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Libel and Slander
Two torts that involve the communication of false information about a person, a group, or an entity such as a corporation. Libel is any defamation that can be seen, such as a writing, printing, effigy, movie, or statue. Slander is any defamation that is spoken and heard.
Collectively known as defamation, libel and slander are civil wrongs that harm a reputation; decrease respect, regard, or confidence; or induce disparaging, hostile, or disagreeable opinions or feelings against an individual or entity. The injury to one's good name or reputation is affected through written or spoken words or visual images. The laws governing these torts are identical.
To recover in a libel or slander suit, the plaintiff must show evidence of four elements: that the defendant conveyed a defamatory message; that the material was published, meaning that it was conveyed to someone other than the plaintiff; that the plaintiff could be identified as the person referred to in the defamatory material; and that the plaintiff suffered some injury to his or her reputation as a result of the communication.
To prove that the material was defamatory, the plaintiff must show that at least one other person who saw or heard it understood it as having defamatory meaning. It is necessary to show not that all who heard or read the statement understood it to be defamatory, but only that one person other than the plaintiff did so. Therefore, even if the defendant contends that the communication was a joke, if one person other than the plaintiff took it seriously, the communication is considered defamatory.
Defamatory matter is published when it is communicated to someone other than the plaintiff. This can be done in several different ways. The defendant might loudly accuse the plaintiff of something in a public place where others are present, or make defamatory statements about the plaintiff in a newsletter or an on-line bulletin board. The defamation need not be printed or distributed. However, if the defendant does not intend it to be conveyed to anyone other than the plaintiff, and conveys it in a manner that ordinarily would prevent others from seeing or hearing it, the requirement of publication has not been satisfied even if a third party inadvertently overhears or witnesses the communication.
Liability for republication of a defamatory statement is the same as for original publication, provided that the defendant had knowledge of the contents of the statement. Thus, newspapers, magazines, and broadcasters are liable for republication of libel or slander because they have editorial control over their communications. On the other hand, bookstores, libraries, and other distributors of material are liable for republication only if they know, or had reason to know, that the statement is defamatory. Common carriers such as telephone companies are not liable for defamatory material that they convey, even if they know that it is defamatory, unless they know, or have reason to know, that the sender does not have a privilege to communicate the material. Suppliers of communications equipment are never liable for defamatory material that is transmitted through the equipment they provide.
In general, there are four defenses to libel or slander: truth, consent, accident, and privilege. The fact that the allegedly defamatory communication is essentially true is usually an absolute defense; the defendant need not verify every detail of the communication, as long as its substance can be established. If the plaintiff consented to publication of the defamatory material, recovery is barred. Accidental publication of a defamatory statement does not constitute publication. Privilege confers immunity on a small number of defendants who are directly involved in the furtherance of the public's business—for example, attorneys, judges, jurors, and witnesses whose statements are protected on public policy grounds.
Before 1964, defamation law was determined on a state-by-state basis, with courts applying the local common law. Questions of freedom of speech were generally found to be irrelevant to libel or slander cases, and defendants were held to be strictly liable even if they had no idea that the communication was false or defamatory, or if they had exercised reasonable caution in ascertaining its truthfulness. This deference to state protection of personal reputation was confirmed in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942), in which the U.S. Supreme Court stated, "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise constitutional problems." The Court in Chaplinsky held that defamatory speech is not essential to the exposition of ideas and that it can be regulated without raising constitutional concerns. This reasoning was confirmed in Beauharnais v. Illinois, 343 U.S. 250, 72 S. Ct. 725, 96 L. Ed. 919 (1952), where the Court again held that libelous speech is not protected by the Constitution.
In 1964, the Court changed the direction of libel law dramatically with its decision in new york times v. sullivan 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). For the first time, the Court placed some libelous speech under the protection of the First Amendment. The plaintiff, a police official, had claimed that false allegations about him were published in the New York Times, and he sued the newspaper for libel. The Court balanced the plaintiff's interest in preserving his reputation against the public's interest in freedom of expression in the area of political debate. The Court wrote that "libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment." Therefore, in order to protect the free flow of ideas in the political arena, the law requires that a public official who alleges libel must prove actual malice in order to recover damages. The First Amendment protects open and robust debate on public issues even when such debate includes "vehement, caustic, unpleasantly sharp attacks on government and public officials."
