Bodkin Presentation On Libel And Emotional Distress (ADV 3352 Fall 2024) PDF

Class Attendance Procedures Login to Canvas Enter the ADV 3352 course site Go to the “Quizzes” tab Select “Attendance (9/30)” and enter passcode “ADVLibelED” Answer the single question presented Click “Submit Quiz” on or before 12:00 p.m. Your attendance grade will be posted immediate...

Class Attendance Procedures Login to Canvas Enter the ADV 3352 course site Go to the “Quizzes” tab Select “Attendance (9/30)” and enter passcode “ADVLibelED” Answer the single question presented Click “Submit Quiz” on or before 12:00 p.m. Your attendance grade will be posted immediately and viewable under the “Grades” tab in our ADV 3352 course site.  Chapter 4: Libel and Emotional Distress – The Plaintiff’s Case Trager’s The Law of Journalism and Mass Communication (Ekstrand) Dr. Larry Bodkin Adjunct Professor Mass Media Law (ADV 3352) Fall 2024  A Brief History Earliest recorded Western prosecution for reputation-damaging remarks: execution of Socrates in 399 B.C.E. Libel (“little book”)—legal term comes from Roman practice of publishing booklets to defame one another. Fifteenth-century England: defamation complaints heard in the court of common law or court of the Star Chamber (until 1641). Eighteenth-century England: Sir William Blackstone’s “Commentaries on the Law of England” played a role in development of law in the United States. Sedition Act of 1798: law that made it a federal crime to write “any false, scandalous and malicious” statements against either the president or Congress in the United States. Nineteenth-century United States: Chief Justice John Marshall’s defense of the Acts. James Madison opposed; Acts expired in 1801. Actual malice: false statements with knowledge of falsity or reckless disregard for the truth…2018/2022 cases of Robert Freese.  Libel: Plaintiff’s Case (1 of 10) Libel—a tort (civil wrong allowing for damages) governed by state law, with some protection under the First Amendment. Libel law checks the power of the media. Burden of proof: the requirement for a party to a case to demonstrate one or more claims by the presentation of evidence (on the plaintiff in libel suits to prove all elements). Plaintiff: the party who initiates a lawsuit.  Libel: Plaintiff’s Case (2 of 10) Element 1: Statement of Fact Fact: as defined by the dictionary, “a piece of information presented as having objective reality.” Difference between fact and opinion is important in libel proceedings. “The October 2021 U.S. unemployment rate was 4.6%” (can be proven true or false) vs. “the U.S. unemployment rate is too high” is opinion (cannot be proven true or false) and is therefore not libelous.  Libel: Plaintiff’s Case (3 of 10) Element 2: Publication Published: a statement made to more than the plaintiff and defendant. Single publication rule—multiple copies of a single edition is only one defamation claim. Republication rule—providing the same information in a new edition to a new audience may lead to a separate claim. – Republishing libelous information is seen as a new publication – To prevent individuals or the media from freely committing defamation simply by attributing the libelous material to another source. Vendors and Distributors – Publisher liability—determined by whether publishers are or should be aware of the material they disseminate (presumption that they have read and edited the content). – Communications Decency Act: internet service providers are not publishers or distributors Unknown Publisher/Anonymous Speech – The ability to speak anonymously can allow ideas to enter the marketplace of ideas by reducing the fear of reprisal. – State courts have taken multiple approaches to “unmask” anonymous posters on the internet in libel cases (e.g., Dendrite v. John Doe #3). Motion to dismiss: a formal request to the court to dismiss a case often filed by the defendant immediately after a plaintiff files suit. Prima facia: a showing based on looking at the evidence on its face, which is considered a sufficient showing of evidence to establish a fact unless substantially contradictory evidence is presented.  Libel: Plaintiff’s Case (4 of 10) Element 3: Identification Identification: a test that asks whether the allegedly defamatory statement reasonably refers to the plaintiff. Group Identification Libel law can allow any member to sue when the group has been libeled as long the information is “of and concerning” the specific individual bringing the suit. Normally less than 25 members of the group; larger groups create problems for this test.  Libel: Plaintiff’s Case (5 of 10) Element 4: Defamation Defamatory: harmful to reputation. Libel per se: a statement whose injurious nature is apparent on its face and requires no further proof. Libel per quod: a suit that is actionable as defamation only when the plaintiff introduces additional facts to show defamation. Plaintiffs must show material “is reasonably capable of sustaining defamatory meaning.” Example: The plaintiff was accused of visiting a certain location…but if location of illegal activities known by most people, implication is defamatory. Business reputation: businesses/corporations can suffer harm that can impair their ability to conduct business. Individuals within a business may have legitimate libel claims if criticism of the business falsely implies wrongdoing on their part. Trade Libel: defamatory material that pertains to criticism of products rather than criticism of people or businesses. Most states have different approaches for defamation of a person, corporation, or product.  Libel: Plaintiff’s Case (6 of 10) Element 5: Falsity False: not true. The plaintiff is responsible for proving an issue is false (with the defendant having no responsibility for proving it true); this deters potential plaintiffs. Substantial truth: the idea that minor inaccuracies do not amount to falsity; plaintiffs must show that the substance of the libelous charge is true. Libel by implication: Implication or innuendo can create a libelous message  Libel: Plaintiff’s Case (7 of 10) Element 6: Fault Fault: must prove that the defendant was responsible. New York Times Co. v. Sullivan (1964): Supreme Court ruling that made fault an element of common law libel. Arose within the context of the Civil Rights Movement and reporting around illegal measures to stop protests. Decision was based on the premise that punishing a media organization for publishing criticism of government officials was contrary to the First Amendment. Actual malice was the new level of fault established in the Sullivan case. Gave news media license to more aggressively criticize the government.  