Exam 2 Material

Outside Video: First Amendment: New York Times v. Sullivan 

• One of the most important cases in freedom of the press

• Ad in the New York times, Sullivan was mad at how it portrayed law enforcement at peaceful protests. (police chief) - he sued for Libel. Sullivan won the lawsuit due to some of the facts in the ad being inaccurate, and libel/defamation is not protected by the first amendment (at the local Montgomery Court), the case was appealed to the supreme court, the New York Times lawyers argued that if they are getting punished for publishing this information in the future the press will be fearful and deterred from publishing true information. They ruled that there was not enough information in the post to prove libel and in order to prove Libel you must prove actual malice, knowing falsity, or reckless disregard for falsity. Because the ad is considered an “open public debate” mistakes are common. Changed the entire law of libel - started as a result of the civil rights movement. Applies to government officials & public figures.

Outside Video: The Sad Story of the Smartest Man in History

• Had an IQ 260, William James Sidis  

  • At 8 years old he could speak 8 languages, 18 months read the New York Times

  • Invented the language of Vendergood”

  • Youngest person admitted to Harvard ever

    • He lectured his professors 

  • He wanted to live a secluded life, never wanted fame or to be married 

  • He has a feud with his father due to william wanting to live a normal life and did not attend his fathers funeral 

  • Working a $100 a month job the newspapers noted that William lost his intelligence. William then became a Socialist. 

  • He protested WW1 in Boston and got arrested, his parents bailed him out

  • He worked as a machine worker alone without contact from family and died in his late 40s

Outside Video: What are the rules to fly your drone in 2024? 

1. Strictly for recreational purposes 

   1. If you are filming for the purpose of monetization then you have to follow another set of rules called Part 107

   2. Part 107

      1. Take a 60 question in person exam with the FAA and score at least a 70%

2. Follow community based organizational guidelines 

3. You need to maintain visual line of sight 

   1. “Able to see”

4. Do not interfere with traditional aircraft 

5. Get authorization to fly in controlled airspace

   1. LAANC

6. Fly not higher than 400 ft above the ground (under recreational rules)

   1. Except airports, where there is a different height limit 

7. Take your trust test 

   1. Free training provided by the FAA 

   2. The Recreational Uas Safety Test

      1. Valid forever 

8. Register your drone with the FAA 

9. Remote Identification 

10. Don't Operate Dangerously 

Defamation 

• Not Protected by the First Amendment 

• Definition: An expression that tends to damage a person's reputation and good name, or right to enjoy social contacts, or a profession, business or calling. 

• Libel: Written or printed defamation.

  •  Slander - spoken defamation 

Types of Libel

• Criminal Libel: Government statutes that punish criticism of government 

• Civil Libel: Lawsuit between private parties

Forms of Defamation

• Libel Per Se: the words are criticizing on their face, questioning someone's chastity 

• Libel Per Quod: The libel that is in the context of other words, it is buried in the story

• Trade Libel:  You state a product is bad, and therefore it is defamatory to the business

Plaintiff’s Burden of Proof 

1. Defamation 

2. Identification 

3. Publication 

4. Fault: Publication was result of recklessness or negligence (this is where we argue)

Fault

• (Pre-1964) Strict Liability: No finding of negligence required and if a damaged reputation resulted from a publication, there was liability

  • Public Official 

    • Someone like Donald Trump

    • The degree of fault I have to prove is actual malice or reckless disregard for the truth

  • All-Purpose Public Figure

    • Someone like Beyonce 

    • They have to prove actual malice or reckless disregard for the truth (same as public official)

  • Limited or Vortex Public Figure 

    • Someone who has done something of recognition to the public 

    • They have to prove actual malice or reckless disregard for the truth 

  • Private Individuals 

    • Everyday person

    • Lower burden of proof in court 

    • You only have to prove negligence 

Plaintiff's Burden of Proof

• Falsity: A burden only for persons suing for defamation related to matters of public concern 

• Personal Harm: Loss of business, emotional distress, or reputation 

  • Typically financial 

Plaintiff’s use of SLAPP

• Strategic Lawsuits against public participation 

  • Big business goes after a little guy to drain their finances 

• Used by plaintiffs to harass their critics into silence. Create a “Chilling Effect.” Cases rarely won with this tactic 

• States have passed Anti-Slapp statutes 

  • State says we are going to legislate against this action by those large businesses. The little guy is protected financially 

Reckless Disregard for Truth

• Actual Malice: Must be proven by public officials and public figures

  • Known as New York Times Standard

Negligence

• Standard of proof for private individuals 

• May result from failure to try and contact person being defamed, lack of effort to verify sources, and/or disregarding contradictory evidence

Damages

• Compensatory/general/actual damages (presumed in libel per se)

• Special (must be established)

• Punitive/exemplary or “smart money” damages (tied to degree of malice)

• Nominal damages 

Legal Options

• Summary Judgement: asks the judge to decide the case on the basis of pretrial submissions when neither party disputes the underlying facts.