Since Sullivan, a public official or other person who has voluntarily assumed a position in the public eye must prove that a libelous statement "was made with 'actual malice'—that is, with knowledge that it was false or with reckless disregard to whether it was false or not" (Sullivan). The actual-malice standard does not require any ill will on the part of the defendant. Rather, it merely requires the defendant to be aware that the statement is false or very likely false. Reckless disregard is present if the plaintiff can show that the defendant had "serious doubts as to the truth of [the] publication" (see St. Amant v. Thompson, 390 U.S. 727, 88 S. Ct. 1323, 20 L. Ed. 2d 262 ).
Also since Sullivan, the question of who is a public official has been raised often. In Rosenblatt v. Baer, 383 U.S. 75, 86 S. Ct. 669, 15 L. Ed. 2d 597 (1966), the Court found that a nonelected official "among the hierarchy of government employees who have, or appear to have, substantial responsibility for, or control over, the conduct of public affairs" was a public official within the meaning of Sullivan. Similarly, in Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S. Ct. 621, 28 L. Ed. 2d 35 (1971), the Court found that a candidate for public office fell within the category of public officials who must prove actual malice in order to recover.
Eventually, Sullivan's actual-malice requirement was extended to include defendants who are accused of defaming public figures who are not government officials. In the companion cases of Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967), the Court held that a football coach at the University of Georgia and a retired Army general were similar to public officials in that they enjoyed a high degree of prominence and access to the mass media that allowed them to influence policy and to counter criticisms leveled against them.
These rules make it difficult for a plaintiff to prevail in a libel action. For example, in Levan v. Capitol Cities/ABC, 190 F.3d 1230 (11th Cir. 1999), a federal appeals court dismissed a libel action against a television network because the plaintiff could not prove actual malice. BFC Financial Corporation ("BFC") and its president, chief executive officer, and controlling shareholder, Alan Levan, brought an action for defamation against Capital Cities/ABC, Inc. ("ABC") and one of its producers, Bill Willson. Levan and BFC based their case on a segment that had been aired on ABC's television program "20/20." The segment portrayed BFC and Levan as unfairly taking advantage of investors in real estate-related limited partnerships, by inducing them to participate in transactions known as "rollups." BFC and Levan claimed that ABC had made numerous false or misleading statements with actual malice and that it had misused videotaped statements and congressional testimony.
The U.S. Court of Appeals for the Eleventh Circuit ruled that Levan and BFC failed to prove that ABC had "entertained serious doubts" that the underlying theme of the broadcast was untrue. The court pointed to the numerous objective experts whom ABC had interviewed, who all agreed that the rollup transactions were bad for the investors and very good for Levan and BFC. The court also noted that Levan had had a conflict of interest, as he had advised the investors to agree to the rollups, and he then had reaped the benefits. As to ABC's alleged misuse of Levan's videotaped statement and congressional testimony, the court found that that this evidence "pales in contrast" to the sources who told ABC that Levan had traded worthless junk bonds in return for valuable real estate. In sum, most of the evidence that related to actual malice all pointed to the lack of it by ABC.
The Court refined its definition of public figure in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974), where it held that public figures are those who thrust themselves into the public eye and invite close scrutiny. The Court also recognized two types of public figures: those who are "public figures for all purposes" and those who are public figures for limited purposes. For an individual to be considered a public figure in all situations, the person's name must be so familiar as to be a household word—for example, Johnny Carson. A limited-purpose public figure is one who voluntarily injects himself or herself into a public controversy and becomes a public figure for a limited range of issues. Limited-purpose public figures have at least temporary access to the means to counteract false statements about them. By voluntarily placing themselves in the public eye, they relinquish some of their privacy rights. For these reasons, false statements about limited-purpose public figures that relate to the public controversies in which they are involved are not considered defamatory unless they meet the actual-malice test that is set forth in Sullivan.
