Defamation & Freedom of Speech Flashcards

Question

***Curtis Publishing Co. v. Butts*** did what

Answer 1

established Public Figure concept extended public malice, from Sullivan, to public figures

Answer 2

The Supreme Court applied the actual malice standard regardless of the status of the plainitff, as long as the matter involved was one of public interest.

Answer 3

**redefined the public figure formula** **1974** by restricting the actual malice requirement to public officials and public figures. The much debated Gertz formula remains a central feature of defamation law today. According to Gertz, a plaintiff may be designated a public figure either “for all purposes” because of “pervasive fame or notoriety,” or for a “limited purpose” because of “voluntarily inject[ing] himself or drawn into a particular public controversy” concerning “a limited range of issues.” The Gertz Court describes the all-purpose public figures as persons who occupy positions of “persuasive power and influence,” and limited-purpose public figures as persons who “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” Both types of public figures may “invite attention and comment” and may “assume special prominence in the resolution of public questions.” The Court also noted that “it may be possible for someone to become a public figure through no purposeful action of his [or her] own, but the instances of truly involuntary public figures must be exceedingly rare.” ----------------------------------------------------- Soon after Butts, the Court divided over whether to extend the actual malice rule to speech about private figures in connection with matters of public concern. Ultimately, the Court redefined the public figure formula in *Gertz v. Robert Welch, Inc.* by restricting the actual malice requirement to public officials and public figures. The much debated Gertz formula remains a central feature of defamation law today. According to Gertz, a plaintiff may be designated a public figure either “for all purposes” because of “pervasive fame or notoriety,” or for a “limited purpose” because of “voluntarily inject[ing] himself or drawn into a particular public controversy” concerning “a limited range of issues.” The Gertz Court describes the all-purpose public figures as persons who occupy positions of “persuasive power and influence,” and limited-purpose public figures as persons who “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” Both types of public figures may “invite attention and comment” and may “assume special prominence in the resolution of public questions.” The Court also noted that “it may be possible for someone to become a public figure through no purposeful action of his [or her] own, but the instances of truly involuntary public figures must be exceedingly rare.” Rosenbloom v. Metromedia, Inc. 403 U.S. 29 (1971) (requiring a private person to prove actual malice when libel involves matter of public concern

Answer 4

## Footnote In Gertz v. Robert Welch, Inc., the Court refused to extend the New York Times standard to actions for libel involving private individuals even where the matter is of public concern. See Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). In Gertz, the Court recognized a strong and legitimate state interest in compensating private individuals for injury to reputation, but cautioned that this interest extends no further than comensation for actual injury. The Gertz Court held that in a case involving a matter of public concern, recovery of presumed or punitive damages is not permitted without a showing of malice; that is, unless liability is based on a showing of knowledge of falsity or reckless disregard for the truth.

Answer 5

A claim that a defendant disparages or otherwise publishes false claims about a plaintiff’s title to real estate.

Answer 6

Slander of Title

Answer 7

* The more permanent, premeditated, and widespread the form of communication, the more likely it is to be considered Libel * Spoken repetition of scripted material is generally Libel * If a broadcaster's employee makes the defamatory statement, it is likely Libel and the broadcaster is liable * However, if the statement is said by a guest, it is more likely to be Slander

Answer 8

**compensatory damages** still, not stricy liability (assumed fault) must show negligence or more In *Gertz v. Robert Welch, Inc.* the Court set off on a new path of limiting recovery for defamation by private persons. Henceforth, persons who are neither public officials nor public figures may recover for the publication of defamatory falsehoods so long as state defamation law establishes a standard higher than strict liability, such as negligence; damages may not be presumed, however, but must be proved, and punitive damages will be recoverable only upon the Times showing of “actual malice.”

Answer 9

**Libel** however, some jurisdictions would draw a distinction between libel per se and libel per quod

Answer 10

(1) isolate the particular public controversy; (2) examine the individual’s involvement in the controversy; and (3) determine whether the alleged defamation was germane to the individual’s participation in the controversy. Here, there is little doubt that Gray’s central involvement in the public controversy of politics and access to political figures was the focus of the statements made in the Book published by St. Martin’s. Therefore, the court concluded that Gray is a limited purpose public figure as to each of the statements at issue in the case. ***Gray v. St. Martin’s Press, Inc.*** United States District Court for the District of New Hampshire 1999 WL 813909 **Rule of Law** A general public figure is one who possesses general fame or notoriety in the community or is a well-known celebrity whereas a limited public figure is one who thrusts himself to the forefront of particular public controversies. **Facts** Robert Gray (plaintiff) filed a defamation suit against St. Martin’s Press, Inc. (St. Martin’s) (defendant), publisher of a book authored by Susan Trento (defendant) called The Power House, Robert Keith Gray and the Selling of Access and Influence in Washington (the Book). The Book discussed in several areas how members of lobbying and public relations firms influenced federal government operations and focused on Gray as being one of the most well-connected men in those circles and one of the most powerful men in Washington, D.C. The defendants filed a motion for summary judgment claiming that Gray was a public figure and therefore was required to demonstrate that defendants had acted with “actual malice” in order to prevail on his defamation claims. In support of their motion, defendants showed that not only was Gray well known around the Washington, D.C., political networks, but also was the subject of a television documentary and several hundred newspaper and magazine articles. **Issue** Is a general public figure one who possesses general fame or notoriety in the community or is a well-known celebrity whereas a limited public figure is one who thrusts himself to the forefront of particular public controversies? **Holding and Reasoning (McAuliffe, J.)** Yes. A general public figure is one who possesses general fame or notoriety in the community or is a well-known celebrity whereas a limited public figure is one who thrusts himself to the forefront of particular public controversies. InN.Y. Times v. Sullivan, 376 U.S. 254 (1964), the United States Supreme Court created a qualified privilege to that shields a speaker from liability for an allegedly defamatory statement relating to the official conduct of a public official, unless it was shown by the public official that the speaker’s statement was made with actual malice, namely that the statement was made with knowledge that it was false or with reckless disregard of whether it was false or not. For limited public figures, the actual malice standard generally applies only to defamatory statements arising out of the public controversy into which the public official has thrust himself. Fagin v. Kelly, 978 F. Supp. 420, 426 (D.N.H. 1997). Conversely, a general public figure is widely followed by the public, typically considered a celebrity or a household name. Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1294 (D.C. Cir. 1980). Here, while Gray may be extraordinarily successful in certain Washington, D.C., political circles as having the ability to influence public opinion and provide his clients with coveted access to powerful men and women in politics, it is clear that Gray is not a household name and thus does not rise to the level of being a general public figure. To determine whether an individual may be considered a limited purpose public figure, the court must (1) isolate the particular public controversy; (2) examine the individual’s involvement in the controversy; and (3) determine whether the alleged defamation was germane to the individual’s participation in the controversy. Id. at 1297. Here, there is little doubt that Gray’s central involvement in the public controversy of politics and access to political figures was the focus of the statements made in the Book published by St. Martin’s. Therefore, the court concluded that Gray is a limited purpose public figure as to each of the statements at issue in the case.

Answer 11

**Slander per se** consists of an imputation of: * a serious crime * a loathsome disease * characteristics or actions that are incompatible with P's occupation, trade or business

Answer 12

“voluntarily inject[ing] himself or drawn into a particular public controversy” concerning “a limited range of issues.” The Gertz Court describes the limited-purpose public figure as persons who “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” Both types of public figures may “invite attention and comment” and may “assume special prominence in the resolution of public questions.” The Court also noted that “it may be possible for someone to become a public figure through no purposeful action of his [or her] own, but the instances of truly involuntary public figures must be exceedingly rare.” ----------------------------------------------------- Soon after Butts, the Court divided over whether to extend the actual malice rule to speech about private figures in connection with matters of public concern. Ultimately, the Court redefined the public figure formula in *Gertz v. Robert Welch, Inc.* by restricting the actual malice requirement to public officials and public figures. The much debated Gertz formula remains a central feature of defamation law today. According to Gertz, a plaintiff may be designated a public figure either “for all purposes” because of “pervasive fame or notoriety,” or for a “limited purpose” because of “voluntarily inject[ing] himself or drawn into a particular public controversy” concerning “a limited range of issues.” The Gertz Court describes the all-purpose public figures as persons who occupy positions of “persuasive power and influence,” and limited-purpose public figures as persons who “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” Both types of public figures may “invite attention and comment” and may “assume special prominence in the resolution of public questions.” The Court also noted that “it may be possible for someone to become a public figure through no purposeful action of his [or her] own, but the instances of truly involuntary public figures must be exceedingly rare.” Rosenbloom v. Metromedia, Inc. 403 U.S. 29 (1971) (requiring a private person to prove actual malice when libel involves matter of public concern

Answer 13

**“pervasive fame or notoriety”** The Gertz Court describes the all-purpose public figures as persons who occupy positions of “persuasive power and influence,” Both All-Purpose and Limited-Purpose Public Figures may “invite attention and comment” and may “assume special prominence in the resolution of public questions.” The Court also noted that “it may be possible for someone to become a public figure through no purposeful action of his [or her] own, but the instances of truly involuntary public figures must be exceedingly rare.” ----------------------------------------------------- Soon after Butts, the Court divided over whether to extend the actual malice rule to speech about private figures in connection with matters of public concern. Ultimately, the Court redefined the public figure formula in *Gertz v. Robert Welch, Inc.* by restricting the actual malice requirement to public officials and public figures. The much debated Gertz formula remains a central feature of defamation law today. According to Gertz, a plaintiff may be designated a public figure either “for all purposes” because of “pervasive fame or notoriety,” or for a “limited purpose” because of “voluntarily inject[ing] himself or drawn into a particular public controversy” concerning “a limited range of issues.” The Gertz Court describes the all-purpose public figures as persons who occupy positions of “persuasive power and influence,” and limited-purpose public figures as persons who “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” Both types of public figures may “invite attention and comment” and may “assume special prominence in the resolution of public questions.” The Court also noted that “it may be possible for someone to become a public figure through no purposeful action of his [or her] own, but the instances of truly involuntary public figures must be exceedingly rare.” Rosenbloom v. Metromedia, Inc. 403 U.S. 29 (1971) (requiring a private person to prove actual malice when libel involves matter of public concern

Answer 14

376 U.S. 967 84 S. Ct. 1130 12 L. Ed. 2d 83 1964 U.S. **Facts** The Plaintiff, Sullivan (Plaintiff) sued the Defendant, the New York Times Co. (Defendant), for printing an advertisement about the civil rights movement in the south that defamed the Plaintiff. **Rule of Law** The constitutional guarantees require 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. **Facts** The Plaintiff was one of three Commissioners of Montgomery, Alabama, who claimed that he was defamed in a full-page ad taken out in the New York Times. The advertisement was entitled, “Heed Their Rising Voices” and it charged in part that an unprecedented wave of terror had been directed against those who participated in the civil rights movement in the South. Some of the particulars of the advertisement were false. Although the advertisement did not mention the Plaintiff by name, he claimed that it referred to him indirectly because he had oversight responsibility of the police. The Defendant claimed that it authorized publication of the advertisement because it did not have any reason to believe that its contents were false. There was no independent effort to check its accuracy. The Plaintiff demanded that the Defendant retract the advertisement. The Defendant was puzzled as to why the Plaintiff thought the advertisement reflected adversely on him. The jury found the ad libelous per se and actionable without proof of malice. The jury awarded the Plaintiff $500,000 in damages. The Alabama Supreme Court affirmed. The Defendant appealed. **Issue** Is the Defendant liable for defamation for printing an advertisement, which criticized a public official’s official conduct? **Held** No. Reversed and remanded. \* Safeguards for freedom of speech and of the press are required by the First and Fourteenth Amendments of the United States Constitution (Constitution) in a libel action brought by a public official against critics of his official conduct. \* Under Alabama law, a publication is libelous per se if the words tend to injure a person in his reputation or to bring him into public contempt. The jury must find that the words were published of and concerning the plaintiff. Once libel per se has been established, the defendant has no defense as to stated facts unless he can persuade the jury that they were true in all their particulars. \* Erroneous statement is inevitable in free debate and it must be protected if the freedoms of expression are to have the breathing space that the need to survive. \* The constitutional guarantees require 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. \* The Supreme Court of the United States (Supreme Court) holds that the Constitution delimits a State’s power to award damages for libel in actions brought by public officials against critics of their official conduct. In this case, the rule requiring proof of actual malice is applicable. \* The Defendant’s failure to retract the advertisement upon the Plaintiff’s demand is not adequate evidence of malice for constitutional purposes. Likewise, it is not adequate evidence of malice that the Defendant failed to check the advertisements accuracy against the news stories in the Defendant’s own files. Also, the evidence was constitutionally defective in another respect: it was incapable of supporting the jury’s finding that the allegedly libelous statements were made of and concerning the Plaintiff. Concurrence. Justice Hugo Black (J. Black) argued that the First and Fourteenth Amendments of the Constitution do not merely “delimit” a State’s power to award damages, but completely prohibit a State from exercising such a power. The Defendant had an absolute, unconditional right to publish criticisms of the Montgomery agencies and officials. **Discussion** In order for a public official to recover in a defamation action involving his official conduct, malice must be proved. Without the showing of malice, the Supreme Court felt that a defamation action in this case would severely cripple the safeguards of freedom speech and expression that are guaranteed in the First Amendment of the Constitution and applicable to the States via the Fourteenth Amendment of the Constitution.

Answer 15

**A Strict Liability Tort** As such, a plaintiff could recover without proving any fault on the part of the defendant. Furthermore, the falsity of the allegedly defamatory statement was presumed. Finally, in most instances, damages were presumed. Thus, in most common law defamation actions, the plaintiff only had to prove 1) a defamatory statement 2) about the plaintiff 3) that was “published.” The defendant then had the opportunity to try to assert a defense, such as the truth of the statement.

Answer 16

## Footnote hold the plaintiff up to scorn, ridicule, or contempt. The Second Restatement provides that a communication is defamatory if it “tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Usually, a communication would be construed as defamatory under either the common law or the Restatement definition. There are situations where the test used could yield different results, however. A defamatory statement, then, is one that harms reputation by injuring a person’s general character or causing personal disgrace. Typically, such communications accuse a person of immoral or criminal conduct. Mere insults, hyperbole, obvious jokes or pure opinion cannot be the basis for a defamation action. A court determines as a matter of law whether any interpretation of the communication could be construed as defamatory, while it is for a jury to decide whether the statement in the case before it actually defamed the plaintiff. The court and jury give that language its “fair and natural meaning” as understood by reasonable persons, rejecting tortured and extreme interpretations. The context in which the language is used and even the punctuation, as where words are placed in quotation marks, may affect the determination of whether it is defamatory.

Answer 17

“harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”

Answer 18

the judge a question of law A court determines as a matter of law whether any interpretation of the communication could be construed as defamatory, while it is for a jury to decide whether the statement in the case before it actually defamed the plaintiff. The court and jury give that language its “fair and natural meaning” as understood by reasonable persons, rejecting tortured and extreme interpretations. The context in which the language is used and even the punctuation, as where words are placed in quotation marks, may affect the determination of whether it is defamatory.

Answer 19

***whether the statement in the case before it*** ***actually defamed the plaintiff*** The court and jury give that language its “fair and natural meaning” as understood by reasonable persons, rejecting tortured and extreme interpretations. The context in which the language is used and even the punctuation, as where words are placed in quotation marks, may affect the determination of whether it is defamatory.

Answer 20

***a “substantial and respectable minority”*** or a “right-thinking minority” And this group can be quite small. For example, an expert on Palestinian art and culture was defamed by an article incorrectly bearing her name, because errors in the article made the plaintiff appear incompetent to other experts in the field. Although the overwhelming majority of the readers did not have the expertise to discern these errors, it was enough that a very small number of highly trained experts in the field did. If the group that could interpret the communication in a way that injures the plaintiff’s reputation is blatantly anti-social, courts may deny the plaintiff a defamation action. Thus, a neo-Nazi wrongly accused of marrying someone Jewish will have no defamation action. Similarly, where the communication wrongly states that the plaintiff has cooperated with law enforcement, thus lowering his reputation in the eyes of his criminal compatriots, no defamation action will follow. Hard cases arise where the communication at issue should not be defamatory to “right-thinking” people, but could create potential reputational harm in a significant segment of society nonetheless. In one case, the plaintiff brought a defamation action because he was alleged to be a communist sympathizer. The court permitted the plaintiff’s action, while acknowledging that the statement should not cause reputational harm when read by “right-thinking people.” Similarly, courts have confronted this issue in the context of whether the imputation of homosexuality should be the basis for a defamation action.