• Demurrer: asks the court to reject a complaint because it is legally insufficient. Federal courts do not allow it and 3 states still have it - CA, PA, and VA. The truth of the charges are not challenged; it’s whether the plaintiff has enough facts to go to trial

Defendant’s Defenses 

• Statute of limitations 

• Truth - (Provable with justification and without malice)

• Expression not provably false

• Fair comment - conditional (when you are at a public event and you are offering critique)

  • Lose condition 

    • If comments are not about public matter 

    • If comments aren’t supported by facts

• Consent 

• Fair Report - Absolute (privilege of the participant) with the legislative, judicial, and executive branches

• Fair Report - Conditional - fair and accurate reporting 

  • Lose condition

    • Report is not fair & accurate

    • News source isn’t cited in story 

• NY Times Standard 

• Innocent construction rule in some states, eg. Illinois 

• Section 230

• Neutral Reportage 

• Single-publication rule

• Republication 

  • Wire service/web

    • Reputation of news-gathering agency 

    • Didn't know story was false 

    • Nothing to alert defendant as to falsity of information 

    • Republication without substantial change  

Defendants Defenses (opinion pieces)

• Expression not provably false 

• Ollman v. Evans (DC 1984) - “Ollman Test”

  • Verifiable 

  • common/ordinary meaning

  • Journalistic context 

  • Social context 

• Parody/rhetorical hyperbole (protected)

  • Ex. SNL 

Preventing Libel Suits 

• Handle complaints 

• Retractions 

Farmers Education and Cooperative Union v. WDAY (1959)

• Facts: W.C. Townley, a colorful independent candidate for the U.S. Senate from North Dakota, accused the FECUA of being controlled by communists over WDAY

• Importance: Need to look up

Beauharnais v. Illinois (1952) - Group Libel Law

• Facts: Beauharnais distributed racist literature. He was prosecuted under a Illinois group libel statute 

• Importance: The U.S. Supreme court ruled that defamation directed at ethnic and racial groups can be illegal even when it is not directed at a specific individual 

  • Group libel law was dropped right after this decision, however, they did say in the future they could make a law against it

Neiman-Marcus Co. v. Lait (1952)

• Facts: In a book, U.S.A Confidential, it was asserted that the women working at the Neiman-Marcus department store in Dallas were “hookers” and the men in menswear were “fairies”

• Importance: A court ruled identification can occur when defamation is aimed at a small group

Cosgrove Studio and Camera v. Pane (1962) 

• Facts: Cosgrove ran an ad promising customers a free roll of film for every roll brought in for processing. Pane warned readers in his ad. “You get nothing for nothing”

• Importance: Identification can occur even when the person/business is not specifically named in the defamatory statement 

Garrison v. Louisiana (1964) - Criminal Libel

• Facts: Jim Garrison, the district attorney for New Orleans Parish, attacked judges stating they were lazy, “vacation-minded,” and sympathetic to criminals 

• Importance: USSC said state governments can’t censor critics of the government without due process and that the role of the citizen critic of the government. Must be protected by the First Amendment. FOr all practical purposes declared criminal libel unconstitutional 

New York Times v. Sullivan (1964)

• Importance: USSC declared that public officials may recover for defamation upon proof of actual malice or reckless disregard for the truth. This established the “New York Times Standard”

Rosenblatt v. Baer (1966)

• Facts: Rosenblatt, a reporter, wrote a story critical of the manner that a county-owned ski resort was managed by Baer. 

• Importance: USSC ruled that the “Public Official” criteria was designated to include those in the hierarchy of government employees who have substantial responsibility of the conduct of government affairs 

Walker v. A.P. (1967) - Good Journalistic Technique 

• Facts: A.P. reported that retired army officer Major General Edwin Walker encouraged violence and led a charge against federal marshals during the integration of the University of Mississippi in 1962

• Importance: USSC declared courts will seek to determine whether a journalist had, or should have had serious doubts about the truth of defamatory statements. Element of time to check and verify sourcers is very important in this case 

Curtis Publishing Co. v. Butts (1967) - Bad Journalistic Technique

• Facts: The Saturday Evening Post reported that Georgia football coach Wally Butts fixed a football game with Alabama. The Post relied on the unsupported testimony of a check forager 

