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Chapter 4- Libel
Undergraduate 4

Additional Journalism Flashcards




Common Law Malice
Intent to do Harm
Actual Malice
Knowledge of falsity or reckless disregard for the truth
Forms of Libel

- Can be words printed or broadcasted in news, stories, editorials, letters to editors, and press releases. 

- Can also occur in headlines and advertisments

- And in photographs, cartoosm caricaures, and video 

Libelous per se

- Words that by themselves, damage a person's reputation 

- Clear, unambiguous, and commonly agreed upon meanings 

- Ex: Unethical, adulterer, thief, drunkard, cheat. 


Innocent Construction Rule 

- says words are not libelous if words, given "their natural and obvious meaning," can be reasonably interpreted innocently. 

- meaning of words must also be kept in context- cannot isolate words and say that they are libelous 


libel per quod

- Libel by implication or innuendo

- Libel that is apparent only to readers who know facts not included in the story

- Ex: birth notices mistakenly naming parents, when people know that the father is happily married with another person.

- Editors cannot be held liable for stories that are defamatory because of facts they had no reason to know.

- Plaintiffs claiming this must usually prove monetary loss or ill will on part of publisher


Libel Instances:

Humor, Headlines, and Advertisements


- Humor- words that joke about a person, not neccessarily libelous, but they are if they suggest that a person does not deserve respect

- Headlines- Courts are split over whether an headline alone can result  in libel- some say no if it is clarified in article, some say yes, even if it is clarified. 

- Advertisements- is libel when it claims a business has poor service, but not when it claims one business is better than another. 



(burden of proof)

- plaintiff must prove the defamatory language is "of and concerning them"
- person can be identified by: name, picture, discription, nickname, signature, caricature, or set of circumstances
- plaintiffs can establish libel story even if there name doesn't appear in the story
- can be libel if author fails to adequately disguise characters in a ficitonal story. 


(burden of proof)


- Must prove libel was communicated to someone besides the defamed

- Must inlcude at least 3 people: 1) The person doing the defamation 2) The person being defamed 3) The person hearing the defamation

- Libel can be "publised" in newspapers, broadcasts, press realeases, memos, conversations, interviews, business interviews, and the Internet

- Plaintiff doesn't have to prove the libel has been heard- courts assume they reach an audience

- People who republish defamation are also liable- even if they indicate they are only publishing a rumor

-Common carriers- not responsible for publishing libelous messages



Common Carriers

- Ex: telephone companies and microwave system operators

- not responsible for libel 

- they simply carry the message

- online message boards, Internet providers, and book store owners also usually not responsible for libel



(burden of proof)


- to meet burden of proof- plaintiff must also prove that the defendent published or broadcast with fault-usually negligence for private plaintiffs or reckless disregard for the truth

- the degree of fault the plaintiff must prove depends on who is suing.

- public figures and public officials have a heavy burden to prove that the media published defamation knowing it was fals or that they recklessly disregarded the truth

-Most states just require that the person prove negligence- which is much easier than proving knowing falsehood or reckless disregard for the truth.  

- Before NYT v. Sullivan, journalists were held to strict liability

- falsity was presumed and burden of proof was placed the media

- There was no standard of fault


Strict Liability


- Before NYT v. Sullivan, journalists were held to strict liability

- defamation was presumed to be false, and it was the journalist's responsibilty to prove the truth. 

- falsity was presumed and burden of proof was placed on the media

- It did not matter if the jounralists were careful or sloppy, whether libel was deliberate or unintentional, or whether the story was true or false. There was no standard of fault.

Seditious Libel

- Defaming the Government

- was under English common law

- officials always said it was false, scandilous, and malicious

- truth was no defense

- said the "greater the truth, the greater the libel."



New  York Times vs. Sullivan 



- For the first time, the Supreme Court declared unconstitutional the common law of strict liabilty when the media defames a public official. 

- This decision "constitutionalized" libel law. 