Libel: Plaintiff’s Case (8 of 10) Element 7: Actual Malice (1 of 3) Actual malice: knowledge of falsity or reckless disregard for the truth. Knowledge of falsity: lying—publishing information with awareness it is false. Generally uncommon in the news media. Reckless disregard for the truth: highly irresponsible journalism; publishing something with serious doubts as to whether the information is correct. Importance of determining a defendant’s (e.g., a publisher’s) state of mind. Purposeful avoidance of the truth: publishing information when there are obvious doubts about the accuracy of information and not taking obvious steps to check its accuracy; often present in actual malice libel claims. Public Officials: Sullivan (1964) established that the standard of fault for public official plaintiffs is actual malice; private figures usually required to show some lesser level of fault, typically negligence. “Public official” designation—those among the hierarchy of government employees who have/appear to have to a substantial responsibility for or control over government; not all governmental employees qualify.  Libel: Plaintiff’s Case (9 of 10) Element 7: Actual Malice (2 of 3) Public figures: plaintiffs who are in the public spotlight, usually voluntarily, who must prove the defendant acted with actual malice to win damages. All-purpose public figures: anyone whom a court labels to be “public” under all circumstances, who occupies positions of persuasive influence to be deemed public figures for all purposes. – Examples: celebrities, athletes, activists, religious leaders and business leaders. Voluntary limited-purpose public figures: a public figure who invites attention and comment but whose prominence may apply only to a narrowly drawn context (e.g., a doctor who has written extensively on health as a columnist). – Can be limited-purpose in smaller publics but private in larger spheres. – Bootstrapping: the forbidden practice of a defendant claiming that the plaintiff is a public figure solely on the basis of the statement that is the reason for the lawsuit. – Question is whether the plaintiff volunteered for an activity from which publicity would foreseeably arise. Involuntary limited purpose public figures: a person who becomes a public figure through no purposeful action of their own. – Court believes these public figures to be rare.  Libel: Plaintiff’s Case (10 of 10) Element 7: Actual Malice (3 of 3) Losing public figure status: to return to private status, plaintiffs likely need to demonstrate that they are no longer subjects of public concern and that their libel claims are not connected to public awareness of events/controversies. Private figure: a libel plaintiff who does not qualify as a public official or public figure who typically need to only show that the libel defendant acted with negligence; definition of negligence varies, but easier to prove than actual malice. The nature of the statement: whether a plaintiff is considered an all-purpose or limited-purpose public figure can depend on whether the material being published relates to a matter of public concern. Strict liability: a standard under which the plaintiff does not need to demonstrate fault on the part of the defendant in order to win the suit if not a matter of public concern (private claims with non-media defendants).  Emotional Distress Intentional infliction of emotional distress: a category of emotional distress suit that involves extreme and outrageous intentional or reckless conduct causing plaintiffs to endure severe emotional harm; public official and public figure plaintiffs must show the defendant acted with actual malice. Negligent infliction of emotional distress: a category of emotional distress suit that addresses a careless breach of a duty that causes the plaintiff severe emotional harm. Reckless: an action that is taken with no consideration of the legal harms that might result. Negligent: an act or statement made by mistake or without anticipating the possible harm the act or statement could cause. Emotional distress: legally defined as serious mental or emotional pain and suffering or mental anguish. Emotional distress cases also called “emotional injury” or “mental distress” suits.  Intentional Infliction of Emotional Distress (1 of 4) Intentional or Reckless Plaintiff must prove the defendant acted in a way that intentionally—willfully or purposely— or recklessly—deliberate in its disregard of potential distress—caused severe emotional distress (willful, wanton, or reckless conduct). If plaintiffs cannot prove intentionality, they may prove recklessness.  Intentional Infliction of Emotional Distress (2 of 4) Extreme and Outrageous Outrageous: conduct that is so extreme as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. High-standard plaintiffs must meet is meant to prevent lawsuits being filed over mere insults, annoying comments, and other remarks.  Intentional Infliction of Emotional Distress (3 of 4) Emotional Distress Proving severe emotional distress requires proving more than mild annoyance or embarrassment (e.g., a woman was not found to have endured severe emotional distress as a result of a text message falsely stating she had a sexually transmitted infection in Georgia). A famous person suing for IIED also must prove actual malice. Actual Malice Hustler Magazine, Inc. v. Falwell (Court extended its actual malice ruling to IIED cases for public figures). Court found that, as satire, the First Amendment protected the magazine’s Campari ad. Court also noted that this does not protect all parodies/satire (e.g., it cannot include false statement of fact published with actual malice).  Intentional Infliction of Emotional Distress (4 of 4) Matters of Public Concern Snyder v. Phelps (2011) established that speech about matters of public concern, even “particularly hurtful” expression, is protected against an IIED lawsuit (in addition, could not be proven false and were hyperbole). In response, Congress adopted a law limiting protests at military funerals. Second Court of Appeals found the First Amendment barred an IIED claim addressing a Connecticut news report that described an individual’s conduct as stalking (2021).