Libel

1
Libel

• What is Libel? What is Defamation?
• Tort Civil Wrong
• Why sue for libel?
• What harm is there in defamation?
• What qualifies as libelous?
• What are the explicit goals of bringing a libel
  case? Are there any implicit, or unstated goals?

2
Truth and Consequences

• Large awards / settlements
• Barricade Books 3 million
• Hundreds of millions not unheard of
• Time and Money
• 1990 average award against media, just over 1
  million, 1996 3 million
• Reflects awards in personal injury cases
• Typically mass media loses, but can win on appeal
• Only 30 of libel cases won still stand at the
  appellate court level
• Media is often punished for being the messenger,
  even if they did not construct the message

3
Why the Media Loses Libel Trials

• Libel law is complicated
• Bias against the press
• Belief that the First Amendment goes too far
• Usually the cases are modified
• Between 1980 and 200 just over ¼ cases appealed
  by the press were left standing without
  modification, or being overturned

4
Libel as a WMDWeapon of Message Destruction

• SLAPP (Strategic Lawsuits Against Public
  Participation)
• Upside, defendants win 90 of the time, but at
  what cost?
• SLAPP Suits target whom?
• SLAPP Back Lash at least 20 states bar SLAPP
  suits in some form or another
• Protection ranges from plaintiff must prove they
  are likely to win the case to protecting only
  certain circumstances against SLAPP

5
Fix it or Forget It

• Publish Retractions or Apologies
• Do they always satisfy plaintiffs?
• Press dislikes retractions
• Why?
• Retractions Statutes
• 30 States thus far
• Example page 237

6
Elements of Defamation

• Defamation damages reputation, not character
• Rep. v. Character
• To be Actionable, actual damage to reputation
  must occur
• At least a significant minority must believe that
  the plaintiff's reputation has been damages
• Who can sue?
• The dead, nor their family cant sue for libel
• except in the case of Survival Statutes
• Corps. can sue, government agencies cant
• Burden of proof Plaintiff must establish all 5
  elements
• Publication
• Identification
• Material is defamatory
• Material is false
• Defendant was at fault

7
Laughable Larry

• Not to be outdone by Kay Andersons offer of
  25,000 to UVSC to rescind their invitation to
  Michael More. Larry Lowe, owner of The Happy
  Homemaker, a bar outside of Provo offered
  26,000.99 if they would keep the invitation.
• The following day, the SL Trib reports that an
  anonymous friend of Larry Lowe gave said in an
  interview that Larry had previously been
  convicted of drug trafficking and was a an active
  member of the communist party.
• Larry is suing the Trib for 45 million, stating
  that he was arrested for drug trafficking, but
  never convicted, and was actually had been a
  member of a hippie commune in the 60s, not a
  communist.
• Does Larrys claim meet the elements of libel?
• Does Larry stand a snowballs change in Nevada
  (Not that Nevada matters) of winning? Support
  your claims!

8
Publication

• Hornby v. Hunter if it is in the paper,
  broadcast, or internet then it usually qualifies
• Publishers and Vendors
• Distributors cannot be held libel, unless they
  knew, or had reason to know, they were
  distributing libelous materials
• Scienter
• Internet
• ISPs usually not treated as publishers
• except in other countries
• Bloggers tend to enjoy the same protections as
  ISPs

9
Identification

• Must Happen
• i.e. you cant be defamed for not being named
• Can be explicitly named
• Can be identified by the facts
• Can be idenified by other reports
• Geisler v. Petrocelli
• if those in the know know, then it counts
• Members of small groups can claim identification

10
Defamation

• Two types
• Words are defamatory on their face
• Words defamatory only in light of other facts
• Is the speech capable of defamation
• Budget Termite v. Bousquet
• If fact finders find the words capable of libel,
  they must then ask if they actually are
  defamatory
• McBride v. Merrell Dow
• Innuendo can be defamatory
• Cannot take words out of context
• Opinion is not defamatory if it cannot be proven
  true or false
• implications of criminal activity are tough
  alleged doesnt always cut it
• material about personal habits can be dangerous
• Sexual implications are risky
• Ridicule that goes to far can be defamatory
• Business Reputation
• single mistake rule
• Product Criticism / trade libel difficult to
  win
• must prove statements are false
• must prove monetary loss

11
Falsity

• Public v.s Private Persons (next chapter)
• Material must be false, even if the truth hurts
• Substantial Truth
• Schwartz v. American College of Emergency
  Physicians
• Minor details can carry the same weight as major
  assertions
• What is said, not what is meant is what matters
• Major Does learning the truth change the
  impression
• Fleckstein v. Friedman