- some false statements must be protected by the First Amendment in political debate if freedom of expression is to flourish

- In order to sue for libel, public officials must 1) establish that the defamation was published with knowing falsity or reckless disregard of the truth. 

- burden of proof for public of officials has come to be known as- New York Times Actual Malice- public officials must prove actual malice

-instead of defendants having to prove the truth, the plaintiffs (public officials) must prove the statements published about them were false and defamatory.

- During the civil rights struggle, in Montgomery, AL police sued the NY Times for publishing an ad by a committee of civil rights activists lead by A. Phillip Randolf. 

- Ad was called "Heed their Rising Voices"

- Several false statements: 9 students were not expelled for signing at the capital, MLK arrested 4 times not 7. 

- Police commissioner Sullivan claimed that although his name was not in the ad, the charges of police abuse defamed him because he supervised the police department. 

- Though the Time's failure to check the ad against news stories might be evidence of negligence, it was not recklessness. 

- Justice Brennan said that the ad was protected political speech, though it had been published. - critics wouldn't speek if they were so afraid that their speech would be libel

- Since Sullivan, the Supreme Court has made it more difficult for plaintiffs involved in public affairs to receive awards for presumed damages. 

- NYT. v.s. Sullivan ended the law of seditious libel in the United States. 

Public Official

-after NYT v.s. Sullivan became to be anyone who has been elected to public office as well as government employees responsible for policy making or for public funds, health, or safety. 

Rosenblatt v. Baer

- Supreme Court declared that a former supervisor of a county owned ski resort might be a public official 

- the Supreme Court said that public officials are government employees who "have or appear to the public to have, substantial resposibility over government affairs"

- does not have to have lofty title

- his position might "invite public scrutiny and discussion of the person holding it"


Rosenbloom v. Metromedia 





- a court case that required even private libel plaintiffs involved in an issue of public importance to prove NYT actual malice.

- In 1971 Rosenbloom, a little know business man accused of selling obscenity had to prove knowing falsehood and reckless disregard of the truth. 

- Later in the 1970's a more conservative court began to limit malice requirements to public officials and public figures. 

Gertz. v. Welch

- said that public figures are either persons of widespread fame or notoriety or people who inject themselves into the debate about controversial public issues to affect the outcome

- court ruled that private libel plaintiffs (non public officials or public figures) would NOT have to prove acutal malice, but would have to prove more than the fact that they were defamed. 

- had to prove libelous material was published with fault, but a lesser degree of fault than public officials and public officials did. 

- ended strict liabilty for the press in private-person libel suit just as Sullivan ended strict liability for public officials. 

- Elmer Gertz was libeled by American Opinion, a right winged magazine, saying that Gertz was involved in a frame up and supported Communist dictatorship 

- Gertz was not considered  an all-purpose or vortex public figure, he was a private person and did not have to prove actual malice. 

- Powell said that a citizen is only a public figure if there is "clear evidence of general notoriety in the communitym abd pervasive involvement in the affairs of society, 

Public Figure (1)

- someone who is intimately inolved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large. 

- receving public funding does not make someone a public figure- Hutchison v. Proxmire

- Involvement in a criminal proceeding does not make one a public figure- Wolson v. Readers Digest

- business people or business may become public figures if they initiate aggressive Ad or PR campaigns related to controversial issues

- political candidates are public officials if defamatory comments are made about their candidacy, 

- Courts almost always find that people who do not seek  public attention or controvery are NOT public figures, even though they may be controversial. 


All Purpose Public Figure (2)



- all-purpose- those who excercise general poer or influence and those who occupy a position of conituing news value- have acchieved widespread fame ot notoriety. - must prove NYT actual malice for libelouse stories about their private and public lives



Limited or Vortex Public Figures

 "limited" or "vortex" - people who inject themselves into public controversy to affect the outcome. 

- have to prove NYT actual malice ONLY for defamtion directly connected to their voluntary acts. 

- they remain private persons for libelous statements about their private lives. 

