Plopper Assignment: Chapter 3, Defamation
Optional Middleton Assignment: Chapter 3
Libel:
1. defamatory
2. identification
3. publication
4. fault
5. falsity
6. harm
That which exposes a person to hatred, ridicule or contempt.
* criminal activity
* moral failings
* incompetence in professional/business life
NOT defamatory:
reporting age incorrectly
poor (unless implies lazy, incompetent)
Probably not:
derogatory racial terms
false obituaries
Libel Per Se: clear, unambiguous, comonly-agreed-to meaning.
Words such as unethical, adulterer, thief, drunkard, cheat
Libel Per Quod: Libel not apparent in the words themselves.
"If unpublished information known by readers makes published information defamatory in context."
"of or concerning" the plaintiff to at least one reader or viewer
Full identification of person charged with crime
Fiction not safe
Don't have to actually name person to identify him/her.
Group Libel: Question is whether the slur can be attributed to individuals within the group
More than 100 -- usually not
100 - 15 -- be careful with words like "most" or "all" but words such as "one" or "few" are not identification
Arkansas Law: Privilege exists (thus, no publication) when "the person making the communication has an interest, or in reference to which he has a duty, and to a person having a corresponding interest or duty, although it contains matters which, without such privilege, would be actionable." For instance, a doctor tells his secretary something that defames the person to whom the letter is being sent.
"STANDARD OF FAULT" -- Be sure you understand what I am asking when I ask you "What's the standard of fault" that must be proved in a certain case. You'll need to use this term of art on all the exams.
Degree of fault for libel depends on
* who is suing
* subject of the libelous statement
New York Times v. Sullivan -- First Amendment protects criticism of government officials even if remarks are false and defamatory, to give the press "breathing space" unless plaintiff proves actual malice
Actual Malice is standard for suits brought by public officials in language relating to official conduct; or by public figures (see below)
Actual malice standard of proof (or standard of fault) -- Plaintiff must prove defendant published with EITHER knowing defamatory language was false OR exercising a reckless disregard for the truth.
Public Officials: Persons elected to public office or non-elected govt employees who play major roles in policy development
Public Figures -- they invite public attention and/or have access to media to counteract false statements.
1. All-purpose public figures: persons of widespread fame or notoriety; have constant access to media.
OR
2. Limited-purpose public figures: those who have voluntarily thrust themselves into the vortext of a public controversy
to influence the outcome of the controversy.
All-purpose public figures must ALWAYS prove actual malice, no matter the subject of the defamatory language.
Limited-purpose public figures must prove actual malice ONLY when the defamatory falsehoods related to the controversy they associated themselves with.
Cases illustrating actual malice:
(a) Reckless disregard: Curtis Publishing Co. v. Butts and Associated Press v. Walker
Many factors go into decision -- deadline, reporting techniques, reliability of sources, competition decisions.
(b) Knowing falsehood: Masson v. New Yorker Magazine, Inc.
Even if a reporter makes up a quote and puts it in quotations marks, that is not automatically knowing falsehood. Test would be "substanial truth."
NEGLIGENCE -- For private persons suing for libel. Varies by state.
(a) Average person standard: (Arkansas) A failure to act as a reasonable person would in similar circumstances. Does not take into account daily occupational hazards of journalism, such as deadlines or uncooperative sources
(b) Professional standard: Failure to act as a reasonable reporter would under similar circumstances.
Defenses of substantial truth and opinion can allow a defendant to win his case even if falsity is proven by the plaintiff.
Even if plaintiff is able to prove all six elements, defendant may win case using defenses. Most important in libel are truth, privilege and opinion.
1. Truth:
Standard is "substantially true," not true in every detail. The impact of the story on the reader would have been no different if the details had been accurate.
2. Privilege
Absolute privileges for Government Officials:
a) official statements of executive branch
b) legislators during official proceedings
c) all comments during judicial proceedings
Qualified privileges for reporters. A reporter does not have a qualified privilege unless he is reporting on a situation in which a government official has an absolute privilege. Report must be accurate, fair and contain attribution for the privilege to apply.
3. Opinion: One's opinion can be protected if it :
Consider these three statements:
1. I think Jones is an alcoholic.
2. Jones has seven beers before breakfast every morning and I think he's an alcoholic.
3. I think Jones drinks too much.
(a) Milkovich v. Lorain Journal Co. -- Labeling opinion as such does not automatically protect the words if it is based on information that is either incorrect or incomplete, or if interpretation is incorrect.
(b) Moldea v. New York Times II -- Where the alleged defamatory statement is "tied to the work being reviewed" and "is a supportable interpretations of the author's work," that interpretation
(c) Hustler v. Falwell -- Figurative or picturesque language, rhetorical hyperbole and exaggerated speech that cannot reasonably be interpreted as stating actual facts cannot be the basis of a defamation suit.
Four-part test from 8th circuit for determining whether a statement is opinion or fact.
1. precision and specificity of disputed remark
2. verifiability of the remark
3. literary context -- must consider whole of conversation as well as its tone and use of cautionary language
4. public context -- remarks made in political or public arena receive more protection.
"Neutral Reportage" -- Not recognized in Arkansas. "The media is a mere conduit for information and should be liable for damages."
ADDITIONAL ARKANSAS LAW
Criminal Defamation: Slander that is spoken or published. Penalties: imprisonment for 6 months to 3 years and/or fine of $50-3,000.
Defamation in political broadcasts is covered in Ark. Code Ann. 7-6-104 (1987) which states that where Congress or the FCC prohibits boradcasters from censoring the script, broadcasters have no liability for any defamatory statement uttered as a part of a broadcast by candidates.