Libel Seminar Daniel P. Byron, Margaret C. Christensen & Jared S. Sunday Bingham McHale LLP 2700 Market Tower 10 West Market Street Indianapolis, IN 46204 (317) 635-8900 www.binghammchale.com I. Rationale & Definition A. Libel law strikes a balance between our “profound national commitment to the principal that debate on public issues should be uninhibited, robust, and wide-open” (New York Times v. Sullivan, 376 U.S. 254, 270 (1964)) and the protection of reputation, “our basic concept of the essential dignity and worth of every human being” (Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974)). I. Rationale & Definition B. Elements - what a libel plaintiff must prove to win • Publication of a false statement of fact • “Of and concerning” the plaintiff • Injurious to the plaintiff ’s reputation • Made with requisite degree of fault II. The Elements A. Falsity 1. Historically, and in many other countries, it was and is the defendant’s burden to prove truth as a defense in a libel action. In U.S., libel plaintiff must prove falsity. Significant difference. 2. Statement only has to be substantially true. So long as gist or sting is correct, statement containing minor error not defamatory. II. The Elements A. Falsity 3. Example: Masson v. New Yorker Magazine 501 U.S. 496 (1991) • Supreme Court held that only material alteration in quotation can give rise to libel action. Material alteration is one that changes meaning. • Another way to make the same point: only quotations that made Masson look worse than concededly accurate quotations can give rise to libel action. • This is instance of law offering more protection than standards of journalistic ethics. II. The Elements A. Falsity 4. Similar concept: incremental harm doctrine. • Where there are true statements accompanying a false one, and the “incremental harm” done by the falsity is minor as compared to the true statements then no true libel. Sack on Defamation, Third Edition § 2.4.18 (2009). 5. Truth/falsity often hard to prove. • Time passes, memories fade, witnesses unavailable. II. The Elements A. Falsity 6. Example: Westmoreland v. CBS, Inc., 596 F. Supp. 1170 (S.D.N.Y. 1984) • CBS accused General William Westmoreland conspiring to suppress enemy troop strength estimates in Vietnam. • At a cost of $6 million, the parties litigated the “truth” of this thesis and of many other issues related to the Vietnam war. • Case settled before it went to the jury, but most jurors agreed that evidence as to truth of the statements was inconclusive. How could it not be? II. The Elements B. Statement of Fact 1. Must be a factual misstatement, i.e., not opinion. Opinion statements are not libelous. So what is a statement of opinion? a. Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) • Sports columnist writes that wrestling coach’s trial testimony seemed quite different from testimony before an athletic association. Sounds like an opinion. • Milkovich sues on theory that this was an accusation of perjury. • Supreme Court rejects opinion defense here because accusation was provably true or false by comparing two sets of transcripts of testimony. • Supreme Court emphasizes that statements probably not true – “imaginative expression,” “rhetorical hyperbole,” “loose, figurative, or hyperbolic language” -- are protected and not libelous. II. The Elements B. Statement of Fact 2. Key: Give readers all underlying facts so they may draw their own conclusions. Don’t imply you know more than you’re saying. 3. Caution: No automatic protection by casting as “I believe” or “It’s my opinion that” 4. Case Law following Milkovich favors a loosening of the opinion standard. There likely is protection if you state “it is my pure opinion.” • Lieberman v. Fieger, 338 F.3d 1076 (9th Cir. 2003) • Phantom Touring, Inc. v. Affiliated Publications, 953 F.2d 724 (1st Cir. 1992) II. The Elements B. Statement of Fact 5. Rhetorical Hyperbole/Epithets • Exaggerated speech – venting of emotion • Abusive words or phrases • Rationale – words are meant in a figurative sense and not literally • Imaginative use of a word • All of this type of speech is outside the law of libel • Examples: o Calling a man “rude” o Calling a person a “bigot” or a “racist” II. The Elements C. Of and Concerning 1. Need not be individual; companies have reputations, too. 2. Need not identify individual by name. 3. Group libel: if group sufficiently large (e.g., all lawyers) no individual member can sue. Rule of thumb: 25 or more. II. The Elements C. Of and Concerning 4. Example: Mario’s Enterprises v. Morton-Norwich, 6 Med. L. Rptr. 1651 (W.D. Ky. 1980) • Pepto-Bismol’s TV ad features a fireman in severe distress, moaning that he can’t tell whether his four-alarm fire was caused by a two-alarm fire or Mario’s three-alarm meatballs. • The plaintiff owns a chain of restaurants called “Mario’s”. • Case dismissed on “of and concerning” grounds; the court notes that there are at least 391 restaurants in the U.S. called Mario’s. II. The Elements C. Of and Concerning 5. Example: Livingston v. Murray, 20 Med. L. Reptr. 