Defamation: First Amendment Limitations

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Defamation First Amendment Limitations

• Chapter 4

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v. Sullivan (1964)

• Montgomery, AL police commissioner sues
• Court could have ruled for NYT on narrow grounds
  instead produces landmark

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v. Sullivan (1964)

• HOLDING When public officials sue because of
  criticisms of their official conduct, they must
  prove actual malice with convincing clarity

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Defining Actual Malice

• To publish
• A knowing falsehood to lie OR
• With reckless disregard as to truth or falsity

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Defining Actual Malice

• Convincing Clarity
• A burden of proof how likely is it that the
  plaintiffs account is correct?
• Between preponderance of evidence and beyond a
  reasonable doubt

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Other Key Features of the Sullivan Decision

• Libel and Sedition
• Public Officials as Libel Plaintiffs
• Two famous metaphors
• Breathing Space

• Chilling Effect

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Who is a public official?

• They have, or appear to have, policy making powers

• Their job invites everyday public scrutiny

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What is official conduct?

• Any accusation of criminal wrongdoing is relevant

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Some personal characteristics, too

• Laziness

• Dishonesty

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Public FiguresMust Now Prove Actual Malice

• Not government employees
• But have impact on our lives
• Difficult to apply definition

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Truth, Falsity Actual Malice

• Proving actual malice entails proving falsity
• Plaintiffs who need not prove actual malice must
  prove falsity if
• they sue a media defendant

• ...about a subject matter of public interest

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Actual Malice on Appeal

• Actual Malice Not a simple question of Fact
• Issue is Appealable
• This is important because
• Appellate courts deal only with questions of law
• The media lose most libel cases at the trial level

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Actual Malice on Appeal

• This is important because
• Most media losses reversed on appeal

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Investigative Journalism

• Editors pressure on reporters to Write
  hard-hitting, investigative stories!

• Evidence of Actual Malice?

• Lower Court rulings conflict
• Supreme Court yet to rule

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Actual Malice Reporters Conduct

• Juries might find actual malice if the media
• Depend upon a single, anonymous phone call

• Publish a highly unlikely charge without checking

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Actual Malice Reporters Conduct

• Juries might find actual malice if the media
• Show no skepticism at all towards an unreliable
  source

• Alter quotes so as to also alter meaning

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Facts and Opinions

• Gertz v. Welch said there is no such thing as a
  false idea no libel suits for opinions?
• Lower courts tried to fashion tidy rules to
  discriminate between fact and opinion
• Supreme Court tried to clarify matters in the
  Milkovich case
• But courts still struggle with the distinction

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Intentional Infliction of Emotional Distress

• Falwells libel suit included this claim
• Supreme Court must first prove actual malice

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Some Pre-trial Issues

• Plaintiffs who must prove actual malice have
  access to reporters notes and outtakes
• Defendants may not print information about
  plaintiffs that they learn only through
  court-ordered discovery
• Plaintiffs combating a defendants motion for
  summary judgment must satisfy the judge at the
  convincing clarity level
• Plaintiffs may sue in any jurisdiction where
  libels were in general circulation

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Right of Reply Statutes

• The print media may not be forced to publish a
  reply from an aggrieved party

• The broadcast media are treated differently

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Gertz v. Welch (1974)

• Even private plaintiffs must prove actual malice,
  if they want punitive damages
• This rule now only applies to libels on matters
  of public interest
• All plaintiffs must prove some harm
• No more libel per se?
• Two kinds of public figures
• Two reasons for making them prove actual malice
• States determine level of fault for private
  plaintiffs

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Why Do People Sue for Libel?

• Not always because their reputations were stained
• Sometimes because the media company treated them
  poorly when they complained
• Three problems identified
• Future orientation
• Naysaying habit
• Reluctance to admit mistakes