Questions to Know

Libel

A type of defamation that involves making a false statement in a written or published form that harms someone’s reputation

Slander

A type of defamation that involves making a false spoken statement that harms someone’s reputation

Libel per se

A statement that is obviously harmful on its face, no extra explanation needed to show damage, harm is automatically assumed

Libel per quod

A statement that is not obviously harmful by itself, requires additional context or explanation to show harm, and the person must prove actual damages

What is group libel and where does it appear in Supreme Court doctrine?

Defamation directed a a group of people rather than one individual, usually not actionable

• Beauharnais v Illinois - upheld a law banning group libel, saying defamatory statements about racial or religious groups could be punished

What are the four conditions for defamation?

(1) Defamation - Presumption of “reasonable person” would think of it as defamatory

(2) Publication - Third party, not necessarily printed

(3) Identification - Clearly (but not necessarily explicitly) named

(4) Fault - Ranges from negligence (Gertz) to actual malice (Times)

Actual Malice

Deliberately committing an act of harm to another

Negligence

Failure to do something a reasonable person would do

Gross Negligence

Intentional failure to do what is reasonable or prudent 

How has defamation expanded to differet groups at different times?

• New York Times Co v Sullivan - court ruled that public officials must prove actual malice (knowing falsehood or reckless disregard for truth)

• Curtis Publishing Co v Butts - extended the actual malice standard to public figures (celebrities, well-known individuals).

• Gertz v Robert Welch - court ruled that private people have more protection from defamatory speech, they only need to prove negligence, not malice

What are the defenses against an accusation of defamation?

• Truth

• Reputation is already tarnished

• Privileged Communication

How does defamation deal with parody/satire?

Parody and satire are usually protected, not considered defamation if a reasonable person would not believe the statement is factual

• Hustler Magazine v Falwell - court ruled that obvious parody is protected, public figures cannot recover for emotional harm unless there is false factual statement made with malice

Libel Tourism

• “Shopping around” libel lawsuits, the goal is to find a sympathetic court

• The practice of filing a defamation lawsuit in a foreign country where laws are more favorable to the plaintiff

What are SLAPPs? What is the intention behind them?

• Strategic Lawsuits Against Public Participation 

• Goal is to bury people/organizations in lawsuits in order to silence them

What’s the gist of Brandeis’ essay on the right to privacy?

• Written by Louis Brandeis and Samuel Warren

• Argues that people have a legal “right to be let alone”

  • protection against publication of private facts

  • control over personal information

  • protecting property

What are the sources of privacy that legally ground it?

• 1st Amendment: privacy of beliefs

• 3rd Amendment: privacy of home (quartering soldiers)

• 14th Amendment: unreasonable search and seizure

• 5th Amendment: privacy of self against self-incrimination

• 9th Amendment: rights not enumerated

What are the four common law privacy torts/categories?

(1) Intrusion on seclusion

(2) Disclosure of personal matter

(3) False Light

(4) Appropriation

Intrusion on Seclusion

Invasion of personal space or physical solitude to gather information (e.g. hidden cameras)

Disclosure of personal matter

Publicity about issue of no public concern (e.g. Gawker and Peter Thiel/Hulk Hogan)

False Light

• Publication of half-truths or distortions intended to frame an incorrect impression of someone (e.g. cropping a photo)

• Fictionalization: fictionalizing an account of an event (e.g. Hill’s held hostage)

  • Defended because of actual malice standard; must have calculated falsehoods

• Distortion: manipulating

Appropriation

Using person’s name or likeness without permission within commercial exploitation context

How might one defend against accusations of invading privacy?

(1) Consent

(2) Newsworthiness and public interest

(3) U.S. Constitution

Consent

(1) burden of proof is on defendant

(2) consent must be as broad as the invasion of privacy that follows

(3) Substantial alterations to photographs can invalidate 

How have the courts treated anonymous speech?

• Generally protected but not absolute

• McIntyre v Ohio Elections Commission - court struck down law banning anonymous political leaflets, held that anonymous speech is valuable for free expression

What are some of the problems associated with anonymous speech?