1824 (Penn. Super. Ct. 1992) • University president, in story about new athletic director quoted as saying: “Now we have an athletic director who has respect around the country.” • Old athletic director sues. Even though he’s not mentioned by name – the “of and concerning” requirement is met. • Case dismissed on other grounds (president’s statement is nondefamatory opinion). II. The Elements D. Injury to Plaintiff ’s Reputation 1. Not all false statements hurt reputation. Standard: did it lower the plaintiff ’s reputation in the community? 2. Evolving nature of standard. It was, in the 1950s, held defamatory to call a white person black… not today. Query: is it defamatory today to call a straight person “gay”? Probably not. II. The Elements D. Injury to Plaintiff ’s Reputation 3. Dangerous Words – Libel Per Se • The dangerous words of journalism – Don’t use them • Case law gives us many examples of words found to be defamatory if false o Prostitute – yes o Criminal – yes o Skank – no o Gay – today, no o Aids or HIV – yes o Politician – no o Bankrupt – yes o Bi-sexual – no • Example: “Who Wants to Marry a Millionaire” o Radio Talk Show sued by a failed contestant for publication of these words about her appearance on the TV show. Seelig v. Infinity Broadcasting, 97 Cal. App. 4th 798 (2003). “chicken butt” – “local loser” – “jilted” – “big skank” Stated by radio commentators after the contestant refused to go on their talk show All held not to be defamatory And finally this: He is a “loser wannabe lawyer” – no It does not apparently harm your reputation to be called a “loser wannabe lawyer” 4. Need not show direct monetary loss if libel per se. II. The Elements E. Fault 1. Libel law protects the innocent mistake – no strict liability. 2. Plus in Indiana and a few other states actual malice must be proven. 3. In most other states must only prove negligence if a private figure is allegedly defamed. Actual malice is a required element of proof in all other states (NY –Wash D.C. – Illinois for example) only if the plaintiff is a public figure or a limited purpose public figure. 4. Actual Malice • Does not mean proof of ill-will or spite • Does mean intentionally giving a false story or fact or publishing a false story or fact with reckless disregard • So here is the rub. When is a story published with reckless disregard as to its truth? II. The Elements E. Fault 5. Reckless disregard has a defined meaning in the law. Courts hold that actual malice is proven if the reporter or publisher entertained a serious doubt about the truth of the story but published anyway. 6. Failure to investigate fully a story falls short of proving actual malice. • St. Amant v. Thompson, 390 U.S. 727 (1968); Marcone v. Penthouse Int'l Magazine for Men, 754 F.2d 1072, 1089 (3d Cir. 1985). 7. In case of private figure, false statement must be of a kind that a reasonable person would not have made. This is a negligence standard 8. In case of public official or public figure, false statement must be published with actual malice, i.e., with knowledge of falsity or serious doubts about the truth of the statements. 9. Journalists should not rely on the legal distinction between public and private figures. II. The Elements E. Fault 10. Example: Sharon v. Time, Inc., 83 Civ. 4660(ADS) (S.D.N.Y. 1985)). • Time reported that a secret appendix to an official inquiry into a massacre at the Sabra and Shatilla refugee camps in Lebanon charged General Ariel Sharon with encouraging the parties responsible for the massacre. • Time had not seen appendix and relied on partial confirmation by confidential source; Time never asked source the ultimate question of whether the appendix said what Time suspected. • Judge indicated that this sort of “conscious avoidance” may show actual malice. • Judge obtained secret appendix. It didn't say what Time said it said. • Jury answered a questionnaire in connection with verdict. It found that Time's statement was false and that the statement injured Sharon's reputation. But it found that Time had acted without actual malice. Result: no liability. • In very unusual procedure, the jury foreman read a statement criticizing Time for having "acted negligently and carelessly in reporting and verifying the information." III. Unique Defenses A. Anti-SLAPP Statutes 1. A new defense to libel is one enacted by statute and entitled anti-SLAPP. 