Chapter 2: Libel

Who was Richard Jewell?

A security guard at the 1996 Atlanta Olympics who discovered a bomb and helped evacuate people.

What happened after Richard Jewell was praised as a hero?

Three days later, the Atlanta Journal-Constitution reported police suspected he planted the bomb himself.

How long was Richard Jewell a suspect?

For about three months, both in the media and with law enforcement.

What was the outcome of the Richard Jewell bombing investigation?

By October 1996, Jewell was cleared. Later, Eric Rudolph pleaded guilty to the bombing.

What impact did the false accusations have on Richard Jewell?

His life was ruined, and he filed multiple libel suits against media outlets.

Which organizations settled with Richard Jewell?

CNN and NBC, although they insisted their reporting was accurate.

What was still ongoing when Richard Jewell died in 2007?

Several libel lawsuits.

Who was Bernard Madoff?

Chairman of Bernard L. Madoff Investment Securities, who ran the largest Ponzi scheme in U.S. history.

What reputation did Bernard Madoff’s firm have?

It was known for steady 10% returns, even in bad economic years.

Who did Bernard Madoff target with his investment scheme?

Wealthy American Jews and Jewish charities, including Hadassah, the Elie Wiesel Foundation, and Steven Spielberg’s Wunderkinder Foundation.

What is a Ponzi scheme?

A fraud where returns to earlier investors are paid with money from new investors, without real investments.

Why wasn’t Bernard Madoff caught earlier?

Despite multiple investigations since the 1990s, no irregularities were found.

What exposed Bernard Madoff’s fraud?

The 2008 Great Recession downturn.

What was Bernard Madoff’s punishment?

He pleaded guilty to fraud and was sentenced to 150 years in prison.

What happened to investors? (Bernard Madoff)

Many lost money; some charities and businesses shut down.

Why do we have libel laws?

To protect reputations from false statements that can unjustly harm someone.

Which Shakespeare play is quoted to explain reputation and libel?

Othello, where Iago says reputation is a person’s “immediate jewel.”

What is the key lesson from Othello about reputation?

Reputation isn’t always reality. False allegations can ruin someone unjustly.

How do Richard Jewell and Bernie Madoff illustrate reputation issues?

Jewell was falsely accused and defamed, while Madoff falsely appeared trustworthy until exposed.

What balance must journalists maintain?

Protecting individuals from false defamation vs. informing the public of real dangers.

What can happen when journalists defame someone mistakenly?

They may face libel or slander lawsuits.

How common are large libel awards?

Awards over $1 million are common.

At the trial level, how often do media organizations lose libel cases?

About 60% of the time.

What happens on appeal in libel cases?

Media organizations win about 60% of the time.

Why is winning a libel suit still costly for media organizations?

Legal defense costs can reach hundreds of thousands or millions of dollars.

What’s the first line of defense against libel suits?

Writers and editors recognizing potential problems before publication.

What’s another safeguard against libel suits?

Having lawyers review sensitive stories before publication.

What must a person do if they believe they have been defamed and want to sue?

They bear the burden of presenting proof of each element of a libel suit.

How many elements did a traditional libel suit have, and how has this changed since 1964?

Traditionally three elements; since 1964, the Supreme Court has added additional elements to protect First Amendment interests, often totaling six.

What are the six elements of a libel suit?

1. Defamation
2. Identification
3. Publication
4. Injury
5. Falsity
6. Fault

Which elements of a libel suit are considered traditional, and which were added by the Supreme Court?

Traditional: Defamation, Identification, Publication.
Added: Injury, Falsity, Fault.

What is the burden of proof for the first five elements of a libel suit?

Preponderance of the evidence (more likely than not).

What is the burden of proof for the element of fault in a libel suit?

Clear and convincing evidence.

Define libel.

Defamation by print, pictures, or signs, any tangible form of communication.

Define slander.

Defamation by spoken word.

Why was libel traditionally considered more serious than slander?

Because it is more permanent, can spread widely, and cause lasting harm to a person’s reputation.

How has technology affected the distinction between libel and slander?

Television, film, tape, and other recordings make spoken statements as lasting and widely accessible as print, blurring the line between libel and slander.

