Chapter 6: Libel Defenses and Damages

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Transcript Chapter 6: Libel Defenses and Damages

Chapter 6: Libel Defenses
and Damages
Kathleen Fox and Ashley Wislock
What is a Libel Defense?
• Grew out of common law, now
contained within many state statutes
• Remember libel law= state law
• Defenses attempt to decrease the
number of defamation lawsuits
• Can end a case quickly (saving time,
• Most common reason for plaintiff loses
-> cannot meet the burden of proof
Summary Judgments
• With an appropriate defense, judge can dismiss a case
before it begins
• Judge will issue this ruling if he/she does not believe
the plaintiff can prove what is required
• Three-fourths of requests for summary judgments by
media are granted
• Case ends without a trial, can save substantial resources
for media company
Outline of a Summary Judgment
• Plaintiffs file written allegations to the court
• Defendants argue case should be dismissed without trial (either
libel was not proven by the plaintiff or by the use of a libel
• Court must look at plaintiff ’s allegation in the most favorable
• Any dispute over the facts of the case-> case will go to trial
Outline of Summary Judgment
• If a reasonable juror, acting reasonably, could not find
for plaintiff-> summary judgment is granted
• Plaintiff can also file for summary judgment
• Losing party will appeal the ruling
• If appellate court agrees and sustains the summary
judgment-> case ends
• If appellate court disagrees and reverses the ruling->
case goes to trial
Importance of Summary Judgments
• Supreme Court gives increased power to trial/appellant courts to
issue summary judgments
• However some judges are fearful of granting summary
judgments-> force a trial although libel claim is weak
• “The costs of vindications may soon be too great for such media
defendants to print or publish…it is a sorry state of affairs for
the media, and, more important, for the country.”
-Federal Judge Stanley Sarokin
Example Case on Summary
• Christiansen v. WCLT et al decided by Ohio appellate court in June
• Before a November 2008 general election, a radio station (WCLT)
posted an editorial written by the radio station’s general manager
• The editorial claimed that two of the three candidates for Domestic
Relations Court Judge were inappropriate for the position
• The editorial stated, “in July of 2007 a police report alleging assault
was filed with the Newark Police Department against [the plaintiff]. In
the report she is accused of striking a person in a courthouse
elevator. She has also had several complaints concerning her behavior
filed with the Ohio Supreme Court’s disciplinary counsel.”
Summary Judgment Case Conti.
• One of the candidates filled a defamation suit and attempted to enjoin
further publication of the material (which was denied)
• The plaintiff admitted the statements were true, but claimed the text
gave the wrong impression that she was charged for assault and
punished for her behavior
• The court granted the motion for a summary judgment? WHY?
• Court found there was no actual malice (statements were true), the
material was a protected opinion, and the material could have been
read as non-defamatory
• Important current case for the freedoms of organizations and
individuals to engage in political speech during elections
Statute of Limitations
• Libel case has to be started within a specific amount of
time following the date material was published (all U.S.
states 1-3 years)
• Statute of limitations in TN= one year but in AR=
three years
• Single publication rule (magazines, newspaper, online)
republication does not restart statute of limitations
• Rebroadcast of television/radio material
= new publication, does restart
statute of limitations
Jurisdiction of Statute of Limitations
• Plaintiff can file libel suit outside of home state IF publication
was circulated in that state
Keeton v. Hustler (only 15,000 out of 1 million circulated in
New Hampshire)- can sue for libel
Calder v. Jones (only 600,000 out of 5 million circulated in
California)- can sue reporters/editors
• If primary material, sources and injury or harm to reputation
occurred in state-> can sue for libel in state
First Amendment Questions
• Calder v. Jones-> disagreement
between lower courts and Supreme
• Lower courts: requiring reporters
to appear outside of home
jurisdictions will affect their first
amendment rights
• Supreme Court: depends on where
the primary negative affect
occurred, injured party should not
have to travel in order to file a suit.
Will not affect first amendment
• What do you think? Which side do
you align with?