• Importance: USSC declared that they will examine the credibility of sources, believability of the defamatory allegations and the effort made to investigate the statements in questions. The media had plenty of time to verify the facts of this story, but didn’t 

Goldwater v. Ginzburg (1969) - Shows that a public official can win a defamation case and meet the New York Times Standard 

• Facts: Ralph Ginzburg, editor of Fact, asserted Goldwater suffered from a mental disease. In a second article he edited responses to a mail survey from psychiatrists to distort the comments about Goldwater

• Importance: The U.S. Court of Appeals for the Second Circuit ruled that creating false statements to support one’s predetermined view is evidence of actual malice 

Cohen v. New York Herald Tribune (1970)

• Facts: Jimmy Breslin wrote a satirical article on a mob hit that was witnessed by Cohen.

• Importance: A New York court ruled that “mere exaggeration, irony or wit” does not make an article defamatory. 

Greenbelt Cooperative Pub. Assn. v. Bresler (197)) - Innocent construction case

• Facts: The Greenbelt News Review wrote a story in which Bresler, a land developer, was charged with blackmail because he offered to sell land to the city only after the city rezoned a different parcel he owned.

• Significance: The USSC stated that the use of words, such as “blackmail,” when used in a public forum was determined to be non-actionable. 

Rosenbloom v. Metromedia (1971)

• Facts: George Rosenbloom, a little known businessman, was arrested for selling obscene material. News of his arrest was aired over the radio 

• Importance:  The USSC ruled that the burden of proof imposed on public officials extends to anyone involved in a matter of public concern, regardless of whether they were famous or unknown.

Ocala Star-Banner Co. v. Damron (1971)

• Facts: Leonard Damron, running for the office of mayor of Crystal River, Florida, was falsely reported by the Star-Banner of having been charged with perjury.

• Importance: The USSC decided that no matter how remote in time or place a charge of criminal conduct against a public official is, it is always relevant to his.her fitness for office.

Gertz v. Welch (1974)

• Facts: Elmer Gertz, an attorney, was libeled by an American Opinion article. The magazine charged that Gertz has engineered a “frame-up” of a policeman convicted for - see slides

• Importance: The USSC defined a public figure as one who thrusts oneself into the public arena involuntarily or assumes a role voluntarily in which publication is expected or assumed. States may define the level of proof for a private person. 

Time v. Firestone (1976)

• Facts: Mrs. Firestone sued Time after a “Milestones” item incorrectly reported that Russell Firestone had won a divorce on the grounds “of extreme cruelty of adultery.”

• Importance: The USSC ruled that Mrs. Firestone did not assume any role of special prominence in the affairs of society 

Herbert v. Lando (1979)

• Facts: A 1873 “60 minutes” broadcast questioned allegations by Colonel Anthony Herbert of an official cover-up of atrocities committed by U.S. troops in Vietnam. 

• Importance: The USSC held that a journalist’s mind may be probed in a libel case in order to establish actual malice.

Wolston v. Reader’s Digest Association (1979)

• Facts: Ilya Wolston refused to testify in 1958 before a federal grand jury investigating Soviet spy activities. Reader’s Digest Reported this event 20 years later on a story concerning famous spy cases 

• Importance: The USSC said that Wolston did not thrust himself into the forefront of the controversy, but was “dragged unwillingly” into the spotlight 

Gazette v. Harris (1985)

• Facts: This litigation involved three cases: 

  • Misidentification of sex offender

  • Misidentification of married, pregnant, sexual assault victim as “Miss”

  • Misidentification of a child’s accidental death as a case of abuse 

• Significance: The Virginia State Supreme Court Declared negligence is the legal standard of proof for private individuals - finish on ppt. 

Dun and Bradstreet v. Greenmoss Builders (1985)

• Facts: Greenmoss Builders, a construction company, had a credit-reporting agency falsely say that the company had filed for bankruptcy. In reality an employee of D & B confused records of a former Greenmoss employee with the firm.

• Importance: The USSC held that credit reports are a private matter and not a matter of “public concern.” 

Philadelphia Newspapers v. Hepps (1986)

• Facts: A corporation that franchised a chain of Thrify stores sued the Philadelphia Inquirer for linking the chain of organized crime. 

• Importance: The USSC stated that private individuals seeking damages on matters of public concern have the burden of proving that the offending statements are false

  • Overturned laws in 8 States. 

Harte-Hanks Communications v. Connaughton (1989)

• Facts: The Hamilton (Ohio) Journal News published a front-page story charging a judicial candidate, Daniel Connaughton, with planning blackmail and promising favors for help in smearing his opponent. 

