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					Libel
 What is Libel? What is Defamation?
 Tort – Civil Wrong
 Why sue for libel?
 What harm is there in defamation?
 What qualifies as libelous?
 What are the explicit goals of bringing a libel
  case? Are there any implicit, or unstated
  goals?
Truth and Consequences
 Large awards / settlements
    Barricade Books = 3 million
    Hundreds of millions not unheard of
 Time and Money
 1990 average award against media, just over $1
  million, 1996 = $3 million
      Reflects awards in personal injury cases
      Typically mass media loses, but can win on appeal
      Only 30% of libel cases won still stand at the appellate
       court level
         Media is often punished for being the messenger,
          even if they did not construct the message
Why the Media Loses Libel Trials
     Libel law is complicated
     Bias against the press
     Belief that the First Amendment goes too far
 Usually the cases are modified
     Between 1980 and 200 just over ¼ cases
      appealed by the press were left standing
      without modification, or being overturned
Libel as a WMD
Weapon of Message Destruction
 SLAPP (Strategic Lawsuits Against Public
  Participation)
     Upside, defendants win 90% of the time, but at
      what cost?
 SLAPP Suits target whom?
 SLAPP Back Lash – at least 20 states bar
  SLAPP suits in some form or another
     Protection ranges from plaintiff must prove
      they are likely to win the case to protecting
      only certain circumstances against SLAPP
Fix it or Forget It
 Publish Retractions or Apologies
     Do they always satisfy plaintiffs?
     Press dislikes retractions
          Why?
 Retractions Statutes
     30 States thus far
     Example page 237
Elements of Defamation
 Defamation damages reputation, not character
     Rep. v. Character
 To be Actionable, actual damage to reputation must occur
 At least a significant minority must believe that the plaintiff's
  reputation has been damages
 Who can sue?
    The dead, nor their family can’t sue for libel
           except in the case of Survival Statutes
    Corps. can sue, government agencies can’t
 Burden of proof – Plaintiff must establish all 5 elements
    Publication
    Identification
    Material is defamatory
    Material is false
    Defendant was at fault
Laughable Larry
 Not to be outdone by Kay Anderson’s offer of $25,000 to UVSC
  to rescind their invitation to Michael More. Larry Lowe, owner of
  The Happy Homemaker, a bar outside of Provo offered
  $26,000.99 if they would keep the invitation.
 The following day, the SL Trib reports that an anonymous friend
  of Larry Lowe gave said in an interview that Larry had previously
  been convicted of drug trafficking and was a an active member
  of the communist party.
 Larry is suing the Trib for $45 million, stating that he was
  arrested for drug trafficking, but never convicted, and was
  actually had been a member of a hippie commune in the 60’s,
  not a communist.
 Does Larry’s claim meet the elements of libel?
 Does Larry stand a snowball’s change in Nevada (Not that Nevada
   matters) of winning? Support your claims!
Publication
 Hornby v. Hunter – if it is in the paper, broadcast, or
  internet then it usually qualifies
 Publishers and Vendors
      Distributors cannot be held libel, unless they knew, or
       had reason to know, they were distributing libelous
       materials
      Scienter
 Internet
    ISPs usually not treated as publishers
        except in other countries

    Bloggers tend to enjoy the same protections as ISPs
Identification
 Must Happen
      i.e. you can’t be defamed for not being named
 Can be explicitly named
 Can be identified by the facts
 Can be idenified by other reports
 Geisler v. Petrocelli
      if those in the know know, then it counts
 Members of small groups can claim
  identification
Defamation
   Two types
        Words are defamatory on their face
        Words defamatory only in light of other facts
   Is the speech capable of defamation
        Budget Termite v. Bousquet
   If fact finders find the words capable of libel, they must then ask if they actually are
    defamatory
        McBride v. Merrell Dow
   Innuendo can be defamatory
   Cannot take words out of context
   Opinion is not defamatory if it cannot be proven true or false
        implications of criminal activity are tough ‘alleged’ doesn’t always cut it
        material about personal habits can be dangerous
        Sexual implications are risky
        Ridicule that goes to far can be defamatory
   Business Reputation
        single mistake rule
   Product Criticism / trade libel – difficult to win
        must prove statements are false
        must prove monetary loss
Falsity
 Public v.s Private Persons (next chapter)
 Material must be false, even if the truth hurts
 Substantial Truth
    Schwartz v. American College of Emergency
     Physicians
 Minor details can carry the same weight as major
  assertions
 What is said, not what is meant is what matters
 Major: Does learning the truth change the impression
      Fleckstein v. Friedman

				
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