Answer 21

* to plead the extra facts needed to* * make the statement defamatory* Some statements are facially defamatory. For example, the statement “Fred Rexmurth of 1344 Florida Lane embezzled millions of dollars from his employer” is defamatory on its face; nothing needs to be added for a reader to fully understand the defamatory nature of the statement. Sometimes the defamatory impact can only be understood by the addition of extrinsic information. In such situations, the plaintiff is obligated to: plead the extra facts needed to make the statement defamatory (“inducement”) or to explain the defamatory impact (“innuendo”) if it is not obvious. For example, assume a law school newspaper prints “Professor X, a professor of torts, spends several evenings a week doing ‘pro bono’ work at 5050 Main Street.” This statement is not defamatory on its face, so Professor X in a defamation action would have to plead the additional facts that make the statement defamatory, such as the fact that 5050 Main Street is the location of a brothel. With this inducement, Professor X would then plead that the defamatory innuendo is that he frequents a bordello.

Answer 22

From Latin innuere, "to nod toward." In law it means an indirect hint. In defamation cases, defendants sometimes use innuendo when making a comment about the person suing. For example, if there is only one living ex-mayor, the statement "the former mayor is a crook" uses innuendo. * to explain the defamatory impact* * if it is not obvious* Some statements are facially defamatory. For example, the statement “Fred Rexmurth of 1344 Florida Lane embezzled millions of dollars from his employer” is defamatory on its face; nothing needs to be added for a reader to fully understand the defamatory nature of the statement. Sometimes the defamatory impact can only be understood by the addition of extrinsic information. In such situations, the plaintiff is obligated to: plead the extra facts needed to make the statement defamatory (“inducement”) or to explain the defamatory impact (“innuendo”) if it is not obvious. For example, assume a law school newspaper prints “Professor X, a professor of torts, spends several evenings a week doing ‘pro bono’ work at 5050 Main Street.” This statement is not defamatory on its face, so Professor X in a defamation action would have to plead the additional facts that make the statement defamatory, such as the fact that 5050 Main Street is the location of a brothel. With this inducement, Professor X would then plead that the defamatory innuendo is that he frequents a bordello.

Answer 23

## Footnote ***plead the extra facts needed to make the statement defamatory (“inducement”)*** or to ***explain the defamatory impact (“innuendo”) if it is not obvious.*** For example, assume a law school newspaper prints “Professor X, a professor of torts, spends several evenings a week doing ‘pro bono’ work at 5050 Main Street.” This statement is not defamatory on its face, so Professor X in a defamation action would have to plead the additional facts that make the statement defamatory, such as the fact that 5050 Main Street is the location of a brothel. With this inducement, Professor X would then plead that the defamatory innuendo is that he frequents a bordello.

Answer 24

The part of a complaint for defamation in which the plaintiff avers that the defamatory remarks related to him

Answer 25

Colloquium

Answer 26

Colloquium

Answer 27

## Footnote each member of the group may bring a defamation action. Again, returning to the “pro bono” hypothetical, if the statement had read, “An Acme Law School torts professor spends several evenings a week doing ‘pro bono’ work at 5050 Main Street,” each of the four torts professors at Acme Law School could bring a defamation action if a reasonable reader could believe the statement referred to that professor. The larger the group, the less likely it is that a court will permit a defamation action by all the affected group members. Where the line is to be drawn, however, is far from clear.

Answer 28

cast aspersions on their business character, such as trustworthiness, or deters third parties from dealing with them. Where the attack is on a product, the action is typically for product disparagement.

Answer 29

## Footnote **presumed**, permitting the plaintiff to recover compensation without any proof beyond the defamatory nature of the communication. In the defamation context, such damages are called “general damages.” General damages provide compensation for the emotional trauma and harm suffered by the plaintiff whose reputation was besmirched. There are situations, however, where the plaintiff must plead and prove a specific type of loss, called “special damages,” in order to prevail. Special damages are specific economic losses flowing from the defamation, such as lost profits. They must be pled with specificity. If the plaintiff proves these special damages, she may then recover general damages. Special damages, however, are often very hard to prove. Whether a defamation plaintiff has to prove special damages depends on whether the defamatory communication is considered libel or slander and, if slander, whether the defamation falls into a category denominated “slander per se.” The early common law treated libel as more harmful than slander and set up damage rules accordingly. The different treatment was due largely to libel’s more permanent form. Slander’s destructive power was seen as more fleeting. The distinction remains important today.

Answer 30

* Harm to P's reputation presumed * Provides compensation for the emotional trauma + harm suffered

Answer 31

## Footnote P must plead and prove specific economic losses flowing from the defamation, such as lost profits. They must be pled with specificity. If the plaintiff proves these special damages, he may then recover general damages. Special damages, however, are often very hard to prove.

Answer 32

Special Damages

Answer 33

General ("Presumed) Damages

Answer 34

## Footnote The distinction is important because if a plaintiff can’t prove special damages, in a slander case outside the four slander per se categories, he can’t recover at all. And special damages are very hard to prove, so if you have to plead specials, you may well have no recover at all. The rule is that if the plaintiff either proves libel or slander per se or special damages, general damages will be “tacked on

Answer 35

***libel or slander*** ***and, if slander, whether the defamation falls into a category denominated “slander per se.”*** The early common law treated libel as more harmful than slander and set up damage rules accordingly. The different treatment was due largely to libel’s more permanent form. Slander’s destructive power was seen as more fleeting. The distinction remains important today.

Answer 36

**Libel,** where via sound it is slander. Modern forms of technology have challenged the libel/ slander distinction. For example, while movies have been considered libel, courts have struggled with how to treat radio and television broadcasts. Some courts have gone so far as to adopt a fractured result that if a broadcast is read from a script it is libel, while if it is not, it is slander. Because of the permanence and reach of modern broadcasts, the most logical argument is to find them to constitute libel.

Answer 37

**meet the substantial burden of pleading** **and proving special damages.** unless per se Since early common law, however, certain slanderous statements were deemed so horrible that reputational injury to plaintiffs could be presumed even without proof of special damages. These special “slander per se” categories are widely followed today and, although theoretically other categories can be envisioned, courts have typically stayed close to the four well-established slander per se categories. **4 Categories of Slander per se** (presumed reputational damages absent special damage) Statements that **1 )** Directly call into question P's competence to perform adequately in her trade or profession. Thus, suggesting cowardice in a soldier or illiteracy in a lawyer could constitute slander per se, though the converse, lack of bravery in a lawyer and illiteracy of a soldier might not. **2 )** P has a current, loathsome disease ex syphilis or AIDS. **3 )** Allegations of serious criminal misbehavior committed by P typically involving moral turpitude **4 )** Lack of chastity in a woman. The Second Restatement proposes that this slander per se category encompass any serious sexual misconduct regardless of gender.

Answer 38

***general (presumed) damages*** Some states have narrowed this approach, however, and have distinguished libel per se (libel on its face) from libel per quod (libel that requires extrinsic evidence such as inducement or innuendo). In these states, the plaintiff may recover general damages for libel per se. For libel per quod, however, the plaintiff must show special damages (as in the slander context) unless the libel falls into one of the slander per se categories. Thus, in the earlier “pro bono” hypothetical about an unnamed professor frequenting a certain address, in jurisdictions that draw this distinction, the plaintiff would have to prove special damages unless he could show that that statement falls into one of the “per se” categories (which it might since it suggests engaging in a crime of moral turpitude).

Answer 39

**Libel per se** (libel on its face) --- from --- **Libel per quod** (libel that requires extrinsic evidence such as inducement or innuendo) In these states, the plaintiff may recover general damages for libel per se. For libel per quod, however, the plaintiff must show special damages (as in the slander context) unless the libel falls into one of the slander per se categories. Thus, in the earlier “pro bono” hypothetical about an unnamed professor frequenting a certain address, in jurisdictions that draw this distinction, the plaintiff would have to prove special damages unless he could show that that statement falls into one of the “per se” categories (which it might since it suggests engaging in a crime of moral turpitude).

Answer 40

## Footnote Distinctions drawn by a few courts/jurisdictions **Libel per se** is a statement defamatory on its face (i.e., no additional facts need to be proven to establish why it’s defamatory); **Libel per quod** requires extrinsic facts to make it defamatory—that is, the plaintiff has to prove “inducement.” Libel per quod is treated in one of two ways. 1. Special (pecuniary) damages must be proven (this is the California approach); or 2. Special (pecuniary) damages must be proven unless the libel falls into one of the four slander “per se” categories (adverse to business/profession, or imputing loathsome disease, moral turpitude, serious sexual misconduct).

Answer 41

Per se Per quod

Answer 42

## Footnote Where the defamation is characterized as slander, the plaintiff generally must meet the substantial burden of pleading and proving special damages. Since early common law, however, certain slanderous statements were deemed so horrible that reputational injury to plaintiffs could be presumed even without proof of special damages. These special “slander per se” categories are widely followed today and, although theoretically other categories can be envisioned, courts have typically stayed close to the four well-established slander per se categories. **The four traditional slander per se categories permit presumed reputational damages absent special damage**. The first situation involves slanderous communications that directly call into question the plaintiff’s competence to perform adequately in her trade or profession. Thus, suggesting cowardice in a soldier or illiteracy in a lawyer could constitute slander per se, though the converse, lack of bravery in a lawyer and illiteracy of a soldier might not. The second slander per se category involves statements claiming the plaintiff has a current, loathsome disease, such as syphilis or AIDS. The third category involves allegations of serious criminal misbehavior by the plaintiff, typically criminal activity involving moral turpitude. The final category is the most controversial. It traditionally arose where the defendant suggested a lack of chastity in a woman. While it may be that this category has outlived any usefulness, the Second Restatement proposes that this slander per se category encompass any serious sexual misconduct regardless of gender.

Answer 43

presumed reputational damages absent special damage

Answer 44

## Footnote **1 )** Substantial Truth **2 )** Absolute Privileges Judicial, legislative or executive communications. Those made betweeen spouses **3 )** Qualified Privileges (aka Conditional Priv.) based on social utility of protecting communications made in connection with the speaker's moral, legal, or social obligations Once a judge decides that a qualified privilege applies, a jury considers whether the defendant has lost the privilege. A defendant may lose a qualified privilege in several ways: by failing to have an honest belief that the statement was true; by failing to have an objectively reasonable belief that the statement was true; or by disclosing the information to more people than necessary (that is, excessive publication). Thus, in the example where the employee accused of theft (D) implicated P, there would be no qualified privilege if D did not honestly believe P was the thief, had no reasonable basis to believe so, or if she shared her suspicions with co-workers who were in no position to take any appropriate disciplinary action against P. Another important qualified privilege in many jurisdictions is the “fair and accurate report” privilege. Without this privilege, a newspaper reporting, “At last night’s City Council meeting, X accused Mayor P of embezzling city funds” would find itself liable for defamation as a republisher of X’s defamation. This privilege permits a report of public meetings, and probably information in public records, provided that the report is an accurate and unbiased account.

Answer 45

**Strict Liability** meaning that a defendant could be liable for defamation merely for publishing a false statement, even if the defendant was not aware that the statement was false. Cases involving an interpretation of the First Amendment later modified the common law rules, especially in cases involving public officials, public figures, or matters of public concern. Common Law Rules At common law, once a plaintiff proved that a statement was defamatory, the court presumed that the statement was false. The rules did not require that the defendant know that the statement was false or defamatory in nature. The only requirement was that the defendant must have intentionally or negligently published the information.

Answer 46

Publication

Answer 47

**the Constitution affected the contours of** **defamation law in certain contexts.** Thus began the “constitutionalization” of defamation law, and, with it, an additional layer of complexity. The constitutional developments have affected proof of both fault and falsity in defamation cases. As the Court’s constitutional defamation jurisprudence has developed, an analysis of a defamation case typically requires a consideration of the status of the plaintiff (whether he is a public official, public figure or private person) and of the subject matter of the defamation (whether it is of public or private concern). While the common law defamation rules have remained important because they determine pleading requirements and provide various defenses, the constitutional overlay has had a profound impact on many defamation cases.

Answer 48

## Footnote **that the statement was defamatory, of and concerning him, and published.** **No proof of fault was required and the falsity of the statements was presumed.** A jury awarded Sullivan the exact amount he sought in the libel action, $ 500,000. The Supreme Court recognized the grave harm that could be inflicted on unpopular viewpoints under common law defamation. Focusing heavily on the importance of permitting criticism of government officers, the majority of the Court held that a public official plaintiff could only prevail in a defamation action where the public official shows that the defendant either knew that the statement was false or recklessly disregarded whether the communication was false, a fault standard known as “actual malice.” The Court also required that this actual malice standard be proven by “convincing clarity,” which has been interpreted as requiring the plaintiff to establish actual malice by the heightened burden of proof of “clear and convincing evidence.” Although providing significant First Amendment protection to the defendants, the majority did not provide an absolute privilege to defame public officials. Instead, the Court in essence created a qualified privilege, a privilege that could be lost by clear and convincing evidence of actual malice. The Sullivan decision only affects defamation actions against public officials. Thus, a challenge is to identify those who fit into the public official category. Not everyone who is paid by the government is classified as a public official. Rather, public officials are those individuals who are positioned to affect policy — those “who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs” — these individuals must show actual malice in order to recover for defamation. As one moves away from those at the top of the decision-making structure, the issue becomes cloudier. There is debate, for example, about whether functionaries in government-run services, such as police officers, public school teachers and government lawyers should be characterized as public officials for defamation purposes.

Answer 49

## Footnote *_Either:_* 1 ) knew that the statement was false or recklessly disregarded whether the communication was false ---------------------------------------------------------------- (This fault standard is known as “actual malice.” ) ----------------------------------------------------------------- The Court also required that this actual malice standard be proven by “convincing clarity,” which has been interpreted as requiring the plaintiff to establish actual malice by the heightened burden of proof of “clear and convincing evidence.” ----------------------------------------------------------------- Although providing significant First Amendment protection to the defendants, the majority did not provide an absolute privilege to defame public officials. Instead, the Court in essence created a qualified privilege, a privilege that could be lost by clear and convincing evidence of actual malice. The Sullivan decision only affects defamation actions against public officials. Thus, a challenge is to identify those who fit into the public official category. Not everyone who is paid by the government is classified as a public official. Rather, public officials are those individuals who are positioned to affect policy — those “who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs” — these individuals must show actual malice in order to recover for defamation. As one moves away from those at the top of the decision-making structure, the issue becomes cloudier. There is debate, for example, about whether functionaries in government-run services, such as police officers, public school teachers and government lawyers should be characterized as public officials for defamation purposes.

Answer 50

## Footnote **“convincing clarity,”** which has been interpreted as requiring the plaintiff to establish actual malice by the heightened burden of proof of *_“clear and convincing evidence.”_* ----------------------------------------------------------------- Although providing significant First Amendment protection to the defendants, the majority did not provide an absolute privilege to defame public officials. Instead, the Court in essence created a qualified privilege, a privilege that could be lost by clear and convincing evidence of actual malice. The Sullivan decision only affects defamation actions against public officials. Thus, a challenge is to identify those who fit into the public official category. Not everyone who is paid by the government is classified as a public official. Rather, public officials are those individuals who are positioned to affect policy — those “who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs” — these individuals must show actual malice in order to recover for defamation. As one moves away from those at the top of the decision-making structure, the issue becomes cloudier. There is debate, for example, about whether functionaries in government-run services, such as police officers, public school teachers and government lawyers should be characterized as public officials for defamation purposes.

Answer 51

**A Qualified Privilege** Although providing significant First Amendment protection to the defendants, the majority did not provide an absolute privilege to defame public officials. Instead, the Court in essence created a qualified privilege, a privilege that could be lost by clear and convincing evidence of actual malice. The Sullivan decision only affects defamation actions against public officials. Thus, a challenge is to identify those who fit into the public official category. Not everyone who is paid by the government is classified as a public official. Rather, public officials are those individuals who are positioned to affect policy — those “who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs” — these individuals must show actual malice in order to recover for defamation. As one moves away from those at the top of the decision-making structure, the issue becomes cloudier. There is debate, for example, about whether functionaries in government-run services, such as police officers, public school teachers and government lawyers should be characterized as public officials for defamation purposes.