Defining who is a limited-purpose public figure has been compared with trying to nail a jellyfish to a wall. Nonetheless, the Court has attempted this feat on several occasions. In Time, Inc., v. Firestone, 424 U.S. 448, 96 S. Ct. 958, 47 L. Ed. 2d 154 (1976), it held that a wealthy socialite who was involved in a widely publicized divorce was not a public figure because she had not thrust herself into the public eye in order to influence the resolution of any public issue. Her divorce was not a public controversy, although it had undeniable public interest. Likewise, in Hutchinson v. Proxmire, 443 U.S. 111, 99 S. Ct. 2675, 61 L. Ed. 2d 411 (1979), a scientist whose research was subjected to ridicule when he received a Golden Fleece Award from Senator William Proxmire was not a public figure because he had neither thrust himself into the public spotlight nor sought to influence public opinion. Proxmire gave these awards to people whom he felt were fleecing the public by using tax dollars on frivolous or useless causes. The Court found that the scientist's notoriety arose strictly from Proxmire's libelous statements about him and his research. Proxmire's claim that Hutchinson was a public figure was rejected because Proxmire's libelous actions were responsible for thrusting Hutchinson into the public eye.
The California Supreme Court rejected the claim of the news media that it is not liable for reporting someone else's libelous statements about a private figure. In Khawar v. Globe International, Inc., 19 Cal. 4th 254, 965 P.2d 696, 79 Cal. Rptr. 2d 178 (1998), the court rejected the media's argument that a "neutral reportage" defense that applies to public figures in some jurisdictions should also apply to private figures. The tabloid newspaper the Globe presented an uncritical report about a little-known book in which the author claimed that Sirhan Sirhan had not been the assassin of robert f. kennedy in 1968. Robert Morrow, the author of The Senator Must Die asserted that the real murderer was Khalid Khawar, a Pakistani reporter who was covering Kennedy's victory rally that night in a Los Angeles hotel for a newspaper in Pakistan. Khawar had not been named in the article, but the Globe had published a photograph with a circle and arrow pointing him out. By then a California farmer, Khawar sued the tabloid for libel and was awarded $1.175 million in damages.
The California Supreme Court upheld the verdict. In so ruling, it declined to adopt the neutral reportage libel defense. In jurisdictions that recognize this defense, the news media entity must be neutral, merely reporting charges made by other persons without taking a position itself. In addition, the charges must be reported in a substantially accurate way. The news media argue that such a defense is necessary for them to report the news without the fear of unwarranted libel suits. The court concluded that Khawar was neither an all-purpose or limited-purpose public figure, but rather a private individual. Unlike public figures, who give up part of their interest in protecting their good name, private individuals do not. Therefore, private individuals are more vulnerable to injury than are public officials and public figures. Reports such as the one that the Globe printed rarely benefit the public when the allegations are against a private individual. In addition, private persons rarely have sufficient media access to counter false accusations against them. The Court stated that "republications of accusations made against private figures are never protected by the neutral reportage privilege." However, the court stopped short of recognizing such a privilege when public officials and figures are involved.
A 1991 case made it somewhat easier for public figures to sue authors and publishers for libel. Masson v. New Yorker Magazine, 501 U.S. 496, 111 S. Ct. 2419, 115 L. Ed. 2d 447 (1991), held that a plaintiff alleging libel satisfies the actual-malice standard if it can be proved that the author deliberately altered the plaintiff's words and that the alteration resulted in a material change in the meaning conveyed by the plaintiff in the original statement. Jeffrey M. Masson, a prominent psychoanalyst, had sued Janet Malcolm, the author of an article and book about him, as well as The New Yorker magazine and Alfred A. Knopf, Inc., which had published the article and book, respectively. Masson claimed that quotations that were attributed to him in those publications were false and libelous. Malcolm conceded that she had altered quotations in order to make the finished product more readable, but she maintained that the essence of Masson's words had not been changed. The Court held that quotation marks around a passage "indicate to the reader that the passage reproduces the speaker's words verbatim." It was careful to protect journalistic freedom and went on to write that deliberate alteration of quotations does not automatically prove actual malice:
We conclude that a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity for purposes of New York Times Co. v. Sullivan … and Gertz v. Robert Welch, Inc. … unless the alteration results in a material change in the meaning conveyed by the statement. The use of quotations to attribute words not in fact spoken bears in a most important way on that inquiry, but it is not dispositive in every case.
