Media Law & Ethics RU COMS 400 Fall 2016 T-Th 12:30 – 1:15 Russell 033 Prof. Bill Kovarik, PhDwkovarik@radford.edu / Ph: 831 6033Office hours: before and after classOffice location: 2126 CHBS

Class web site: revolutionsincommunication.com/law Also see: www.billkovarik.com LIBEL LAW

Section 3.1

This talk is about … What is libel? What is slander? What are the elements of a libel

suit?◦Dissemination, ID, defamation, fault,

damages What are the defenses against

libel? ◦Truth, privilege, fair comment &

criticism History of libel

◦Why libel suits are more difficult now◦Some of the great libel cases esp:

New York Times v Sullivan, 1964

What is libel? Untrue statement About a living person or existing

institution (You cant libel the dead) Communicated to a 3rd party That tends to injure reputation by

exposing them to public hatred, shame, disgrace or ridicule.

And causes actual damages Libel cases are weighed differently for

public and private defendants

What is slander? Slander is spoken defamation Ex: malicious neighborhood

gossip Libel is the appropriate tort for

spoken media when it is broadcast or widely disseminated

Elements of libel What factors or elements have to be present in a libel suit?

Identification of a person or very small group of individually identifiable people◦ Direct (per se) and indirect (per quod) ID

Defamation – Untrue words that harm reputation

Dissemination through any medium, broadcast, print, web, etc., even to only a few people

Fault – Negligence (private person) or Malice (public person)

Damages – direct and indirect

Defenses against libel Truth – If it’s true, it’s not defamatory,

therefore not libel. ◦However, for private people, or non-

newsworthy facts, there may be an invasion of privacy. (More on that later).

Privilege – Protected government-related speech (testimony in court, etc).

Fair comment & criticism – Old common law defense, includes opinions about public people and issues

Defenses against libel Truth – If it involves truthful

material, facts, it’s not defamatory, therefore not libel.

But how is truth proven? Which side has the burden of proof in court?

What about when small facts are wrong? How much does that matter? ◦New York Times v Sullivan, 1964

Defenses against libel Privilege – Protected government-related

speech (testimony in court, etc). How far does privilege extend?

◦Police department wrongful charge repeated in newspaper? (yes)

◦Governor or president’s working papers (yes) ◦Speeches from floor of Congress or legislature

(yes) ◦Press releases about speeches from floor (no)

See Hutchinson v Proxmire, 1979

Defenses against libel Fair comment & criticism – Old common

law defense, includes opinions about public people and issues

How do we distinguish fact from opinion? ◦Milkovich v. Lorain Journal Co, 1990 ◦– Two protected categories of opinion:

Statements not provable as false EX: “Mayor shows ignorance by promoting Ayn Rand”

Statements that cant be interpreted as factual Loose, figurative or hyperbolic language

Minor Defenses against libel Neutral reportage –– A fair attempt to be neutral in reporting both sides of a

controversial issue. ◦ Edwards v. National Audubon Society, 1977 (Varies from state to state)

Right of reply — When two parties (sometimes publishers) have already been exchanging libelous charges, and one finally sues the other, the defendant can claim to merely be responding and may have a “right of reply.” Note that actual laws creating a right of reply have been struck down (Tornillo v Miami Herald)

Libel-proof plaintiff — Someone with an already ruined reputation, for example a convicted murderer, is libel proof.

Rhetorical hyperbole — In some states, courts will hold that language in the context of an editorial or opinion is understood by readers to be figurative and not literal.

Retraction — Nearly every state allows a libel defendant to retract or apologize for defamatory material. In some states, retraction made within a certain time frame in the same editorial context may bar any recovery, while in others it may limit damages.

Consent –– If a plaintiff can be proved to have given consent to a libelous publication, he or she can’t sue for libel.

Statute of limitations — States have various time limits for filing libel actions. In Virginia, like most states, it is one year.

Death — Yes, legally, it is no problem to speak ill of the dead.

Not defenses against libelThe word “allegedly” does not offer

any protection. The phrase, “She allegedly has AIDS” is legally the same as “She has AIDS.”

Official attribution does not protect reporters unless a charge is documented.