2. SLAPP means “Strategic Lawsuits Against Public Participation.” 3. The defense is designed to eliminate meritless libel suits aimed at silencing a person’s right to speak out about a matter of public interest. If the defense is successful you can recover your reasonable legal fees. A “person” also means a corporation or the media. III. Unique Defenses A. Anti-SLAPP Statutes 1. These statutes were enacted in response to the Exxon-Valdez oil spill as a result of large private interests suing citizens who spoke out against the debacle at public hearings etc. 2. Indiana Anti-SLAPP statute can be found at Ind. Code §§ 220.127.116.11 et seq. It has been upheld and attorney fees awarded in cases like Poulard v. Lauth, 793 N.E.2d 1120 (Ind. Ct. App. 2003) and more recently in Canarx v. LIN-TV Corp et al, 2008 U.S. Dist. LEXIS 42236, Case No. 1:07-cv-01482-LJM-JMS (U.S. So. D. Ind. Sept. 3, 2008). 3. The defense provides an early testing of the libel case by a motion to dismiss if the alleged false statements are (1) a statement in furtherance of your right of free speech in connection with an issue of public interest and (2) made in good faith and with a reasonable basis in law and fact. Ind. Code § 34-7-7-1. If won then your reasonable legal fees are recoverable. III. Unique Defenses B. Fair and accurate reports of official proceedings. 1. Fair Report Privilege. Absolute privilege because of importance of ensuring freedom of expression in these forums. Proceedings, and relevant pleadings and reports from: • committees or subcommittees of both houses of Congress and their equivalents at the state level; and • judicial and administrative proceedings; • written records that reflect government action such as arrest warrants, records filed in state and federal courts, and minutes of meetings of public bodies. 2. Applies to town meetings, court proceedings, etc. • Police reports? Yes, see Restatement (Second) of Torts § 611 • Pleadings filed in court 3. Key is accuracy and specific attribution in the published report. 4. Whenever possible, check the documentation or attend the hearing yourself. III. Unique Defenses C. Libel proof plaintiff doctrine 1. Some people have reputations so low that nothing could be done to lower them further. If Court determines that a plaintiff is libel proof, then no injury and thus no libel regardless of the false statements made about him. 2. Example: Ray v. Time, Inc., 452 F. Supp. 618 (W.D. Tenn. 1976). • Plaintiff killed Dr. Martin Luther King, Jr. • Time Magazine and others alleged that he was a "narcotics addict and peddler" and a participant in a London bank robbery. • Court held that Ray was libel-proof, that is, nothing that could be said about him could further lower his reputation. 3. The doctrine has been applied to habitual criminals. Cerasani v. Sony Corp., 991 F. Supp 343 (S.D. N.Y. 1998) where a mobster’s past record was sufficient to find him libel proof. III. Unique Defenses D. Death 1. Death of plaintiff ends libel actions 2. The tort of libel is personal and does not survive a person’s death III. Unique Defenses E. Two-Year Statute of Limitations 1. Plaintiff must file his or her lawsuit within two years in Indiana and most states. Some states have a one year statute. 2. Can you agree to extend the statute of limitations? Yes and this is sometimes done for purposes of negotiating settlement. 3. But, if a story is complained about, you will normally receive a call within two weeks. IV. Problem Areas A. Republication 1. Important to note . . . . It's not enough to quote someone accurately. We are on the hook for substance of the quote as well. (Recall the four elements of libel -- no exception for quotations of others). 