MEJO 340 Exam 2

Can sue: A living person, a business, a nonprofit
Can't sue: A deceased person, relatives on behalf of a deceased person's reputation, a government body
Can be sued: People and entities responsible for defamatory publication

Libel = defamatory material published in writing or other recorded media.
Defamation = injures reputation through a false assertion of fact communicated to others
So libel = defamation + falsity

A statement which is obviously defamatory on its face, with no extra context necessary

Publications which are not obviously defamatory, but which become so when considered in connection with innuendo, colloquium and explanatory circumstances.

Seditious libel refers to historical punishment of criticism deemed to discredit or undermine the government.

1. Defamation
2. Identification
3. Publication
4. Fault
5. Falsity
6. Injury & Damages

A statement that tends to expose the plaintiff to hatred, ridicule, contempt, or reputational harm

Requires third-party recognition “of or concerning” the plaintiff, at least one recipient must recognize who it is.

The allegedly libelous charge must reach a third party.

Actual malice: either knowing the statement is false or acting with "reckless disregard" of the truth
Negligence: failure to exercise ordinary or reasonable care.

The defamatory factual assertion/implication is materially false. Minor inaccuracies do not defeat substantial truth.

Harm to reputation and legally available relief must be shown as required.

Actual/compensatory: Reimburse proved injury (requires negligence)
Special: Specific monetary losses
Presumed: Require no specific proof of loss (requires actual malice)
Punitive: Punish/deter culpable wrongdoing (requires actual malice)

Strict liability

Repeatingepublishing someone else's defamatory statement can expose the repeater to liability

Online reposts, screenshoots, retweets, forwarding, etc. make it difficult to assign responsibility for every transmission

A provider or user of an interactive computer service generally cannot be treated as the publisher or speaker of information provided by another information content provider. The policy encourages online hosting without making a platform answer for every third-party post.

Good-faith content filtering protection

Hosting, selecting, screening, removing, or moderately editing third-party posts without materially contributing to their illegality; operating forums; some solicitation of user content.

If the service creates the unlawful content itself or materially contributes to what makes it unlawful (Fair Housing Council v. Roommates.com discriminatory profile requirements)

Publishing with knowledge of falsity OR reckless disregard for whether the statement was false. Public officials/public figures must prove it by clear and convincing evidence.

Failure to exercise ordinaryeasonable care.

Elected officials and candidates; government personnel with substantial responsibility for policy, public funds, public welfare or power over citizens, or high public visibility, when statements relate to official conduct/fitness

An individual with widespread fame/notoriety, special prominence in society; commands public and media attention

Someone who thrusts themselves into a public controversy, trying to influence the outcome (the defamation claim must include the controversy)

If someone has not gained general fame or notoriety/ has not voluntarily thrust themselves into a public controversy, they are considered a private plaintiff. Plaintiffs in libel cases do not get to decide their classification, and what kind of plaintiff they are depends on fame/notoriety and their actions relating to the defamation claim at hand.

Public officials, all-purpose public figures, and limited figures = actual malice
Private figures = negligence

High degree of awareness of the probable falsity of accusations, journalist has serious doubts about the truth of a story, accusations so improbable that only a reckless person would have published, purposefully avoided the truth by ignoring obvious sources

Facts, outcome: Alabama official (police commissioner) sued over an advertisement criticizing civil rights policing; it contained inaccuracies. Supreme Court ruled for Times.
Precedent: Public officials must prove actual malice for statements about official conduct; protects robust debate and unavoidable honest errors.

Facts, outcome: Gertz was a prominent lawyer involved in a case, an article defamed him so he sued. Actual malice didn’t automatically apply because he was a private person.
Precedent: The case defined limited purpose public figures and said that since Gertz didn’t thrust himself into a public controversy, he was still a private person in this case.

Facts, outcome: Fight broke out between two HS wrestling teams, columnist wrote about it, basically accusing Milkovich of inciting it and saying he lied under oath. Court said something isn't an opinion just because you label it one.
Precedent: Opinions have two categories; 1. hyperbole, exaggerated 2. vague, incapable of being proven true or false

Facts, outcome: Hustler published offensive parody ad of Falwell, well known conservative pastor. Falwell’s libel claim was rejected as the parody was outrageous and unbelievable.
Precedent: Public figures cannot sue for emotional distress unless there is actual malice; obvious parody is protected

Facts, outcome: Dominion alleged Fox disseminated false claims that voting machines manipulated the 2020 election. The court left actual malice and damages issues for trial; parties settled out of court.
Precedent: Actual malice can be tested against internal awareness/editorial decisions

1. Defeat an element
2. Truth/substantial truth
3. Statute of limitations
4. Fair-report privilege
5. First Amendment opinion
6. Fair comment and criticism
7. Wire-service defense
8. Neutral reportage
9. Retraction

Within a growing digital era/AI: rapid disinformation, viral online republication, political polarization, large verdicts and settlements, debates over if Sullivan rule gives too much protection to falsehood.
Examples: Dominion/Fox, Alex Jones and Sandy Hook, Sarah Palin's litigation against NYT, Depp/Heard, E. Jean Carroll/Trump, Trump's suits against news organizations

Strategic Lawsuits against Public Participation

Intended purpose is to harass critics into silence, effectively suppressing their First Amendment rights.
Ex. A news media outlet publishes a story critical of a large corporation. That corporation sues the media outlet for libel, even though the corporation knows it cannot win on the elements. Meant to discourage or silence any further criticism by forcing the media outlet into court.

1. Appropriation: the use of someone's name or likeness for commercial purposes without permission
2. False light: publication of information that is substantially false and highly offensive to a reasonable person
3. Public disclosure of embarassing facts: publication of information that is highly offensive to a reasonable person, not of legitimate concern to the public, and so intimate that it outrages community notions of decency

Bollea v. Gawker: Hulk Hogan (Bollea) sued Gawker for posting a sex tape of Bollea with a woman who was the wife of radio personality Bubba the Love Sponge. Jury found for Hogan. Settlement was ultimately for $31 million. Gawker tried to argue the tape was newsworthy. Not a successful defense in this case.

1. Appropriation: Consent, newsworthiness, incidental use, protected artistic/transformative First Amendment use.
2. False light: Consent, truth, and applicable libel defenses
3. Public disclosure of embarassing facts: Newsworthiness, consent, facts already public or in public records, insufficient intimacy/offensiveness.

As a result of many cases, the NCAA changed its policy in 2021 and allows student athletes to profit from their NIL “consistent with state law.”

(In any given situation), was there a “reasonable expectation of privacy?”

"Patchwork" of laws

Information lawfully held by third parties can be obtained by subpoenaing the third party, by securing the third party’s consent or by any other means of legal discovery; the “owner” has no role in the matter, and, often, no search warrant is required.

The access of phone lines without a warrant (just seeing what numbers were called) = OK

Use of GPS tracking device to a suspect’s car without a warrant = NOT OK

Geolocation/phone tracking without a warrant = NOT OK

Searching digital information on a cellphone seized from an individual who has been arrested without a warrant = NOT OK

The plaintiff. They must demonstrate falsity.

Keller v. Electronic Arts (2013)

- Whether the depiction or imitation of the celebrity is the very sum
and substance of the work in question
- Whether the work is primarily the defendant’s expression
- Whether the literal and imitative or creative elements predominate
- Whether the market value derives from the fame of the plaintiff
- Whether artist’s skill and talent is subordinated to the overall goal of creating a conventional portrait of a celebrity so as to commercially exploit his or her fame.