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Defamation

Jaida Hannah

John Powell

Emma Buker

Evolution of Defamation

History

The definition of defamation has greatly changed over time. The quantity of truth, intended target, and method of delivery are all viewed differently.

1700s

Early Defamation

In the early 1700s libel was mostly restricted to language opposing the government. There was no standard test or definition. The closest thing to a ruling was from a case Rex v Orme and Nunn. The jury on the case returned an opinion stating "where a writing … inveighs against mankind in general, or against a particular order of men, as for instance, men of the gown, this is no libel, but it must descend to particulars and individuals to make it libel." The relative truth of the writing did not matter either. John Peter Zenger found this out the hard way when he was jailed for writing opposing the local royal governor.

https://www.ushistory.org/us/7c.asp

Supreme Court Steps In

The Pivot

Throughout most of the early American history, the Supreme Court did not deal much with defamation cases. For the most part the legal advantage lay with the plaintiff, as the burden was on the defendant to prove that their statements were true. The turning point was New York Times Co. v Sullivan. In this landmark case, the SC handed down the actual malice standard, that is still used today. Actual malice states that it is on the plaintiff to prove there was any intent to harm in the defamatory language. Defamation law has also evolved to the point where public figures and public officials must prove that they have no way to fight back against defamation. Otherwise, the courts rule that they can simply return the favor on the public stage and don't deserve special consideration.

https://www.thebusinesslitigators.com/history-of-defamation-law.html

What is Defamation ?

Libel

Defamation is defined as any type of message that hurts someones reputation. Hostile, disagreeable or false comments about someone.

Defamation

Defined

Defenses to defamation:

  • Truth
  • Privilege
  • Fair comment

Types:

  • Per Facie
  • Per Se
  • Per Quod
  • False light

Libel

Published written defamatory statments

  • Elements of Libel
  • Defamation
  • Identification
  • Publication
  • Faulty
  • Damages

Slander

Spoken defamatory statements

Slander

How to prove Slander :

  • A false statement purporting to be fact
  • Communication of that statement to a third party
  • Faulting amount to at least negligence
  • Damages or some harm causes to the individual

https://www.oyez.org/cases/1963/39

New York Times V. Sullivan (1964)

This case involved an advertisement that appeared in The New York Times in March 1960 that contained several minor factual inaccuracies. Commissioner Sullivan felt the criticism of his subordinates reflected on him although he was not mentioned in the ad.

Question raised by this case : Did Alabama's libel law unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections?

The Supreme court ruled unanimously in favor of the Times.

"The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”-Justice Brennan

Cases that redefined Defamation

https://www.oyez.org/cases/1973/72-617

Gertz V. Robert Welch Inc.

In Gertz v. Robert Welch, Inc. (1974), the Supreme Court ruled that the First Amendment does not require a private individual who is publicly libeled to meet the burden of proof stated in New York Times V. Sullivan (1964) to win in a defamation suit.

Questions raised by this case:

  • What is negligence and how does it differ from actual malice ?
  • Failure to take proper care in doing something, whereas actual malice is actual knowledge that the statement is false or reckless disregard for the truth
  • Who is a public figure and who is a private person?

*answered in seperate bubble*

Gertz

V.

Robert Welch Inc.

(1974)

Public V. Private Individuals

Plaintiff Liability for Liability for

actual damages punitive damages

  • "Actual Malice"

  • "Actual Malice

  • At least negligence
  • "Actual Malice"

  • At least negligence

  • At least negligence
  • Public Officials/Figures

  • Private figures or companies (matters of public concern

  • Private figures or companies (matters NOT of public concern

Public

v.

Private Figures

Actual Malice - actual knowledge that the statement is false or reckless disregard for the truth

Negligence - Failure to take proper care in doing something

Private Figures - ordinary individuals who have not sought out the public spotlight

Public Figures - Celebrities, politicians, high-ranking or powerful government officials, and others with power in society

Janklow V. Newsweek Inc.

Janklow (plaintiff) brought a defamation action against Newsweek (defendant), arguing that the article they wrote defamed him by implying that he prosecuted Banks out of revenge, when he had actually initiated proceedings against Banks while serving as special prosecutor, before Banks’ rape allegation.

This case was determining Fact V. Opinion

  • The precision and specificity of the disputed statement
  • The verifiability of the statement
  • The literary context in which the statement is made
  • The public context of the statement

Janklow

V.

Newsweek

(1986)

https://www.quimbee.com/cases/janklow-v-newsweek-inc#:~:text=Janklow%20(plaintiff)%20brought%20a%20defamation,%2C%20before%20Banks'%20rape%20allegation.

https://www.oyez.org/cases/1987/86-1278

Hustler Mag V. Falwell

November 1983 issue of Hustler Magazine featured a "parody" of an advertisement, modeled after an actual ad campaign, claiming that Falwell had a drunken relationship with his mother in an outhouse. Falwell sued to recover damages for libel, invasion of privacy, and intentional infliction of emotional distress.

Question raised by this case:

Does the First Amendment's freedom of speech protection extend to the making of patently offensive statements about public figures, resulting perhaps in their suffering of emotional distress?

Hustler Magazine

V.

Falwell

(1988)

Yes. In a unanimous decision the Court held that public figures, such as Jerry Falwell, may not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement of fact which was made with "actual malice." The Court added that the interest of protecting free speech, under the First Amendment, surpassed the state's interest in protecting public figures from patently offensive speech

Defamation Today

Today...

With the rise in social media platforms, some laws had to be amended to accommodate. Before 1996, there was little regulation about how any laws applied to the internet, until the Communications Decency Act.

Section 230 of the 1996 Communications Decency Act provides immunity to social media sites in regards to third-party content posted onto them, meaning that the site cannot be held liable for any defamatory content posted onto them.

Palin v. New York Times

Former Alaskan governor Sarah Palin is currently* suing the New York Times for defamation over an editorial published about an ad her PAC released. The editorial was inaccurate, but the Times claims it was a simple mistake and took back the article. Palin, however, claims there was "actual malice" involved and is suing for defamation of character.

*at the time of writing this, the case was just dismissed, but Palin has not given up her case yet

https://www.npr.org/2022/02/14/1080610992/sarah-palin-new-york-times-defamation-suit

Zeran v. America Online

Zeran v. America Online, Inc argued that Section 230 of the Communications Decency Act provided immunity to media sites for defamation/libel posted onto them.

Kenenth Zeran sued AOL after a misleading ad was posted using his phone number and the site, although removing the ad, did not issue a retraction. The case was dismissed on the grounds of Section 230, establishing the precedent that social media sites are not held liable for defamatory content posted onto them.

https://www.mtsu.edu/first-amendment/article/613/zeran-v-america-online-inc-4th-cir

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