Answer 52

printing false information about public officials

Answer 53

We consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

Answer 54

the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

Answer 55

***First National Bank of Boston v. Bellotti*** It defined the free speech right of corporations for the first time. The United States Supreme Court held that corporations have a First Amendment right to make contributions to ballot initiative campaigns. The ruling came in response to a Massachusetts law that prohibited corporate donations in ballot initiatives unless the corporation's interests were directly involved. In 1976 several corporations, including the First National Bank of Boston, were barred from contributing to a Massachusetts referendum regarding tax policy and subsequently sued. The case was successfully appealed to the Supreme Court, which heard oral arguments in November 1977. On April 26, 1978, the Court ruled 5-4 against the Massachusetts law. As a result of the ruling, states could no longer impose specific regulations on donations from corporations in ballot initiative campaigns. While the Bellotti decision did not directly affect federal law, it has been cited by other Supreme Court cases such as McConnell v. Federal Election Commission andCitizens United v. Federal Election Commission.

Answer 56

**“public figures” and not just public officials.** Two cases are especially important in this matter: 1 ) *Curtis Publishing Co. v. Butts*, involved Wally Butts, who was a former athletic director of the University of Georgia. 2 ) The Associated Press v. Walker, involved Edwin Walker, who was a general in command of the federal troops during the school desegregation crisis in Little Rock, Arkansas, in the 1950s. Both Butts and Walker were private citizens at the time of their lawsuits. However, five members of the Court extended the Sullivan rule to the alleged defamation of both men because they could be considered public figures. The Court has suggested that public figures, in contrast to private persons, are likely to have access to the media to rebut falsehoods; that most public figures have voluntarily put themselves in the public eye; and that the public is likely to have a greater interest in such persons. According to the Court, a public figure is someone who has achieved “such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts.”

Answer 57

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Answer 58

## Footnote a person who commands a substantial amount of continuing public interest and who has sufficient access to the means of counterargument to be able to “expose through discussion the falsehood and fallacies” of the defamatory statements.

Answer 59

A person who has voluntarily assumed an active and prominent role in a particular public controversy, and who seeks to influence the controversy’s outcome.

Answer 60

Limited-purpose public figure

Answer 61

***Gray v. St. Martin’s Press, Inc.*** United States District Court for the District of New Hampshire 1999 WL 813909 **Rule of Law** A general public figure is one who possesses general fame or notoriety in the community or is a well-known celebrity whereas a limited public figure is one who thrusts himself to the forefront of particular public controversies. **Facts** Robert Gray (plaintiff) filed a defamation suit against St. Martin’s Press, Inc. (St. Martin’s) (defendant), publisher of a book authored by Susan Trento (defendant) called The Power House, Robert Keith Gray and the Selling of Access and Influence in Washington (the Book). The Book discussed in several areas how members of lobbying and public relations firms influenced federal government operations and focused on Gray as being one of the most well-connected men in those circles and one of the most powerful men in Washington, D.C. The defendants filed a motion for summary judgment claiming that Gray was a public figure and therefore was required to demonstrate that defendants had acted with “actual malice” in order to prevail on his defamation claims. In support of their motion, defendants showed that not only was Gray well known around the Washington, D.C., political networks, but also was the subject of a television documentary and several hundred newspaper and magazine articles. **Issue** Is a general public figure one who possesses general fame or notoriety in the community or is a well-known celebrity whereas a limited public figure is one who thrusts himself to the forefront of particular public controversies? **Holding and Reasoning (McAuliffe, J.)** Yes. A general public figure is one who possesses general fame or notoriety in the community or is a well-known celebrity whereas a limited public figure is one who thrusts himself to the forefront of particular public controversies. InN.Y. Times v. Sullivan, 376 U.S. 254 (1964), the United States Supreme Court created a qualified privilege to that shields a speaker from liability for an allegedly defamatory statement relating to the official conduct of a public official, unless it was shown by the public official that the speaker’s statement was made with actual malice, namely that the statement was made with knowledge that it was false or with reckless disregard of whether it was false or not. For limited public figures, the actual malice standard generally applies only to defamatory statements arising out of the public controversy into which the public official has thrust himself. Fagin v. Kelly, 978 F. Supp. 420, 426 (D.N.H. 1997). Conversely, a general public figure is widely followed by the public, typically considered a celebrity or a household name. Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1294 (D.C. Cir. 1980). Here, while Gray may be extraordinarily successful in certain Washington, D.C., political circles as having the ability to influence public opinion and provide his clients with coveted access to powerful men and women in politics, it is clear that Gray is not a household name and thus does not rise to the level of being a general public figure. To determine whether an individual may be considered a limited purpose public figure, the court must (1) isolate the particular public controversy; (2) examine the individual’s involvement in the controversy; and (3) determine whether the alleged defamation was germane to the individual’s participation in the controversy. Id. at 1297. Here, there is little doubt that Gray’s central involvement in the public controversy of politics and access to political figures was the focus of the statements made in the Book published by St. Martin’s. Therefore, the court concluded that Gray is a limited purpose public figure as to each of the statements at issue in the case.

Answer 62

***Gray v. St. Martin’s Press, Inc.*** United States District Court for the District of New Hampshire 1999 WL 813909 **Rule of Law** A general public figure is one who possesses general fame or notoriety in the community or is a well-known celebrity whereas a limited public figure is one who thrusts himself to the forefront of particular public controversies. **Facts** Robert Gray (plaintiff) filed a defamation suit against St. Martin’s Press, Inc. (St. Martin’s) (defendant), publisher of a book authored by Susan Trento (defendant) called The Power House, Robert Keith Gray and the Selling of Access and Influence in Washington (the Book). The Book discussed in several areas how members of lobbying and public relations firms influenced federal government operations and focused on Gray as being one of the most well-connected men in those circles and one of the most powerful men in Washington, D.C. The defendants filed a motion for summary judgment claiming that Gray was a public figure and therefore was required to demonstrate that defendants had acted with “actual malice” in order to prevail on his defamation claims. In support of their motion, defendants showed that not only was Gray well known around the Washington, D.C., political networks, but also was the subject of a television documentary and several hundred newspaper and magazine articles. **Issue** Is a general public figure one who possesses general fame or notoriety in the community or is a well-known celebrity whereas a limited public figure is one who thrusts himself to the forefront of particular public controversies? **Holding and Reasoning (McAuliffe, J.)** Yes. A general public figure is one who possesses general fame or notoriety in the community or is a well-known celebrity whereas a limited public figure is one who thrusts himself to the forefront of particular public controversies. InN.Y. Times v. Sullivan, 376 U.S. 254 (1964), the United States Supreme Court created a qualified privilege to that shields a speaker from liability for an allegedly defamatory statement relating to the official conduct of a public official, unless it was shown by the public official that the speaker’s statement was made with actual malice, namely that the statement was made with knowledge that it was false or with reckless disregard of whether it was false or not. For limited public figures, the actual malice standard generally applies only to defamatory statements arising out of the public controversy into which the public official has thrust himself. Fagin v. Kelly, 978 F. Supp. 420, 426 (D.N.H. 1997). Conversely, a general public figure is widely followed by the public, typically considered a celebrity or a household name. Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1294 (D.C. Cir. 1980). Here, while Gray may be extraordinarily successful in certain Washington, D.C., political circles as having the ability to influence public opinion and provide his clients with coveted access to powerful men and women in politics, it is clear that Gray is not a household name and thus does not rise to the level of being a general public figure. To determine whether an individual may be considered a limited purpose public figure, the court must (1) isolate the particular public controversy; (2) examine the individual’s involvement in the controversy; and (3) determine whether the alleged defamation was germane to the individual’s participation in the controversy. Id. at 1297. Here, there is little doubt that Gray’s central involvement in the public controversy of politics and access to political figures was the focus of the statements made in the Book published by St. Martin’s. Therefore, the court concluded that Gray is a limited purpose public figure as to each of the statements at issue in the case.

Answer 63

*Wells v. Liddy* U.S. Court of Appeals, Fourth Circuit 186 F.3d 505 (1999) **Rule of Law** A public figure may recover for a defamatory statement that injures his reputation only on clear and convincing proof that the statement was made with knowledge that it is false, or with reckless disregard for whether it is false. **Facts** The conventional theory behind the Watergate break-in at the Democratic National Committee (DNC) headquarters in 1972 was that the burglars were trying to replace a listening device that had been installed during a previous break-in. Wells (plaintiff) worked as a secretary for a DNC officer whose phone was tapped. The burglars had a key to Wells’s desk in their possession when they were arrested. Liddy (defendant), then counsel to the Committee to Reelect the President, was convicted as a result of the break-in. A 1984 book,Secret Agenda, and the 1991 book Silent Coup alleged that the break-in was intended to learn whether the DNC was organizing prostitution for visitors. Silent Coup alleged that evidence of these activities was locked in Wells’s desk. Liddy repeated these allegations in various speeches, radio appearances, and on web sites. The trial court granted summary judgment for Liddy on all of his statements, finding that Wells, as an involuntary public figure, could not support a claim for defamation absent a showing that the statements were made with actual malice. Wells appealed. **Issue** To recover for a defamatory statement that injures her reputation, must a private figure show that the statement was made with actual malice? **Holding and Reasoning (Williams, J.)** No. A private figure need not prove actual malice to recover for defamatory statements that injure her reputation. A public figure may recover for injury to reputation only on clear and convincing proof of actual malice, that is, that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth. There are three types of public figures: involuntary public figures; all-purpose public figures; and limited-purpose public figures. To show that a plaintiff is a limited-purpose public figure, the defendant must show: (1) the plaintiff has access to channels of effective communication; (2) the plaintiff has voluntarily assumed an active and prominent role in a public controversy; (3) the plaintiff has sought to influence the controversy’s outcome; (4) the controversy existed before the alleged defamation; and (5) the plaintiff was still a public figure at the time of the defamation. In addition, a plaintiff is not a limited-purpose public figure if he is simply making a reasonable public reply to a statement that is considered defamatory per se. This court finds that Wells is not a limited-purpose figure because Liddy has not shown that she voluntarily assumed an active and prominent role in the public controversy at issue. Wells was instead dragged unwillingly into the controversy. Her responses to the FBI, the grand jury subpoena, and before the Senate committee were compelled by law and not voluntary. Even if she was involved in the criminal activity that is the source of the public controversy, a person who engages in criminal activity does not automatically become a public figure, even if the activity is likely to garner publicity. The disclosures in Secret Agenda and Silent Coup of Wells’s role in the controversy came from another source, and are not the result of Wells’s voluntary participation. Wells’s letter to the editor of the New York Times, which was in response to a review of Secret Agenda naming her as someone involved in arranging the prostitution, is a reasonable response to a statement that injured her reputation, and may not be factored into the public figure analysis. Her remaining few contacts with the press were in response to requests for her first-person account of events, and not as a result of an attempt to be a spokesperson for the broad public issues implicated by the Watergate controversy. This court also finds that Wells was not an involuntary public figure. A plaintiff is an involuntary public figure if: he pursues conduct reasonably foreseeable to cause a public interest to arise; a public controversy has arisen that is related to the plaintiff’s conduct; the plaintiff is recognized as a central figure to the controversy; the controversy existed prior to the defamatory statement; the plaintiff retained public-figure status at the time of the defamation; and the plaintiff is not simply making a reasonable public reply to a statement that is considered defamatory per se. This court finds that Wells is not an involuntary public figure. She has not been a central figure in the Watergate controversy, and is either not mentioned in media reports on Watergate or is portrayed as a minor figure in the controversy. Because Wells is a private, not public, figure, she is not required to prove actual malice to recover compensatory damages. The district court’s ruling is reversed, and the matter remanded.

Answer 64

involuntary public figures limited-purpose public figures all-purpose public figures

Answer 65

***Wells v. Liddy*** U.S. Court of Appeals, Fourth Circuit 186 F.3d 505 (1999) **Rule of Law** A public figure may recover for a defamatory statement that injures his reputation only on clear and convincing proof that the statement was made with knowledge that it is false, or with reckless disregard for whether it is false. **Facts** The conventional theory behind the Watergate break-in at the Democratic National Committee (DNC) headquarters in 1972 was that the burglars were trying to replace a listening device that had been installed during a previous break-in. Wells (plaintiff) worked as a secretary for a DNC officer whose phone was tapped. The burglars had a key to Wells’s desk in their possession when they were arrested. Liddy (defendant), then counsel to the Committee to Reelect the President, was convicted as a result of the break-in. A 1984 book,Secret Agenda, and the 1991 book Silent Coup alleged that the break-in was intended to learn whether the DNC was organizing prostitution for visitors. Silent Coup alleged that evidence of these activities was locked in Wells’s desk. Liddy repeated these allegations in various speeches, radio appearances, and on web sites. The trial court granted summary judgment for Liddy on all of his statements, finding that Wells, as an involuntary public figure, could not support a claim for defamation absent a showing that the statements were made with actual malice. Wells appealed. **Issue** To recover for a defamatory statement that injures her reputation, must a private figure show that the statement was made with actual malice? **Holding and Reasoning (Williams, J.)** No. A private figure need not prove actual malice to recover for defamatory statements that injure her reputation. A public figure may recover for injury to reputation only on clear and convincing proof of actual malice, that is, that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth. There are three types of public figures: involuntary public figures; all-purpose public figures; and limited-purpose public figures. To show that a plaintiff is a limited-purpose public figure, the defendant must show: (1) the plaintiff has access to channels of effective communication; (2) the plaintiff has voluntarily assumed an active and prominent role in a public controversy; (3) the plaintiff has sought to influence the controversy’s outcome; (4) the controversy existed before the alleged defamation; and (5) the plaintiff was still a public figure at the time of the defamation. In addition, a plaintiff is not a limited-purpose public figure if he is simply making a reasonable public reply to a statement that is considered defamatory per se. This court finds that Wells is not a limited-purpose figure because Liddy has not shown that she voluntarily assumed an active and prominent role in the public controversy at issue. Wells was instead dragged unwillingly into the controversy. Her responses to the FBI, the grand jury subpoena, and before the Senate committee were compelled by law and not voluntary. Even if she was involved in the criminal activity that is the source of the public controversy, a person who engages in criminal activity does not automatically become a public figure, even if the activity is likely to garner publicity. The disclosures in Secret Agenda and Silent Coup of Wells’s role in the controversy came from another source, and are not the result of Wells’s voluntary participation. Wells’s letter to the editor of the New York Times, which was in response to a review of Secret Agenda naming her as someone involved in arranging the prostitution, is a reasonable response to a statement that injured her reputation, and may not be factored into the public figure analysis. Her remaining few contacts with the press were in response to requests for her first-person account of events, and not as a result of an attempt to be a spokesperson for the broad public issues implicated by the Watergate controversy. This court also finds that Wells was not an involuntary public figure. A plaintiff is an involuntary public figure if: he pursues conduct reasonably foreseeable to cause a public interest to arise; a public controversy has arisen that is related to the plaintiff’s conduct; the plaintiff is recognized as a central figure to the controversy; the controversy existed prior to the defamatory statement; the plaintiff retained public-figure status at the time of the defamation; and the plaintiff is not simply making a reasonable public reply to a statement that is considered defamatory per se. This court finds that Wells is not an involuntary public figure. She has not been a central figure in the Watergate controversy, and is either not mentioned in media reports on Watergate or is portrayed as a minor figure in the controversy. Because Wells is a private, not public, figure, she is not required to prove actual malice to recover compensatory damages. The district court’s ruling is reversed, and the matter remanded.

Answer 66

## Footnote A person who does not voluntarily assume a prominent role in a public controversy, but who is nonetheless recognized as a central figure.

