Defamation/Criminal&Civil Libel Flashcards
(33 cards)
Defamation
1) a defamatory statement or utterance, 2) of and concerning the plaintiff, that has been 3) published to a third party, and results in 4) damages
Who is liable?
1) primary publisher- first person to say or write it
2) republisher- news magazine picks up what person said
3) secondary publisher- TMZ quoting the re-publisher
What is the Burden of Proof?
Must prove: 1)statement in question was false 2) at least some level of fault
Public Persons burden of proof
someone in the public eye, have to prove knowledge of falsity and reckless disregard of the truth
Private Persons / Public Matter:
some sort of fault amounting to at least negligence
What are the defenses to defamation?
1) Truth
2) Absolute Privilege
3) Qualified Privilege
4) First Amendment
Absolute Privilege
A. Statements made in judicial proceedings
B. Statements made in the course of legislative debate
C. Communications between spouses
Qualified Privilege
apply to some people in certain circumstances. (Ex: Public Duty, Private Duty, Statements made in the speaker’s own interest, Comments of council, and comments on public figures.)
CRIMINAL Libel
Has to do with sedition (breach of the peace)
Take action with CRIMINAL Libel:
generally the gov’t taking action through a prosecuting attorney
CRIMINAL Libel Standard of proof:
beyond a reasonable doubt
CRIMINAL Libel Punishment:
fines and or jail time
CIVIL Libel
Deals with damage to a persons reputation
Take action with CIVIL Libel:
a person taking action through a private attorney
CIVIL Libel Standard of proof:
preponderance of the evidence (almost like circumstantial)
CIVIL Libel Punishment:
monetary damages
Beauharnais v. Illinois (USSC 1952)
- B. distributed racist literature, was prosecuted under an IL group libel statute.
- USSC ruled that defamation directed at ethnic and racial groups can be illegal even when it is not directed at a specific individual.
New York Times vs. Sullivan (1964)
- The Supreme Court concluded that “actual malice” must be proved to support a finding of libel against a public figure
- Commissioner of Montgomery says it
- Established a new standard for Libel.
Garrison v. Louisiana (USSC 1964)
Garrison (D.A. of NOLA) attacked judges, stating they were “lazy, vacation-minded, and sympathetic to criminals.”
*USSC said state governments cannot censor critics of government without due process and that the role of the citizen critic of government must be protected by the First Amendment. BASICALLY DECLARED CRIMINAL LIBEL UNCONSTITUTIONAL.
Brandenburg vs Ohio (1969)
- KKK Klansman arrested for his prostests
- Court rules that advocacy of violence for political purpose is ok as long it didnt incite “imminent lawless action”
- Imminent lawless action test still used in free speech cases
Imminent Lawless Action Test
Update of clear and present danger test
1) Intent- whether the person speaking intended to incite violence
2) Likelihood- what the person is saying is likely to cause violence
3) Imminence- It’s going to happen relatively soon or close
Williamson v. Georgia
Howard M. Williamson, known as “Happy Howard” on his radio talk show, accused the city clerk of Cochran, Ga., on the air of taking kickbacks. The state of Georgia charged Williamson with the violation of the criminal defamation statute. Yes. (4-3). Weltner – A communication which ‘tends to provoke a breach of peace’ is unconstitutional – vague and overbroad under the First and Fourteenth amendments to the United States Constitution.
Private Person, Private Issue
normal person, not in the public eye (just have to prove that the statement was false) *Criminal charges doesn’t make someone a public figure
Private Person, Public Issue
person who is a private resident, not in the public eye, the issue might be of interest or impact the public (have to prove fault amounting to at least negligence, if you are trying to collect damages you have to prove malice)