1. Accountability Issue - Hard to hold someone responsible for defamation, threats, or harassment

2. Defamation & Libel Risks

3. Cybersecurity & Fraud

4. Difficulty in Law Enforcement

5. Reduced Credibility

What is the compatible-use rule? Where does it apply?

• Created by Grayned v Rockford

• content neutral

• significant government interest

• Assembly and speech must be compatible within the space

How has the compatible use rule evolved?

• State House Grounds? - OK with compatible-use

• Courthouses? - not OK if disrupting trials or intimidating people involved in the process (narrowly tailored) 

• Jails? - not OK as they deal with security 

• Blocking entrances to government property? - not OK with compatible use 

• Military Base? - not OK

What are the different varieties of public forums?

1. Quintessential public forums

2. Limited purpose public forum

3. Non-public forum

Quintessential public forum

• Long tradition of assembly and debate

• Ex: public parks, squares, streets, sidewalks

Limited purpose public forum

• Public property the state has opened for expressive activity

• Content neutral, narrowly drawn from compelling state interest

• Ex: Auditorium, municipal building, college campuses

Non-public forum

• Public property not intended/designated for public communication

  • No guarantee, regulation must be reasonable and not just because public officials oppose speaker’s views

How are anti-abortion protests regulated? Where is the First Amendment involved?

• Buffer zones/Clinic Access - laws create fixed buffer zones around clinics to protect patients and staff from harassment

• Time, place, and manner restrictions - gov regulate when, where, and how protests occur

  • restrictions: content neutral, narrowly tailored, and leave alternative channels for speech

Where is the First Amendment involved in anti-abortion protest?

• Hill v Colorado - upheld a 6-foot buffer zone around clinic patients

• McCullen v Coakley - struck down a 35-foot fixed buffer zone as too broad

What role do permits play in time, place, and manner?

Must be content-neutral, narrowly tailored 

How is private property regulated?

• Residential

  • Commercial solicitation may be regulated, but not non-commercial 

  • Political signs OK

  • Home Owners Association (HOA) has more control, akin to company towns

• Malls

  • Restrictions OK, not new public forum (as Brennan tried to argue)

What is “speech-plus”? How does it impact the freedom of expression? What sorts of things can be regulated (and what can’t)?

• Symbolic expression - speech with conduct

  • Must intend to convey a meaning 

  • Audience should understand intended message 

• Saluting flag = symbolic, can’t be compelled 

• Burning draft card - not OK (US v O’Brien, 1968)

• Black armbands in school - OK (Tinker v Debs Moines, 1969)

• Flag burning - OK (Texas v Johnson, 1989)

• Labor Picketing - OK, but less protection than pure speech 

What are the limits to student speech rights?

• schools can control speech that appears to be officially endorsed (newspapers)

• speech that materially disrupts school activities or interferes with the rights of others

• schools can restrict speech that is obscene, threatening, or bullying

How has this issue of student speech rights evolved over time?

• Tinker - strong protection for political speech

• Fraser - limits on vulgar, lewd, or indecent speech

• Hazelwood - schools control school-sponsored expression

Are teachers' speech rights restricted? If so, how? Does the content matter? What about the site (on/off-campus)?

Yes. Teachers have First Amendment rights, but they are more limited than students’ rights because they are public employees

• Pickering v Board of Education - protected only if it involves a matter of public concern

To what extent do schools have the ability to ban/remove certain books from their libraries?

• Schools have some authority to remove books, but is limited

• cannot remove books simply because they disagree with the ideas or viewpoints

• Island Trees Union Free School District v Pico (1983)

  • Nine “anti-American, anti-Christian, anti-Semitic, and just plain filthy” books banned

  • 5-4 for the students (Pico)

What are the limitations of free speech placed on the military? What kinds of issues are addressed?

• much more restricted than civilian speech

• can be limited if it undermines authority, morale, or mission effectiveness

• Parker v Levy - court upheld punishment of a soldier for statements that undermined military discipline

  • military is a separate society with different speech standards

What are the limitations of free speech placed in prisons? What kinds of issues are addressed?

• highly restricted justified by needs for security, order, and rehabilitation

• Turner v Safley - established the standard for evaluating prisoners’ constitutional rights