Answer 67

***Curtis Publishing Co. v. Butts*** United States Supreme Court 388 U.S. 130 (1967) **Rule of Law** A public figure who is not a public official may recover damages for a defamatory falsehood whose substance causes substantial danger to reputation by showing the defendant publisher acted with highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers. **Facts** This case involves the applicability of New York Times v. Sullivan, 376 U.S. 254 (1964), to two previously-decided cases involving public figures but not public officials. In Curtis Publishing Co. v. Butts, 351 F.2d 702 (5th Cir.1965), Wally Butts (plaintiff), a college football coach, was accused of conspiring to fix a major game by giving crucial information to the other team. The Saturday Evening Post, published by Curtis Publishing Co. (Curtis) contained a story about the incident saying that Butts was under investigation and “would likely never” work in college football again. Butts sued Curtis for libel and a jury awarded him $60,000 in general damages and $3,000,000 in punitive damages. After New York Times was decided, Curtis requested a new trial, but it was denied on the grounds that New York Times did not apply because Butts was not a public officials, and that ample evidence existed in the record showing the article was published with reckless disregard for the truth. InAssociated Press v. Walker (1965), a reporter from the Associated Press (defendant) published an eyewitness account of a riot on a university campus over the enrollment of an African American student, James Meredith. The story said that James Walker (plaintiff) took command over the crowd and personally led their uprising against the federal marshals who were dispatched to enforce the court-ordered enrollment of Meredith. Walker, a decorated military veteran, said he merely “counseled restraint” to the students and had not taken part in challenging the federal marshals. Walker sued the Associated Press for libel, and was awarded $500,000 in compensatory and $300,000 in punitive damages. The decision was affirmed on appeal. The United States Supreme Court granted certiorari over both cases. **Issue** Whether public figures must prove the existence of actual malice to recover damages for defamation. **Holding and Reasoning (Harlan, J.)** No. Butts showed Curtis acted with highly unreasonable conduct constituting and extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers. Walker, however, has not presented evidence of this conduct by the Associated Press. Thus, Butts may recover damages, while Walker may not. A public figure who is not a public official may recover damages for a defamatory falsehood whose substance causes substantial danger to reputation by showing the defendant publisher acted with highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers. This is a demanding standard, but requires a lesser showing than “actual malice” as is required for public officials. A public figure is defined as a person who commands a substantial amount of continuing public interest and who has sufficient access to the means of counterargument to be able to “expose through discussion the falsehood and fallacies” of the defamatory statements. However, public figures do not have the same platforms for speech as public officials. The difference in standards between public officials and public figures relates to the types of remedies against defamation which are available to each. Public officials have extensive access to public platforms and can thus generally rebut false accusations and defend government of official conduct. Public figures, however, are known and recognized by the public, but do not enjoy the same positions in government which would permit recovery by them to be viewed as a vindication of government policy. Additionally, public figures generally do not enjoy a special privilege for their communications, and thus may be accountable for libel themselves if they speak out in their defense. Some additional protection against defamation is needed for public officials. This exists in lowering slightly the burden of proof for these individuals in showing the existence of a damaging defamatory falsehood made against them. Based on the record and evidence submitted at trial, Butts met this standard, while Walker did not. Thus, the lower court’s award of damages to Butts is affirmed, and the award to Walker is reversed and remanded. **Concurrence (Warren, C.J.)** There is no basis in law, logic, or First Amendment policy that justifies such different treatment of public officials and public figures for purposes of defamation claims. The merging of economic and political interests in society suggests that even though public figures may not enjoy elected offices, they can still and often do play an influential role in ordering society. Additionally, public figures tend to have access to mass media to distribute their opinions in a similar manner as public officials. There is no reason the standard in New York Times should not also apply to public figures. **Concurrence/Dissent (Black, J.)** Walker was correctly reversed and Butts was incorrectly affirmed. Both plaintiffs should have been denied recovery. The New York Times standard should be abandoned entirely as an unconstitutional restriction on the First Amendment right of freedom of press.

Answer 68

Curtis Publishing Co. v. Butts United States Supreme Court 388 U.S. 130 (1967) **Rule of Law** A public figure who is not a public official may recover damages for a defamatory falsehood whose substance causes substantial danger to reputation by showing the defendant publisher acted with highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers. **Facts** This case involves the applicability of New York Times v. Sullivan, 376 U.S. 254 (1964), to two previously-decided cases involving public figures but not public officials. In Curtis Publishing Co. v. Butts, 351 F.2d 702 (5th Cir.1965), Wally Butts (plaintiff), a college football coach, was accused of conspiring to fix a major game by giving crucial information to the other team. The Saturday Evening Post, published by Curtis Publishing Co. (Curtis) contained a story about the incident saying that Butts was under investigation and “would likely never” work in college football again. Butts sued Curtis for libel and a jury awarded him $60,000 in general damages and $3,000,000 in punitive damages. After New York Times was decided, Curtis requested a new trial, but it was denied on the grounds that New York Times did not apply because Butts was not a public officials, and that ample evidence existed in the record showing the article was published with reckless disregard for the truth. InAssociated Press v. Walker (1965), a reporter from the Associated Press (defendant) published an eyewitness account of a riot on a university campus over the enrollment of an African American student, James Meredith. The story said that James Walker (plaintiff) took command over the crowd and personally led their uprising against the federal marshals who were dispatched to enforce the court-ordered enrollment of Meredith. Walker, a decorated military veteran, said he merely “counseled restraint” to the students and had not taken part in challenging the federal marshals. Walker sued the Associated Press for libel, and was awarded $500,000 in compensatory and $300,000 in punitive damages. The decision was affirmed on appeal. The United States Supreme Court granted certiorari over both cases. **Issue** Whether public figures must prove the existence of actual malice to recover damages for defamation. **Holding and Reasoning (Harlan, J.)** No. Butts showed Curtis acted with highly unreasonable conduct constituting and extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers. Walker, however, has not presented evidence of this conduct by the Associated Press. Thus, Butts may recover damages, while Walker may not. A public figure who is not a public official may recover damages for a defamatory falsehood whose substance causes substantial danger to reputation by showing the defendant publisher acted with highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers. This is a demanding standard, but requires a lesser showing than “actual malice” as is required for public officials. A public figure is defined as a person who commands a substantial amount of continuing public interest and who has sufficient access to the means of counterargument to be able to “expose through discussion the falsehood and fallacies” of the defamatory statements. However, public figures do not have the same platforms for speech as public officials. The difference in standards between public officials and public figures relates to the types of remedies against defamation which are available to each. Public officials have extensive access to public platforms and can thus generally rebut false accusations and defend government of official conduct. Public figures, however, are known and recognized by the public, but do not enjoy the same positions in government which would permit recovery by them to be viewed as a vindication of government policy. Additionally, public figures generally do not enjoy a special privilege for their communications, and thus may be accountable for libel themselves if they speak out in their defense. Some additional protection against defamation is needed for public officials. This exists in lowering slightly the burden of proof for these individuals in showing the existence of a damaging defamatory falsehood made against them. Based on the record and evidence submitted at trial, Butts met this standard, while Walker did not. Thus, the lower court’s award of damages to Butts is affirmed, and the award to Walker is reversed and remanded. **Concurrence (Warren, C.J.)** There is no basis in law, logic, or First Amendment policy that justifies such different treatment of public officials and public figures for purposes of defamation claims. The merging of economic and political interests in society suggests that even though public figures may not enjoy elected offices, they can still and often do play an influential role in ordering society. Additionally, public figures tend to have access to mass media to distribute their opinions in a similar manner as public officials. There is no reason the standard in New York Times should not also apply to public figures. **Concurrence/Dissent (Black, J.)** Walker was correctly reversed and Butts was incorrectly affirmed. Both plaintiffs should have been denied recovery. The New York Times standard should be abandoned entirely as an unconstitutional restriction on the First Amendment right of freedom of press.

Answer 69

***New York Times Co. v. Sullivan*** United States Supreme Court 376 U.S. 254 (1964) **Rule of Law** If a plaintiff is a public official or is running for public office, he or she can recover damages for defamation only by proving with clear and convincing evidence the falsity of the defamatory statements and the presence of actual malice in the speaker. **Facts** Sullivan (plaintiff) was Commissioner of the Police Department, Fire Department, Department of the Cemetery, and Department of Scales for Montgomery, Alabama. He brought a civil libel action against New York Times Co. (defendant) after it printed allegedly false and defamatory statements about Sullivan’s actions to control African American protesters and his treatment of Dr. Martin Luther King, Jr. The newspaper article in question accused Sullivan’s police force of conducting a wave of terror against African American students and brutally harassing Dr. King. It is undisputed that several of the allegations were either false or exaggerated. At trial, the trial judge charged the jury that the statements in the article were “libelous per se” and that damages were appropriate if the statements were merely “of and concerning” Sullivan. The jury returned a verdict for Sullivan and awarded him $500,000 in damages. The Alabama Supreme Court affirmed, and the United States Supreme Court granted certiorari. **Issue** Whether a state law for civil liability that disregards intention abridges the freedom of speech and press guaranteed by the First and Fourteenth Amendments when applied to an action brought by a public official against critics of his official conduct. **Holding and Reasoning (Brennan, J.)** Yes. The rule of law announced by the Alabama courts is constitutionally deficient because it fails to provide safeguards for the freedom of speech and freedom of press required by the First and Fourteenth Amendments. It is well established that there is a profound national commitment in America to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on the government and public officials. The treatment of African Americans in the Civil Rights movement qualified as one such issue worthy of open public debate. However, the question remains whether the otherwise constitutionally-protected article forfeited its protections because it contained false and allegedly defamatory statements. Historically, First Amendment protections do not turn on whether the speech sought to be protected is true, popular, or socially useful. Additionally, criticism of official conduct—an important aspect of open public debate—does not lose its constitutional protection just because it is defamatory. Since both false and defamatory speech relating to public officials is individually protected, the First Amendment also protects the combination of the two. This is historically demonstrated by Congress’s conclusion that the Sedition Act of 1798 was unconstitutional because it prohibited the ability of individuals to speak out against the government. Congress found that it was inadequate even to permit defendants accused of violating the Sedition Act to offer a defense of truth, as this required an impermissible level of self-censorship in violation of the First and Fourteenth Amendments. Thus, it would be inadequate to permit New York Times Co. to offer a defense of truth. The only proper way to guarantee that the protections of freedom of speech and of the press are not ignored in civil libel actions is to adopt 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. Actual malice occurs when the defendant knew that the statement was false or acted with reckless disregard of the truth. The evidence presented is constitutionally insufficient to support a judgment for Sullivan as there was no indication that actual malice existed. The decision of the Alabama Supreme Court is reversed.

Answer 70

*Rosenblatt v. Baer* United States Supreme Court 383 U.S. 75 (1966) **Rule of Law** Pursuant the United States Supreme Court’s decision in N.Y. Times v. Sullivan, 376 U.S. 254 (1964), a “public official” is an employee who has, or appears to the public to have, substantial responsibility for, or control over, the conduct of governmental affairs. **Facts** Baer (plaintiff), a governmental supervisor of a county recreation area primarily used as a ski resort, filed suit against Rosenblatt (defendant), a columnist in theLaconia Evening Citizen, claiming that Rosenblatt made defamatory statements against him pertaining to the fiscal management of the resort. After a trial, Rosenblatt was found liable and the court awarded damages to Baer. While Rosenblatt’s appeal to the New Hampshire Supreme Court was pending, the United States Supreme Court decided N.Y. Times v. Sullivan, 376 U.S. 254 (1964), in which the Court held that a qualified privilege shields a speaker from liability for an allegedly defamatory statement relating to the official conduct of a public official, unless it was shown by the public official that the speaker’s statement was made with actual malice, namely that the statement was made with knowledge that it was false or with reckless disregard of whether it was false or not. The New Hampshire Supreme Court affirmed the judgment of the trial court. The United States Supreme Court granted certiorari to determine whether Baer was a public official pursuant to the holding in Sullivan. **Issue** Pursuant the United States Supreme Court’s decision in N.Y. Times v. Sullivan, 376 U.S. 254 (1964), is a “public official” an employee who has, or appears to the public to have, substantial responsibility for, or control over, the conduct of governmental affairs? **Holding and Reasoning (Brennan, J.)** Yes. Pursuant the United States Supreme Court’s decision in N.Y. Times v. Sullivan, 376 U.S. 254 (1964), a “public official” is an employee who has, or appears to the public to have, substantial responsibility for, or control over, the conduct of governmental affairs. The designation of whether someone is a “public official” is vital for a court to determine whether a qualified privilege may be rebutted by a showing that the speaker’s defamatory statements regarding the public official were made with actual malice. The Court inSullivan chose not to wade into deep waters to examine who is and who is not a “public official” for purposes of the privilege. Nevertheless, the Court did note that it is especially important that debate on public issues should be uninhibited, robust, and wide-open, and that, often, such debate may include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. Id. at 270. Thus, where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the individual who holds the position,Sullivan’s “public official” designation applies to that person. Here, Baer’s trial was not directly shaped by the Court’s decision in Sullivan. However, Baer did state that his role as supervisor was so prominent and important that the public regarded him as the individual responsible for the recreation area’s operations. Thus, there is a substantial argument that Baer was a “public official.” But the record leaves open the possibility that Baer could have provided proof to bring his claim outside the Sullivan rule. Even if the claim falls within Sullivan, the record suggests Baer may be able to present a jury question regarding whether the statements were made with malice. The judgment is reversed and the matter is remanded to the New Hampshire Supreme Court for further proceedings consistent with the opinion.

Answer 71

***Rosenblatt v. Baer*** United States Supreme Court 383 U.S. 75 (1966) **Rule of Law** Pursuant the United States Supreme Court’s decision in N.Y. Times v. Sullivan, 376 U.S. 254 (1964), a “public official” is an employee who has, or appears to the public to have, substantial responsibility for, or control over, the conduct of governmental affairs. **Facts** Baer (plaintiff), a governmental supervisor of a county recreation area primarily used as a ski resort, filed suit against Rosenblatt (defendant), a columnist in theLaconia Evening Citizen, claiming that Rosenblatt made defamatory statements against him pertaining to the fiscal management of the resort. After a trial, Rosenblatt was found liable and the court awarded damages to Baer. While Rosenblatt’s appeal to the New Hampshire Supreme Court was pending, the United States Supreme Court decided N.Y. Times v. Sullivan, 376 U.S. 254 (1964), in which the Court held that a qualified privilege shields a speaker from liability for an allegedly defamatory statement relating to the official conduct of a public official, unless it was shown by the public official that the speaker’s statement was made with actual malice, namely that the statement was made with knowledge that it was false or with reckless disregard of whether it was false or not. The New Hampshire Supreme Court affirmed the judgment of the trial court. The United States Supreme Court granted certiorari to determine whether Baer was a public official pursuant to the holding in Sullivan. **Issue** Pursuant the United States Supreme Court’s decision in N.Y. Times v. Sullivan, 376 U.S. 254 (1964), is a “public official” an employee who has, or appears to the public to have, substantial responsibility for, or control over, the conduct of governmental affairs? **Holding and Reasoning (Brennan, J.)** Yes. Pursuant the United States Supreme Court’s decision in N.Y. Times v. Sullivan, 376 U.S. 254 (1964), a “public official” is an employee who has, or appears to the public to have, substantial responsibility for, or control over, the conduct of governmental affairs. The designation of whether someone is a “public official” is vital for a court to determine whether a qualified privilege may be rebutted by a showing that the speaker’s defamatory statements regarding the public official were made with actual malice. The Court inSullivan chose not to wade into deep waters to examine who is and who is not a “public official” for purposes of the privilege. Nevertheless, the Court did note that it is especially important that debate on public issues should be uninhibited, robust, and wide-open, and that, often, such debate may include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. Id. at 270. Thus, where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the individual who holds the position,Sullivan’s “public official” designation applies to that person. Here, Baer’s trial was not directly shaped by the Court’s decision in Sullivan. However, Baer did state that his role as supervisor was so prominent and important that the public regarded him as the individual responsible for the recreation area’s operations. Thus, there is a substantial argument that Baer was a “public official.” But the record leaves open the possibility that Baer could have provided proof to bring his claim outside the Sullivan rule. Even if the claim falls within Sullivan, the record suggests Baer may be able to present a jury question regarding whether the statements were made with malice. The judgment is reversed and the matter is remanded to the New Hampshire Supreme Court for further proceedings consistent with the opinion.