2. Rumors: Same rule. If you report a rumor you are on the hook for what is stated. IV. Problem Areas B. Advertisement and Letters to the Editor • Same rules apply. We are on the hook for advertisements. • New York Times v. Sullivan began as an advertisement in The Times. IV. Problem Areas C. Retraction • Good journalistic practice. It's likely to help lower damages but doesn't guarantee legal protection. In Indiana it removes the element of punitive damages. • There is generally no automatic protection because we report both sides in a controversy. But a possible defense under what is called the “neutral reporting privilege.” IV. Problem Areas D. Photographs 1. Cefalu v. Globe Newspaper, 5 Med. L. Rptr. 1940 (Mass. App. Ct. 1979) • Boston Globe publishes picture of unemployment line. • Caption: "Jobless line up for their checks." • Plaintiff was standing in line as an interpreter for a friend. • Case dismissed. • Did not single plaintiff out. • Unreasonable to ask paper to do more; would result in undue self- censorship. • Query whether result would be the same if the caption was inflammatory, e.g., "A bunch of welfare cheats". IV. Problem Areas E. Headlines 1. Story can be correct but there may still be liability if headline is inaccurate. IV. Problem Areas E. Headlines 2. Journal-Gazette Co. Inc. v. Bandido’s 712 N.E.2d 446 (Ind. S. Ct. 1999) • Restaurant owner whose business had been temporarily shut down by the county health department which found numerous violations during an inspection filed a libel lawsuit against newspaper that wrote an accurate story about the restaurant's inspection failure, but made an error in the headline. • The headline indicated the inspection found evidence of rats in the restaurant. The inspection actually found rodent droppings. The headline writer equated rodent with rat without realizing that rodent also included mice. • Story correct but headline was wrong. • Where the alleged defamation addressed a subject of public concern, the actual malice standard was required under Indiana Law. • Indiana Supreme Court affirmed appellate court and found that plaintiff did not produce clear and convincing evidence of actual malice. The use of the word "rats" in the headline rather than "rodents" did not indicate actual malice because defendant was not shown to have known of the inaccuracy before publication. IV. Problem Areas F. Satire, Parody and Humor 1. No defamation if humor, comment etc. is capable of only a non-defamatory meaning. 2. If it is understood by a reasonable person as being parody, satire or humor, then is not believed to be factual. 3. Cases on point are Salek v. Passaic Collegiate School, 25 N.J. Super. 355, 605 A.2d 276 (App. 1992); Hamilton v. Prewett, 860 N.E.2d 1234, 1244 (Ind. Ct. App. 2007) IV. Problem Areas G. Confidential Sources 1. Most States including Indiana have so-called “shield” laws which protect publishers and reporters from revealing their sources. 2. Indiana has a very strong, absolute, unconditional privilege that protects all sources including non- confidential sources. Ind. Stat. §§ 34-46-4-1 et seq. 3. The statute covers all periodicals including business journals. IV. Problem Areas G. Confidential Sources 4. The statute protects against all state and local subpoenas or requests, BUT does not protect against federal subpoenas or requests. 5. A limited federal privilege statute is working its way through Congress and will likely be passed reasonably soon. Obama has promised to sign the bill when passed. 6. “The Free Flow of Information Act” is sponsored by Ind. Senator Lugar and Ind. Congressman Mike Pence. IV. Problem Areas G. Confidential Sources 7. It allows for protection against federal subpoenas and requests except where necessary to prevent imminent harm to national security (or) if the requested disclosure clearly outweighs the public interest in free flow of information. 8. The bill was proposed in 2005 because a NY Times reporter, Judith Miller, was held in jail for 85 days for refusing to reveal the identity of her then confidential informant, Scooter Libbey. Only because Scooter agreed to waive confidentiality, did she agree to testify, thereby ending her imprisonment and the issue before the court. 9. Thus, the privilege can be waived by the person providing the confidential information. IV. Problem Areas G. Confidential Sources 10. Rule – Never make a promise of absolute confidentiality. Else, you could be sued for breach of contract if you later are required to reveal the source by a court of law. 11. Problem – If you are sued on a story, you may need to reveal your sources in order to convince a jury or judge that the plaintiff has no case for defamation. IV. Problem Areas H. Anonymous Sources 1. View with skepticism 2. Always confirm from other sources or documents any negative information obtained from an anonymous source. IV. Problem Areas I. Innuendo 1. May not say by innuendo what you would not say directly, e.g., Kenny Stabler's suit against The New York Times – • Article explored Stabler's connections with gamblers. • One paragraph