Press Law and Ethics Exam 2

Before 1964, what principles did the courts adhere to for libel?

• The courts have always recognized the value of a person’s reputation, which is grounded in common law

• Courts do not always distinguish between true and false statements hat may harm one’s reputation

• Courts didn’t always distinguish between “reporting” (news stories) and “opinion” (commentary)

• Courts didn’t always recognize “partial truths

• A common misconception in state libel law was that some words were harmful all the time (libel per se) no matter the context they were used in

• Someone accused of libel was assumed guilty and had to prove innocence

• Courts did not always distinguish between public and private

Private individual

Anyone who is not in a category of public

If someone is “public” what libel standard must he or she prove, and how is that standard defined?

• A much higher standard called “actual malice” - reckless disregard for the truth; knowingly publishing false information with the intent to harm someone

If someone is “private” what libel standard must he or she prove, and how is that standard defined?

• A much lower standard called “negligence” - failure to follow routine procedures leading to publication

What categories of “public” and how have the courts defined each of them?

• Public official: a person with broad authority over the public; not necessarily elected, but if elected, the court assumes one is public; might, but does not have to be, paid with public money

• Public figure: “celebrity” status; powerful and influential; routine access to the media

• Limited purpose public figure: someone who voluntarily steps into a public controversy with the intent of influencing the outcome

What U.S. Supreme Court case helped to clarity the differences between a public person and a private person, and why did the court need to do this?

• Gertz v. Welch

• Helped clarify the difference between a public person and a private person

• The NYT v Sullivan ruling did not do this

What three conditions are needed to move a libel case forward, and how is each of the three defined?

• Publication: published any tangible form and seen by three people; the creator, the person claiming harm and one other person. The court assumes at least one other person saw the offensive material in cases of mass distribution

• Identification: the plaintiff is identified by name, photo, illustration, or by implication

• Defamation: as per community standards, the information published could be harmful to someone’s reputation

Why did the Supreme Court rule the way that it did in NYT v Sullivan?

The court unanimously believed that state libel las that were extremely onerous represented a threat to free press directives of the First Amendment. The majority believed that if these laws were not guided by federal constitutional directives, covering significant issues of public policy, like civil rights in the South, would dry up because the news media would routinely lose libel lawsuits and this would stunt their willingness to report. That potential outcome severely damaged the “free press” tenet of the First Amendment

What case changed libel law in 1964?

New York Times v. Sullivan

What significant change occurred in libel law after 1964?

• State courts had to apply federal constitutional guidelines to libel law

• Libel law shifted from presumed guilty to presumed innocent

• Courts recognized “public principle,” an element of libel law in Kansas that held public officials needed a heavier burden of proof; Miklejohn theory

• Distinguished between true and false statements

• Disguised between reporting and opinion

  • Gave higher protection to opinion

• Tolerated “partial truths”

• Concepts of “libel per se” is no longer recognized

In whose jurisdiction were most libel cases heard and why?

Most libel cases landed in the jurisdiction of the state courts because no connection had been made between libel law and press freedom guaranteed in the First Amendment

Chris Cuomo Case

• Applies the timely retraction defense

• Cuomo alleged defamatory statements

  • Stated or implied that Williams lied about his marital status to a woman he was dating

  • Stated or implied that during the relationship, Wlliams profited from gifts from the woman

  • Stated or implied she suffered financial “ruin” because of Williams

• ABC issued a timely retraction

• ABC news and Chris Cuomo settled with Williams

E.W. Scripps - Kentucky Post

• County prosecutor claimed he was libeled

• Prosecutor was considered a public official

• KY Supreme Court found actual malice

• Ruled that the reporter held a grudge against the prosecutor based on an altercation between the two at a football game and a recorded phone call in which the reporter spoke about getting even with the prosecutor

• Public people winning libel lawsuits is rare

Ayash et al. v. Dana Faber

• A private individual (a doctor) against the Boston Globe (traditional media)

• She was misidentified in an article about the death of a patient

• Negligence

• Doctor prevailed against the Boston Globe

Bryson v. New American Publications

• Private individual was called a “slut” in an article

• Court ruled that Bryson is not a common name and the plaintiff could be connected to the derogatory term

• She was “identified”

Philadelphia Newspapers v. Hepps

• US Supreme Court established in this case that private individuals must prove they were harmed

• Harm cannot be assumed

WCW (Hulk Hogan) case

• Dispute between Vince Russo and Hulk Hogan

• Russo gave a speech calling Hogan a “piece of shit,” accused him of manipulative backstage politics, and fired him on national TV

• Hogan filed for defamation, false light invasion of privacy, and breach of contract

• Georgia Court of Appeals dismissed the case

• Determined the on-air rant constituted non-actionable hyperbole and professional wrestling fiction

Hustler v. Falwell

• Hustler Magazine ran a satire about Falwell

• Falwell claimed invasion of privacy, libel, and intentional infliction of emotional distress

• Court ruled 8-0 in favor of Hustler Magazine

NYT v. Sullivan

• Changed libel law after 1964 ruling

• Police officer’s illegal treatment of students during a civil rights demonstration

