JRLC Exam 3 5040

Defamation

Defamation is the general term for a legal claim involving injury to one’s reputation caused by a false statement of fact. It includes both libel (defamation in written or fixed form) and slander (spoken defamation).

Libel is governed by

state law. While the First Amendment sets limits on what states can do in the libel context, the specific elements of a libel claim can—and do—vary from state to state. Rather than study each state’s approach, which would be impossible with our time constraints, we’ll take a general overview of the majority rules.

History of Libel

• used to be a criminal law to prevent breaches of peace, today it is plaintiffs seekin gdamages from defendants (FOX NEWS)

Alex Jones

• info wars, faces almost 1 billion from plaintiffs

The Plaintiff

• must be the person libeled

• must be capable of being libeled

• can be a business, nonprfoit, government CANNOT be libeled, but gov employees can if they are eliminated

The Plaintiffs Burden (elements of libel claim)

• Statement is defamatory

• statement is false

• statement is a matter of fact, as opposed to opinion etc

• statement is published

• speaker/defendant is at fault

• plaintiff suffered damages

You can libel things by leaving things out, impyling, or inventing

true

Statement is Defamatory

• subject matter harms reputation

• red flags: criminal behavior, serious moral failings, incompetence in business or professional life, having a loathsome disease, sexual promiscuity (women mainly)

• remember contemporary social standards

• Kaelin v. Globe Comm: misleading headline about OJ Simpson Case

Statement is False

statement are false if speaker intentionally lies, fabricates info, omits info, phrases things to create a false impression, or simply makes an error.

substantial truth

Statement is a matter of fact (as opposed)

• libel claim must based on factual assertion rather opinion, jokes or hperbole (protecred first amendment rights)

• courts consider overall context/tone of statement

Statement is about an identifiable person

• plaintiff can generally be any person who is identifiable by the defamatory statement

• corporations count

• person can be identified: directly, indirectly, in fiction, by error

Statement is Published

• revealing the statement to any 3rd party (other than the person defamed)

• republication rule: you’re liable for republishing defamatory statement of others

• exception: section 230 of the CDA: Section 230 of the Communications Decency Act of 1996 is a federal law that shields online platforms, websites, and internet users from legal liability for content posted by third parties. [1, 2]

Defendant is at fault

• defendant made statements with knowledge of its falsity or reckless disregard of its truthfulness

• concept of breathing

• all of which means: there are 2 standards of fault in libel cases (Actual malice and negligence_

• level of fault required varies based on the plaintiff, public figures and officals must prove actual malice (knowledge of faulty or reckless disregard) while persons (private) must only prove negligence

• NYT v Sullivan

NYT v. Sullivan

• Sullivan Standard

• During the Civil Rights movement of the 1960s, the New York Times published an ad for contributing donations to defend Martin Luther King, Jr., on perjury charges. The ad contained several minor factual inaccuracies. The city Public Safety Commissioner, L.B. Sullivan, felt that the criticism of his subordinates reflected on him, even though he was not mentioned in the ad. Sullivan sent a written request to the Times to publicly retract the information, as required for a public figure to seek punitive damages in a libel action under Alabama law. 

  When the Times refused and claimed that they were puzzled by the request, Sullivan filed a libel action against the Times and a group of African American ministers mentioned in the ad. A jury in state court awarded him $500,000 in damages. The state supreme court affirmed and the Times appealed. 

In a unanimous opinion authored by Justice Brennan, the Court ruled for the Times. 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, although he did not intend the usual meaning of a malicious purpose. In libel law, “malice” had meant knowledge or gross recklessness rather than intent, since courts found it difficult to imagine that someone would knowingly disseminate false information without a bad intent. 

Sullivan Standard

• plaintiff has to prove that the statement was made with knowledge of its falsity or with reckless disregard of its truthfulness

• favors the defendant

• applies to public officials, figures

• public offical: must prove

• public figures: 2 types

  • all purpose: yes, must prove (Oprah)

  • limited-purpose: must prove only if statement involves the subject for which plaintiff has sought or received attention. otherwise negligence (random local celebrity)

Did the plainttiff suffer damages?