Answer 72

***Gertz v. Welch*** United States Supreme Court 418 U.S. 323 (1974) **Rule of Law** Private individuals do not need to provide clear and convincing evidence of falsity or a reckless disregard for the truth when seeking actual damages for libel suits, but such evidence is necessary to recover punitive or presumed damages. **Facts** Nuccio, a Chicago policeman, shot and killed a youth named Nelson. Nuccio was convicted for second degree murder. The Nelson family retained Elmer Gertz (plaintiff), an attorney, to represent them in a civil action against Nuccio. Welch (defendant) was a publisher of American Opinion, a magazine that warned of a nationwide conspiracy to discredit local law enforcement agencies and replace them with a national police force capable of supporting a Communist dictatorship. The magazine ran a story about the Nuccio trial that accused Gertz of being a Communist and participating in the Communist campaign against local police. The magazine article contained serious factual inaccuracies. Gertz filed suit against Welch in federal district court seeking damages for libel. The district court awarded Gertz $50,000 in damages. The court of appeals affirmed but found that Gertz may have needed to prove actual malice to recover under New York Times v. Sullivan, 376 U.S. 254 (1964). The United States Supreme Court granted certiorari. **Issue** Whether individuals who are neither public officials nor public figures need to provide clear and convincing evidence of falsity or a reckless disregard for the truth when seeking actual damages for libel suits. **Holding and Reasoning (Powell, J.)** No. While false ideas are still protected by the First Amendment, there is no interest in protecting false statements of fact. However, imposing a system of strict liability for false or erroneous statements of fact could result in an impermissible self-censorship for publishers. Balanced against this interest in avoiding self-censorship for publishers is the state’s interest in protecting individuals’ rights to be free from harms inflicted by defamatory falsehoods. Historically, courts have been careful to balance the need for a vigorous and uninhibited press with the legitimate interest in redressing wrongful injury. This balance often results in a careful effort to assure ample protections for the freedoms of speech and press under the First Amendment, including a certain amount of protections for defamatory falsehoods. In New York Times, for example, public officials and public figures may only recover damages for defamatory falsehoods if they provide clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth. The reason for this standard in cases involving public officials and public figures is that those individuals have vast access to self-help measures to remedy the damage caused by defamatory falsehoods. These measures include access to effective channels of communication within the media whereby these individuals may contradict lies or correct errors and thus minimize adverse impacts on their reputations. In contrast, private individuals often lack this same access to channels of communication and are more vulnerable to damage to their reputations than public officials and public figures. Additionally, normative considerations justify treating public and private individuals differently. A public official who has sought a government office must accept the necessary consequences of involvement in public affairs and be open to the risk of closer public scrutiny. Similarly, public figures for all purposes or “limited-purpose” public figures have almost certainly thrust themselves into the public eye and thus invite attention and comment. In contrast, private individuals have not voluntarily exposed themselves to the public and increased risk of injury from defamatory falsehoods. For these reasons, states have a greater interest in protecting private individuals from defamatory falsehoods, and should be free to define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehoods that injure private individuals. However, this less demanding showing for recovery only applies to the actual injuries of private individuals. When seeking to recover presumed or punitive damages, private individuals must still provide clear and convincing proof of knowledge of falsity or reckless disregard for the truth. Gertz was not a public figure or public official. Gertz did not thrust himself into the forefront of a public issue, and did not engage the public’s attention in an attempt to influence its outcome. Thus, he was a private individual, and could recover actual damages upon a lesser showing. To the extent that the lower courts held otherwise, their decisions are reversed. **Dissent (Brennan, J.)** The majority’s holding does not provide adequate protection for the freedom of speech and press under the First Amendment. The proper balance between these freedoms and an individual’s interest in freedom from defamatory falsehoods is only properly weighed by applying the New York Timesstandard. Thus, even private individuals seeking to recover actual damages should be required to provide clear and convincing evidence of falsity or reckless disregard of the truth. **Dissent (White, J.)** For almost two hundred years, state courts and state legislatures have exclusively governed defamation laws and private individuals’ rights to recover for defamatory falsehoods. The law governing the defamation of private citizens remained untouched by the First Amendment because until recently, the Court has consistently held that libelous words constituted a class of speech wholly unprotected by the First Amendment, subject only to the exception carved out in New York Times. However, the majority’s decision imposes federal control over major aspects of libel law by declaring unconstitutional important aspects of the prevailing defamation law in all or most states. This is accomplished by requiring the plaintiff in all libel actions to prove the existence of actual damages. The majority should have adopted a standard of strict liability for defamatory statements made about private individuals, as this is the only way to provide adequate protection for plaintiffs.

Answer 73

***Gertz v. Welch*** United States Supreme Court 418 U.S. 323 (1974) **Rule of Law** Private individuals do not need to provide clear and convincing evidence of falsity or a reckless disregard for the truth when seeking actual damages for libel suits, but such evidence is necessary to recover punitive or presumed damages. **Facts** Nuccio, a Chicago policeman, shot and killed a youth named Nelson. Nuccio was convicted for second degree murder. The Nelson family retained Elmer Gertz (plaintiff), an attorney, to represent them in a civil action against Nuccio. Welch (defendant) was a publisher of American Opinion, a magazine that warned of a nationwide conspiracy to discredit local law enforcement agencies and replace them with a national police force capable of supporting a Communist dictatorship. The magazine ran a story about the Nuccio trial that accused Gertz of being a Communist and participating in the Communist campaign against local police. The magazine article contained serious factual inaccuracies. Gertz filed suit against Welch in federal district court seeking damages for libel. The district court awarded Gertz $50,000 in damages. The court of appeals affirmed but found that Gertz may have needed to prove actual malice to recover under New York Times v. Sullivan, 376 U.S. 254 (1964). The United States Supreme Court granted certiorari. **Issue** Whether individuals who are neither public officials nor public figures need to provide clear and convincing evidence of falsity or a reckless disregard for the truth when seeking actual damages for libel suits. **Holding and Reasoning (Powell, J.)** No. While false ideas are still protected by the First Amendment, there is no interest in protecting false statements of fact. However, imposing a system of strict liability for false or erroneous statements of fact could result in an impermissible self-censorship for publishers. Balanced against this interest in avoiding self-censorship for publishers is the state’s interest in protecting individuals’ rights to be free from harms inflicted by defamatory falsehoods. Historically, courts have been careful to balance the need for a vigorous and uninhibited press with the legitimate interest in redressing wrongful injury. This balance often results in a careful effort to assure ample protections for the freedoms of speech and press under the First Amendment, including a certain amount of protections for defamatory falsehoods. In New York Times, for example, public officials and public figures may only recover damages for defamatory falsehoods if they provide clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth. The reason for this standard in cases involving public officials and public figures is that those individuals have vast access to self-help measures to remedy the damage caused by defamatory falsehoods. These measures include access to effective channels of communication within the media whereby these individuals may contradict lies or correct errors and thus minimize adverse impacts on their reputations. In contrast, private individuals often lack this same access to channels of communication and are more vulnerable to damage to their reputations than public officials and public figures. Additionally, normative considerations justify treating public and private individuals differently. A public official who has sought a government office must accept the necessary consequences of involvement in public affairs and be open to the risk of closer public scrutiny. Similarly, public figures for all purposes or “limited-purpose” public figures have almost certainly thrust themselves into the public eye and thus invite attention and comment. In contrast, private individuals have not voluntarily exposed themselves to the public and increased risk of injury from defamatory falsehoods. For these reasons, states have a greater interest in protecting private individuals from defamatory falsehoods, and should be free to define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehoods that injure private individuals. However, this less demanding showing for recovery only applies to the actual injuries of private individuals. When seeking to recover presumed or punitive damages, private individuals must still provide clear and convincing proof of knowledge of falsity or reckless disregard for the truth. Gertz was not a public figure or public official. Gertz did not thrust himself into the forefront of a public issue, and did not engage the public’s attention in an attempt to influence its outcome. Thus, he was a private individual, and could recover actual damages upon a lesser showing. To the extent that the lower courts held otherwise, their decisions are reversed. **Dissent (Brennan, J.)** The majority’s holding does not provide adequate protection for the freedom of speech and press under the First Amendment. The proper balance between these freedoms and an individual’s interest in freedom from defamatory falsehoods is only properly weighed by applying the New York Timesstandard. Thus, even private individuals seeking to recover actual damages should be required to provide clear and convincing evidence of falsity or reckless disregard of the truth. **Dissent (White, J.)** For almost two hundred years, state courts and state legislatures have exclusively governed defamation laws and private individuals’ rights to recover for defamatory falsehoods. The law governing the defamation of private citizens remained untouched by the First Amendment because until recently, the Court has consistently held that libelous words constituted a class of speech wholly unprotected by the First Amendment, subject only to the exception carved out in New York Times. However, the majority’s decision imposes federal control over major aspects of libel law by declaring unconstitutional important aspects of the prevailing defamation law in all or most states. This is accomplished by requiring the plaintiff in all libel actions to prove the existence of actual damages. The majority should have adopted a standard of strict liability for defamatory statements made about private individuals, as this is the only way to provide adequate protection for plaintiffs.

Answer 74

***Gertz v. Welch*** United States Supreme Court 418 U.S. 323 (1974) **Rule of Law** Private individuals do not need to provide clear and convincing evidence of falsity or a reckless disregard for the truth when seeking actual damages for libel suits, but such evidence is necessary to recover punitive or presumed damages. **Facts** Nuccio, a Chicago policeman, shot and killed a youth named Nelson. Nuccio was convicted for second degree murder. The Nelson family retained Elmer Gertz (plaintiff), an attorney, to represent them in a civil action against Nuccio. Welch (defendant) was a publisher of American Opinion, a magazine that warned of a nationwide conspiracy to discredit local law enforcement agencies and replace them with a national police force capable of supporting a Communist dictatorship. The magazine ran a story about the Nuccio trial that accused Gertz of being a Communist and participating in the Communist campaign against local police. The magazine article contained serious factual inaccuracies. Gertz filed suit against Welch in federal district court seeking damages for libel. The district court awarded Gertz $50,000 in damages. The court of appeals affirmed but found that Gertz may have needed to prove actual malice to recover under New York Times v. Sullivan, 376 U.S. 254 (1964). The United States Supreme Court granted certiorari. **Issue** Whether individuals who are neither public officials nor public figures need to provide clear and convincing evidence of falsity or a reckless disregard for the truth when seeking actual damages for libel suits. **Holding and Reasoning (Powell, J.)** No. While false ideas are still protected by the First Amendment, there is no interest in protecting false statements of fact. However, imposing a system of strict liability for false or erroneous statements of fact could result in an impermissible self-censorship for publishers. Balanced against this interest in avoiding self-censorship for publishers is the state’s interest in protecting individuals’ rights to be free from harms inflicted by defamatory falsehoods. Historically, courts have been careful to balance the need for a vigorous and uninhibited press with the legitimate interest in redressing wrongful injury. This balance often results in a careful effort to assure ample protections for the freedoms of speech and press under the First Amendment, including a certain amount of protections for defamatory falsehoods. In New York Times, for example, public officials and public figures may only recover damages for defamatory falsehoods if they provide clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth. The reason for this standard in cases involving public officials and public figures is that those individuals have vast access to self-help measures to remedy the damage caused by defamatory falsehoods. These measures include access to effective channels of communication within the media whereby these individuals may contradict lies or correct errors and thus minimize adverse impacts on their reputations. In contrast, private individuals often lack this same access to channels of communication and are more vulnerable to damage to their reputations than public officials and public figures. Additionally, normative considerations justify treating public and private individuals differently. A public official who has sought a government office must accept the necessary consequences of involvement in public affairs and be open to the risk of closer public scrutiny. Similarly, public figures for all purposes or “limited-purpose” public figures have almost certainly thrust themselves into the public eye and thus invite attention and comment. In contrast, private individuals have not voluntarily exposed themselves to the public and increased risk of injury from defamatory falsehoods. For these reasons, states have a greater interest in protecting private individuals from defamatory falsehoods, and should be free to define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehoods that injure private individuals. However, this less demanding showing for recovery only applies to the actual injuries of private individuals. When seeking to recover presumed or punitive damages, private individuals must still provide clear and convincing proof of knowledge of falsity or reckless disregard for the truth. Gertz was not a public figure or public official. Gertz did not thrust himself into the forefront of a public issue, and did not engage the public’s attention in an attempt to influence its outcome. Thus, he was a private individual, and could recover actual damages upon a lesser showing. To the extent that the lower courts held otherwise, their decisions are reversed. **Dissent (Brennan, J.)** The majority’s holding does not provide adequate protection for the freedom of speech and press under the First Amendment. The proper balance between these freedoms and an individual’s interest in freedom from defamatory falsehoods is only properly weighed by applying the New York Timesstandard. Thus, even private individuals seeking to recover actual damages should be required to provide clear and convincing evidence of falsity or reckless disregard of the truth. **Dissent (White, J.)** For almost two hundred years, state courts and state legislatures have exclusively governed defamation laws and private individuals’ rights to recover for defamatory falsehoods. The law governing the defamation of private citizens remained untouched by the First Amendment because until recently, the Court has consistently held that libelous words constituted a class of speech wholly unprotected by the First Amendment, subject only to the exception carved out in New York Times. However, the majority’s decision imposes federal control over major aspects of libel law by declaring unconstitutional important aspects of the prevailing defamation law in all or most states. This is accomplished by requiring the plaintiff in all libel actions to prove the existence of actual damages. The majority should have adopted a standard of strict liability for defamatory statements made about private individuals, as this is the only way to provide adequate protection for plaintiffs.

Answer 75

## Footnote The Court also required that this actual malice standard be proven by **“convincing clarity,”** which has been interpreted as requiring the plaintiff to establish actual malice by the heightened burden of proof of **“clear and convincing evidence.”**

Answer 76

## Footnote Although providing significant First Amendment protection to the defendants, the majority did not provide an **absolute privilege** to defame public officials. Instead, the Court in essence created a **qualified privilege**, a privilege that could be lost by clear and convincing evidence of actual malice.

Answer 77

***Rosenblatt v. Baer*** (1966) applied the *NY Times v. Sullivan* Malice Test to a defamation action brought by the Supervisor of the Belknap Country Recreation Area, a ski resort. The Belknap County Commissioners, an elected group, employed the supervisor. After the Supervisor was discharged, a local newspaper column could be read as attacking the former Supervisor. The Court rejected the idea that the definition of "Public Official" should be supplied by reference to state law: "the 'Public Official' designation applies at the very least to those amoung the heirarchy of government employees who have, or appear to the public to have, substantial responsibility for or conntrol over the conduct of government affairs... Where a position in government has such apperant importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all employees.... the New York Times malice standards apply. By way of footnote the Court rejected the suggestion that its test might apply to a night watchman accused of stealing state secrets. "The employee's position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart ffrom the scrutiny and discussion occasioned by the particular charges in the controversy." * Monitor Patriot Co. v. Roy* (1971) held that NY Times was also intended to apply to candidates for public office. * Garrison v. Louisiana* (1964) reversed a conviction for criminal libel of a man who had charged that certain state court judges were inefficient, took excessive vacations, opposed official investigations of vice, and were possibly subject to racketeer influences. "The New York Times rule is not rendered inapplicable because an official's private reputation, as well as his public reputation, is harmed. The public official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an officials fitness for office is relevant." In *Monitor Patriot Co. v. Roy* supra, the court added: "The principal activity of a candidate of our political system, his 'office', so to speak, consists in putting before the voters every conceivable aspect of his public and private life that he thinks may lead the electorate to gain a good impression of him."

Answer 78

***Rosenblatt v. Baer (1966)*** applied the NY Times v. Sullivan Malice Test to a defamation action brought by the Supervisor of the Belknap Country Recreation Area, a ski resort. The Belknap County Commissioners, an elected group, employed the supervisor. After the Supervisor was discharged, a local newspaper column could be read as attacking the former Supervisor. The Court rejected the idea that the definition of "Public Official" should be supplied by reference to state law: "the 'Public Official' designation applies at the very least to those amoung the heirarchy of government employees who have, or appear to the public to have, substantial responsibility for or conntrol over the conduct of government affairs... Where a position in government has such apperant importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all employees.... the New York Times malice standards apply. By way of footnote the Court rejected the suggestion that its test might apply to a night watchman accused of stealing state secrets. "The employee's position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart ffrom the scrutiny and discussion occasioned by the particular charges in the controversy." Monitor Patriot Co. v. Roy (1971) held that NY Times was also intended to apply to candidates for public office. Garrison v. Louisiana (1964) reversed a conviction for criminal libel of a man who had charged that certain state court judges were inefficient, took excessive vacations, opposed official investigations of vice, and were possibly subject to racketeer influences. "The New York Times rule is not rendered inapplicable because an official's private reputation, as well as his public reputation, is harmed. The public official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an officials fitness for office is relevant." In Monitor Patriot Co. v. Roy supra, the court added: "The principal activity of a candidate of our political system, his 'office', so to speak, consists in putting before the voters every conceivable aspect of his public and private life that he thinks may lead the electorate to gain a good impression of him."

Answer 79

Monitor Patriot Co. v. Roy (1971)

Answer 80

established that NY Times malice was also intended to apply to candidates for public office.

Answer 81

***Garrison v. Louisiana (1964)*** reversed a conviction for criminal libel of a man who had charged that certain state court judges were inefficient, took excessive vacations, opposed official investigations of vice, and were possibly subject to racketeer influences. "The New York Times rule is not rendered inapplicable because an official's private reputation, as well as his public reputation, is harmed. The public official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an officials fitness for office is relevant." In Monitor Patriot Co. v. Roy supra, the court added: "The principal activity of a candidate of our political system, his 'office', so to speak, consists in putting before the voters every conceivable aspect of his public and private life that he thinks may lead the electorate to gain a good impression of him."