Jurisdiction on the Internet
• Supreme Court has not ruled on a case regarding
this question-> look to lower courts
 Evidence that out of state Internet publisher was aware material
was aimed at residents, had contact with residents or was aware
material could case harm to residents in that state
 Material has to be aimed at citizens in that particular state
 States disagree whether the key is the geographic focus on the
article or where the majority of harm was inflicted as a result of
the article
 Libel tourism- some countries rule defamation begins when it is
downloaded in that country
Traditional Libel Defenses
• Applicability determined by facts of case,
subject of the story, how information was
obtained, and the manner of publication
 Truth
Privileged Communications
Fair comment
Right of Reply
• Decreasing in importance because of current libel
rulings that shift burden on proof to plaintiff (in
stories of public concern)
• Truth is a defense in cases regarding a private person
and a non-public matter-> burden of proof shifts to
• Defendant can avoid liability if material is true
Absolute Privilege
• Absolute privilege (privilege of the participant)Any speech in the legislative forum (essential to
deliberations), judicial forum (during official
portions) and in administrative or executive
branches of government (official
• Speaker in any above forums cannot be sued for
Qualified Privilege
• Qualified privilege (privilege of the reporter)- can
report on official government proceedings or
documents without being sued for libel
• Conditional privilege according to:
Only applied to certain privileged documents
Reports have to be fair, accurate summary of proceeding
or documents
• Defendant has the burden of proving “qualified
privilege” (nursery workers’ libel action)
Examples of Qualified Privilege
During meetings of legislative bodies
Reports of committee meetings/other official communications
Any event with great public interest
ONLY applies after official body receives official communications
Testimony, depositions, trials, decisions, verdicts, opinions and indictments
Sometimes applies to cases closed to the public (juveniles, family court)
ONLY applies after some judicial action has been taken or after complaint has been filed
and case receives docket number
Acts of state official statements or actions
“Allows public officials to speak freely on matters of public importance in the exercise of
their official duties.”
Reports of police activities, police reports, witness statements, petitions, important public
business, any public meetings
Does not apply to personal statements beyond police reports and statements not generation
in the U.S.
Neutral Reporting
• If the press reports defamatory allegations that are on a
newsworthy topic from a responsible source, the material is
• Most courts have rejected it- does not align with other Supreme
Court rulings (Gertz v. Robert Welch Inc.)
• Four elements of neutral reporting are:
 Allegations must be newsworthy that create or are associated with a
public controversy
 Charges must be made from a prominent and responsible source
 Charges must be reported accurately and neutrally
 Charges must be about a public figure or public official
Abuse of Privilege
• What is a fair and accurate account of what took
place or of the record?
 Report should be balanced (portrays the positive and negative
sides equally)
 Report should accurately reflect what was said or printed
 Errors that change the impact of the report, will lose rights of
the qualified privilege
 Report has to make clear to the reader, that material was
obtained at a public meeting or from the public record (in the
headline and lead)
 In some states common law malice (desire to injury subject
rather than inform public) is still applicable
Rhetorical Hyperbole
• Opinion-filled material (whether heated or exaggerated) is fundamental to
social/political discourse in U.S.
• Rhetorical hyperbole is defined as lusty, imaginative expression
• It is protected because the tone of the language is so extreme the reasonable
reader knows it is an opinion
• Satire/parody writers have to confirm that a reasonable reader will not believe
the material to be factual
• Courts look to “cues” within text to prove or disprove it as fiction (New
Times Inc. Isaacks)
Current Examples of Rhetorical
Case of Chicago tenant versus real estate company. Horizon Group Management v.
Bonnen. She tweeted, “Who said sleeping in a moldy apartment was bad for you?
Horizon realty thinks it's okay." Bonnen was sued for defamation but the case was
dismissed as rhetorical hyperbole (an opinion and clearly untrue)
• The rap lyrics sung by George Clinton on Warren G’s 2001 song “Sped Dreamin”
about music producer Armen Boladin were ruled to be rhetorical hyperbole
• Blogger Stephanie Grasmick was sued for libel by Michael Leahy (founder of the “Top
Conservatives on Twitter”) because she implied he is guilty of tax fraud. Is this
rhetorical hyperbole? What if it is true?
Pure Opinion:
The Milkovick Standard
• Libel actions cannot proceed when regarded as a
statement of “pure opinion”
• Defined as a statement that cannot be proven
true to false and does not assert or imply a
provably false fact
 Milkovich v. Lorain Journal Co.
 The Supreme Court ruled that writer’s statement was not “pure opinion” and
instead a statement of fact (adding “In my opinion” or “I think” would not have
changed the verdict)
 Many lower courts are dissatisfied with this ruling and believe it to be too
 Lower courts use The Ollman Test to examine other dimensions of questionable
The Ollman Test
• Four part test to determine if material is an
assertion of fact or the writer’s opinion (Ollman v.
Can the statement be proven true or false?
(Milkovich standard)
What is the common or ordinary meaning of
the words? Some words have untraditional
meanings (turkey, moron)
What is the journalist context of the remark?
Where does the piece appear in the paper
(news v. editorial section)
What is the social context of the remark?