• must prove that you suffered loss, typically financial, which can be compensated

• the damage, though, is to reputation, which can be difficult to measure and quantify for award amounts

• perhaps the reputational damage has embarrassed you and has shamed you in your community

Punitive Damages

• punishment

• super high, doesnt have to deal with actual harm

Compensatory Damages

• has to related to the damages (Anchored)

Recognized Defenses

(10 but focus on these

• absolute privilege

• fair report privilege

• neutral reportage

• Anti-SLAPP statutes

• retraction statutes

Absolute Privilege

• applies only to Gov. officials who are speaking in their official capacity

• if you are a go official, you are fully protected from libel while you are speaking in your official capacity

• easier to figure out for small/lower officials

Fair Report Privilege

• meant to be a counter balance to absolute privilege

• think republication rule

• if you are reporting on a gov official, who is acting under absolute priv. then the reporter is allowed to republish without repercussion

• they must: report correctly, identify the quote correctly to its source

Neutral Reportage

• if a prominent person makes a claim against another prominent person, you are protected to report it

• serious charges being made

• make sue you habe the chargs right and attribute it correctly

• many states do not acknowledge neutral reportage (GA does)

Anti-SLAPP statutes

• strategic lawsuit against public participation

• ex: Bob Murray, litating simply to punish. could buy paperwork and spend a small fortune on it

• many learn not to cross orgs like this, so they wont speak up in fear of being sued

Bob Murray — professor connection (he never sued Prof despite suing everyone)

John Oliver made a segment and was sued, then they dropped it

strategic lawsuit against public participation

Retraction Statute

• news org does publish somethin defamatory

• issue a clarification, small scale not inherently defamatory

• correction: got something big wrong

• retraction: got the whole thing wrong and it is completely pulled, must create a formal apology and statement for it

• may take ability from plaintiff to go after you w/ punitive damages

• cap total damages: given the reaction was timely)

• CANNOT bury a retraction (needs to be at least as the prominent as the original story was)

What predicts that someone may actually file a libel lawsuit?

• whether the person feels heard by the meida org

• if they feel ignore,d tend to file

Trademark

• any word, name, symbol, or device or combination thereof adopted and used by a manufacturer or merchant to identify his goods and distinguish them from manufactured or sold by others

• Lanham Act

Requirements for trademark to be recognized

• distinctive

• 4 categories: arbritary or fanciful, suggestive, descriptive, generic

Distinctive

• must be capable of identifying a brand and/or the source of a good

Arbritary or fanciful

• Ex: Exxon, word is completely made up btwn the name and product it is affiliated with

Suggestive

• logical relationship w the trademark and the product it serves (CopperTone)

Descriptive

• 1-1 relationship with the name and brand. Do not receive trademark protential. (Raisin Bran)

Generic

• trademarks have become so popular and used. Ex: band aid, q tip, chapstick. Allows the brand to send a letter on how to properly show/present a product

• Ex: Velco ad

How do you acquire rights in a trademark?

• assuming requirements are met

1. by being the fisr to use the mark in commerce

   1. or by being the first to register the mark with the U.S. patent and trademark office

What does it mean to register a trademark?

• although registration with the PTO is not required for the trademark to be protected, it does confer benefits to registering party

• applications for registration are subject to approval by the PTO, and the PTO may reject them on various grounds

Matal v. Tam

• The Slants / asian band

• SCOTUS ruled Lanham’s Act disparagement clause was unconstitutional because “speech may not be banned on the grounds that it expresses idea that offend”

Iancu v. Brunetti

• clothing line FUCT

• PTO refuses to trademark bcz immoral or scanalous

• in Matal v. Tam, SC strikes down disparagement but not immoral or scandalous … so they strike those down too

Infringement

to infringe a mark, your use of it must create a likelihood of confusion in the mind of the ordinary consumer regarding the products origin or sponsorship

• does not have to be identifical

• parodies and artistic uses

• news or editorial uses

Dilution

• likelihood of confusion not necessary

• dilution: weakens a marks identity, harms its reputation

• infringement protects consumers, while protects trademark holders

• comparative advertising, parodies and artistic uses, news or editorial uses

Freedom of Info Act

• allows any person to request federal agency records for any purpose

• #1 user: corporations

• 
  

What type of agency?

• not covered: judicial and legislative

• office of president/vp: not covered

• so applies to agencies like FBI, CIA, etc

What type of purpose?

• do not need to share purpose of request

• unless u want expedited then you’d need to explain why its pressing

Making a FOIA Request

• must be written

• reasonably describe records sought

• gov has 20 days to grant or deny

• expedited processing

• fees for search, copies, review (waiver or benefit)

Exemptions to FOIA

• national security

• statuatory exemptions: conflict btwn foia and privacy statutes

• confidential business info: trade secrets

• personnel, medical, and similar files

• 
  

If the government ignores, denies

must tell you why

• appeal to agency

• gov of info services