stated that Stabler had been seen with a gambler on a Saturday night before a big game. The next paragraph reported that the Raiders lost to the spread at the next day's game. • Stabler claimed that he was libeled by implying that he purposely threw the game. • He withdrew the case after discovery. IV. Problem Areas I. Innuendo 2. Wayne Newton's suit against NBC • NBC reported that Newton had sought help from the mob and that Newton was trying to buy the Aladdin Hotel. • True so far as it goes. Story implied that he sought mob help to buy hotel and give mob a hidden interest. Not true. In fact, he sought mob help to respond to death threats against daughter. • Las Vegas jury awards him $18 million. • Ultimately reversed on appeal on actual malice grounds. V. False Light • A. This legal theory, is a kind of invasion of privacy, but really a variation on libel. As in libel, plaintiff must prove a false statement of fact “of and concerning” the plaintiff made with fault. Instead of injury to reputation, false light instead goes to the plaintiff’s personal feelings. And it requires proof of outrageous conduct as well as hurt feelings. V. False Light • B. The legal theory has not been enthusiastically embraced by the courts and is not accepted in some jurisdictions. Sometimes added by a plaintiff as a second cause of action and it is usually dismissed with little discussion when the libel claim is dismissed. V. False Light C. Example: Cantrell v. Forest City Publishing, 419 U.S. 245 (1974). • Joe Eszterhas, who would go on to be a respected investigative journalist and successful screenwriter, wrote a Sunday Magazine piece for the Cleveland Plain Dealer in 1968. The story followed up on the family of a man killed in a bridge collapse nine months earlier. • Eszterhas visited the widow's home. She wasn't home. He wrote: "Margaret Cantrell will talk neither about what happened nor about how they are doing. She wears the same mask of non-expression she wore at the funeral. She is a proud woman. She says that after it happened, the people in town offered to help them out with money and they refused to take it." • No question that these statements were at least partially false. No question that there was nothing defamatory about the statements. Because of the outrageousness of the conduct, however, and the distress caused to the widow, a jury award of damages on false light theory was upheld. V. False Light D. Example: Nellie Mitchell v. Globe International Publishing Inc., 20 Med. L. Rptr.'1925 (8th Cir. 1992) • Tabloid newspaper The Sun publishes picture - of 97-year-old Arkansas women with headline "Pregnancy forces granny to quit work at age 101." • She sues for defamation and false light (and not because she was said to be four years older than she was). • Newspaper's defense: everybody knows that we make this stuff up and everybody knows you can't get pregnant at that age. • Newspaper wins on defamation -- her reputation in community not lowered. • Newspaper loses $1.5 million on false light -- woman was distressed and their conduct was outrageous. V. False Light E. Bottom line on false light and other weird add-on torts (intentional infliction of emotional distress, tortuous interference, and violation of civil rights): if journalists' conduct is sufficiently outrageous, courts may concoct a remedy. VI. Web-Sites A. Web-Sites and Bloggers 1. Bloggers are always responsible for statements that they post on your web-sites. 2. Importantly, however, you as the owner of the web-site or as the service provider are basically exempt from liability so long as you do not edit or change the blogger’s comments. 3. Courts have so held pursuant to the terms of the Federal Communications Decency Act of 1996, 47 U.S.C. § 230 Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288 (D. N.H. 2008); Barrett v. Intelisoft Multi-Media, Inc., 343 Ill. App. 3d 1184, 799 N.E. 2d 916, 279 Ill. Dec. 113 (2003). VI. Web-Sites A. Web-Sites and Bloggers 4. Nevertheless, you should monitor your web-sites and post guidelines to both discourage and eliminate offensive or obscene material. 5. Guidelines should advise bloggers that they are responsible for any liability resulting from the comments they post. 6. Also request that they refrain from posting anything that is defamatory, offensive or obscene. VI. Web-Sites A. Web-Sites and Bloggers 7. Advise too that you reserve the right to block any post that fails to meet your guidelines. 8. Request the name and home address of the blogger.
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