Final Exam Flashcards
What are the six hurdles of libel?
Defamation, Identification, Publication, Fault, Falsity and Injury
What is defamation?
a. People have taken away from your reputation
b. People used to duel to the death over this, but now we sue
What are the the three kinds of defamation?
i. Libel Per Se - Libel on its face
ii. Libel by Interpretation - Based on how people interpreted it, it could be not the full story
iii. Libel per quad - Really rare. No case has ever occurred in Georgia for it. Something is published, by itself its not libelous, but something out in public consciousness is added to the story and it explodes into Libel.
1. Example: You have an Olympic Athlete for Israel who is a favorite to win, one of the ten events is planned for a Sunday( Saturday which is Sabbath for Jewish people), The newspaper says she competed on Saturday. Which is offensive for her.
What is identification? What are its restrictions?
a. An issue in David Barr Katz case shown with Hoffman, he was mistaken with identity
b. If it’s a felony vs. a misdemeanor matters, felony is libelous
c. Group ID, saying all students failed final exam, could you sue, yes you’ve been identified and there is 12.
i. Any group of a 100 or more you’re not going to win
ii. If its 15-100 Its possible to win, but unlikely
iii. Less than 15 it might work
What is publication and republication? Where is it in the grid?
a. Broadcast is considered publication, its not who says it usually, because its usually who has the money like the broadcaster they go after.
i. Look at Skakel case shown from class on liable
b. If there is an article you can present to the course its been published libel, republication counts too.
i. Something appears on NY Times that has libel, clock starts ticking (Statute of Limitations) when a year elapses you can no longer sue for libel its too old, in the 13th month Huffington Post does that story, the clock restarts, and you can sue Huffington Post
It is Low
What is fault? Where is it on the grid?
a. Before Times v. there was strict liability, meaning if you published it your guilty, end of story, now dead in US Law
b. Fault means how responsible are you for the error, did you ignore the truth
It is high
What did Times v. Sullivan create for the first time?
Creates the idea for the first time of a public figure (anybody well known) or public official (government official)
- A protest group
- Political expression (Of the people) and commercial expression (Selling stuff)
a. After Times v. commercial expression with political expression now has first amendment protection
b. Not selling a product but buys an ad to show expression
What is actual malice? How does it work for Public Officials? Public figures? Curtis v. Butts
a. Public officials
a. Includes public officials at all levels, does not include just anybody in government though like secretary or so on.
b. Public figures
a. Curtis Publishing v. Butts 1967
b. They put out a magazine, in that article Walley Butts was accused of fixing a football game. Along the way courts established public figures. Relied only on one source, not contacting sources, and more.
Limited purpose or vortex publci figures? Firestone v. Times, Gertz v. Welch, Lorenz v. Donnelley, Richard Jewell, Wolston v. Readers Digest, Burnett v. Nat Enquirer, AP v. Walker
a. Sucks in those who do not want to be sucked into the mediated case
b. Richard Jewell, got sucked into the bombing and became prime suspect
c. Micheal Skakel, guy in prison who perhaps didn’t do it and stuff with Nancy Grace
d. Firestone v. Times 1972
i. Wife to Firestone fortune, very active in FL as a philanthropist, had a nasty divorce and it was reported inaccurately in a small blurb in Times saying because of abuse. She sues for Libel and wins because of negligence.
ii. Public you wont win if you are big in that area, but because Firestone was in that limited thing she was considered a private citizen. She was only known for one thing and only had to prove negligence.
e. Gertz v. Welch 1983
i. Gertz is a Chicago attorney well known for his litigation in Civil Rights. Was he too well known to be a private citizen? Yes because the court saw him as doing his job. This case was not one of those civil rights things.
f. Lorenz v. Donnelley 2003
i. The 2nd ever navel combat pilot who is a woman Casey Lorenz, graduated at top of class, assigned F-14, other female pilot died. People said women shouldn’t be piloting these they cant handle it, false things are published in this debate about Lorenz and she sues. Is she a public figure? You’d cite Gertz. Its her job. The court deemed her a public figure though because as the second ever female combat pilot she should be ready for some scrutiny
g. Richard Jewell
i. He became a suspect to AJC because he was the one who uncovered the bomb. The FBI just called him a person of interest. He sues AJC.
ii. He won, got his big bag of money, and dies. You think he’d be private citizen.
iii. He went on the Today show, got interviewed, hired a PR firm, he stepped into public light but in a none vortex way. He was deemed a public figure and had to prove actual malice.