Political or social settings are important
(lecture v. protest)
The Ollman Test: Important
• Immuno A.G. v. Moor-Jankowski
 Scholarly scientific journal published a letter to the
editor accusing the company of causing harm to the
chimpanzee population
 The state Supreme Court ruled for the journal
because of the context of the letter (within an
opinion section), the warning that the views
expressed were opinions, and that the specialized
readers of the journal understood the context of
the debate
• Mann v. Abel
 Reasonable reader would conclude statements were
opinions (it was published on the opinion page and
and included an editor’s note)
• Cochran v. NYP Holdings Inc.
Important Cases: Lessons about
The Ollman Test
• Context and inclusion of all the relevant facts is
important in libel suits regarding pure opinion
 NoWitness LLC v. Cumulus Media Partners LLC- pure
opinion defense does not always protect false facts within
opinion statements
 Pepler v Rugged Land LLC- statements with mixed
defamatory facts and opinion statements are not always
 Healy v. New England Newspapers- story
gave an untrue impression of the doctor
because the journalist left out essential facts
-> not protected anymore
Fair Comment
• Common law defense that protects
publications of statements of opinion
• Not used in current libel law, although many precedents still
remain on the books
• The three part test includes:
 Is the comment an opinion statement?
 Does the defamatory comment focus on a subject of legitimate
public interest? (very broad)
 Is there a factual basis for the comment?- U.S. culture is enhanced
by the free exchange of ideas/opinions (some people/stories are
so widely known, background information is not necessary)
How to Avoid an Opinion-based
Libel Lawsuit
• Make sure a reasonable reader
understands material as an opinion
• Do not rely on the context to protect
opinion statements 100 percent of
the time.
• Clearly and concisely summarize the
background information for the
• Make sure all the facts are true, be
objective and portray both sides of
any issue
Consent and Right of Reply
• Both are rarely used- not universally accepted
• Consent- an individual cannot sue for libel if he/she consented to the
publication of the material
• Indirect (implied) consent- included when an individual’s response is
published or told others about the material. Always important to get quote
from subject of story to double check information
• Right of Reply (self defense)- If an individual has been defamed he/she can
respond with a libelous statement without being sued for libel
• The right of reply has to equal the original material in the magnitude of the
libelous statements
• Most individual would rather sue than use right of reply
• Actual damages- most common libel damages
 Damages for actual injury (impairment of reputation, monetary loss, personal
humiliation, mental suffering)
 Not a precise process- jury will award what they believe plaintiff deserves (in
general, the amount is heavily decreased by the appellate court)
• Special damages- specific items of pecuniary loss caused by libel
 Precise monetary amount lost as a result of the libel (trade libel)
• Presumed damages- plaintiff can receive without proof of injury/harm
 Called general or compensatory damages
 One form of payment for matters of public concerns (when plaintiff shows
actual malice) or a private person regarding a private concern (negligence)
• Punitive damages- exemplary damages or “smart money”
 Largest award- designated to punish defendant and warn others
 Same as presumed damages for burden of proof for plaintiff
 Have been barred in six U.S. states and limited in eight U.S. states
The Debate over Punitive Damages
• Purpose of punitive damages to aggressively punish repeated
offenders (selling harmful products, continuing to print lies)
• However in general amount does not equal the harm inflicted (some
argue it is a violation of the Eighth Amendment)
• No specific test, but there are three guideposts imposed by the
Supreme Court:
 Degree of reprehensibility of the defendants conduct
 Ratio between punitive and actual damages
 Comparison between punitive damages award and other fines for similar
• Lower appellate courts are charged with deciding if award is excessivethe wealth of the defendant cannot justify a larger punitive award
(State Farm v. Campbell- $145 million award)
Retraction Statutes
• A retraction is an apology and an effort to “set the record
• Need to state the mistake, apologize for embarrassment, and say
some positive things about the individual
• 33 states have retraction statutes
 Plaintiff has to give publisher an opportunity to publish a
retraction before libel suit can begin
 If retraction is printed, it can reduce or cancel any later damage
 If individual does not ask for a retraction, the libel complaint will
be dismissed
 Two states (Arizona and Montana) have ruled retraction statutes
are unconstitutional (citizens have the right to sue for injury)
Criminal Libel
• Theory that rarely a state has to act on behalf of injured party-> bring
criminal charges
• State has interest in preventing defendant from taking violent action against
• Only 16 states still have criminal libel statutes on the books
• Most prosecutions stem from political reasons (law enforcement, elected
public officers most frequent complainants)
• Most authorities will not take action if there is a civil option, most voters
want criminal actions focused on violent offenders
• Can criminally libel someone who is dead-> tied to a breach of the peace
(Ashton v. Kentucky)
• Garrison v. Louisiana- State has to prove actual malice in a criminal libel suit
based on the defamation of a public official (Supreme Court did not answer
the question of the burden of proof for a private citizen)