Overview of Defamation

1. Overview of Defamation Tom J. Cafferty

2. Before NY Times Co. v. Sullivan (1964) Three elements were necessary to establish a libel cause of action at common law: 1. Defamatory words 2. The words must be of and concerning plaintiff 3. Publication to third parties

3. Public Official/ Public Figure • Public Person: Official or figure – must prove constitutionally defined “actual malice” • Private Person: Need only show “fault” [negligence] in publishing the defamatory falsehood

4. Public Official • NY Times v. Sullivan (1964) First Amendment bars a state from awarding a “public official” damages for a defamatory falsehood relating to his official conduct unless the falsehood was published with “actual malice” --- with knowledge that it was false or with reckless disregarding of whether it was false or not.

5. Rosenblatt v. Baer (1966) • Definition of “public officials.” “Public Official” designation must apply to “those among the hierarchy of government employers who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.”

6. Crucial factor • Individual’s apparent ability, because of his relationship with government, to influence the outcome of public affairs. • High rank or title is not in itself determinative. • Position must be one which invites public discussion apart from that resulting from “the particular charges” in controversy.

7. Gertz v. Robert Welch (1974) • In dictum, Court provided reason for holding public officials to the New York Times standard: • “An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case.”

8. Hutchinson v. Proxmire (1979) • In dictum, Court stated public officials category cannot be thought to include all public employees. • The Court in Rosenblatt made clear the "public official" issue is one for the court, not the jury, to resolve: [I]t is for the trial judge in the first instance to determine whether the proofs show [the plaintiff] to be a 'public official.'" The Court reasoned that judicial resolution of the "public official" question "will both lessen the possibility that a jury will use the cloak of a general verdict to punish unpopular ideas or speakers, and assure an appellate court the record and findings required for review of constitutional decisions."

9. Curtis Publishing Co. v. Butts (1967) • “Private” individuals may become intimately involved in the resolution of important public questions.

10. Curtis Publishing Co. v. Butts (1967) • “Private” individuals may, because of their fame, shape events in areas of concern to society at large --- “play an influential role in order society.”

11. Curtis Publishing Co. v. Butts (1967) • Public figures have access to mass media (as public officials do) both to influence policy and to counter criticism.

12. Gertz v. Robert Welch, Inc. (1974) • The “pervasive-fame-or-notoriety public figure” who becomes a public figure for all purposes and in all contexts.

13. Gertz v. Robert Welch, Inc. (1974) • The “limited purposed public figure” (“vortex public figure”) who attains public figure status become of involvement in a controversy --- status is only within the limits of that controversy.

14. Time Inc. v. Firestone (1976) • Involvement in litigation (divorce proceeding) is not alone sufficient to confer “limited purpose public figure” status – must look to who the participants are and their position.

15. Hutchinson v. Proxmire (1979) • Scientist was not “limited purpose public figure” for purposes of criticism of his federally funded research.

16. Rebozo v. Washington Post Co. (5th Cir. 1981) • Bebe Rebozo held to be public figure based upon his demonstrated access to the media and his activities – his relationship with President Nixon thereby making Rebozo “a prime subject of public comment.”

17. Time & Effect on Public Figure Status • 1. A news account or historical commentary that relates to the source of the person's prior fame or notoriety receives the protection of the Sullivan standard, however removed in time the publication is from the peak of fame or notoriety - so long as the plaintiff's original conduct or the forces underlying his fame have in fact been continuing public interest. [Brewer v. Memphis_Publ. Co.,626 F.2d 1238 (5th Cir. 1981)].

18. Time & Effect on Public Figure Status • When the plaintiff's original "public figure" status stemmed from participation in controversy, he remains a "public figure" for purposes of later publications relating to that particular controversy - so long as the public maintains an independent interest in that controversy. [Street v. National Broadcasting Co., 645 F.2d 1227 (6th Cir. 1981)].

19. Actual Malice Standard • New York Times v. Sullivan (1964) The decision denies recovery to public officials for defamation, except when they can prove that the defamatory statement at issue was published with "'actual malice' - that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

20. Actual Malice Standard • Garrison v. Louisiana (1964) The Court reiterated that "only those false statements made with high degree of awareness of their probable falsity demanded by Sullivan may be the subject of either civil or criminal sanctions."

21. Actual Malice Standard • Beckley Newspapers Corp. v. Hanks (1967) Publication "with bad or corrupt motive" or "from personal spite, ill will or a desire to injure plaintiff" does not rise to the level of constitutional "actual malice."

22. Actual Malice Standard • St. Amant v. Thompson (1968): [R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evident to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.

23. Actual Malice Standard • Time, Inc. v. Pape (1971): Misinterpretation of official documents does not constitute actual malice.

24. Actual Malice Standard • Bose Corp v. Consumers Union (1984) Inaccurate description of what defendant perceived does not amount to actual malice.

25. Actual Malice Standard • Harte-Hanks Communications v. Cinnaughton: “Extreme departure” from journalistic standards by itself could not support a finding of actual malice.