h. Wolston v. Readers Digest 1958
i. He was looking at whether his parents were communist spies. He sued for Libel. He would’ve been deemed a private citizen IF it would’ve been tried post Butts.
i. Once you gain vortex status, you never lose it.
j. Burnett v. Nat Enquirer 1967
i. First time a public figure wins a case. She wins because Enquirer ran a story saying she did all sorts of things she didn’t do. Once you get to the jury they are always sympthetic, it just costs so much money for the case. But something pushes the figures buttons sometimes.
ii. After she wins she gives all of the money to good journalism. Just like Katz.
k. AP v. Walker 1967 (with Butts)
i. The AP wins against Gen. Walker because he files a suit because of a story they ran about him that he was a segregationist, that he ran protests against James Meredith. He did not lead the protest, but he was in it.
ii. He loses because of the different standard the court applies to publication. AP is in a hurry and they made a small error. Not even negligence. See Wire Service Defense
Negeligence as a part of actual malice? Who is it for?
Private citizens
a. A failure to exercise ordinary or believable care
b. Lack of thoroughness or verification of reliable sources, lack of contact with subject of the story
c. Believability
a. The courts also look at believability such as with Bryant, why would he call up someone who he is rivals with and ask to fix a game?
What is falsity?
a. Libel must be present, the information must be false
b. You can defame as much as you want, it just has to be true, this and defamation work together.
i. Is it falsity that Walker did not lead the protests? Well he was in them so it wasn’t exactly falsity
What is injury?
a. Usually easy to clear, you just need one psychologist to testify you cant sleep or have nightmares
Times v. Sullivan, 1964 (Liable)
a. Before Times v. there was strict liability, meaning if you published it your guilty, end of story, now dead in US Law
a. Pre Times v. Sullivan in 1964 just fault but it creates the idea for the first time of a public figure (anybody well known) or public official (government official)
1. Political expression (Of the people) and commercial expression (Selling stuff)
a. After Times v. commercial expression with political expression now has first amendment protection
b. Not selling a product but buys an ad to show expression
Curtis Publishing v. Butts, 1967 (Actual Malice)
- Public figures with Actual Malice
a. Curtis Publishing v. Butts 1967
b. They put out a magazine, in that article Walley Butts was accused of fixing a football game. Along the way courts established public figures. Relied only on one source, not contacting sources, and more.
AP v. Walker 1967. Tied with Butts.
a. AP v. Walker 1967 (with Butts)
i. The AP wins against Gen. Walker because he files a suit because of a story they ran about him that he was a segregationist, that he ran protests against James Meredith. He did not lead the protest, but he was in it.
ii. He loses because of the different standard the court applies to publication. AP is in a hurry and they made a small error. Not even negligence. See Wire Service Defense
Firestone v. Time, 1972. Limited purpose or vortex public figure
i. Wife to Firestone fortune, very active in FL as a philanthropist, had a nasty divorce and it was reported inaccurately in a small blurb in Times saying because of abuse. She sues for Libel and wins because of negligence.
ii. Public you wont win if you are big in that area, but because Firestone was in that limited thing she was considered a private citizen. She was only known for one thing and only had to prove negligence.
Gertz v. Welch, 1983. Limited purpose or Vortex Figure
i. Gertz is a Chicago attorney well known for his litigation in Civil Rights. Was he too well known to be a private citizen? Yes because the court saw him as doing his job. This case was not one of those civil rights things.
Wolston v. Reader’s Digest, 1958. Limited Purpose or Vortex Figure.
i. He was looking at whether his parents were communist spies. He sued for Libel. He would’ve been deemed a private citizen IF it would’ve been tried post Butts
Lohrenz v. Donnelly. Limited purpose or vortex figure.
i. The 2nd ever navel combat pilot who is a woman Casey Lorenz, graduated at top of class, assigned F-14, other female pilot died. People said women shouldn’t be piloting these they cant handle it, false things are published in this debate about Lorenz and she sues. Is she a public figure? You’d cite Gertz. Its her job. The court deemed her a public figure though because as the second ever female combat pilot she should be ready for some scrutiny
Burnett v. National Enquirer, 1981
i. First time a public figure wins a case. She wins because Enquirer ran a story saying she did all sorts of things she didn’t do. Once you get to the jury they are always sympthetic, it just costs so much money for the case. But something pushes the figures buttons sometimes.
ii. After she wins she gives all of the money to good journalism. Just like Katz.