- people will be classified this only if:

1) the alleged defamation involves a public controversy 2) the person suing for libel has volutarily participated in the discussion of the controversy 3) the person suing for libel has tried to affect the outcome of the controversy

- Gertz was a private person because he had not thrust himself into any issue related to the trials of policeman, Richard Nuccion. 


Time v. Firestone

- involved Mary Alice Firestone

- Supreme Court categorized her as a private person on a national level, though she might have been an all-purpose public figure on a local or regional level

- Supreme Court said that she "did not assume any role of especial prominence in the affairs of society, other than perhaps Palm Beach Society. 

- When court declared that Firestone was not a public figure, it asserted that a divorce proceeding was not the sort of "public" controversy referred to in Gertz.  


Public Controversy 


-public controversy-is not carefully defined- does not include divorce as seen in Time v. Firestone

- Must be a "real dispute" over a specific issue affecting a segment of the general public.

- news coverage is an indication of public controversy but newsworthiness itself is not enough.

- Waldbaum  v. Fairchild Publications was a public controversy- was featured in several newspapers including the Washington Post and his policies were debated within the supermarket industry and by retailers and consumers.  

Waldbaum v. Fairchild Publications

- example of a public figure and a public controversy

- D.C. circuit said that Waldbaum was a limited public figure because he set policies and standardds in the supermarket industry

- was featured in several newspapers including the Washington Post and his policies were debated within the supermarket industry and by retailers and consumers.  

- D.C. court said that the outcome of a public controversy has "forseeable and substantial ramifications " for those not directly participating in theh debate. It also has to be a "real dispute" over a specific issue affecting a segment of the general public. 

Other Limited Public Figures

- some courts consider entertainers, athletes, and others who attract attention because of visible careers, limited public figures. 

- do not have the widespread fame of a public figure, have not injected themselves into a controversial public issue with the intent of affecting the outcome. 

- nevertheless, some courts believe those who seek public attention during their careers out to prove NYT actual malice for the limite purpose of defamtion about their public performances. Ex: Curtis Publishing Co. v. Butts Case

- Butts was considered apublic figure even though his fame did not extend beyond the sports worlds and he did not voluntarily inject himself into a controversy.

Reckless Disregard for the Truth

- public official and figures most often try to prove NYT actual malice by establishing that communicators demonstrated a reckless disregard for the truth. 

- plaintiffs have to prove that defamatory statements were made with "a high degree of awareness of their probable falsity"

- Ex: Amant v. Thompson

the Court said that a candidate for sheriff in Baton rouge did not excercise reckless disregard because he believed the truth of the false statements he made in a televised speech

- a court may find actual malice uf defamatory statements are fabricated so "inherently" improbable that only a reckless man would have put them into circulation.

St. Amant v. Thompson

- the Court said that a candidate for sheriff in Baton rouge did not excercise reckless disregard because he believed the truth of the false statements he made in a televised speech

- did not considere that his accusations may be defamatory and made no effort to verify his ifnormation. 

- The Supreme Court found no reckless disregard for the truth 

Hamilton (Ohio) Journal News

- The Supreme Court said that the paper deliberatley avoided the truth when publishing paper  charging judicial candidate with planning blackmail (court cited several reportorial practices that led up to actual malice)

- relied on highly questionable source and failed to investigate the contradictions

- journalists purposely avoided the truth

- said that Connaughton, a judicial candidate, promised Alice Thompson and her sisters a trip to Florida and fancy dinners in appreciation for information to blackmail the incumbant judge with. 

- SC said that the paper acted with actual malice because 

the Supreme Court concluded that Journal News had published with actual malice by its "deliberate decision not to acquire knowledge of the facts that might confirm the probable falsity of Thompson's charges. Although failure to investigate will not alon e support finding of actual malice, the purposeful avoidance of the truth is in a different category all together. 

- example of reckless disregard for the truth

Curtis Publishing Co v. Butts

- The Saturday Evening Post lost libelsuit b/c of lax investigatory techniques

- Reporters failed to check the story of an unreliable source who said that the GA footbal coach, Wally Butts had fixed a football game with Alabama

- Saturday evening post ws under no deadline and relied on the unsupported testimony of a check forger who claimed he was mysteriously connected to a telephone convo about the fix. 

