cmcn 345 communication law and ethics william r. davie, ph.d lecture 5 sept. 5, 2006

CMCN 345

Communication Law and Ethics

William R. Davie, Ph.D

Lecture 5

Sept. 5, 2006

Principles and Elements

Defamation Law:

Libel/Slander

Louisiana Criminal DefamationR.S. 14:47 Defined as “…the malicious

publication or expression in any manner…

1. “To expose any person to hatred, contempt, or ridicule, or to deprive him of the benefit of public confidence or social intercourse; or

2. “To expose the memory of one deceased to hatred, contempt, or ridicule; or

3. “To injure any person, corporation, or association of persons in his or their business or occupation.”

PENALTY: Maximum 6 months and $500.00

CMCN 345 Lecture 5, Sept. 5, 2006

Purpose of Libel Law

Designed to protect reputation.

Good name is precious property.

Public redress by peaceful means.

• Publication of defaming message taken as fact?

• Identification of plaintiff?

• Defamatory and False?

• Fault of defendant?


Basic Elements of Libel

Libel/Slander

Defamation Defined

o Reputation (damage to profession or persona)

o Contempt and ridicule (humiliation)

o Hatred (shunned)



Key Questions of Libel

Harmful damage to reputation?

-- false and injurious words;

-- exposure to hatred, scorn or ridicule;

-- lowered esteem and/or good will;

-- loss of association, business, etc.

Two Types of Defamation

Libel Per Se

-- on its face ("by itself") • Crime • Disease • Professional

dishonesty•

Immorality/Unchastity

Libel Per Quod -- by circumstance -- contextual harm to

reputation


Is the insult obvious or not?

DEFAMATION Questions???

A significant number of “right minded” audience members have to believe the slur.

Libel or Slander: Print or Broadcast

Headlines may be libelous; can pictures be libelous as well?

DEFAMATION TO REPUTATION

Elements of a Libel Claim

Defamation

Identification

Key Question of Libel:

Identification of defamed?

-- Plaintiff’s name unnecessary;

-- Photos, titles, sketches, initials, other inferences;

-- Group identification:

USA Confidential & Nieman Marcus

Oklahoma Sooners & Inhalants


IDENTIFICATION

Not always by name Even fiction can “identify” No libel against very large

groups (e.g., “politicians”) Case law is mixed concerning

smaller groups



Identification of DEFENDANT?

Internet anonymity requires...

-- Possible “John Doe” litigation;

-- Proof suit will not be dismissed;

-- Extra effort in discovery phase.

Elements of a Libel Suit:

Publication

Fault


Publication of defaming message?

-- Third person heard it.

-- Broadcast or internet counts.

(Any republications?)

-- Bearer of tales as liable as teller of tales.


Only one THIRD PARTY must hear

MORE About Publication

Self Publication

Publication VS Defamation Reputation must be

diminished in MANY minds

PUBLICATION

PUBLICATION, continued

Republications are actionable too, with exceptions: Wire services, bookstores,

some internet service providers

Neutral Reportage and FAIR REPORT defenses

Some Traditional Libel Defenses

Statute of limitations

Truth

Some Traditional Libel Defenses

Consent

Fair Comment

Sticks and Stones of Defamation?

o Media costs

o Damages in dollars

o Confusion + Frustration + Media Mistrust = Trouble

o SLAPP Initiatives


Look at words’ natural meaning

DEFAMATION

“Libel-proof” plaintiffs(Dr. Kevorkian and Evel Knievel)

Defamation of Groups, Corporations, & Products

Businesses can sue for libel when accused of dishonest practices, or insolvency.

Defamation of Groups, Corporations, & Products

Criticism of manufacturer’s motives

Trade libel [or product disparagement]: Falsely criticizing a product line


GROUP or CRIMINAL LIBELBeauharnais v. Illinois (1952)

LIBEL'S DEFENSES AND DAMAGES

o Truth

o Privilege

(Absolute and Qualified)

o Tarnished Reputation

o Opinion (Fair Comment & Criticism)

o Other (Consent, Right of Reply)



o Privilege

(Absolute and Qualified) Official government records or proceedings,

so long as accuracy, balance, reasonable completeness are evident.

• Criminal charges

• Courtroom proceedings

• Legislature, school board, parish, other public meetings.



o Fair Comment & Criticism: Milkovich v. Lorain Journal (1990)

• Columnist claimed a coach was lying about a brawl, which court held to be a fact-based statement.

• Fair comments described as hyperbole, figures of speech, or statements incapable of being proven true or false, ugly.



opinion statements will lose legal protection once they suggest that

A. some defamatory but undisclosed facts do exist;

B. opinions are based on false or incomplete facts, or….

C. opinions are based on erroneous assessments of accurate information.


Types of Damage Awards

DAMAGES: Compensatory• ACTUAL: monetary relief for

intangibles -- harm to reputation, mental anquish, other types of distress.

• SPECIAL: compensation for specific financial losses.

• PRESUMED: requires proof of actual malice in most cases

• NOMINAL: plaintiff wins case but jury finds no evidence indicating true harm suffered.

• DAMAGES: Punitive• PUNITIVE: Designed to punish the libeler

rather than compensate the person libeled.


Compensatory Damages

Designed to make the plaintiff “whole” Presumed = no real proof of harm

needed; harm is in the words themselves

Actual = plaintiff must make some showing of harm

Special = plaintiff must prove very specific loss [e.g., firing from a job]

Punitive Damages:

To punish and deter


Key Question of Libel

Burden of Proof

-- Falsity or Truth (Substantial)?

-- Common law required defendant prove truth.

-- Contemporary law requires plaintiff prove falsity.

FAULT

U. S. libel law used to embrace “strict liability” no finding of negligence

required if a damaged reputation

resulted from a publication, there was liability.

New York Times v. Sullivan changed that principle.



Was the defendant at fault?

-- Negligence defined as failure to exercise reasonable or ordinary care.

-- News media requirement of fact checking (verification); fair and balanced; seeking harmed party’s response, etc.

-- Evidence of ordinary malice.


New Standard of Fault:

New York Times v. Sullivan (1964)

Public Official’s

“Actual Malice” Test:

To show the Defendant had either

** Knowledge of Falsity, or

** Reckless Disregard of Truth or Falsity

QuickTime™ and aTIFF (Uncompressed) decompressor

are needed to see this picture.


PUBLIC OFFICIAL RATIONALE:

• Public officials voluntarily enter public life and realize

criticism may result.

• Public officials have more access to media to correct wrongs and make statements of rebuttal.

Public versus Private Persons

o All-Purpose Public or Private Figures: Curtis Pub. Co. v. Butts (1967)

o Limited-Purpose Public Figures (Paul “Bear” Bryant)

o Rosenbloom case: Actual Malice if issue was of public importance


Public versus Private Persons

Gertz v. Welch (1974)

Principle: “A publisher or broadcaster of defamatory falsehoods about an individual who is neither a public official nor a public figure may not claim the New York Times protection against liability…”


Two Louisiana Cases

Actual Malice Test 1: Garrison v. State of Louisiana (1964)

o “high degree of awareness of probable falsity”

Actual Malice Test 2: St. Amant v. Thompson (1968)

o “entertained serious doubts as to the truth” of the publication


cmcn 345 communication law and ethics william r. davie, ph.d lecture 5 sept. 5, 2006

Documents

libel suit

types of defamation

reputation cmcn

purpose of libel lawdesigned

reputation damage

ridicule orto

defamation questions

identification of defendant