LIBEL

1. LIBEL By Casey Bischel & Tracey Goldner (with a few additions by Professor Wells)

2. LIBEL BEFORE SULLIVAN: John Peter Zenger • Libel is rooted in common law and was transported to the colonies from England. • Publishes defamatory statements against Gov. William Crosby, New York. • Sympathetic jury found Zenger innocent.

3. AFTER ZENGER • Libel is not directly addressed within the U.S. Constitution • Even after adoption of the Constitution, interpretations of libel varied from state to state

4. New York Times, Co. v. Sullivan

5. NEW YORK TIMES, CO. V. SULLIVAN • Landmark 1964 case, overturned Alabama Supreme Court decision 9-0. • The U.S. was fully immersed in the Civil Right’s Movement. Inconsistencies with the ad: • MLK arrested only 4 times, not 7 • Police did not surround campus • Students sang different song

6. Justice Hugo BlackEstablished the “actual malice” standard – requires that P show D made defamatory statement about P’s official conduct with knowledge or reckless disregard of its falsity

7. The Impetus for Sullivan • How did the way that Sullivan arose – i.e., the facts surrounding the case and the parties involved – affect the majority’s decision? • What was the Court so obviously worried about – i.e., how did it see libel law being used as weapon in Sullivan? • What does SCT find as the “central meaning” of the 1st Amdt?

8. LIBEL AFTER SULLIVAN • NYT v. Sullivan was a major victory for journalists and mass media and strengthened freedom of the press. • “It redefined state power in libel charges against public officials.” (Lewis, 1991) • Shifted burden of proof to plaintiff. • Certain (political) advertisements were now protected under the First Amendment.

9. ROBERT W. WELCH, JR. Wealthy businessman (inventor of Sugar Babies, Junior Mints & Sugar Daddies). Founded John Birch Society in 1958 to limit the reach of communism and promote conservative ideals.

10. WHY GERTZ SUED • Elmer Gertz represented Ronald Nelson’s family in a civil action suit against Richard Nuccio, a Chicago police office who shot and killed Ronald Nelson. • The John Birch Society wrote several articles in their publication American Opinion about a communist conspiracy and alleged that Elmer Gertz was a communist and that Nuccio had been framed.

11. GERTZ’S REASONING • “Intentional lies” do not contribute to public debate. But First Amendment protects erroneous speech to ensure important speech is protected. WHY this dichotomy? • Unlike public figures, private figures should have more access to legal redress. • Private figures can’t reclaim their reputations in the media as easily as public figures. • Private figures don’t assume the risk of publicity as do public figures

12. GERTZ OPINIONS, 5-4 • Majority Opinion: • Public figure plaintiff must show that the defendant made false statements with actual malice. • Private figure plaintiff need only show that defendant acted negligently re false statements (strict liability for defamation ruled unconstitutional). • But to recover presumed or punitive damages, even private figure must show false statements were made with actual malice. • DISSENTING OPINIONS: • Justice Douglas: • Controversy surrounding Gertz makes him a public figure. • Justice Brennan: • We’re all public to some degree. • Justice Brennan worried that fear of libel will cause publishers to wade through countless unpredictabilities" and lead to self-censorship.

13. QUESTIONS ABOUT GERTZ • Who is a public figure? • Those who achieve “pervasive” fame so that they are public figures for all purposes and in all contexts • Those who voluntarily inject themselves or a drawn into a controversy and are public figures for a limited range of issues. • Is this definition consistent with Sullivan’s concerns re libel? Would it have been better to use an “issues of public concern” rationale to determine when speech should be protected? • Do you agree with the Court’s reasoning for why we should distinguish between private and public figures?

14. WHAT HAPPENED NEXT? • Westmoreland v. CBS (1982-1985) • General Westmoreland, the chief executor of the Vietnam War from 1964-1968, sued CBS for saying the war had been a “conspiracy at the highest levels of American military intelligence.” • Sued for $120 million, but eventually dropped the case. • Lewis wrote: “the cracks in U.S. libel law were beginning to show.”

15. WHAT HAPPENED NEXT? Hustler v. Falwell (1988) • Hustler published an ad for Campari bitters that lampooned Jerry Falwell, a well-known preacher and leader of the Moral Majority, a “right-wing lobbying group.” (Lewis, 1991) The ad parodied Falwell’s first time and suggested it was with his mother. Falwell sued for IIED & libel. • The court determined that Jerry Falwell was a public figure and that because the ad was a parody, it did not meet the actual malice standard set by NYT v. Sullivan.

16. Proposed changes to libel law • News media win not on the truth of their speech but on the privilege of their legal status. Huge cases become symbolic and too heavy. • Trials are decided based on how a newspaper phrases something, not what it actually said. Studies show (Powe, 1991) that people sue mainly because the act legitimizes their feelings of defamation. Proposed Solutions • Loser pays court fees. • Replacing “actual malice” with economic hurt. • Use declaratory judgment actions (i.e., P gets a declaration that statement was false without having to show D’s fault) • Visible right of retraction for P w/out a showing of fault if P shows falsity

17. Discussion Question 1 • Britain's Lord Anthony Lester spoke at an Association for Education in Journalism and Mass Communication conference this year to say that Europe is paying less attention to America's press laws. He believes the First Amendment gives too much power to the press at the expense of people's privacy. • Using the cases discussed in this presentation, what are your thoughts on libel law? Has it gone too far?

18. DISCUSSION QUESTION 2 • “The impact of Sullivan has been huge and now it needs to be fixed.” – Anthony Lewis • How do you think libel law can or should change?

19. DISCUSSION QUESTION 3 • The Columbia Journalism Review reflected on the recently dropped case brought by Hertz against Crain’s New York, a business news website that wrote how Hertz was “among big companies facing the ‘greatest bankruptcy risk.’” Hertz claimed that the article was an act of commercial libel because it showed a “reckless disregard for the truth.” • What do you think happened? • What role do you think business speculation or the utterances of important people should play in libel issues regarding businesses? • What about when whistle-blowers report company wrongdoing that leads to bankruptcy?

20. DISCUSSION QUESTION 4 • Three Italian journalists claimed that a prosecutor’s brother had mob connections and allegations had already been printed in two papers. Two were sentenced to twelve months in prison while the third, an editor was sentenced to eight. Each convicted libeler must pay 20,000 euro in fines. Defamation in Italy has been illegal since WWII, but libel law hasn’t been used much until recently. The Organization for Security and Cooperation in Europe (OSCE) writes that “disproportionate and damaging to a democratic society.” • Do you think these sentences were fair? This is a fairly small punishment. Is this what America should pivot toward?

21. References Chambers, J. & Anderson, F. (1999). The Oxford companion to American military history. New York: Oxford University Press. Kratsas, G. (August 9, 2013). British Lord Critiques the First Amendment as “Unbalanced”. American Journalism Review, June/July, 2013. Retrieved from http://www.ajr.org/Article.asp?id=5552 Langley, A. (May 29, 2013). Libel Convictions Face Resurgence in Italy. Columbia Journalism Review. Retrieved from http://www.cjr.org/behind_the_news/three_italian_journalists_jail.php Lewis, A. (1991). Make no law : the Sullivan case and the First Amendment. New York: Random House. Powe, L. (1991). The fourth estate and the Constitution : freedom of the press in America. Berkeley London: University of California Press. Starkman, D. (December 1, 2009). Hertz Drops a Libel Suit. Columbia Journalsim Review. Retrieved from http://www.cjr.org/the_audit/hertz_drops_a_libel_suit.php