• Significance: The USSC ruled that this newspaper made a deliberate decision not to acquire knowledge that would have revealed that falsity of charges against connaughton

Milkovich v. Lorain Journal (1990) - provable opinion 

• Facts: The News-Herald published a sports column stating wrestling coach Michael Milkovich had lied under oath to the Ohio Athletic Commission concerning his role in a right that broke out during a wrestling match.

• Significance: The USSC held that fact-based opinions expressed in editorials do not enjoy special protection under the First Amendment 

  • Fact based opinions must be proved 

Masson v. New Yorker (1991) 

• Facts: Freudian scholar Jeffrey Masson sued New Yorker author Janet Malcolm for falsely quoting him as calling himself an “intellectual gigolo” and “the greatest analyst who ever lived.”

• Significance: The USSC ruled that minor changes in quotations fail to constitute defamation. The plaintiff has a burden to show that the altered words substantially damages his/her reputation.

Four Torts of Privacy

• appropriation/commercialization (right of publicity)

  • Ex. If you only promote coke and pepsi starts using your image

  • Commercialization of your image without your consent 

• False Light

• Intrusion 

• Private or Embarrassing Facts (emotional distress)

History of Privacy

• Privacy has largely developed in the 20th century 

• Concept originated in an 1890 Harvard Law Review article by Samuel Warren and Louis Brandeis. 

• Technology developed was key to privacy’s development 

Appropriation/Commercialization

• Definition: Using a person’s image or likeness (sound) for one’s purposes (commercial) without permission or compensation. May cause shame, humiliation or loss of revenue 

• Defenses: 

  • Written Consent 

  • Newsworthiness

  • Incidental Use 

  • Ad for a mass medium 

Plaintiffs Position 

• Name or likeness, picture, voice or identity 

• Without permission 

• For money 

Very First Appropriation Case: Roberson v. Rochester Folding Box Co. (1902)

• Facts: Franklin Mills Company used Abigail Roberson’s picture, without her permission, in advertisements for the company’s flour

• Importance: Although Roberson lost, it motivated New York legislators to pass the first privacy statute. 

Rights of Publicity (Emerging Tort)

• Definition: Resides with the status of the person-celebrity status-revenue loss

• Defense: Newsworthiness

  • Artistic Relevance Test: use celebrity to sell the product 

  • Transformative Test: how much originality is in the works 

  • Predominant Use Test: media put names in context for commercial purposes 

Zacchini v. Scripps-Howard (1977)

• Facts: Hugo “The Human Cannonball” Zacchini had his entire act (15 seconds) broadcast by a Cleveland TV station without his permission

• Importance: The USSC ruled that the media must make sure that permission is acquired in commercial situations 

Carson v. Here’s Johnny (1983)

• Facts: A portable toilet manufacturer used the phrase “Here’s Johnny” and “The World’s Foremost Commodian” in his advertisements without the permission of Johnny Carson 

• Importance: A Federal District Court ruled that in situations where a person is “known” by a name or slogan there is a need to secure permission before engaging in a commercial transaction 

  • The manufacturer tried again to use the phrase in 2010, but the court wouldn’t allow it. 

Shields v. Gross (1983)

• Facts: Brooke Shields's mother signed a release to a photographer to allow him to photograph Brooke at the age of 10 posing nude in a bathtub. At 17 Brooke tried to stop the publication of the photos. 

• Importance: A New York court declared that a signed model release is a very strong defense regardless of the time element 

  • A parent’s consent is binding for a minor 

Midler v. Ford (1988)

• Facts: Ford Motor Company broadcast an ad with a singer who was hired because she sounded like Midler when she sang “Do You Want To Dance.”

• Importance: A California court ruled that “Sound-Alikes” need to be legally cleared before undergoing a commercial venture 

Cher v. Forum (1982)

• Facts: Forum implied that Cher encourages others to join her as a subscriber to the magazine. This endorsement appeared on subscription cards without Cher’s permission

• Importance: A New York court ruled that a magazine must secure permission to use a celebrity’s name in an endorsement. 

