filing slaps

• bob murray and the coal

what is a SLAPP

Strategic Lawsuit Against Public Participation

a wealthy person suing non wealthy, purpose is to punish for speaking out against, not to win damages but to deter speach, BOB murray and coal

#10 Retraction Statues

for news orgs when they make mistakes

• clarification: small error and fix

• correction: pretty substantial error and fix

• retraction: whole story is wrong and explain how/why wrong (real bad)

before one can file a libel lawsuit against news org. first you have to go news org and give them opportunity to retract —> taking responsibility—> if sued damages are less

punitive damages

punish defendant for bad behavior

expression v. access to info

comes from state/federal statues not first amendment

one would think expression would warrant access to information, that is not the case

Freedom of Information Act FOIA

allows any person to request federal agency records for any purpose

any person: litteraly anyone, dont have to be a citizen, can be a corporation

agency: most EXECUTIVE BRANCH agency, no courts or congress

record: anything that reveals gov activity, function over form, doesnt include stuff described in records

any purpose: you dont have to explain why you need it

making FOIA request

1) must be written (not true at state level but like still)

2) reasonably describes records sought, detailed

3) gov has 20 days to grant/deny it from date received, but if they dont do it in 20 days no one is held accountable

4) file for expedite processing - 10 days if you are a journalist or have a compelling need for it

5) fees for search, copies and review - lowest paid employee salary

• you can ask to waive fees bc will reveal how gov opperates

FOIA exemptions

1) national security

2) agency rules and practices

3) statutory exemptions (if FOIA collides with HIPPA)

4) confidential business info (FCC POWER)

5) personal, medical files … privacy

6) agency memoranda

7) law enforcement, puts officer at risk

8) banking reports

9) info about wells, oil and gas records (lobbying) but also some water?

what do you do if gov denies your foia request

they must tell you why

talk to foia officer and see if you can remedy, ‘OGIS, foia mediators or take it to court

fee waiver for FOIA

anyone can make argument for waived fees for FOIA

fee benefits for FOIA

news media/special requester can get 2h of free search time + 100 complimentary copys

Richard Jewel case

avoid identifying people until you know for sure

Do you have thr right to gather info in public placed

kinda

what does it mean to have a reasonable expectation of privacy in public

1) party has done something to indicate they want privacy

2) how much control over space

3) barriers to entry of the space

1st amend right of gathering info

in public places, where there is no reasonable expectation of privacy, you are allowed to capture info that can be plainly seen

• this extends to police

1st amen of gathering info limitations

reasonable time, manner, place restriction —> content neutral regulation

(recording officer & being loud in neighborhood late at night)

1983 actions

allows individuals to bring a claim for money damages against governement because of depravation of civil rights/constitutional rights

Trespassing

entering private property w/o consent or refusing to leave when asked

you have the right to go on private property to make an inquiry (unless no trespassing sign), but when asked to leave you must leave

can only be asked to leave by lawful occupant of place

Audio Recording/Eavesdropping

third party recording

• recording phone calls: illegal

• in person convos: legal if there is no reasonable expectation of privacy

Participant monitering

• one party. consent (GA) vs all party consent