How do most states now treat defamatory statements made in mass media?

They treat them as libel, even if spoken.

What does "defamation" mean in a libel suit?

A statement that harms a person's reputation, exposing them to hatred, ridicule, or contempt.

What does "identification" mean in a libel suit?

The statement must clearly identify a specific, identifiable individual.

What does "publication" mean in a libel suit?

The defamatory statement must be communicated to at least one person other than the subject and the writer.

Why is "falsity" important in a libel suit?

Because truth is a complete defense; the statement must be false for the plaintiff to win.

What counts as "injury" in a libel suit?

Loss of income, harm to reputation, or emotional distress caused by the publication.

What does the "fault" element involve in a libel suit?

The plaintiff must show the defendant was at fault in publishing a false and defamatory statement, with the required standard depending on the plaintiff.

What is the central element of a libel suit?

Injury to a person's reputation, also called the gravamen of the complaint.

How does the Restatement (Second) of Torts define a defamatory statement?

A statement that tends to injure someone's reputation to the point that it lowers them in the estimation of the respectable community or deters others from doing business with them.

Who decides if a statement is legally capable of being defamatory, and who decides if it actually caused injury?

The judge decides if it’s capable of defamatory meaning; the jury decides if it actually injured the plaintiff’s reputation.

How do judges determine if a statement is capable of a defamatory meaning?

Judges interpret it in its ordinary and natural sense, as an ordinary reader or listener would, without straining to give it an innocent or defamatory meaning.

What is defamation per se?

Statements that are obviously harmful to a person’s reputation and almost automatically considered defamatory.

What are the four common categories of statements that are defamatory per se?

1. Allegations of criminal conduct
2. Incompetence in profession or business
3. Sexual impropriety (especially for women)
4. Having a loathsome disease

Summarize the Steven Hatfill case in relation to defamation per se.

Nicholas Kristoff’s NYT columns implied Hatfill was involved in anthrax attacks (criminal conduct). The court agreed the statements were capable of defamatory meaning, but Hatfill lost because he couldn’t prove the fault element.

What is defamation per quod?

A statement that appears innocent on its face but becomes defamatory when combined with other facts known to the audience.

Summarize the Max Braun case in relation to defamation per quod.

An ad listed Braun’s store as selling bacon. Because his customers were mostly Orthodox Jews who knew he ran a kosher market, the statement implied he violated business principles, causing him to lose customers. He successfully proved special damages.

What must plaintiffs prove in a defamation per quod case?

They must prove special damages, meaning actual monetary loss caused by the defamatory statement.

Why did Scottie Pippen’s libel case fail?

He could not prove he suffered special damages from false reports of bankruptcy.

What’s the two-step legal process for determining defamation?

1. Judge: Decides if the statement is capable of being defamatory.
2. Jury: Decides if the statement actually injured the plaintiff’s reputation in the eyes of a substantial portion of people who read or heard it.

Why did Judge Easterbrook say Pippen’s defamation suit was properly dismissed?

Because Pippen was a public figure and failed to show special damages.

What must public figures prove in defamation cases?

That the statements were published with actual malice.

Define “actual malice.”

Publishing a statement with knowledge that it was false or with reckless disregard for its truth.

Why do public figures face a higher burden in defamation cases?

To protect open discussion and criticism about people in the public eye.

What kind of statements can be defamatory?

Statements that are understood as factual claims about the plaintiff.

Why aren’t vague insults like “scoundrel” or “rascal” defamatory?

They are too vague, subjective, and based on opinion rather than factual claims.

Give an example of a factual defamatory statement.

Saying someone sells cocaine (a clear, verifiable criminal act).

Why does context matter in defamation cases?

It determines whether a statement is understood as literal fact or figurative speech.

What did George Harrison mean when he said he was being “raped” by his neighbors?

He used it metaphorically to describe a violation of privacy, not an actual crime.

Why did the Hawaii Supreme Court reject Harrison’s neighbors’ libel claim?

Because context made it clear Harrison wasn’t literally accusing them of rape.

What is defamation by implication?

