Libel Law

1. Libel Law Part 6 From “Libel” published by the University of Iowa Press

2. VI. Defenses • Defenses in libel fall into two general categories: • Primary and secondary. • If you are successful in establishing a primary defense, then you probably will win your case. • If you are unsuccessful in establishing a primary defense but can establish a secondary defense, odds are that the damages levied against you will be less than they might otherwise be.

3. You might not have to go to court.

4. You might even win.

5. A. Primary Defenses • If you know Ashley’s definition of libel, then you should be able to infer what one primary defense is. • Can you?

6. If you said, “Truth,” then you’re on top of it. Truth is indeed a primary defense in libel. • In fact, according to Gillmor and Barron, truth alone is a complete defense in the following states: • Colorado, Indiana, Missouri, Nebraska, New Mexico, North Carolina, South Carolina and Vermont.

7. Gilmor and Barron say that “greater scope” is allowed for truth alone, where criticism of the official conduct of public officials is concerned, in the following states: • Alabama, Delaware, Kentucky, Maine, New Hampshire, Pennsylvania and Texas.

8. The status of truth alone or as a complete defense, according to Gillmor and Barron, is unclear in the following states: • Arkansas, Georgia, Maryland and Virginia

9. In West Virginia, there is no authority on the point of truth, and the situation in Louisiana and Connecticut is also hazy.

10. The following states do not allow truth alone as a complete defense: • Alaska, Arizona, California, the District of Columbia, Florida, Hawaii, Idaho, Illinois, Iowa, Kansas, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nevada, New Jersey, New York, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Dakota, Washington, Wisconsin, and Wyoming. • In these states, truth must be accompanied by good motives for justifiable ends. That’s something to think about.

11. I don’t expect you to remember all of the states (except Kansas), but you should understand what is meant by these various situations. • For example, in Kansas, the fact that a person has been a “thief” may not prevent him from suing you — and collecting — after you have called him a thief. Unless you have a good motive and a justifiable end for committing the defamation, you could very well lose the case. In Colorado, on the other hand, in the very same situation, establishing the truth alone would be a complete defense.

12. Which defense seems more equitable to you? Truth alone? Or truth for good motives and justifiable ends?

13. To simplify, in “good motive” states, you don’t bring up defamatory material willy-nilly. For example, if a 35-year-old man enters public life, and you publish that he was convicted of car theft as a teenager, you’d better have a very good reason for doing so. • If you offer truth as a defense — it doesn’t make any difference which state you live in — you must be able to do one very important thing: Prove it.

14. This last might seem simple. It’s possible that it wouldn’t be. For example, it might be simple to prove that Earl Frobisch was a thief. A bona fide court record which showed that Frobisch had been convicted of the crime of theft would be evidence enough to prove this. But, let’s say that you have to prove Karl Schnee, your “friendly-used car dealer,” was a “cheat.” • How would you go about this? • Let’s say no court record or other documentary evidence existed, and that the only information you had to go on was the word of persons who done business with Schnee. In court, you might put your witnesses on the stand. But don’t you think Schnee might also come up with some witnesses who would testify that he was anything but a cheat?

15. Although it might seem inequitable, can you imagine what a jury might think if you pleaded truth and then were unable to sustain this defense? Isn’t it possible that the jury might get the idea that you were being malicious? The defense of truth — which must be proved by the defendant — is like a two-edged sword. It can cut you, too. • My point is a simple one: Truth may be a complete defense, but it also might be a very difficult one to sustain. You have to provie truth to a jury. Unless you have solid documentary evidence, this might be tough to do. • And not doing it might work against you.

16. Try a problem • You interview the head of your local Chamber of Commerce in connection with an in-depth feature you’re doing on shady business practices. The Chamber head gives you plenty of juicy quotes. After collecting more information, you write your story.

17. In it you include the following paragraph: “Goniff is a cheat,” Chamber President Gilbert Salon said. “If he can take a customer to the cleaners, he will. I’m convinced of this.”

18. After you check your story, the paragraph bothers you a bit. You call Salon and read the paragraph to him. “Is that what you said?” you ask. “That’s it,” Salon tells you. “I think he’s a cheat, and that’s what I said. When the story is published, Goniff brings suit against you for libel. In your defense, you plead truth.

19. Question • In establishing your defense, all you need to do is prove that Salon said what he said. • If you think the answer is yes, click here: • If you think the answer is no, click here

20. Oops. Sorry. • You thought the answer was yes. Ooooh. Too bad. • It may be true that Salon said Goniff was a cheat. BUT Salon’s saying it does not prove that Goniff was or is in fact a cheat — and this last is what you’ll have to prove if you expect your defense to stand.

21. You cannot repeat a defamation and expect to escape liability. Given the hypothetical case, what you would have to prove to the jury would be that Goniff was a cheat. This should say something to you about quotes and attribution. In the hypothetical case, there is no doubt that Salon said what he said. That part is true. The question is: Is the defamation — that Goniff is a cheat — true?