What are the thee types of damages?
a. Compensatory Damages (Actual Damages)
i. Compensation for harm done that you can prove
ii. Such as with the psychologist mentioned above
iii. Damage to reputation, personal suffering
iv. No penalty for greed, go for big bucks
b. Special Damages
i. What we would think of as actual. Loss of a job, having to move, so on.
c. Punitive Damages
i. Hit em hard.
ii. Use the law to punish them for the terrible things they have done
iii. The bigger the company, the bigger damages you will seek
iv. The jury is the one who does this, they love to sock it to the companies
1. However the defendant usually appeals these big sums, but the three judges it goes to again lower it back to earth
Other libel defenses
Summary judgment
i. Injured or angry?
ii. Cant possibly win, dismissed usually if the person is just angry
Consent
i. Sign this paper giving us consent to write whatever we want, if you have consent your untouchable
Statute of limitations
i. A year in Georgia, it changes based on place along with its principle.
Jurisdiction
i. A huge area of the law, especially now with the internet.
Wire service defense
a. Wire Service Defense
i. Little newspapers cant be asked to fact check for stuff over the wire
ii. McKinney v. Avery Journal
Anti-SLAPP designation and Rule 11
i. The judge is agreeing that the plantiff is not trying to win a libel action, they are trying to scare someone into silence.
ii. A trigger for summary judgement.
iii. Catch - attorneys are reluctant of using Rule 11 because the tables could turn one day
The truth
i. It’s the offensive to Falsity
Absolute privilege
i. Covers completely like senate deliberation, Judicial forms, official govt buisness.
Qualified privilege (Fair Report)
i. Protects media coverage, the reporter or cameraman is just reporting what is said so they cannot be attacked for it. Go after the speaker not those who recorded it. Neutral reportage
First Amendment opinion defense; fair comment and criticism
i. Covers - rhetorical hyperbole, fair comment, and criticism
ii. For stuff like the Onion or National Inquirer
iii. Opinions are covered by this such as like food reviews, and so on
iv. 91 Milkovich a colomn wrote about a fight saying coaches lied under oath, the coaches sue, they win, and just if you have coloumn over it doesn’t mean that its true
Ollman v. Evans (1984) and the Ollman Test
1. Can a statement be proved true or false?
2. What is the common or ordinary meaning of the words?
3. What is the journalistic context of the remark?
4. What is the social context of the remark?
Hustler v. Falwell
i. Hustler was a porno, who published a political cartoon about Falwell sleeping with his mother, this pushed his buttons, and he went after them and won with emotional distress, but lost libel and false light. He however lost at Supreme Court because the first Amendment covers this
Philadelphia Newspapers v. Hepps
. Statements incapable of being proved true or false and vague evaluations.
McIntrye v. Ohio Elections Comission
a. Anonymity is a shield from the tyranny of the majority - John Paul Stevens
b. USSC struck down Ohio State Law against anonymous political literature
c. Free speech has grater weight than to the dangers of its misuse (Weird)
Dendrite Int’l v. Doe and Dendrite Test
a. Dendrite Int’l v. Doe (2001) and the Dendrite test Dendrite is a business that is criticized and thinks they are libeled by an anonymous user online.
b. To be able to persue the claim they must know who they are suing, but by unmasking the publisher youre already punishing them
c. Dendrite Test
i. Plaintiff must try to notify the poster that plaintiff is seeking court help to identify him or her
ii. Plaintiff must demonstrate the defamation to the court - the statements or comments (identify to the court those statements made by the posters)
iii. Plaintiff must provide “sufficient evidence” of defamation and harm
Cahill v. Doe Test
i. The first one
ii. Must “support his defamation claims with facts sufficient to defeat summary judgement motion.”
Appropriation: Paulo Pavesich and New England Life Insurance, right to
privacy v. right to publicity; name OR likeness (Bush’s ears, Leno’s chin,
impersonators); Cardtoons case; Vanna White Samsung case; names
and likenesses in the newspaper»_space; Booth Rule; consent
a. Appropriation
i. Related to intellectual property
1. Handled by court system however as privacy as a Tort Law (damages)
ii. A right to privacy and a right to publicity
iii. Think of the blonde girl example, right to privacy
iv. Right to publicity, think of tiger woods example
1. Economic explotation of ones name
2. For public figures, not defined like Libel law, its more of a general definition with privacy
v. Oldest of the four torts, 1903 NY Law
vi. Cases
1. Cardtoons Case
a. A trading card company that would use weird names for cards, that weren’t very nice.
b. MLB players association sued under right of publicity under appropriation for using their likeness to make money
c. MLB lost because it was considered satire which is protected by first amendment
2. Vanna White v. Samsung
a. Sued samsung for using a robot that turned letters on a Wheel of Fortune like thing to sell tvs
b. White sued because that is clearly supposed to be her, but its satire saying that anyone can do what she does
c. She wins.