Off the record attribution is dangerous. Claims of opinion do not shield a

malicious statement of fact.

History of libel

Once upon a time Libel used to be any words, true or not,

that damaged reputation Zenger case made truth a defense in

seditious libel 1735 In 19th and 20th centuries, defending

against a libel suit was difficult: ◦Burden of proof was on publisher ◦Strict liability standard ◦Harm assumed from any defamation

Chilling effect on First Amendment noted, and courts started supporting press

Much better after NYT v Sullivan, 1964

Famous libel cases

Cherry v Des Moines Leader, 1901Cherry Sisters – homespun vaudeville

act Sued for this: “The mouths of their

rancid features opened like caverns and sounds like the wailings of damned souls issued therefrom.”

Court said: “One who goes upon the stage to exhibit himself to the public, or who gives any kind of a performance to which the public is invited, may be freely criticized …”

Oscar Wilde sues the Marquis of Queensbury, 1895 (Britain)

Oscar Wilde was a famous playwright and wit about town in London in the 1880s and 90s. He was also reckless.

In 1895, he brought a libel suit against the Marquis of Queensbury, the famous boxing rules champion, for insulting him in public, calling Wilde “a sodomite”

At trial, the marquis’ attorneys brought some of Wilde’s lovers to the witness stand.

Wilde was arrested and tried on criminal charges of sodomy. He ended up spending two years in British jail and died, his career cut short, in 1900.

Oakley - Hearst newspapers Annie Oakley was a famous sharpshooter

on the Rough Riders circuit Two Chicago newspapers published an

false article on August 11, 1903, headlined “Famous Woman Crack Shot … Steals to Secure Cocaine.” Oakley was not even in Chicago at the time.

Oakley embarked on a series of 55 libel suits against Hearst newspapers, winning all but one, losing money in the process.

Ruskin v

Whistler 1878

Futility of a libel suit Oxford professor John Ruskin, a well known

romantic poet and literary critic, criticized a painting by the American artist James McNeil Whistler, saying:◦ I never expected to hear a coxcomb ask two

hundred guineas for flinging a pot of paint in the public’s face.

Whistler sued Ruskin in British court for 1,000 pounds. The jury found Ruskin guilty but awarded Whistler only one farthing.

Most observers believed it was a defeat for both men who had allowed their disagreement about art to become a costly public libel trial.

Collier v C.W. Post, 1907

Advertising totally

unregulated

False, ridiculous and

unsubstantiated medical

claims were common

Post v Collier – 1907 – 1914 C.W. Post cereal ad 1905: “It is a practical

certainty that when a man has approaching symptoms of appendicitis, the attack can be avoided by discontinuing all food except Grape-Nuts and by properly washing out the intestines.”

Collier’s magazine says Grape-Nuts ad was “potentially deadly lying.”

C.W. Post counter-attacks – claims Colliers tried to extort money in return for silence.

Collier sues Post for libel and was awarded $50,000 damages. Reversed on appeal.

US v Press Publishing (Teddy Roosevelt vs Joseph Pulitzer) 1908 -- Pulitzer and other

publishers alleged that there had been a $40 million bribe for the Panama Canal

US presidentTheodore Roosevelt outraged. Grand jury indictments in Washington DC on Feb. 17, 1909, on charges of criminal libel.

US Supreme Court threw out the indictment 1911.

Henry Ford v

Chicago Tribune,

1916 In 1916, Ford company warned employees that they would lose their jobs if they volunteered for the National Guard to fight in the border war with Mexico.

The Chicago Tribune called this “Flivver Patriotism” and said Ford might be considered “not only an ignorant idealist … but an anarchist enemy of the nation…”

• Ford won the libel suit, but it was a pyrrhic victory — the jury awarded him only six cents.

• Ford sued for libel, and the case was tried in 1919.

• Tribune lawyers put Ford on the stand for nine days.

• Although it was clear that he was not an anarchist, it was also clear that Ford was basically an uneducated rube who thought chili con carne was a military unit.

• “History is more or less bunk,” he said on the witness stand. “We want to live in the present and the only history that is worth a tinker’s dam is the history we make today.”