The tremendous growth of electronic communications networks since the 1990s has raised numerous questions about liability for defamation. Suddenly, it is possible to commit libel and to communicate a libelous statement to thousands of people, instantly. When libel is perpetrated in cyberspace, who is responsible? Are online information providers considered publishers, distributors, or common carriers? What level of First Amendment protection should be afforded to defamatory statements transmitted electronically?
In Cubby, Inc. v. CompuServe, 776 F. Supp. 135 (S.D.N.Y. 1991), the plaintiff sued CompuServe, an online service company, for libel because of statements that had appeared in a newsletter written and uploaded by an independent company and transmitted through CompuServe's network. The federal district court found that CompuServe had no editorial control over the contents of the newsletter and that it was therefore only a distributor of the newsletter. CompuServe could not be held liable for the newsletter's contents unless it had known, or had had reason to know, that the newsletter contained defamatory statements. Conversely, in Stratton Oakmont v. Prodigy Services Co., 63 U.S.L.W. 2765, 23 Media L. Rep. 1794, 1995 WL 323710 (N.Y. Sup. Ct. 1995); reh'g denied, 24 Media L. Rep. 1126 (N.Y. Sup. Ct. 1995), the court found that Prodigy, an online provider similar to CompuServe, was a publisher rather than a distributor, and that it was liable for the defamatory material in question because it exercised considerable editorial control over what appeared on its system.
Some states have laws that seek to protect vital industries and businesses from unfounded rumors and scare tactics. Such was the case in Texas, which enacted food- and business-disparagement laws that allow victims of false statements about their perishable food or business to sue for damages. Television host Oprah Winfrey was ensnared in litigation involving these laws after she broadcast an episode of her show in 1996 about the problems surrounding the outbreak of mad cow disease in Great Britain. The episode, which was labeled "dangerous food," included a guest who suggested that unless the U.S. banned certain practices, a mad cow disease epidemic in the U.S. would "make AIDS look like the common cold." Beginning the day of the broadcast, the price of beef dropped drastically and remained low for two weeks. The Texas Beef Group filed a civil lawsuit against Winfrey, her company, and the guest, alleging that comments made on the program had violated Texas's disparagement laws. The judge dismissed the food-disparagement charge, and a jury found the defendants not guilty of business disparagement. The Fifth Circuit Court of Appeals upheld these rulings in Texas Beef Group v. Winfrey, 201 F.3d 680 (5th Cir: 2000). The appeals court concluded that the key issue was the statute's definition of a "perishable food product." At trial, the defendants argued that live cattle are not perishable food, but the appeals court declined to rule on that issue. Instead, it focused on whether the defendants had knowingly disseminated false information about beef. The court grounded its analysis on the legal precedent that the First Amendment protects the expression of opinion as well as fact "so long as a factual basis underlies the opinion." It found that, at the time of the broadcast, the factual basis for the guest's opinions was truthful. As for the AIDS comparison, the court characterized it as hyperbole; in its view, exaggeration did not equal defamation. Because the challenged comments had a factual basis, Winfrey and her guest had a First Amendment right to say them.
"Beyond Words: The Potential Expansion of Defamation By Conduct In Massachusetts." 2003. Boston University Law Review 83 (June).
Coad, Jonathan. 2003. "The Price of Truth In the New Law of Libel." New Law Journal 153 (April 18).
Fenno, Edward T. 1995. "Public Figure Libel: The Premium on Ignorance and the Race to the Bottom." Southern California Interdisciplinary Law Journal 4.
Friedman, Jessica R. 1995. "Defamation." Fordham Law Review 64.
Hiemstra, Nathalie L. 1993. "Masson v. New Yorker Magazine, Inc.: A 'Material Alteration'." University of Miami Entertainment and Sports Law Review 10.
"Jewell Box: An Archive on Richard Jewell and the Olympic Park Bombing." 1997. Creative Loafing Network site. Available online at <http://www.cln.com> (accessed February 10, 2003).
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Ransom, Elsa. 1995. "The Ex-Public Figure: A Libel Plaintiff without a Class." Seton Hall Journal of Sport Law 5.
Stonecipher, Harry W. 1993. "A Survey of the Professional Person as Libel Plaintiff: Reexamination of the Public Figure Doctrine." Arkansas Law Review 46.
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