3. Oregon Ducks
a. A Heismann candidate one year used that publicity that said if you want to run our logo or our athletes you have to use or permission.
b. Local regional media said fine we wont run anything
c. Oregon said just kidding go ahead use it.
vii. Defense
1. Caveats - news covers most uses, Tiger Woods etc.
2. Defense is consent or news
Intrusion: physical invasion, technology pushing law, trespass and
surveillance, ride-along cases (Hanlon v. Berger, Wilson v. Lane,); Le
Mistral v. CBS; Dietemann v. Time, Galella v. Onassis, Patchwork
approach to privacy: COPPA, ECPA, Driver’s License Protection Act
(and South Carolina), HIPPA, FERPA, USA PATRIOT Act
i. Trespass
1. Governs private property
2. Galella v. Onassis 1973
1. Guy is obsessed with Kennedy’s wife, he goes through her garbage takes tons of photos so on
2. The ruling said once she put her garbage on the street, it was public property, as long as its on her property she has control of it.
3. She did however get a restraining order.
3. Florida Publishing v. Fletcher, The Silhouette Case
1. A house fire, fire marshall gave local newspaper permission to cover this, but burned into the ground of the fire was the silhouette of the victim, the photographer took the shot, the paper ran it, are they allowed to use it?
2. Common custom usage says they can, Tampa is a mid market though, do you run a shot like that ethically? No ethically that’s wrong.
3. The mother of the victim filed a privacy suit and lost but a lot of people cancelled subscriptions.
4. Ride Along Cases
1. Reporters ride along with cops
5. Handlen v. Burger
1. Reporters go out with police to make an arrest, the owners of the ranch sue the US Fish and Wildlife and Wild Life for allowing CNN to show up, and they won
6. Wilson v. Lane
1. DC law enforcement show up to make an arrest, and bring Washington Post, and the residents sue and win other side to the v. Burger coin.
ii. Surveillance
1. Reasonable expectation of privacy
2. GPS on car example, once on private property must be disabled.
3. Dietmann v. Time 71
1. News sends under covers to quack doctors house, recorded conversation for Magazine Article, the LAPD had been brought in and was in cooperation, they go into the family room and get surviallence
2. Does he have reason for privacy? Yes. It is his family room not like his waiting room. And Life misrepresented itsself.
iii. Questions about Law Ethically
1. Does the law let me record this convo without consent?
a. The answer is often yes, but is that ethically okay?
iv. Defenses for Trespass
1. Consent
2. Common Custom Usage
a. There is a crime scene and law enforcement is all over it with the tape up, a reporter shows up to shoot it, its just common custom for them to show up at these scenes
Publication of private facts: naming rape victims; Cox Broadcasting v.
Cohn; Barber v. Time; what’s “news”?
i. Putting something out for public consumption that is private or intimate
ii. Some states don’t have it, but those that do its rarely used because its often covered by common custom usage or news
iii. Tests
1. Would the information be highly offensive to a reasonable person?
2. Is it of legitimate public concern or interest?
a. Is it newsworthy
3. Special case: naming rape victims
a. They have an expectation of privacy
b. Cox Broadcasting v. Cohn ‘75
i. Are they a minor? Do not publish if yes, but she was the court made a mistake
ii. If it appears on public record its fair game
4. Barber v. Time 1942
a. Barber is a patient in the hospital because she was so large given a semi-private room, time magazine comes in and does a story and takes her picture and runs it, Barber did not like this story, argues that she has a high expectation of privacy seeking care in a hospital
b. She wins because the story was not classified as newsworthy of the time, and that it played on the odd
iv. Plaintiffs only win this 15% even if it moves forward which is rare
False light: Georgia tort. How is it different from libel?
i. Does not exist in 30 states, very rare to see these cases
1. Bitcoin guy example (The guy who is not the owner)
2. Tort law. One who gives publicity to a matter concerned another that places that other in the public in a false light that person is subject to liability under this tort for invasion of his privacy if it was highly offensive to a reasonable person and the acter had knowledge that he was doing it
3. Diangelo Bailey v. Bruce Mathers (Eminem)
a. Actually did beat him up so doesn’t matter