Answer 82

## Footnote This case established that the New York Times rule is not rendered inapplicable because an official's private reputation, as well as his public reputation, is harmed. reversed a conviction for criminal libel of a man who had charged that certain state court judges were inefficient, took excessive vacations, opposed official investigations of vice, and were possibly subject to racketeer influences. "The New York Times rule is not rendered inapplicable because an official's private reputation, as well as his public reputation, is harmed. The public official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an officials fitness for office is relevant." In Monitor Patriot Co. v. Roy supra, the court added: "The principal activity of a candidate of our political system, his 'office', so to speak, consists in putting before the voters every conceivable aspect of his public and private life that he thinks may lead the electorate to gain a good impression of him."

Answer 83

## Footnote extended New York times to apply to public figures. Butts, at the time of the alleged defamation, was the athletic director at the University of Georgia. In a companion case, *Associated Press v. Walker*, the court applied New York Times to Walker, a private citizen accused of leading a violent crowd against federal marshals enforcing a court's desegregation decree. He was a former Army general and "a man of some political prominence." Chief Justice Warren's concurrence explain that public figures are those "who do not hold public office at the moment but our nevertheless intimately involved in the resolution of important public questions or, By reason of their fame, shape events in areas of concern to society at large."

Answer 84

## Footnote *Associated Press v. Walker*

Answer 85

***Herbert v. Lando, (1979)*** The media defendants in a libel action urged the Court "to hold for the first time that when a member of the press is alleged to have circulated damaging falsehoods and is sued for injury to the plaintiff's reputation, the plaintiff is barred from inquiring into the editorial processes of those responsible for the publication, even though the inquiry would produce evidence material to the proof of a critical element of his cause of action." The Court refused because "New York Times and it's progeny made it essential to proving a liability that the plaintiff focus on the conduct and state of mind of the defendant." Therefore, "the thoughts and editorial processes of the alleged defamer" are open to examination.

Answer 86

## Footnote Colonel Anthony Herbert sued the CBS News program ‘‘60 Minutes,’’ producer Barry Lando, and reporter Mike Wallace for libel in a 1973 broadcast. Herbert alleged that the broadcast depicted him as having made false charges of war crimes during the Vietnam War and false claims that he was removed from his command as retaliation. Prior to trial, Herbert’s lawyers asked Lando questions about internal editorial decisions. Lando’s lawyers argued that thought processes and editorial judgments of the news magazine were protected by the First Amendment guarantees of freedom of speech and freedom of the press. A federal district court ruled that Lando should respond, but a federal appeals court ruled that Lando had a privilege not to answer questions about internal deliberations. The U.S. Supreme Court ruled, six to three, that journalists have no privilege in libel cases to refuse to answer questions about editorial decisions. Justice Byron White said the earlier case, New York Times v. Sullivan (1964), and subsequent rulings required that to recover damages, public figures must prove that a news organization had actual, subjective doubts about a story. The subjective proof, the Court said, was part of showing that a news organization acted with actual malice, which means reckless disregard for the truth or falsity of a report. Examination of editorial judgments was necessary, the Court said, in order to find out whether editors and reporters had doubts about a story. Lando and CBS eventually prevailed when the case returned to the lower courts.

Answer 87

***Keeten v. Hustler Magazine Inc.*** Supreme Court of the United States 465 U.S. 770 (1984) **Rule of Law** Personal jurisdiction is proper over a nonresident magazine in any state where that corporation has sold and distributed a substantial number of copies. **Facts** Kathy Keeton (plaintiff), a resident of New York, sued Hustler Magazine, Inc. (Hustler) and others (defendants) for libel in the United States District Court for the District of New Hampshire under its diversity jurisdiction. Keeton claims that Hustler committed libel against her in five issues of its magazine published between 1975 and 1976. Keeton has no contacts with the state of New Hampshire other than through a magazine she helps produce. Hustler is a corporation organized under the laws of Ohio, and its principal place of business is in California. Hustler sells between 10,000 and 15,000 copies of its magazine in New Hampshire per month. The district court dismissed the complaint for lack of personal jurisdiction. The court of appeals affirmed on the ground that Keeton lacked sufficient contacts with New Hampshire to justify the state’s personal jurisdiction over Hustler. Further, the court of appeals placed significant weight on the fact that New Hampshire’s six-year statute of limitations for libel made it the only state in which Keeton’s suit could still be brought and that the “single publication rule” meant that, if successful, Keeton would be able to recover for damages suffered in all fifty states. For these reasons, the court of appeals considered personal jurisdiction over Hustler unfair. Keeton petitioned the United States Supreme Court for certiorari, which was granted. **Issue** Is personal jurisdiction proper in a libel action against a magazine in a state where its only contacts are magazine sales? **Holding and Reasoning (Rehnquist, J.)** Yes. Due process forbids the assertion of personal jurisdiction over a nonresident corporation unless the corporation has sufficient minimum contacts with the state. Hustler’s “regular circulation” of its magazines within the state of New Hampshire constitutes sufficient contacts to justify the assertion of personal jurisdiction over it for a libel claim related to statements made in the magazine. Hustler purposefully sought to do business in the state of New Hampshire and regularly sells thousands of magazines per month there. Further, New Hampshire has an interest in adjudicating harm that occurs inside its borders. This includes a case involving libel committed in the state, even if committed against a nonresident. The court of appeals’ concern with New Hampshire’s unusually long statute of limitations and the possibility of an unfair damage award was misplaced. Choice of law matters have no bearing on a forum’s right to assert personal jurisdiction over a party. In addition, a plaintiff’s contacts with a forum state have no relevance to whether personal jurisdiction exists over the defendant. It is Hustler’s contacts that are at issue, and while they might not be sufficient to justify general personal jurisdiction over unrelated claims, Hustler’s continued business justifies specific personal jurisdiction over claims related to that business. Moreover, the fact that a plaintiff resides outside the state will not destroy personal jurisdiction over the defendant. Even though Keeton’s damages would likely be greater in her home state, there is no prohibition on bringing libel actions elsewhere. Hustler purposefully availed itself of the privileges of doing business in New Hampshire, and should reasonably anticipated being haled into court for claims related to the magazine it sells there. National publications may properly be sued for their content anywhere “a substantial number of copies are regularly sold and distributed.” The ruling of the court of appeals is reversed, and the case is remanded. **Concurrence (Brennan, J.)**

Answer 88

***Keeton v. Hustler Magazine, Inc.*** Supreme Court of the United States 465 U.S. 770 (1984) **Rule of Law** Personal jurisdiction is proper over a nonresident magazine in any state where that corporation has sold and distributed a substantial number of copies. **Facts** Kathy Keeton (plaintiff), a resident of New York, sued Hustler Magazine, Inc. (Hustler) and others (defendants) for libel in the United States District Court for the District of New Hampshire under its diversity jurisdiction. Keeton claims that Hustler committed libel against her in five issues of its magazine published between 1975 and 1976. Keeton has no contacts with the state of New Hampshire other than through a magazine she helps produce. Hustler is a corporation organized under the laws of Ohio, and its principal place of business is in California. Hustler sells between 10,000 and 15,000 copies of its magazine in New Hampshire per month. The district court dismissed the complaint for lack of personal jurisdiction. The court of appeals affirmed on the ground that Keeton lacked sufficient contacts with New Hampshire to justify the state’s personal jurisdiction over Hustler. Further, the court of appeals placed significant weight on the fact that New Hampshire’s six-year statute of limitations for libel made it the only state in which Keeton’s suit could still be brought and that the “single publication rule” meant that, if successful, Keeton would be able to recover for damages suffered in all fifty states. For these reasons, the court of appeals considered personal jurisdiction over Hustler unfair. Keeton petitioned the United States Supreme Court for certiorari, which was granted. **Issue** Is personal jurisdiction proper in a libel action against a magazine in a state where its only contacts are magazine sales? **Holding and Reasoning (Rehnquist, J.)** Yes. Due process forbids the assertion of personal jurisdiction over a nonresident corporation unless the corporation has sufficient minimum contacts with the state. Hustler’s “regular circulation” of its magazines within the state of New Hampshire constitutes sufficient contacts to justify the assertion of personal jurisdiction over it for a libel claim related to statements made in the magazine. Hustler purposefully sought to do business in the state of New Hampshire and regularly sells thousands of magazines per month there. Further, New Hampshire has an interest in adjudicating harm that occurs inside its borders. This includes a case involving libel committed in the state, even if committed against a nonresident. The court of appeals’ concern with New Hampshire’s unusually long statute of limitations and the possibility of an unfair damage award was misplaced. Choice of law matters have no bearing on a forum’s right to assert personal jurisdiction over a party. In addition, a plaintiff’s contacts with a forum state have no relevance to whether personal jurisdiction exists over the defendant. It is Hustler’s contacts that are at issue, and while they might not be sufficient to justify general personal jurisdiction over unrelated claims, Hustler’s continued business justifies specific personal jurisdiction over claims related to that business. Moreover, the fact that a plaintiff resides outside the state will not destroy personal jurisdiction over the defendant. Even though Keeton’s damages would likely be greater in her home state, there is no prohibition on bringing libel actions elsewhere. Hustler purposefully availed itself of the privileges of doing business in New Hampshire, and should reasonably anticipated being haled into court for claims related to the magazine it sells there. National publications may properly be sued for their content anywhere “a substantial number of copies are regularly sold and distributed.” The ruling of the court of appeals is reversed, and the case is remanded. **Concurrence (Brennan, J.)**

Answer 89

***Keeton v. Hustler Magazine, Inc.*** Supreme Court of the United States 465 U.S. 770 (1984) **Rule of Law** Personal jurisdiction is proper over a nonresident magazine in any state where that corporation has sold and distributed a substantial number of copies. **Facts** Kathy Keeton (plaintiff), a resident of New York, sued Hustler Magazine, Inc. (Hustler) and others (defendants) for libel in the United States District Court for the District of New Hampshire under its diversity jurisdiction. Keeton claims that Hustler committed libel against her in five issues of its magazine published between 1975 and 1976. Keeton has no contacts with the state of New Hampshire other than through a magazine she helps produce. Hustler is a corporation organized under the laws of Ohio, and its principal place of business is in California. Hustler sells between 10,000 and 15,000 copies of its magazine in New Hampshire per month. The district court dismissed the complaint for lack of personal jurisdiction. The court of appeals affirmed on the ground that Keeton lacked sufficient contacts with New Hampshire to justify the state’s personal jurisdiction over Hustler. Further, the court of appeals placed significant weight on the fact that New Hampshire’s six-year statute of limitations for libel made it the only state in which Keeton’s suit could still be brought and that the “single publication rule” meant that, if successful, Keeton would be able to recover for damages suffered in all fifty states. For these reasons, the court of appeals considered personal jurisdiction over Hustler unfair. Keeton petitioned the United States Supreme Court for certiorari, which was granted. **Issue** Is personal jurisdiction proper in a libel action against a magazine in a state where its only contacts are magazine sales? **Holding and Reasoning (Rehnquist, J.)** Yes. Due process forbids the assertion of personal jurisdiction over a nonresident corporation unless the corporation has sufficient minimum contacts with the state. Hustler’s “regular circulation” of its magazines within the state of New Hampshire constitutes sufficient contacts to justify the assertion of personal jurisdiction over it for a libel claim related to statements made in the magazine. Hustler purposefully sought to do business in the state of New Hampshire and regularly sells thousands of magazines per month there. Further, New Hampshire has an interest in adjudicating harm that occurs inside its borders. This includes a case involving libel committed in the state, even if committed against a nonresident. The court of appeals’ concern with New Hampshire’s unusually long statute of limitations and the possibility of an unfair damage award was misplaced. Choice of law matters have no bearing on a forum’s right to assert personal jurisdiction over a party. In addition, a plaintiff’s contacts with a forum state have no relevance to whether personal jurisdiction exists over the defendant. It is Hustler’s contacts that are at issue, and while they might not be sufficient to justify general personal jurisdiction over unrelated claims, Hustler’s continued business justifies specific personal jurisdiction over claims related to that business. Moreover, the fact that a plaintiff resides outside the state will not destroy personal jurisdiction over the defendant. Even though Keeton’s damages would likely be greater in her home state, there is no prohibition on bringing libel actions elsewhere. Hustler purposefully availed itself of the privileges of doing business in New Hampshire, and should reasonably anticipated being haled into court for claims related to the magazine it sells there. National publications may properly be sued for their content anywhere “a substantial number of copies are regularly sold and distributed.” The ruling of the court of appeals is reversed, and the case is remanded. **Concurrence (Brennan, J.)**

Answer 90

***Bose Corporation v. Consumers Union of United States, Inc.*** United States Supreme Court 466 U.S. 485 (1984) **Rule of Law** In cases in which there is a claim of denial of rights under the Federal Constitution, courts of appeals are not bound by the conclusions of lower courts, but will make an independent examination of the whole record in order to re-examine the evidentiary basis on which those conclusions are founded. **Facts** Consumers Union of United States, Inc. (Consumer Reports) (defendant) published an article that allegedly disparaged a sound system manufactured by Bose Corporation (Bose) (plaintiff). Bose brought a product disparagement suit against Consumer Reports. The United States District Court for the District of Massachusetts found that Bose was a “public figure” for disparagement purposes and held in favor of Bose, finding that Bose proved by clear and convincing evidence that Consumer Reports had made a false, disparaging statement about Bose with “actual malice.” The United States District Court for the District of Massachusetts based its conclusion primarily on the testimony of the author of the article. The United States Court of Appeals for the First Circuit performed a de novo review of the facts, rather than a review based on the clearly erroneous standard, and reversed, holding that Bose in fact had not proved by clear and convincing evidence that Consumer Reports published the statement in question with actual malice. Bose appealed. **Issue** Are findings of fact always reviewed on a clearly erroneous standard? **Holding and Reasoning (Stevens, J.)** No. Findings of fact are not always reviewed on a clearly erroneous standard. In cases in which there is a claim of denial of rights under the Federal Constitution, courts of appeals are not bound by the conclusions of lower courts, but will make an independent examination of the whole record in order to re-examine the evidentiary basis on which those conclusions are founded. Constitutional rights are of the utmost importance and de novo reviews are appropriate so that the rights are carefully and properly maintained. In this case, Consumer Reports’ First Amendment free speech rights are at issue. It is therefore proper that the United States Court of Appeals for the First Circuit conducted a de novo review of the record, rather than a review based on the clearly erroneous standard. The United States Court of Appeals for the First Circuit is affirmed. **Dissent (Rehnquist, J.)** The actual malice standard involves the state of mind of the writer or speaker and courts of appeals are not equipped to make such factual findings. Although the majority correctly states the law in regards to facts underlying constitutional claims, the state of mind of the writer of the Consumer Reports article is actually just a “pure question of fact.” The United States District Court for the District of Massachusetts made its determination on actual malice based on the writer’s testimony. Appellate courts are not in a position to make an assessment of testimony in a de novo review. Such questions of fact should be reviewed on the clearly erroneous standard.

Answer 91

**Scope of Review** Court held that, in a libel case, because of First Amendment concerns, the appellate court is not limited to the "clearly erroneous" standard in reviewing the trial judge's factual conclusions in order to determine whether a news organization acted with actual malice. The appellate court must perform an independent review. ***Bose Corporation v. Consumers Union of United States, Inc.*** United States Supreme Court 466 U.S. 485 (1984) **Rule of Law** In cases in which there is a claim of denial of rights under the Federal Constitution, courts of appeals are not bound by the conclusions of lower courts, but will make an independent examination of the whole record in order to re-examine the evidentiary basis on which those conclusions are founded. **Facts** Consumers Union of United States, Inc. (Consumer Reports) (defendant) published an article that allegedly disparaged a sound system manufactured by Bose Corporation (Bose) (plaintiff). Bose brought a product disparagement suit against Consumer Reports. The United States District Court for the District of Massachusetts found that Bose was a “public figure” for disparagement purposes and held in favor of Bose, finding that Bose proved by clear and convincing evidence that Consumer Reports had made a false, disparaging statement about Bose with “actual malice.” The United States District Court for the District of Massachusetts based its conclusion primarily on the testimony of the author of the article. The United States Court of Appeals for the First Circuit performed a de novo review of the facts, rather than a review based on the clearly erroneous standard, and reversed, holding that Bose in fact had not proved by clear and convincing evidence that Consumer Reports published the statement in question with actual malice. Bose appealed. **Issue** Are findings of fact always reviewed on a clearly erroneous standard? **Holding and Reasoning (Stevens, J.)** No. Findings of fact are not always reviewed on a clearly erroneous standard. In cases in which there is a claim of denial of rights under the Federal Constitution, courts of appeals are not bound by the conclusions of lower courts, but will make an independent examination of the whole record in order to re-examine the evidentiary basis on which those conclusions are founded. Constitutional rights are of the utmost importance and de novo reviews are appropriate so that the rights are carefully and properly maintained. In this case, Consumer Reports’ First Amendment free speech rights are at issue. It is therefore proper that the United States Court of Appeals for the First Circuit conducted a de novo review of the record, rather than a review based on the clearly erroneous standard. The United States Court of Appeals for the First Circuit is affirmed. **Dissent (Rehnquist, J.)** The actual malice standard involves the state of mind of the writer or speaker and courts of appeals are not equipped to make such factual findings. Although the majority correctly states the law in regards to facts underlying constitutional claims, the state of mind of the writer of the Consumer Reports article is actually just a “pure question of fact.” The United States District Court for the District of Massachusetts made its determination on actual malice based on the writer’s testimony. Appellate courts are not in a position to make an assessment of testimony in a de novo review. Such questions of fact should be reviewed on the clearly erroneous standard.