• Sullivan sued NYT for libel

  • Jurisdiction shopping

• Sullivan was awarded $500,000

• Picked the jurisdiction where he thought he was most likely to win

• Supreme Court ruled that not requiring Sullivan to prove harm unconstitutionally infringed on the First Amendment’s freedom of speech and press protection

Gertz v. Welch (1974)

• American Opinion Magazine accused Gertz of being a communist, trying to discredit the police, and having an extensive criminal record

• Gertz sued and argued he was private

• Magazine argued Gertz was public

• Supreme Court ruled that Gertz was private and sent the case back for retrial where Gertz won

Rosenblatt v. Baer (1966)

• County ski slope manager was found to be a public official due to his significant contact with and control over the public

• Resolved in New Hampshire state court in 1961

• State ruled in favor of Baer, the slope manager

• Supreme Court ruled 8-0 in favor of the editorial writer, Rosenblatt

Herbert v. Lando (1979)

• Court ruled Herbert to be a public official because as a high ranking military officer, her exercised broad authority within military matters

• The court found that in order for a jury to determine actual malice, attorney’s have to be able to explore someone’s state of mind

• Herbert was a retired Army officer who served in Vietnam and was accused of covering up atrocities committed by American troops

• Herbert sued CBS for libel

• Supreme Court ruled 5-4 in favor of CBS and Lando

• Herbert couldn’t prove actual malice

Key cases: public status

• Rosenblatt v. Baer (1966)

• Herbert v. Lando (1979)

• Hustler v. Falwell (1987)

Key cases: private status

• Time Inc. v. Firestone (1976)

• Hutchinson v. Proxmire (1979)

• Wolston v. Reader’s Digest (1979)

• Ryder v. Time Magazine (1976)

Time Inc. v. Firestone

• The wife of the heir of Firestone Tire and Rubber was found to be private

• Time Magazine reported that she was granted a divorce from her husband of grounds of adultery

• Time argued she was a public figure

• Courts ruled her to be private

Hutchinson v. Proxmire (1979)

• Court ruled that Hutchinson, a researcher who accepted a grant from the federal government to do research on pain levels in monkeys, was private

• Attorneys for the US Senate argued that Hutchinson was public because he took government money for his work, which had gained media attention

• Court ruled researchers always seek government grants

• Hutchinson had no contact or authority over the public because of the grant

Wolston v. Reader’s Digest (1979)

• Court ruled that involvement in criminal activity does not automatically make someone a public figure

• Reader’s Digest listed Wolston as convicted of a crime in connection with spying on the US, which was untrue

• Wolston argued he was private

• Reader’s Digest said he was public because he had been convicted of a crime

• Supreme Court ruled 8-1 in favor of Wolston

• Appearing in court cases does not make a person public

Ryder v. Time Magazine (1976)

• Richard J. Ryder practiced law in Washington D.C.

• Richard R. Ryder was also a Virginia attorney

• Richard J. Ryder was unrelated to and had no connection to the plaintiff

• Richard R. Ryder was suspended from practicing for placing stolen money and a sawed-off shotgun in his safe-deposit box

• Time published an essay about Richard Ryder

• Court ruled in favor of Time because they followed routine procedure

Primary Libel defenses

• “Truth”

  • In some states (8), “truth” is considered an absolute defense

  • “Truth” gets more weight when a public official/public figure is involved

  • In some states. “truth” must be accompanied by “good motives for justifiable ends”

• Statute of limitations

• Privileged communications

• Protection for opinion/for comment

• Consent

Secondary libel defenses

• Retraction defenses

  • Daily publication

  • Non-daily publication

“Truth”

In some states (8), truth is an absolute defense against libel against libel, meaning if you could prove what was published was true, you would prevail in a libel suit

• Gets more weight when a public figure is involved

• In some states, truth must be accompanied by “good motives for justifiable ends”

• Bottom line: truth is a strong defense but is hard to prove

Statute of limitations

Legal action must be taken within a specified period of time

• Vary from state to state

• Often one or two years

  • Kentucky is one year

Privileged communication

Media outlet is protected by qualified privilege if:

• Material comes directly from the report of a privileged proceeding or document

• The material is a fair and accurate summary

• Sometimes, privilege is extended if the information comes from a public official

Opinion/fair comment

Pure opinion is a statement incapable of being proven true of false

Consent

An individual cannot sue for libel if they have permission for the publication of the defamatory material

• Verbal consent is not a strong defense

Rhetorical hyperbole

Language so expansive that the reader or listener knows its only an opinion

• Tone of the language is usually key

Retraction status

A statement published to retract or correct previously libelous material

• 33 states

• Typically require or encourage a plaintiff to request a correction before suing

• Often limits damages

• KY daily publication: retraction issued within 10 business days after sufficient demand for correction

• KY non-daily publication: retraction issued within 10 business days after sufficient demand for correction

Primary libel defenses

• “Truth”

• Statute of limitations

• Privileged communication

• Protection for opinion / fair comment

• Consent

Secondary libel defenses

• Retraction statutes

• Rhetorical hyperbole