Unprotected Speech : Libel, Invasion of Privacy, and Obscenity

1. Unprotected Speech : Libel, Invasion of Privacy, and Obscenity

2. What is libel? • A false printed statement of fact • Spoken statements of fact are called slander • 4 elements of libel: Publication, Identification, Injury (aka Harm), Fault • All 4 elements must be present in order for a journalist to be guilty of libel

3. Publication • The statement must be published to be libelous • Private letters are not libelous • Would a posting on a comments page on myspace be considered libel?

4. Identification • The libeled individual must be clearly identified • Identification does not necessarily mean naming the individual • If even a small group can identify the person, you may be guilty of libel

5. Injury/Harm • The statement must harm a person’s reputation • Things that may constitute harm: -Statements regarding improper sexual conduct -Statements that associate someone with a vile disease -Statements that accuse someone of illegal behavior -Statements that hurt someone's livelihood -Statements that allege racial or religious bigotry

6. Fault • Most difficult element to prove • You did something you were not supposed to do or did not do something you should have done • Public officials and figures have to prove malice as well as fault (see NY Times v. Sullivan on p.141)

7. Defenses against libel • 4 ways to defend yourself should you be charged with libel • Truth • Consent • Privilege • Fair Comment

8. Truth • As decided in the Zenger trial, the truth can never be libelous • An infallible defense

9. Consent • A person who, prior to publication, consents to the media’s use of a libelous statement, cannot sue after publication • This may not be true if the libeled person is under 18 years of age

10. Privilege • The media is protected when they publish fair and accurate accounts of official public proceedings and reports, even if later the information turns out to be false • The source of the statement must also be clearly noted in the report to avoid a charge of libel

11. Fair Comment • Protects writers of reviews and editorials from being sued for stating their opinions • Statements of pure opinion cannot be libelous • Only statements presented as facts can be libelous

12. Invasion of Privacy • Second form of unprotected speech • 4 kinds of invasion of privacy: • Intrusion • Appropriation/Right of publicity • False Light • Private, embarrassing information

13. Intrusion • Unwelcome entry in some way, usually physically, into a private area • People in public spaces, such as parks, sidewalks, and school hallways have no expectation of privacy • May also be intrusion if you quote someone without their consent • What would be examples of private areas?

14. Appropriation/Right of Publicity • Unauthorized use of someone's name or photograph for commercial purposes • Need signed releases to use anyone's name or photo to advertise or sell something

15. False Light • Involves using true information in a way that it implies something false • Happens often with placement of photographs

16. Private, Embarrassing Information • Includes facts that are private, intimate and which the disclosure of would be highly offensive to a reasonable person • Examples: -Facts about a person’s sexual conduct -Medical or mental condition -Addiction recovery -Educational records

17. Embarrassing Information cont. • Truth is not a defense • Only consent and newsworthiness (public interest) would be a defense to this charge

18. Obscenity • 3rd form of unprotected speech • Defined by the Supreme Court as something that by community standards arouses sexual desire, depicts sexual conduct in a patently offensive way, lacks any serious literary, artistic, political, or scientific value