Defamation/Criminal&Civil Libel

Question 1

Defamation

Answer 1

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

Question 2

Who is liable?

Answer 2

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

Question 3

What is the Burden of Proof?

Answer 3

Must prove: 1)statement in question was false 2) at least some level of fault

Question 4

Public Persons burden of proof

Answer 4

someone in the public eye, have to prove knowledge of falsity and reckless disregard of the truth

Question 5

Private Persons / Public Matter:

Answer 5

some sort of fault amounting to at least negligence

Question 6

What are the defenses to defamation?

Answer 6

1) Truth
2) Absolute Privilege
3) Qualified Privilege
4) First Amendment

Question 7

Absolute Privilege

Answer 7

A. Statements made in judicial proceedings
B. Statements made in the course of legislative debate
C. Communications between spouses

Question 8

Qualified Privilege

Answer 8

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.)

Question 9

CRIMINAL Libel

Answer 9

Has to do with sedition (breach of the peace)

Question 10

Take action with CRIMINAL Libel:

Answer 10

generally the gov’t taking action through a prosecuting attorney

Question 11

CRIMINAL Libel Standard of proof:

Answer 11

beyond a reasonable doubt

Question 12

CRIMINAL Libel Punishment:

Answer 12

fines and or jail time

Question 13

CIVIL Libel

Answer 13

Deals with damage to a persons reputation

Question 14

Take action with CIVIL Libel:

Answer 14

a person taking action through a private attorney

Question 15

CIVIL Libel Standard of proof:

Answer 15

preponderance of the evidence (almost like circumstantial)

Question 16

CIVIL Libel Punishment:

Answer 16

monetary damages

Question 17

Beauharnais v. Illinois (USSC 1952)

Answer 17

• 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.

Question 18

New York Times vs. Sullivan (1964)

Answer 18

• 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.

Question 19

Garrison v. Louisiana (USSC 1964)

Answer 19

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.

Question 20

Brandenburg vs Ohio (1969)

Answer 20

• 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

Question 21

Imminent Lawless Action Test

Answer 21

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

Question 22

Williamson v. Georgia

Answer 22

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.

Question 23

Private Person, Private Issue

Answer 23

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

Question 24

Private Person, Public Issue

Answer 24

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)

Question 25

Public Figure, Public Issue

Answer 25

someone who is known in the public eye and have some prestige to their name and the issue itself is public interest (have to prove actual malice- you have a reckless disregard for the truth and malicious intent; false attribution counts for actual malice)

Question 26

Public Official, Public Issue

Answer 26

generally employed by the gov’t and the issue itself is public, whatever the statement in question is would impact the public (have to prove actual malice; you can be liable made outside of your public duty)

Question 27

Rosenbloom v. Metromedia (1971)

Answer 27

• He was a store owner to was distributing nude material; a radio DJ called him “smut” and other names, so he sued for defamation
• Court extended actual malice to include private citizens embroiled in an issue of public concern; it placed the burden on private citizens to prove actual malice

Question 28

Milkovich v. Lorain Journal (1990)

Answer 28

News Herald published column stating Coach Milkovich lied to Ohio Athletics concerning his role in a fight in a wrestling match. M sues, Court rules to newspaper (opinion-non actionable). USSC overturns, opinions are still defamatory-M wins.
IMPORTANCE: USSC held that fact-based opinions expressed in editorials do not enjoy special protection under the first amendment. “fair comment and criticism” must be fairly reported facts on matters of public concern.

Question 29

Time, Inc. v. Firestone (1976)

Answer 29

• Mary Alice Firestone sued Time magazine after a “Milestones” item incorrectly reported that Russell Firestone had won a divorce on the grounds of extreme cruelty and adultery
• SCOTUS categorized Firestone as a private person in her suit even though she was a prominent member of Palm Beach society. She was a private person b/c she didn’t assume any role of especial prominence in the affairs of over-all society.

Question 30

Gertz Vs. Robert Welch, Inc

Answer 30

Welch owns a conservative Magazine called “American’s Opinion”. Gertz takes on case stories about wrongful deaths and defends them. The magazine writes a story and criticizes Gertz personally not politically. Gertz sues them for libel and has to prove ACTUAL MALICE. But they wrote about his personal life which makes him a PRIVATE FIGURE. Goes to supreme.

Question 31

Curtis Publishing CO. vs. Butts (1967)

Answer 31

• public figures would be seen as public officials in the eyes of the law
• newspaper published article alleging that Butts and Bryant fixed games
• ruling meant that athletes and coaches could not be seen as public figures

Question 32

1988 Falwell V Flynt

Answer 32

• Flynt publisher of hustler, falwell was moral suporter
• Campari liquor ran ad about 1st time drinking experience w/sexual overtone
• Flynt ran parody & made it seem like falwell slept with him mom, falwell sued for invasion of privacy, libel, & emotional distress. Got 200k for emotional distress, rest were dismissed
• SC unanimously reversed lower court decision, made 3 part test for emotional distress

Question 33

Rosenblatt v. Baer (1966)

Answer 33

• Rosenblatt writes story criticizing Baer’s ski resort (county owned).
• IMPORTANCE: USSC ruled that public official criteria was designated to include those in hierarchy of government employees who have substantial responsibility in conduct of government affairs. Baer loses