- Example of reckless disregard of the truth


Cantrell v.  Forest City Publishing 


-         -  SC said that a reporter acted with NYT actual malice when he fabricated an interview with widow named Margaret Cantrell

-       -   Even though Cantrell was never at him, he still quoted her in his story.

-       -   You can “clean up quotations, but not completely make them up

-        - Had complete knowledge of falsity 

Knowing Falsehood

- 2nd part of nyt actual malice

- most public officials and figures try to prove wreckless disregard of the truth, but some try to prove falsehood

- Ex: Cantrell v. Forest City Publishing Co., Goldwater v. Ginzburg.

Goldwater v. Ginzburg

- example of knowing falsehood

-Fact editor, Ralph Ginzburg knowingly published numerous defamatory falsehoof about 1964 candidate, Barry Goldwater. 

- said he had deep doubts about his masculinity

- false statement crearted by a prederminte view of subject

- involves public official 

- there is knowledge of falsity

Herbert v. Lando

-Court said that the first Amend DOES NOT bar inquiry into the editorial process

- White, writing for court, said that the NYT actual malice rule "made it essential" that public officials and figures understand the conduct and state of mind of media defendants (if not, the First Amend would be skewed in favor of the press)

- But ssaid that the investigations into the editorial process should be permitted only when someone suing for libel has to prove actual malice



- A form of fault

- Private individuals must prove this to prove fault

- Two ways to define fault: 

1) Average person standard- the failure to do what a "reasonably prudent person" would do. 

2) Professional standard- failure to be as caredul as an ordinarily prudent person.

- Person can be found negligent if juries find the following:

1) failure to contact the person who is being defamed (unless there was a thorough investigation otherwise)

2.)  A failure to verify information through the best sources unavailable. 

3) An unresolved disagreement between the sources and the reporter over what the source told the journalist

- Anthony LAquori case was an example of negligence

- failed to make sure the person in the phonebook was the person being arrested. 






(Burden of Proof)


- public officials, public, figures, and private persons involved in all matters of public concern must also prove not only recklessness and negligence, but also also falsity. 

- The Supreme Court made it clear in NYT v. Sullivan and its progeny that public officials and public figures must prove falsity in otder to document NYT actual malice. 

- private persons must only prove falsity if they are involved in a matter of public interest

Philadelphia Newspapers Inc. v. Hepps

- The Supreme Court ruled that the private persons suing, rather than th media defending must bear the responsibility of proving their version of their case (proving falsity)

- This only applies to private persons involved in defamation about matters of public interest

Matters of Public Concern

- The ruling in Hepps only applies to private persons involved in defamtion about matters of public interest

- Private person not involved in matters of public cooncern, must prove negligence but not neccessarily falsity

- SC has never defined matters of public concern 

- In Rosenberg v. Metromedia- court said that police campaign against obscenity was a matter of public concern



Danger, Injury, or Harm

(Burden of Proof)


- libel plaintiffs must also prove damage, injury, or harm

- cannot halt a publication or demand a retraction, but they can collect monetary rewards for harm

- libel plaintiffs may sue for 

1) Presumed damages- loss of reputation defamation is asumed to cause or 

2) Compensatory damages 

     a) actual damages- awards for proven loss of a good      name, shame humilation and stress

     b) special damages- compensate for loss of revenue and other out of pocket losses resulting from defamation 

3) punitive damages- awards with the purpose of punishing the libeler. 


Harper and Row Publications vs. Nation Enterprises

- Supreme Court Ruled that Nation violated the copyright held by Harper and Row by publishing several stolen excerpts of Ford's memoirs that were to be published in Time Magazine. 

- Time had exclusive contract with Harper and Row to publish excerpts. 

- SP ruled that publication of an author's expression before he has authorized its dissemination, seriously infringes the author's right to decide when and where it will be made public. 

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