22. If there is defamatory material in a story you write, and if you expect to use truth as a defense, you must prove the truth of the defamatory material — and not simply prove that it was in fact passed on to you. Not incidentally, whoever was doing the suing would probably sue Salon as well as the publication. Remember, everyone connected with a defamation is liability. To continue, click here:

23. Excellent Choice! You thought the answer was no. That’s correct. It may indeed be true that Salon said Goniff was a cheat. Salon’s saying it does not prove that Goniff was or is, in fact, a cheat — and this last is what you’ll have to prove if you expect your defense to stand.

24. You cannot repeat a defamation and expect to escape liability. Given the hypothetical case, what you would have to do to prove to the jury that Goniff was a cheat? This should say something to you about quotes and attribution. In the hypothetical case, there is no doubt that Salon said what he said. That part is true. The questions is: Is the defamation — that Goniff is a cheat — true?

25. If there is defamatory material in a story you write, and if you expect to use truth as a defense, you must prove the truth of the defamatory material — and not simply that it was in fact passed on to you. Not incidentally, whoever was doing the suing would probably sue Salon as well as the publication. Remember, everyone connect with a defamation is liable. To continue, click here:

26. What I attempted to explain in dealing with your answers to the question on Goniff and Salon applies to anything you might pick up from any source — if you are attempting to establish a defense of truth. Rule of thumb: You must prove the defamation is true, not simply that you obtained the information from some source is true. In other words, you must show that what you have learned is true and not simply that it is true that you learned it.

27. Another primary defense against libel is privilege. Some persons enjoy absolute privilege, which grants them immunity from liability in libel. For this class of persons, malice becomes irrelevant. They may be as malicious as they choose and still remain immune from liability. If you’ll recall the three branches — executive, legislative, and judicial — you’ll have a handle on who enjoys absolute privilege. In their official communications, the President, members of Congress, and justices of the Supreme Court may defame whomever they wish for whatever reasons they may have.

28. For example, from the floor of the Senate (and the floor of the Senate need not always be in Washington, D.C.), a senator might accuse you of being seven kinds of a murderer and thief, and you would have no legal recourse. If the senator stepped off the floor, however, and if he made the same comments, then you could bring action against him as you would against any other defamer. Presumably the same thing would hold for the President or for Supreme Court justices. The quality of absolute privilege enjoyed by government officials grows less clear as you move away from federal and into state government. It is clear, however, that governors, legislators and judges, acting in their official capacity, do enjoy it.

29. It is doubtful that mayors, city councilmen, and justices of the peace could claim absolute privilege, although a good deal of privilege could attach to their official communications. Others who enjoy absolute privilege are witnesses in trials, attorneys acting as trial lawyers, and jurors. The comments they make during the course of a trial are absolutely privileged — as long as they remain in the court record. Ordinarily, newsmen do not enjoy absolute privilege. The only circumstance under which newsman would be immune from liability would be one in which he had the consent of the person who was being defamed.

30. As you might guess, few persons willingly grant a newsman consent to defame them. It’s not inconceivable, however. Someone might say: “Sure. I’ll let you print that, if you’ll give me a chance to have my say.” Such a statement might constitute consent, if you did, in fact, give the person an opportunity to reply. Consent becomes particularly important for photographers, who often shoot feature pictures which have little or no actual news value and might, under some circumstances, be construed as libelous. For example, a picture might show someone who “looked” extremely drunk, and that person could, in reality, be a leading spokesman for temperance. Photographers often carry printed consent or release forms which they ask people whom they have photographed to sign.

31. Speaking of signatures, in consent you should recognize their importance. It could be difficult to prove to a jury that you had in fact obtained a person’s consent to a defamation. If you have a signed document, however, which has been witnessed, then you’ve virtually guaranteed yourself immunity from action. To repeat, generally newsmen do not have absolute privilege. Newsmen do enjoy qualified privilege, which is granted on the theory that, in some cases, the social or public interest outweighs harm to individuals.

32. For one thing, qualified privilege allows the newsman to report to utterances of persons who enjoy absolute privilege. In effect, this extends the immunity from liability to the newsman. Thus the newsman can report the proceedings of Congress and legislatures, courts, and the executive branch with relative security; that is, he can probably report defamation made by others — those with absolute privilege — without too much worry about his own liability. One thing can defeat a defense of qualified privilege. That’s malice. If the newsman’s report is full, fair and accurate — without malice — the defense will probably stand. Thus the qualification for the defense is that the report be “full, fair and accurate.”

33. Consider the following • A subcommittee of the U.S. House is conducting hearings on the Medicare program in your town. A number of people have testified, including several local physicians and ones from neighboring communities as well. Some of the exchanges between subcommittee members and witnesses have been heated. In particular, one doctor and one congressman have traded nasty remarks.