26. Evidence • Plaintiff must prove actual malice by "clear and convincing evidence." • Bose Corp. v. Consumers Union(1984). The question whether the evidence in the record in a defamation case is of convincing clarity required to strip the utterance of First Amendment protection is not merely a question for the trier of fact. Judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of actual malice.

27. Evidence • Anderson v. Liberty Lobby. (1986). [W]e conclude that the determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case...Thus, where the factual dispute concerns actual malice, clearly a material issue in a New York Times case, the appropriate summary judgment question will be whether the evidence in the record could support a reasonable jury finding either that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not.

34. New Jersey Standard • The NJ Supreme Court in Sisler v. Gannett Company (1986), held that an individual who was neither a public official nor a public figure would nonetheless be required to demonstrate actual malice where that private person, possessing sufficient experience, understanding and knowledge entered into a personal transaction or conducted his/her personal affairs in a manner that one in such a position would reasonably expect would generate public interest.

35. Private Individuals In Gertz v. Welch (1974), the Supreme Court delegated to the States the responsibility to define "the appropriate standard of liability" applicable to the publisher of a defamatory falsehood injurious to the reputation of a private individual, "so long as they do not impose liability without fault." In order to establish that defendant breached some standard of care in publication of the defamatory material it necessarily follows that a private individual plaintiff must initially establish falsity of that material.

36. Private Individuals There can be no legal fault for libel based upon publication of truthful material, however defamatory. A private individual libel plaintiff is also required to carry the burden of proof to prove falsity of the published material when the publication at issue is of public concern.

37. Common Law • Gertz v. Robert Welch. "Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas."

38. Common Law • Re Yagman(9th Cir. 1986) "...since an opinion is protected because it cannot be false and a statement is not actionable defamation unless it is false, 'an opinion is simply not actionable defamation.'"

39. Common Law • Milkovich v. Lorain Journal Co.(1990): "[E]ven if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications....“ However, "statement[s] of opinion relating to matters of public concern which [do] not contain a provably false factual connotation" are privileged, as are statements that "cannot 'reasonably [be] interpreted as stating actual facts' about an individual."

40. Absolute Privilege Absolute privilege is granted to persons involved in judicial proceedings. This privilege extends not only to the participants involved, but also to the media which accurately republishes judicial proceedings. "The privilege covers anything that may be communicated in relation to the matter at issue, whether it be in the pleadings, in affidavits or in open court."

41. Absolute Privilege Absolute privilege is also accorded to members of legislative bodies for defamatory statements made in the performance of their duties and to the publishers of such statements. The constitution provides, under the so-called "Speech and Debate Clause," that "for any Speech or Debate in either House, they shall not be questioned in any other Place." This immunity extends to members of Congress testifying at legislative hearings, but not to defamatory statements made by a member of Congress in newsletters and press releases or in other such non-legislative communications.

42. Absolute Privilege • Absolute immunity and privilege is also extended to chief executive officers of the federal, state, and local governments during the discharge of their duties. This privilege encompasses all publications and utterances within the "outer perimeter" of the "line of duty," even including defamatory press releases concerning public actions of government employees.

43. Absolute Privilege • Absolute privilege is available to a publisher who publishes defamatory material with the plaintiff's informed consent. Of course, consent to publication in one form cannot be presumed to authorize publication in some other form. • Guarantees a considerable degree of protection to those who diligently require their writers to obtain proper releases whenever possible from individuals about whom the publication of potentially defamatory material is contemplated.

44. Qualified Privileges • The Privilege of Reply or Statements of Self-Interest • Reporter’s Privilege to Publish Fair Reports of Official Proceedings

45. Reporter’s Privilege to Publish Fair Reports of Official Proceedings "[I]n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations. Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the best data of government operations...With respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice."

46. Qualified Privileges • The Privilege of Reply or Statements of Self-Interest • Reporter’s Privilege to Publish Fair Reports of Official Proceedings • Public Interest • Common Interest

47. Common Interest • "[A] communication made by a person with an interest or duty to make the communication and sent to a person with a corresponding interest or duty is protected by a qualified privilege, even though without the privilege the communication would be 'slanderous and actionable.'" Weldy v. Piedmont Airlines(2nd Cir. 1993).

48. Qualified Privileges • The Privilege of Reply or Statements of Self-Interest • Reporter’s Privilege to Publish Fair Reports of Official Proceedings • Public Interest • Common Interest • Interest of Recipient or Third Person • Neutral or “Balanced” Reportage

49. Neutral or “Balanced” Reportage • The Second Circuit in Edwards v. National Audubon_Society, (2nd Cir. 1977) recognized a new privilege. This privilege is generally referred to as the doctrine of "neutral reportage." • Protects a publisher from liability for its republication of defamatory statements made by a responsible, prominent person or organization about a public official or public figure, provided the subject statements are of public concern and have been reported accurately and disinterestedly. • What is newsworthy in the republication of such statements is not their truth or falsity, but the fact that they were made.

50. Damages • Presumed damages • Compensatory damages • Punitive damages