Paulsen v. Personality Posters (1968)

• Facts: A company sold posters of Pat Paulsen during his “comic” run as a presidential candidate

• Importance: A New York court ruled that the newsworthiness of an event may override a claim of appropriation 

  • The poster presented political commentary on a mock presidential campaign

False Light

• Definition: The spreading of “highly offensive false publicity” with knowledge of a reckless disregard of the truth 

• Only tort recognized by the USSC 

• Plaintiffs Position 

  • Material was published 

  • Identification 

  • Information was false 

  • Highly offensive to a reasonable person 

  • Defendant knew the info was false 

• Defenses

  • New York Times v. Sullivan: If the plaintiff is a public figure/official, the the plaintiff has to prove actual malice 

  • Gertz v. Welch decision has not been applied to this tort

Time v. Hill (1967)

• Facts: In 1952 convicts held the Hill family hostage in their home. Life (owns Time) reported in 1955 on a play based on this true crime. Pictures were taken in Hill’s ex-home and showed convicts as “brutish.”

• Importance: New York Times v. Sullivan actual malice standard was applied by the USSC to the false-light privacy tort. 

Cantrell v. Forest City Publishing (1974)

• Facts: Joseph Eszterhas of the Cleveland Plain Dealer wrote a story about a bridge collapse. Five months after the accident he wrote an article containing an interview with Mrs. Cantrell - an interview that never occurred. 

• Importance: The USSC declared that falsifying quotes constitutes actual malice and fictionalization. 

Uhl v. CBS (1979)

• Facts: In a CBS documentary titled “Guns of Autumn,” CBS edited film footage to give the impression that Uhl was shooting geese on the ground. 

  • In the state of PA it is illegal to shoot geese on the ground. However the edit made it appear this way.

• Importance: A federal district court ruled that a hunter shooting birds on the ground is highly offensive to the average person in western Pennsylvania 

Intrusion 

• Definition: The 4th Amendment protects private persons from intrusion from government - this tort protects a private person’s right to be left alone and control information about himself/herself. 

• Plaintiff’s Position 

  • Reasonable Expectation of Privacy 

  • Intentional Intrusion 

  • Offensive to a Reasonable Person 

• Defenses 

  • Public Places

  • Written Permission 

  • False Pretenses 

Galella v. Onassis (1972-82)

• Facts: Ron Galella, a photographer, made a living stalking Mrs. Onasis.

• Importance: A federal District court ruled that overzealous members of the media can be restrained and must be respectful of the moments of private intimacy. 

Le Mistral v. CBS (1978)

• Facts: Le Mistral was a restaurant that had received a poor bill of health from a health care official. CBS showed up one night with cameras disrupting the restaurant’s service. 

• Importance: A New York court ruled that the newsworthiness of an event does not necessarily outweigh the right of a private company to conduct business undisrupted

Florida Pub. Co. v. Fletcher (1975)

• Facts: A photographer took pictures of a fire scene for a fire official. The next day the Florida Times-Union ran “Silhouette of Death.” Mother sued for intrusion 

• Importance: A Florida court determined that the doctrine of custom and usage protected the media because fire authorities had invited the media onto the property

Private or Embarrassing Facts

• Definition: “published” information which is offensive to a “reasonable person” and/or is not of concern to the public 

• Defenses

  • Public Record

  • Newsworthiness

  • Written Consent 

Sidis v. F & R Pub. Co. (1940)

• Facts: As an 11 year-old, William J. Sidis gave lectures to the math department at Harvard. The New Yorker many years later wrote a story concerning Sidis’s sad, unfulfilled life. 

• Importance: The court determined that Sidis was still newsworthy after many years and had little or no claim to privacy

Briscoe v. Reader’s Digest (1972)

• Facts: Marvin Briscoe participated in an unsuccessful hijacking attempt 11 years earlier. He served his time. Reader's Digest Reported this event in a story.  

• Importance: A federal district court ruled that Reader’s Digest had reported the information accurately and Briscoe was still newsworthy 

Williams v. KCMO (1971)

• Facts: KCMO had videotaped Williams' arrest on the street. Williams was not charged with a crime, but this arrest was aired on the 6pm news. 10pm news aired a tape, but announced no charges were placed by police. 

• Importance: A Missouri court declared that the newsworthiness of an event outweighed any privacy concerns in fast breaking news 

Cape Pub. v. Bridges (1982)

• Facts: Hilda Bridges sued a Fla. paper over publication of a photo of her without clothes, fleeing the apartment where her husband had just committed suicide 

• Importance: An appellate judge ruled that the newsworthiness of the situation outweighed any privacy claim 

Sipple v. Chronicle Pub. (1984)

• Facts: Oliver Sipple, a decorated Vietnam Vet, Saved president Ford’s life. His homosexuality was disclosed in follow-up newspaper stories. 

• Importance: A California Appellate court ruled that the newsworthiness of the event outweighed Sipple’s privacy claims. 

Cases Already covered that apply (Private and Embarrassing Facts)

• Cox Broadcasting v. Cohn (1975)

• Florida Star v. BJF (1989)