34. Finally, when the doctor finishes his testimony, the congressman says: “Gentlemen, I want the record to show that I personally have evidence that this man — this man who dares call himself a doctor — is guilty of defrauding the government of thousands of dollars. I wonder how such a man could be expected to care adequately for patients, when the evidence shows that he steals from the government and, consequently, from them.”

35. Because the doctor is a prominent member of your community, when the hearing ends, you ask the congressman to comment further. He replies: “No comment.” You telephone the doctor, although you do not need to do so, and ask him to comment on the congressmen’s charges. When he stops swearing, the doctor says: “I’d like to hear him speak his fancy piece when he doesn’t have immunity.”

36. When you write the story, you report what the congressman said at the hearing, what he said after the hearing, and what the doctor said in response. A few days after your story appears, the doctor sues you for libel.

37. Question • What defense do you offer? If you would plead absolute privilege, click here If you would plead qualified privilege, click here:

38. What?! You said that you would plead absolute privilege. NO. The only circumstance under which a newsman has anything like absolute privilege is consent — and there is nothing in the hypothetical to suggest that the doctor consented to defamation.

39. In fact, the hypothetical suggests that the doctor was exceedingly unhappy about the congressman’s comments and that he would “like to hear him (the congressman) speak his fancy piece” under circumstances where the congressman did not have immunity. And that’s the point. During the hearing, the congressman had absolute privilege. In effect, the floor of the House had been moved to your town.

40. As a newsman, you have qualified privilege, which enables you to report what is deemed to be in the public interest as long as you are not motivated by malice. Your attorney should be able to show that malice was absent because you have reported fully about theincident, covering what was said during the hearing and after it. You made a point of asking the doctor for his side of the story even though you didn’t have to do so to sustain your defense of qualified privilege. Understand that, as long as your report of hearing was full, fair and accurate, you need go no further to establish a legal defense.

41. Ethically, however, you might indeed wish to go further. You were, when all is said and done, on the side of the angels in this case. Given the circumstances of the hypothetical case, it’s not too likely that the doctor’s case would even come to trial. When you check with someone — like the doctor — who has been defamed, beware. They may do some defaming of their own — and they may not have immunity. To continue, click here:

42. You are right! You said that you would plead qualified privilege. YES! The only circumstances under which a newsman has anything like absolute privilege is consent — and there is nothing in the hypothetical to suggest that the doctor consented to the defamation. In fact, the hypothetical suggests that the doctor was exceedingly unhappy about the congressman’s comments and that he would “like to hear him (the congressman) speak his fancy piece” under circumstances where the congressman did not have immunity.

43. And that’s the point. During the hearing, the congressman had absolute privilege. In effect, the floor of the House had been moved into your town. As a newsman, you have qualified privilege, which enables you to report what is deemed to be in the public interest as long as you are not motivated by malice. Your attorney should be able to show that malice was absent because you have reported fully about the incident, covering what was said during the hearing and after it.

44. You made a point of asking the doctor for his side of the story, even though you didn’t have to do so to sustain your defense of qualified privilege. Understand that, as long as your report of the hearing was full, fair, and accurate, you need go no further to establish a legal defense. Ethically, however, you might indeed wish to go further. You were, when all is said and done, on the side of the angels in this case.

45. Given the circumstances of the hypothetical case, it’s not too likely that the doctor’s suit would even come to trial. When you check with someone — like the doctor — who has been defamed, beware. They may do some defaming of their own — and they may not have immunity. To continue, click here:

46. You may recall that, on the first Review Quiz, I asked the following true-false question: The FTC says Brand X engaged in false advertising. You report this. You have defamed Brand X. In the set of answers, I told you that the answer to this item was true. And it is. You have defamed Brand X. The question is: Can Brand X bring a successful libel action against you? The answer to this question is: Probably not. If the FTC (Federal Trade Commission) made its statement in the course of public business, you probably have a qualified privilege to report it.

47. Assume for the moment that the FTC charges are false. Do you have a way of checking on this? Let’s say you’re a reporter covering the FTC in Washington, and that the statement is made there. Suppose further that Brand X has its main offices in Portland, Ore., and that none of its representatives were on hand in Washington when the FTC charges were made. Do you have a legal obligation to call Brand X?

48. The answer is: Probably not. The point is: Brand X should have an opportunity to answer the charges.

49. Regardless, you probably have a qualified privilege when you report the official statements of agencies like the FTC. Warning: As you move down the ladder from federal to state to county to municipal agencies, the best practice is to be wary if you think you are going to have to count on qualified privilege as a defense in libel.

50. Let me stress again that there is simply no substitute for full, fair and accurate reporting. And, as you move down the agency — or any other governmental ladder — the fuller, the fairer, the more accurate the report, the more likely you are to be able to sustain the defense of qualified privilege. Your behavior should help you prove a lack of actual malice, which — to remind you again — is the major thing which will defeat a plea of qualified privilege.