Answer 92

*Anderson v. Liberty Lobby (1986)* held that, in a New York Times libel action, a court, when a ruling on defendant's summary judgment motion, must determine whether the evidence presented could support a reasonable jury finding that plaintiff has demonstrated New York Times malice with "convincing clarity." Thus, the Court held that a District Court acted properly when it granted summary judgment to Jack Anderson and others who were sued because they published articles describing various respondents (including Willis Carto, The founder of Liberty Lobby Inc., A self-styled citizens lobby) as neo Nazi, anti-Semitic, racist. Anderson submitted an affidavit by the author of the two articles in question. The affidavit detailed the sources for the statements alleged to be libelous. The reporter said he believed and still believes the truth of the statements made.The respondents argued that several sources were patently unreliable and that the petitioners had failed to adequately verify their information. In a summary judgment motion, plaintiff must show more than a mere "scintilla" of evidence: "there must be evidence on which the jury could reasonably find for the plaintiff." The plaintiff must present affirmative evidence to support a jury verdict. "This is true even where The evidence is likely to be with in the possession of the defendant, as long as the plaintiff has held a full opportunity to conduct discovery." ***Anderson v. Liberty Lobby, Inc.*** United States Supreme Court 477 U.S. 242 (1986) **Rule of Law** A court should consider the evidentiary standard when deciding a motion for summary judgment. **Facts** Liberty Lobby, Inc. (Liberty Lobby) (plaintiff) filed a libel action against a magazine published by Anderson (defendant). The magazine published two articles that portrayed Liberty Lobby's founder as a neo-Nazi and racist. Anderson et al. put forth evidence tending to show that they made efforts to verify the information in the article. Liberty Lobby submitted evidence demonstrating that the articles were based on unreliable sources. Anderson moved for summary judgment, which was denied. The appellate court held that Liberty Lobby need not demonstrate with clear and convincing evidence that a jury could find Anderson acted with actual malice and was liable for libel. The appellate court granted Anderson’s summary judgment motion as to some of the claims and denied the motion as to others. **Issue** Should a court consider the evidentiary standard when deciding a motion for summary judgment? **Holding and Reasoning (White, J.)** Yes. A court should consider the evidentiary standard when deciding a motion for summary judgment. In deciding a motion for summary judgment the court concludes whether a reasonable juror could find for the non-moving party. Inherent in this determination is the evidentiary standard. That is, the court cannot decide whether a juror could reasonably find for the non-moving party without considering the evidentiary burden. Here, the lower court held that Liberty Lobby need not satisfy the clear and convincing evidence standard. The court should have considered Liberty Lobby’s burden of meeting the clear and convincing standard when deciding Anderson’s motion for summary judgment. The lower court’s judgment is vacated, and the case is remanded. **Dissent (Brennan, J.)** The majority’s opinion is flawed. First, the opinion fails to provide lower courts with meaningful guidance as to the manner in which to consider the evidentiary burden. Second, in attempting to consider the evidentiary standard, lower courts will be tempted to weigh the evidence in a manner that is inconsistent with a civil litigant’s right to a jury trial. That is, the judge will likely become the fact-finder as counsel will need to put forth evidence to support the requirements of the evidentiary standard. **Dissent (Rehnquist, J.)** The majority has failed to provide the information and guidance necessary to support the lower court’s ability to adequately dispose of summary judgment motions. Moreover, there is little need for requiring courts to consider the evidentiary standard, as the weight of the evidence is most often based on credibility, which is a topic that is well-known as inappropriate for summary judgment. The Court’s decision will only serve to confuse the issues.

Answer 93

***Harte-Hanks Communications, Inc. v. Connaughton*** United States Supreme Court 491 U.S. 657 (1989) **Rule of Law** In a defamation claim brought by a public official, if the defendant deliberately decides not to ascertain available information on the truthfulness of its statement, that is sufficient to constitute actual malice. **Facts** Daniel Connaughton (plaintiff) ran for Municipal Judge and lost out to incumbent James Dolan. About a month before the election, Dolan’s Director of Court Services was arrested on bribery charges, resulting in a grand jury investigation. During the grand jury investigation, the Journal News (defendant) published a story stating that Connaughton had tried to bribe a grand jury witness into cooperating with the prosecution. The article quoted the witness, Alice Thompson, as verifying the report. Prior to printing the story, the Journal News conducted taped interviews of both Thompson and Connaughton. In the Thompson interview, Thompson was at times hesitant, inaudible, and unresponsive. In the Connaughton interview, Connaughton denied any wrongdoing. In addition, Connaughton had conducted an interview with another grand jury witness, Patsy Stephens, who also denied that Connaughton had done anything wrong. Connaughton sent that interview to the Journal News, but the Journal News never listened to it. Connaughton brought suit against the Journal News for defamation. The district court ruled in favor of Connaughton. The court of appeals affirmed. The Journal News appealed. **Issue** In a defamation claim brought by a public official, if the defendant deliberately decides not to ascertain available information on the truthfulness of its statement, is that sufficient to constitute actual malice? **Holding and Reasoning (Stevens, J.)** Yes. To be considered defamation, a statement about a public official must be made with actual malice, or, knowledge that the statement was false or reckless disregard for whether it was true or false. Although failure by the speaker to investigate the truthfulness of the statement will not alone constitute actual malice, if the speaker deliberately decides not to ascertain available information on the truthfulness of the statement, that is sufficient to constitute actual malice. In the current case, the evidence shows that the Journal News ignored information it had and went out of its way not to obtain additional information about the truthfulness of Thompson’s allegations against Connaughton. The Journal News did not listen to the taped Stephens interview provided by Connaughton and did not seek to interview Stephens on its own. The Journal News also did not further question the truthfulness of Thompson’s allegations despite its interviews with Thompson and Connaughton which raised serious doubts about the allegations’ truthfulness. For the foregoing reasons, the court determines that the Journal News acted with actual malice in publishing Thompson’s allegations without further investigating their truthfulness. The Journal News is thus guilty of defamation and the court of appeals is affirmed.

Answer 94

Monitor Patriot Co. v. Roy

Answer 95

A defamatory statement is conditionally privileged if it is made in the discharge of some public or private legal or moral duty.

Answer 96

Qualified Privilege

Answer 97

Rosenblatt v. Baer, 383 U.S. 75 (1966) (supervisor of a county recreation area employed by and responsible to the county commissioners may be public official within Times rule);

Answer 98

***Gertz v. Robert Welch, Inc.,* 418 U.S. 323, 345 (1974)** Public figures “[f]or the most part [are] those who . . . have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.”

Answer 99

***Rosenbloom v. Metromedia, 403 U.S. 29 (1971).*** Rosenbloom had been prefigured by Time, Inc. v. Hill, 385 U.S. 374 (1967), a “false light” privacy case considered

Answer 100

Time, Inc. v. Firestone, 424 U.S. 448 (1976) Wolston v. Reader’s Digest Ass’n, 443 U.S. 157 (1979). Hutchinson v. Proxmire, 443 U.S. 111 (1979).

Answer 101

(1) occupy positions of such persuasive power and influence that they are deemed public figures for all purposes or (2) have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved, and are public figures with respect to comment on those issues.

Answer 102

serious doubts as to the truth of what is uttered

Answer 103

Hustler Magazine, Inc. v. Falwell (1988) ***Hustler Magazine v. Falwell*** United States Supreme Court 485 U.S. 46 (1988) **Rule of Law** Public officials and public figures may not recover damages for intentional infliction of emotional distress from a publication without showing that the publication was made with actual malice. **Facts** Hustler Magazine is a magazine of nationwide circulation. Jerry Falwell (plaintiff) was a nationally known minister who had been an active commentator on political and public affairs. Hustler printed a parody article that suggested Falwell and his mother were drunk and immoral. Falwell sued Hustler Magazine and its publisher, Larry Flynt (defendants) in federal district court to recover damages for invasion of privacy, libel, and intentional infliction of emotional distress. The district court held for Falwell only on the intentional infliction of emotional distress claim and awarded him $150,000 in damages. The court of appeals affirmed, and the United States Supreme Court granted certiorari. **Issue** Whether a public figure may recover damages for intentional infliction of emotional distress without showing actual malice. **Holding and Reasoning (Rehnquist, C.J.)** No. One of the rights of American citizenship is the right to criticize public men and measures. The result of this is that public officials and public figures may sometimes be subject to “vehement, caustic, and sometimes unpleasantly sharp attacks.” In terms of the tort of intentional infliction of emotional distress, many states permit civil liability when the conduct in question is sufficiently outrageous. However, in the world of debate about public figures, the First Amendment protects many things done with far worse motives. Thus, the First Amendment prohibits assigning liability for the tort of intentional infliction of emotional distress, without more, in matters relating to public officials and public figures. Holding otherwise would unnecessarily assign damages awards to political cartoonists and satirists for caricatures that inevitably play up negative features of their subjects. Falwell’s argument that the parody should nevertheless be punishable because it is sufficiently outrageous is rejected. It is nearly impossible to articulate a standard that separates outrageous caricatures from others in the field of public discourse. Falwell is properly described as a public figure. Thus, Falwell cannot recover damages for the tort of intentional infliction of emotion distress without showing that the publication was made with actual malice. The decision of the court of appeals is reversed.

Answer 104

the Court applied the *NY Times v. Sullivan* standard to recovery of damages by public officials and public figures for the tort of Intentional Infliction of Emotional Distress (IIED) ***Hustler Magazine v. Falwell*** United States Supreme Court 485 U.S. 46 (1988) **Rule of Law** Public officials and public figures may not recover damages for intentional infliction of emotional distress from a publication without showing that the publication was made with actual malice. **Facts** Hustler Magazine is a magazine of nationwide circulation. Jerry Falwell (plaintiff) was a nationally known minister who had been an active commentator on political and public affairs. Hustler printed a parody article that suggested Falwell and his mother were drunk and immoral. Falwell sued Hustler Magazine and its publisher, Larry Flynt (defendants) in federal district court to recover damages for invasion of privacy, libel, and intentional infliction of emotional distress. The district court held for Falwell only on the intentional infliction of emotional distress claim and awarded him $150,000 in damages. The court of appeals affirmed, and the United States Supreme Court granted certiorari. **Issue** Whether a public figure may recover damages for intentional infliction of emotional distress without showing actual malice. **Holding and Reasoning (Rehnquist, C.J.)** No. One of the rights of American citizenship is the right to criticize public men and measures. The result of this is that public officials and public figures may sometimes be subject to “vehement, caustic, and sometimes unpleasantly sharp attacks.” In terms of the tort of intentional infliction of emotional distress, many states permit civil liability when the conduct in question is sufficiently outrageous. However, in the world of debate about public figures, the First Amendment protects many things done with far worse motives. Thus, the First Amendment prohibits assigning liability for the tort of intentional infliction of emotional distress, without more, in matters relating to public officials and public figures. Holding otherwise would unnecessarily assign damages awards to political cartoonists and satirists for caricatures that inevitably play up negative features of their subjects. Falwell’s argument that the parody should nevertheless be punishable because it is sufficiently outrageous is rejected. It is nearly impossible to articulate a standard that separates outrageous caricatures from others in the field of public discourse. Falwell is properly described as a public figure. Thus, Falwell cannot recover damages for the tort of intentional infliction of emotion distress without showing that the publication was made with actual malice. The decision of the court of appeals is reversed.

Answer 105

## Footnote (1989) upheld, with no dissents, a $200,000 libel verdict ($5,000 compensatory and $195,000 punitive damages) in favor of an unsuccessful candidate for judge and against a local newspaper that supported the reelection of the incumbent. This case was the first in 22 years where the Supreme Court upheld a damage award against the news media in a case filed by a public figure. Respondent alleged that the newspaper published a defamatory, false story, with New York Times "malice." Stevens J., for the court ruled that "a public figure plaintiff must prove more than an extreme departure from professional standards and that a newspaper's motive in publishing a story - whether to promote an opponent's candidacy or to increase its circulation - cannot provide a sufficient basis for finding actual malice. "Reckless disregard" means that the defendant has a "high degree of awareness of probable falsity" or has "entertained serious doubts as to the truth of its publication." The Court examined that there was "clear and convincing proof" supporting the jury finding of "actual malice."

Answer 106

***Harte-Hanks Communications, Inc. v. Connaughton*** Ignoring obvious sources and reporting with a reckless disregard for the truth are sufficient evidence for actual malice in libel law. Sixth Circuit affirmed.

Answer 107

***McDonald v. Smith*** Holding "The Petition Clause does not provide absolute immunity to defendants charged with expressing libelous and damaging falsehoods in petitions to Government officials." In 1981, David Smith brought a libel suit against Robert McDonald claiming that the latter had included knowing and malicious lies about him in a letter to the President concerning Smith's possible appointment as a United States attorney. Smith claimed that these libelous claims damaged both his chances of appointment and his reputation and career. McDonald first had the case removed to federal court on the basis of diversity of citizenship. Then, since the alleged libel was contained in a letter (petition) to the President, he moved for judgment on the pleadings on the grounds that the Petition Clause of the First Amendment protected his right express his views without limitation as long as it was part of a constitutionally protected petition.

Answer 108

***McDonald v. Smith (1985)*** The Petition Clause. held that the petition clause of the First Amendment does not give a defendant in a libel action absolute immunity. The plaintiff had charged defendant with knowingly sending false and libelous letters to President Reagan and others in order to undermine the chances of plaintiff being appointed US attorney. The petition clause does not require state libel law to expand the qualified privilege already already afforded by New York Times v. Sullivan.

