Chapter 4

Topic Review

Protecting individual reputation is held with high value since it is easily torn down while having lasting impacts. Threats from libel suit are thought to be quite awful when they take place in the media which places a reluctance to publish freely and peruse stories aggressively. What must be proven in court is as follows: a statement of fact, that is published, that is of and concerning the plaintiff, that is defamatory, that is false, that causes damage (or harm), and that is the result of fault by the defendant. Libel plaintiffs are to show that the defendant is the reason for publishing defamatory material. This in turn makes the level of fault that must be proved difficult since it varies on the plaintiff’s status. Coinciding with libel is the intentional, reckless extreme, or outrageous conduct that can result in severe emotional harm and may lead to intentional infliction of emotional distress. Plaintiff’s suing for this, negligent infliction of emotional distress, must show that there was a duty of care and that that duty of care was breached causing severe emotional distress.

Defining Key Terms

Damages- monetary compensation that may be recovered in court by any person who has suffered loss or injury. Damages may be compensatory for actual loss or punitive as punishment for outrageous conduct

Burden of Proof- requirement for a party to a case to demonstrate one or more claims by the presentation of evidence. In libel law, for example, the plaintiff has the burden of proof

Communications Decency Act- part of the 1996 telecommunications act that largely attempted to regulate internet content. Communications decency act was successfully challenged in Reno v. American Civil Liberties Union (1997)

Libel Per Se- statement whose injurious nature is apparent and requires no further proof

Libel per Quod- statement whose injurious nature requires proof

Actual Malice- in libel law, a statement made knowing it is false or with reckless disregard for its truth

Deposition- testimony by a witness conducted outside a courtroom and intended to be used in preparation for trial

Public Figure- in libel law, a plaintiff who is in the public spotlight, usually voluntarily, and must prove the defendant acted with actual malice in order to win damages

All Purpose Public Figures- in libel law, a person who occupies a position of such persuasive power and influence as to be deemed a public figure for all purposes. Public Figure libel plaintiffs are required to prove actual malice

Limited Purpose Public Figure- in libel law, those plaintiffs who have attained public figure status within a narrow set of circumstances by thrusting themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved; this kind of public figure is more common than the all- purpose public figure

Bootstrapping- in libel law, the forbidden practice of a defendant claiming that the plaintiff is a public figure solely on the basis of the statement that is the reason for the lawsuit

Involuntary public figure

Involuntary Public Figure- in libel law, a person who does not necessarily thrust himself or herself into public controversies voluntarily but is drawn into a given issue

Private Figure- in libel law, a plaintiff who cannot be categorized as either a public figure or a public official. Generally, in order to recover damages, a private figure is required to prove not actual malice but merely negligence on the part of the defendant

Emotional Distress- serious mental anguish

Intentional Infliction of Emotional Distress- extreme and outrageous intentional or reckless conduct causing plaintiffs severe emotional harm; public official and public figure plaintiff must show actual malice on defendant’s parts

Negligent Infliction of Emotional Distress- careless breach of a duty that causes the plaintiff severe emotional harm

Reckless- word used to describe actions taken with no consideration of the legal harms that might result

Relevant Doctrine

Slander vs. Libel- The laws governing each are similar but distinct- damages awarded for libel are usually higher than for slander. Written communication is likely to cause more harm because it lasted longer and its audience was larger. Defamatory content in broadcasting is deemed libel in most states, slander in some others. Some states hold that if broadcast defamation is from scripted material, it is libel. Otherwise, it is slander.

The Plaintiff’s Libel Case-

1.     A statement of fact

2.     That is published,

3.     That is of and concerning the plaintiff,

4.     That is defamatory,

5.     That is false,

6.     That causes damage (or harm) and

7.     For which the defendant is at fault

Burden of Proof as Deterrent- The burden of proof of falsity occasionally serves as a deterrent to potential plaintiffs. The requirement to delve deeply into the allegedly libelous statement and refute its veracity is sometimes so distasteful that would-be plaintiffs choose not to file libel claims in the first place. The information revealed in the process may be more embarrassing and damaging to reputation than the allegedly libelous statement. In addition, this proof of falsity requirement leads targets of some news media investigations to conclude that a libel claim is not their best course of action. That is, under some circumstances, plaintiffs may not want the truth or falsity of a news report’s claims analyzed. The possibility that the allegations could be proved true or substantially true can be discouraging to a potential plaintiff.

Actual Malice-

1.     Knowledge of falsity or

2.     Reckless disregard for the truth

“Reckless Disregard” Criteria

1.     Urgency of the story. Is there time to check the information.

2.     Source reliability. Is the source trustworthy?

3.     Number of sources. More than one source.

4.     Story believability. Is further examination necessary?

Limited- Purpose Public Figure

1.     A public controversy must exist before the publication of the allegedly libelous statement.

2.     The plaintiff must have in some way participated voluntarily in trying to resolve this controversy

3.     The plaintiff’s participation actively sought to influence public opinion regarding the controversy

Intentional Infliction of Emotional Distress

1.     Plaintiff’s Case

a.     Defendant’s intentional or reckless conduct

b.     Was extreme and outrageous- beyond the bounds of decency tolerated in civilized society;

c.     Involved actual malice, if plaintiff is a public official or public figure; and

d.     Caused plaintiff’s severe emotional distress

2.     Defense

a.     There is no defense if plaintiff proves his or her case

Parody or Satire? - The Supreme Court has explained that there is a difference between “parody” and “satire”: “Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.”

Significant Cases

New York Times Co. v. Sullivan- In order to prove libel, a “public official” must show that the newspaper acted “with 'actual malice'–that is, with knowledge that it was false or with reckless disregard” for truth.

Hustler Magazine Inc. v. Falwell- a United States Supreme Court case in which the Court held that the First and Fourteenth Amendments prohibit public figures from recovering damages for the tort of intentional infliction of emotional distress (IIED), if the emotional distress was caused by a caricature, parody, or satire of the public figure that a reasonable person would not have interpreted as factual.

Current Events and Controversies

President Trump claimed he was going to open up libel laws so that “when they write purposely negative and horrible and false articles, we can sue them and win lots of money.” This is controversial because his motivations come from his own personal issues with mainstream media and their coverage of him. Most of the coverage surrounding him is true and he is constantly at war with protecting his image even if there is nothing to protect.