When a literally true statement creates a false and defamatory impression by omitting key facts or pairing facts/images misleadingly.

What happened in the Memphis newspaper case?

A story implied Ruth Ann Nichols was having an affair by omitting that others, including her husband, were present at the shooting.

Why did Ruth Ann Nichols win her libel case?

The omissions created a defamatory implication that she was her neighbor’s mistress.

What happened in the Ruby Clark case against ABC?

A documentary on prostitution showed her image while narrating about sex workers, implying she was a prostitute.

Why did Ruby Clark win her defamation suit?

Witnesses testified they also believed she was being portrayed as a prostitute.

Can a literally true publication still be defamatory?

Yes, if it creates a false implication.

How does defamation law evolve?

It changes with public opinion and social attitudes about what is disgraceful.

In the 2008 Gallo v. Alitalia case, what was the allegation?

That Gallo was gay and had a sexual relationship with a coworker.

What did the federal judge decide in Gallo v. Alitalia (2008)?

That imputations of homosexuality were defamatory per se due to widespread homophobia.

What was the judge’s reasoning in Gallo’s case? (Gallo v. Alitalia (2008))

Even though LGBTQ+ rights had improved, homophobia was still common enough that such a statement could expose someone to contempt or ridicule.

How did a New York appellate court rule just four years later? (Gallo v. Alitalia (2008))

That calling someone gay was not defamatory per se.

What do the homosexuality cases show about defamation law?

That it reflects changing social values, what was once defamatory may no longer be seen that way.

What must a plaintiff prove in a defamation case?

That the defamatory statement was “of and concerning” them.

What is the purpose of the “of and concerning” requirement?

To ensure only the person actually harmed by the defamatory statement can sue.

Example: Why couldn’t the Johnson children sue TV stations for reporting their parents were siblings?

Because the defamatory statement targeted David and Ruby Johnson, not their children.

Can a plaintiff prove identification if they are not directly named?

Yes, if a reasonable person could infer the statement was about them.

Can fictional characters count for identification?

Yes, if they share enough unique traits with a real person.

What happened in the Penthouse “Miss Wyoming” case (1979)?

The fictional Miss Wyoming resembled the real Miss Wyoming (Pring) enough for a jury to award damages, but the appeal overturned because levitation was impossible and not factual.

Why did Pring’s initial $26.5 million award get overturned?

The court ruled the story could not be understood as factual since levitation is impossible.

What happened in the “Touching” (Gwen Mitchell/Gwen Davis) case?

A novel described nude therapy sessions resembling Paul Bindrim’s real sessions; witnesses linked him to the fictional psychiatrist.

Why did Paul Bindrim win his case?

Even though names and traits differed, the sessions were too similar, and people associated him with the character.

What happened in the CSI “Tuckers” case?

A couple claimed fictional characters resembled them, but the court ruled the similarities were too general.

Why did the Tamkins lose their CSI case?

Nothing in the characters’ descriptions was specific or unique enough to identify them.

What lesson comes from the Penthouse, Touching, and CSI cases?

Identification requires more than vague similarities; the link must be clear enough for a reasonable person.

How can news publications reduce libel risk?

By providing complete identification of people (full names, ages, addresses, etc.).

Why are common names risky in news reporting?

Publishing just “Harold Brown arrested” could defame anyone with that name.

How can a news outlet safely report on a “Harold Brown” arrest?

Include age, full address, or other unique identifiers.

What is the risk of vague or incomplete identification in news?

It may cause unintended people with the same name to be defamed.

How can authors reduce libel risk in fictional works?

Thoroughly change character attributes, especially for unsavory characters.

What increases libel risk in fiction?

When a fictional character is too similar to a real identifiable person.

Can witnesses play a role in proving identification?

Yes, if they testify that they associated the plaintiff with the character.

Why was Bindrim’s case stronger than the Tamkins’ case?

Bindrim had direct similarities and witnesses, while the Tamkins’ similarities were too broad.

What type of statement makes identification stronger?

Unique and specific traits that clearly point to the plaintiff.

Why is context important in identification?

It determines whether readers/viewers reasonably link the statement to the plaintiff.