Answer 109

***Hustler magazine v. Falwell*** (1988). Hustler magazine published a parody of a Compari Liqueur advertisement, entitled, "Jerry Falwell talks about his first time." The parody resembled a Compari advertisement and included in an alleged interview with Jerry Falwell, a nationally known minister, host of a nationally syndicated television show, and commentator on public affairs. Neither party disputed that Jerry Falwell was a public figure. In the parody, Jerry Falwell stated that his "first time" was during a drunken incestuous meeting with his mother in an outhouse. The bottom of the page contains the disclaimer: "fiction; ad and personality parody." Jerry Falwell filed suit and, while that casewas pending, Hustler reprinted the parody. The jury awarded $100,000 in actual damages and $50,000 in punitive damages. The Court held that a public figure or public official may not recover for the tort of intentional infliction of emotional distress without showing that the publication at issue contains a "false statement of fact which was made with 'actual malice' i.e. With knowledge that the statement was false or with reckless disregard as to whether or not it was true." The jury found that the Hustler parody could not reasonably be understood as describing actual facts about the plaintiff or actual events in which he participated. "were we to hold otherwise, there can be a little doubt that political cartoonist and satirists would be subjected to damages awards without any showing that their work falsely defamed its subject." The Court conceded that political cartoons are to the politician about as welcome as a bee sting. For example, early cartoons portrayed George Washington as an ass. ***Snyder v. Phelps*** (2011) For the past 20 years, members of the Westborough Baptist Church picketed military funerals to communicate their belief that God hates the United States because it tolerates homosexuality, particularly in the military. Fred Phelps, who founded the church and six of its parishioners (two of his daughters and four his grandchildren) traveled to Maryland to picket the funeral of marine Lance Corporal Matthew Snyder, killed in Iraq in the line of duty. The picketing took place on public land approximately 1,000 feet from the church where the funeral was held. For about 30 minutes before the funeral began, the picketers peacefully displayed their signs stating, "God hates the USA. Thank God for 9/11," "America is doomed," "Don't pray for the USA," "Thank God for IEDs," "Thank God for dead soldiers," "Pope in hell," "Priest rape boys," "God hates fags," "You're going to hell," and "God hates you." The funeral procession passed within 200 to 300 feet of the picket site. Matthew Snyder (Snyder), The petitioner, saw the tops of the picketer's signs when driving to the funeral, but did not learn what they said until later that night when he watched a news broadcast. Snyder filed a diversity action against Phelps, his daughters who participated in the picketing and the church alleging state tort claims of Intentional Infliction of Emotional Distress (IIED), Intrusion Upon Seclusion, and Civil Conspiracy. Expert witnesses testified that Snyder's emotional anguish resulted in severe depression and exacerbated his pre-existing health conditions. A jury found for Snyder on the intentional infliction of emotional distress, intrusion upon seclusion, and held Westbero Church liable for $2.9 million in compensatory damages and $8 million in punitive damages. Roberts C.J. For the Court, held that "the first amendment prohibits holding Westboro liable for it speech in this case" because the speech is of "public concern," as "determined by all the circumstances of the case." In addition, the father was not a "captive audience" at the funeral; Westbero stayed well away from the memorial service; Snyder could see no more than the tops of the signs when driving to the funeral; and the picketing did not interfere with the funeral service itself. The Court added that Maryland, 43 other state, and the federal government now have a law imposing restrictions on funeral picketing. "To the extent these laws are content neutral they raise very different questions from the tort verdict at issue in this case." Maryland's law was not in effect at the time. And, "Maryland's law prohibits picketing within 100 feet of a funeral service or funeral procession: Westbero's picketing would have complied with that restriction." Alito J. Dissented. He argued there "is no reason why a public street in close proximity to the scene of a funeral should be regarded as a free fire zone in which otherwise actionable verbal attacks are shielded from liability." And "funerals are unique events at which special protection against emotional assaults is in order." Is there a constitutional way to ban such speech? The Court suggested that it's holding maybe narrow: "on the facts before us, we cannot react to that pain by punishing the speaker. As a nation we have chosen a different course - to protect even hurtful speech on public issues to ensure that we do not stifle public debate." The Court used the phrase, "in this case" four times. Is the Court's opinion too narrow?

Answer 110

***Masson v. New Yorker Magazine Inc.*** (1991). A public figure sued for libel, claiming that an author (in the course of writing a very unflattering portrait of him) used quotation marks, with knowledge of their inaccuracy, to attribute to him comments that he had not made. The Court, per Kennedy J ruled that the attributed quotations had the degrees of falsity required to prove a state of mind of deliberate or reckless falsification (that is, New York Times "malice"), so that the plaintiff could defeat a motion for summary judgment and go to trial on the merits. The Court considered six purported quotations, yet "in each instance no identical statement appears in more than 40 hours of taped interviews." Justice Kennedy said: "in general, quotation marks around the passage indicate to the reader that the passage reproduces the speaker's words verbatim." However, "quotations do not always convey that the speaker actually said or wrote the quoted material." An acknowledgement that "the work is so called docudrama or historical fiction, or that it recreates conversations from memory, not from recordings, might indicate that the quotations should not be interpreted as the actual statements of the speaker to whom they are attributed." However, the court rejected the Ninth Circuit's view that an altered quotation is protected "so long as it is a 'rational interpretation' of an actual statement..." The court also rejected plaintiff's argument that "any alteration beyond correctional grammar or syntax by itself proves falsity" for New York Times malice: If an author alters a speaker's words but effects no material change in meaning, including any meaning conveyed by the manner or fact of expression, the speaker suffers no injury to reputation that is compensable as a defamation. [A] deliberate alteration of the words uttered by 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 of the words 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. White J. Joined by Scalia, dissented to this section: "the court states that deliberate misquotation does not amount to New York Times malice unless it results in a material change in meaning conveyed by the statement. This ignores the fact that under *New York Times*, reporting a known falsehood - here the knowingly false attribution - is sufficient proof of malice. The falsehood, apparently, must be substantial; the reporter may lie a little, but not too much."

Answer 111

**Fabricated Quotations** A public figure sued for libel, claiming that an author (in the course of writing a very unflattering portrait of him) used quotation marks, with knowledge of their inaccuracy, to attribute to him comments that he had not made. The Court, per Kennedy J ruled that the attributed quotations had the degrees of falsity required to prove a state of mind of deliberate or reckless falsification (that is, New York Times "malice"), so that the plaintiff could defeat a motion for summary judgment and go to trial on the merits. The Court considered six purported quotations, yet "in each instance no identical statement appears in more than 40 hours of taped interviews." Justice Kennedy said: "in general, quotation marks around the passage indicate to the reader that the passage reproduces the speaker's words verbatim." However, "quotations do not always convey that the speaker actually said or wrote the quoted material." An acknowledgement that "the work is so called docudrama or historical fiction, or that it recreates conversations from memory, not from recordings, might indicate that the quotations should not be interpreted as the actual statements of the speaker to whom they are attributed." However, the court rejected the Ninth Circuit's view that an altered quotation is protected "so long as it is a 'rational interpretation' of an actual statement..." The court also rejected plaintiff's argument that "any alteration beyond correctional grammar or syntax by itself proves falsity" for New York Times malice: If an author alters a speaker's words but effects no material change in meaning, including any meaning conveyed by the manner or fact of expression, the speaker suffers no injury to reputation that is compensable as a defamation. [A] deliberate alteration of the words uttered by 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 of the words 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. White J. Joined by Scalia, dissented to this section: "the court states that deliberate misquotation does not amount to New York Times malice unless it results in a material change in meaning conveyed by the statement. This ignores the fact that under *New York Times*, reporting a known falsehood - here the knowingly false attribution - is sufficient proof of malice. The falsehood, apparently, must be substantial; the reporter may lie a little, but not too much."

Answer 112

(1976) held that Mrs. Mary Alice Firestone was not a public figure, so *Gertz* set out the constitutional limitations in her libel suit against Time Magazine for incorrectly reporting the trial of her divorce from Russell Firestone, "the scion of one of America's wealthier industrial families." However, Justice Marshall's dissent pointed out that Mrs. Firestone was prominent in Palm Beach society, and her "appearances in the press were evidently frequent enough to warrant her subscribing to a press clipping service." When she brought her suit she had "reason to know of the likely public interest in the proceedings." In fact, Mrs. Firestone held several press conferences in the course of the proceedings. Nonetheless, the Court, speaking through Rhenquist, held that she was not a public figure. She "did not assume any role of especial prominence in the affairs of society, other than perhaps Palm Beach society, and she did not thrust herself to the forefront of any particular controversy in order to influence the resolution of the issues involved in it." Her press conferences were merely an attempt to satisfy inquiring reporters, not an attempt to affect the outcome of the trial. "Dissolution of the marriage through judicial proceedings is not the sort of 'public controversy' referred to in *Gertz,* even though the marital difficulties of extremely wealthy individuals may be of interest to some portions of the reading public." The court also rejected Time's "claim for automatic extension of New York Times privilege to all reports of judicial proceedings."

Answer 113

## Footnote awards of presumed and punitive damages for false and defamatory statements unless the plaintiff shows "actual malice."

Answer 114

held (5 to 4) that: "where a newspaper publishes speech of public concern, a private figure plaintiff cannot recover damages without also showing that the statement at issue are false." There can be no common-law presumption that defamatory speech is false. The private figure plaintiff must show that the defendant was at fault and that the speech was false. Justice O'Connor for the majority shed some light on the meaning of *Dun & Broadstreet (1985).* First, is the plaintiff a public figure; second is the speech of "public concern." If the answer to both questions is yes, the the libel must surmount the very high barrier of New York Times v. Sullivan andd prove Scienter as well as falsity. If the answer to the first question is no, but the answer to the second is yes, *Gertz* applies, and the plaintiff must prove at least the negligence and falsity in order to recover actual damages. If the answer to both questions is no, then the Constitution does "not necessarily force any change in at least some of the features of the common-law landscape." *Hepp* throws little light on the definition of a "matter of public concern." In that case a series of newspaper articles contained the theme that the plaintiffs (Private Figures) had links to organized crime and that those links influenced the state's governmental processes. Speech concerning the political process, announced the Court, was a public concern. O'Conner, joined only by Marshall and Powell, stated in a footnote that they were reserving the question of whether the rule the Court announced applied to nonmedia defendants. Brennan's concurrence, joined by Blackmun, specifically noted that there should be no distinction between media and nonmedia defendants. 2. FACT VERSUS OPINION. In *Milovich v. Lorain Journel Co.* (1990), the Court, per Rehnquist, rejected any artificial dichotomy between "opinion" and "fact." There is "wholesale defamation exemption for anything that might be labeled 'opinion.' " A newspaper columnist had written an article implying that a local high school wrestling coach lied under oath in a judicial proceeding about an altercation involving his team at a home wrestling match. The article, for example, said that "Anyone who attended the meet knows in his heart that Milkovich and Scott lied at the hearing after each having given his solemn oath to tell the truth." The *Hepps* decision, said the Court, "ensures that a statement of opinion relating to matters of public concern which does not contain a provably false false connotation will receive full constitutional protection." For example, the statement - "I think that Mayor Jones lied" - is really no different than the statement "Jones is a liar." Both statements may be proved false because the speaker did not really think that Jones lied, but said it anyway or, because Jones had not really lied. On the other hand, the statement - "In my opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin" - is not actionable because it is a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation." The "issue of falsity relates to *Defamatory* facts implied by a statement." Similarly, vigorous epithet (calling a real estate developer's negotiating position "blackmail") is not actioable when the reasonable reader perceived the words as mere rhetorical hyperbole.

Answer 115

***Fellows v. National Enquirer, Inc. (1986)*** Supreme Court of California **Rule** False Light invasion of privacy claims, like those based on libel, require the pleading of special damages. (The special damage requirement of California Civil Code section 45a applies to false light actions) **Facts** Television producer Arthur Fellows (Plaintiff) was the subject of an article in a 1982 issue of the National Enquirer (Defendant). The article showed a picture of Fellows and actress Angie Dickinson and stated: "Gorgeous Angie Dickinson's all smiles about the new man in her life-TV producer Arthur Fellows. Angie's steady-dating Fellows all over TinselTown, and happily posed for photographers with him as they exited the swank Spago restaurant in Beverly Hills." Shortly after publication, Fellows' attorney wrote a letter to the Enquirer asserting that the article was false and demanding an immediate retraction. The Enquirer's attorney replied, expressing confusion as to the alleged falsity. Fellows' attorney responded in a second letter stating that "[t]he article was false because Fellows has never dated Miss Dickinson, and has been married for the last eighteen years." The Enquirer continued to refuse Fellows' request for a retraction and he brought an action for libel, false light invasion of privacy, intentional and negligent infliction of emotional distress and "conscious disregard." Fellows sought general damages for his loss of reputation, shame, mortification and hurt feelings in his claims of false light and libel. He also claimed special damages for the libel count for loss of business. The Enquirer demurred, asserting that Fellows' failure to claim special damages barred his cause of action for false light. The trial court agreed and sustained the demurrer without leave to amend. Fellows appealed the ruling, claiming that the special damage requirement for libel should not apply to an action for false light invasion of privacy. He argued that false light is an independent tort designed to redress injuries separate and distinct from those redressed by the tort of libel, and therefore the statutory requirements for a libel suit were not applicable. The court of appeals agreed and reversed the trial court's ruling. Enquirer appealed to Supreme Court of California. **Issue** Does the special damage requirement of California Civil Code section 45a for libel actions also apply to actions for false light invasion of privacy. Under section 45a, language that is not defamatory on its face is not actionable unless the plaintiff can prove special damages. **Holding and Reasoning (Supreme Court of California)** The Court ruled that a false light invasion of privacy claim, based on an allegedly defamatory publication, required the pleading of special damages. The court concluded that false light claims present as great a threat to freedom of speech as defamation suits and that therefore false light actions should be subject to the same statutory requirements. The court had to decide whether the special damage requirement of section 45a for libel actions should also apply to actions for false light invasion of privacy. Under section 45a, language that is not defamatory on its face is not actionable unless the plaintiff can prove special damages. In determining that false light claims are subject to the same statutory requirements as libel claims, the court relied on two basic findings. First, the court reasoned that false light claims are the same or substantially similar to defamation claims. Second, the court found that section 45a was enacted to secure uninhibited activity by the press and that to achieve its goal the statute must be applied as broadly as possible. Based upon those findings, the court reasoned that public policy and legislative intent requires that false light claims be subject to the special damages requirement of section 45a. In support of its conclusion, the court explored the constitutional dimensions of false light. First, the court looked to the United States Supreme Court's analysis of defamation and false light cases. The court compared the standards and rationale of *New York Times Co. v. Sullivan*, a defamation case, with *Time, Inc. v. Hill,* a case involving a false light claim. The United States Supreme Court's requirement that the plaintiff prove actual malice in both false light and defamation cases led the California Supreme Court to conclude that the United States Supreme Court "balanced the competing interests in exactly the same manner."' Next, the Fellows court examined *Readers Digest v. Superior Court,* in which the California Supreme Court applied the constitutionally mandated standard of actual malice to a false light claim, holding that the "zone of constitutional protection"'" did not depend on the cause of action. After finding support in these constitutional cases, the court examined several California decisions in which defamation statutes had been applied to false light claims. First, the court looked at *Werner v. Times-Mirror Co*. In Werner, a California appellate court held that California Civil Code section 48a, which barred a plaintiff from recovering general damages in a defamation action if the plaintiff had not requested a retraction, applied to a false light action." In reaching its conclusion, the Werner court determined that the legislative purpose of Civil Code section 48a was to provide a reasonable substitute for general damages through the printing of a retraction. The court reasoned that providing a recovery for false light when the statutory requirement of section 48a had not been met would evade legislative intent and the policy behind section 48a. The Fellows court not only relied on the Werner decision as to the intent of the legislature and the effect of not imposing defamation restrictions, it also found that the Werner decision implicitly determined "that privacy suits threaten the freedoms of speech and press in the same manner as defamation suits." After addressing Werner, the court turned to *Kapellas v. Kofman,* which involved a claim for both libel and invasion of privacy." The Fellows court found that Kapellas had adopted the Werner holding. The Fellows court then referred to the Kapellas court's conclusion that a false light claim was equivalent to a libel claim, and therefore, all the requirements of a libel claim should apply. In short, the court in Fellows found that a false light claim was not significantly different from a defamation claim. It reasoned that any theoretical difference between the two claims did not justify applying different standards to the two causes of action. The court looked to the purpose behind the libel statutes generally and found that they were intended to protect the media from the chilling effect of lawsuits. It concluded that this purpose would best be served by applying the statutory limitations of libel, regardless of the cause of action. Finally, the court reasoned that since most factual situations that support an action for libel also support an action for false light, failure to apply the libel standards to false light action would allow plaintiffs to circumvent legislative intent

Answer 116

**Strategic Lawsuit Against Public Participation** A lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Such lawsuits have been made illegal in many jurisdictions on the grounds that they impede freedom of speech. The typical SLAPP plaintiff does not normally expect to win the lawsuit. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. In some cases, repeated frivolous litigation against a defendant may raise the cost of directors and officers liability insurance for that party, interfering with an organization's ability to operate. A SLAPP may also intimidate others from participating in the debate. A SLAPP is often preceded by a legal threat. There is a difficulty in that plaintiffs do not present themselves to the Court admitting that their intent is to censor, intimidate or silence their critics. Hence, the difficulty in drafting SLAPP legislation, and in applying it, is to craft an approach which affords an early termination to invalid abusive suits, without denying a legitimate day in court to valid good faith claims. Thus, anti-SLAPP laws target tactics used by SLAPP plaintiffs. Common anti-SLAPP laws include measures such as penalties for plaintiffs who file lawsuits ruled frivolous and special procedures where a defendant may ask a judge to consider that a lawsuit is a SLAPP (and usually subsequently dismiss the suit). Anti-SLAPP laws occasionally come under criticism from those who believe that there should not be barriers to the right to petition for those who sincerely believe they have been wronged, regardless of ulterior motives. Nonetheless, anti-SLAPP are generally considered to have a favorable effect, and many lawyers have fought to enact stronger laws protecting against SLAPPs.

Defamation & Freedom of Speech Flashcards

(141 cards)