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Defamation
A.
General Issues
1.
There is no
federal law (civil or criminal) on issue; only state law.
2.
US Courts review issues
of defamation only to determine if 1st Amendment protections are being violated.
3.
"Private Libel" is
not covered by 1A because such utterances "are no essential part of any
exposition of ideas" and are of "slight social value as a step to
truth." (Chaplinsky
v NH)
4.
Civil suits (torts)
are the way in which defamation normally reaches the court system.
Criminal libel (most states don't have it) is never used anymore.
5.
Slander is oral
defamation vs libel (originally meant printed) now refers to
"published" defamation.
B.
Types of defamation: defamation
= statements which tend to lower a person’s reputation before others,
cause one to be shunned, expose one to contempt or ridicule. (common law definition)
1.
Libel per se (statements that are ALWAYS considered
damaging: criminality, disease, professional
reputation, sexual immorality)
2.
Libel per quod defamatory because of the context (e.g., saying someone is healthy, thus implying
they're defrauding an insurance company)
C.
THE DEFAMATION CASE
1.
Basic conditions
that must be proven to show defamation has occurred. pp. 78-79
a.
defamatory statements (must
be perceived as damaging to right-thinking people)
b.
publication (to
third party)
c.
identification (plaintiff
must be identified as target)
d.
fault. (the statements are
not protected under law)
Since
Sullivan v NYT 1964, fault for
public officials (now public figures since
Curtis Publ. v Butts 1967, see p. 85-87), must show "actual malice" or
"reckless disregard" for the truth of the matter.
Since
Gertz
v Welch 1974, private citizens suing media must show at least “negligence.”
No strict liability (per se damages) under Gertz
and no punitive damages from media. see pp. 94.
2.
Defenses (see
avoidance advice on p. 98)
a.
Truth: If you can prove in court that what you said is
true, you probably can't be found responsible for defamation.
(Some states allow a good motive exception, that is,
damaging statements must be published for good purposes not just to hurt.
There is no SCOTUS law on good
motive). Since Phil. Newspapers v Hepps 1986,
private plaintiffs suing media defendants have the burden of
showing the material is false. p. 96
b.
Tarnished
reputation - e.g. a well-known convicted criminal likely would be found to
have such a poor reputation that calling him a liar falsely would not be seen as
damaging to his reputation.
c.
Privileged
communication cannot be used as the basis for a defamation suit.
(1)
absolute
(legislators in session, other public officials doing offical business, spouses)
(2)
qualified (reports of government actions and documents, fair
comment in reviews of works (but not authors, etc.), and "in-kind"
reply.
3.
Damages:
automatic in cases of per se, must be proved in per quod in some states.
a.
specific - $
value of actual harm
b.
general - jury's
subjective view of harm.
c.
punitive -
$ beyond actual harm as a punishment
4.
When evidence is
weak a suit can be dismissed by judge in a summary judgment
5.
SLAPPs - Strategic Law Suits Against Public Participation are intended, not to
protect reputation, but to silence critics)
a. These suits work
because of the burden of cost and time they place on critics. Larger
Organizations can afford the costs. Individuals cannot.
b. While
counter-suits might help, they too are expensive to pursue.
c. California
law allows judges to dismiss SLAPPS defamation suits to protect "the little guy."
6. The
SPEECH
Act, signed into law August 13, 2010 would 1) bar enforcement of a
foreign defamation judgment if the speech at issue was not defamatory
under U.S. law. 2) the law allows an author or publisher to go to court
and seek a declaratory judgment holding a foreign judgment unenforceable
under American law, even if the foreign party has not attempted to
enforce the judgment in the United States.
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