Chapter 6: Libel Defenses and Damages

1. Chapter 6: Libel Defenses and Damages Kathleen Fox and Ashley Wislock

2. 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, money) • Most common reason for plaintiff loses -> cannot meet the burden of proof

3. 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

4. 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 defense) Court must look at plaintiff’s allegation in the most favorable perspective Any dispute over the facts of the case-> case will go to trial

5. Outline of Summary Judgment conti. • 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

6. 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

7. Example Case on Summary Judgments • Christiansen v. WCLT et al decided by Ohio appellate court in June 2010 • 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.”

8. 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? • http://www.newsroomlawblog.com/2010/06/articles/defamation-1/ohio-appellate-court-affirms-summary-judgment-for-radio-station-on-defamation-and-false-light-claims-by-political-candidate/ • 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

9. 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

10. 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

11. First Amendment Questions • Calder v. Jones-> disagreement between lower courts and Supreme Court • 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 rights • What do you think? Which side do you align with?

12. 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

13. 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 • Consent • Right of Reply

14. Truth 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 Defendant can avoid liability if material is true

15. 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 communications) Speaker in any above forums cannot be sued for defamation

16. 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)

17. Examples of Qualified Privilege LEGISLATIVE • 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 JUDICIAL • 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 EXECUTIVE ACTIONS • 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.

18. Neutral Reporting • If the press reports defamatory allegations that are on a newsworthy topic from a responsible source, the material is privileged • 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

19. 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

20. 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)

21. Current Examples of Rhetorical Hyperbole • 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) http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202439486524&slreturn=1&hbxlogin=1 • 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 • http://www.rcfp.org/newsitems/index.php?i=4107 • 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? http://www.dailykos.com/story/2009/5/19/733183/-Liberal-blogger-sued-for-libel-by-teabagger-Michael-Leahy

22. 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 conservative • Lower courts use The Ollman Test to examine other dimensions of questionable material

23. The Ollman Test • Four part test to determine if material is an assertion of fact or the writer’s opinion (Ollman v. Evans) • 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)

24. The Ollman Test: Important Cases • 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.

25. Important Cases: Lessons about The Ollman Test • Context and inclusion of all the relevant facts is important in libel suits regarding pure opinion statements • 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 protected • Healy v. New England Newspapers- story gave an untrue impression of the doctor because the journalist left out essential facts -> not protected anymore

26. 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)

27. 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 opinion Make sure all the facts are true, be objective and portray both sides of any issue

28. 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

29. Damages • 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

30. 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 conduct • Lower appellate courts are charged with deciding if award is excessive- the wealth of the defendant cannot justify a larger punitive award (State Farm v. Campbell- $145 million award)

31. Retraction Statutes • A retraction is an apology and an effort to “set the record straight” • 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 judgment • 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)

32. 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 libeler 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)