Ch 5: Libel Defenses and Privileges

Topic Overview
Individuals sued for libel have access to a variety of defenses. A key distinction between the plaintiff and defendant in such cases being that while a plaintiff must prove all six elements of his case, the defendant need only prove one suitable defense. There are numerous defenses a libel defendant may utilize in his case. 

Defining Key Terms
Absolute Privilege: A complete exemption from liability for the speaking/publishing of defamatory words of and concerning another because the statement was made within the performance of duty such as in judicial or political contexts

Conditional/Qualified Privilege: An exemption from liability for repeating words of and concerning another because the original statement was made within the performance of such duty as in judicial or political contexts; usually claimed by journalists who report statements made in absolutely privileged situations; this privilege is conditional or qualified on the premise that the reporting is fair and accurate.

Fair Comment and Criticism: A common law privilege that protects critics from lawsuits brought by those in the public eye.

Innocent Construction: Allegedly libelous words that are capable of being interpreted, or construed to have an innocent meaning are not libelous, so long as the interpretation is a reasonable one.

Single Publication Rule: A rule that limits libel victims to only one cause of action even with multiple publications of the libel, common in the mass media and online sites.

Libel Proof Plaintiff: A plaintiff whose reputations is deemed to be so damaged already that additional false statements of and concerning hum or her cannot cause further harm.

Retraction Statutes: In libel law, state laws that limit the damages a plaintiff may receive if the defendant had issued a retraction of the material at issue. Retraction statutes are meant to discourage the punishment of any good faith effort of admitting a mistake.

Important Cases
Ollman v. Evans (1984): Evans questioned the scholarly qualifications of Ollman in an article regarding a position nomination, inciting Ollman to accuse Evans of defamation. Court ruled that Evans' writing was opinion, clearing him of charges as there was no direct proof that his writing was defamatory. Origin of The Ollman Test for Opinion.

Relevant Doctrine
Fair Report Privilege - Privilege claimed by journalists who report on events on the basis of an official record (i.e. police report). Their report must fairly and accurately depict the record's content.
1. The information must be obtained from a record or proceeding recognized as "official".
2. The news report must fairly and accurately reflect what is in the public record or what was said during the official proceeding.
3. The source of the statement should be clearly noted in the news report.
4. Not all states recognize the fair report privilege.

The Ollman Test for Opinion - Four part test created to determine whether a statement was one of fact or an expression of opinion. Not all of the tests elements need to be satisfied; rather, the answers to its questions are to be evaluated in total.
1. Verifiability
2. Common meaning
3. Journalistic Context
4. Social context

Neutral Reportage - The First Amendment can be a defense in a libel case if the following are relevant:
1. The story is newsworthy and related to a public controversy.
2. The accusation is made by a responsible person or group.
3. The charge is about a public official, public figure or public organization.
4. The story is accurate, containing denials or other views.
5. The reporting is neutral.

The Wire Service Defense - Defense for republication. Applicable to libel defendants if four factors are met:
1. The defendant received material containing the defamatory statements from a reputable news gathering agency.
2. The defendant did not know the story was false.
3. Nothing on the face of the story could have reasonably alerted the defendant that it may have been incorrect.
4. The original wire service story was republished without substantial charge.

Jurisdiction Test - Determines the exercise of jurisdiction.
1. Whether the defendant purposefully conducted activities in the state.
2. Whether the plaintiff's claim arises out of the defendant's activities there, and
3. Whether the exercise of jurisdiction would be constitutionally reasonable.

Section 230 Immunity - Offers immunity to websites in libel claims, although the protection is not absolute.
It does apply to Internet Service Providers (ISP) and websites if:
1. The ISP/site is a content distributor and not a content creator.
2. The ISP/site did not interact directly with the content.
Also applies when:
1. ISP/sites correct, edit, add or remove content so long as they don't substantially alter the meaning.
2. ISP/sites solicit or encourage users to submit content.
3. ISP/sites pay a third party to create or submit content.
4. ISP/sites provide forms or drop downs to facilitate content submission by users - so long as such forms are neutral.

Current Issues or Controversies
As new technologies emerge (i.e. Yelp) so do more opportunities for defamation suits. The law must adapt to regulate and oversee, however its often slow in catching up, especially considering the rate at which technology accelerates.

My Questions & Concerns
1. In forum shopping, what factors of a favorable jurisdiction would a plaintiff look for?
2. What happens if the plaintiff can prove the parody/satire/rhetorical hyperbole caused direct damages?

References
Trager, R., Russomanno, J. & Ross, S.D. (2012), The law of journalism and mass communication. Thousand Oaks, CA: Sage Publications.

Ch 4: Libel and Emotional Distress

Topic Overview
Libel and slander are both forms of defamation. While there was a time when truthful but damaging statements were seen as such that is no longer the case today. Libel law protects the right of individuals to be secure in their reputations. Current libel and slander laws serve to allow people who have been defamed to restore their reputation and receive compensation. While libel and slander laws are meant to protect reputation they may also be used as weapons against criticism, inciting a chilling effect. Libel cases involve the plaintiff proving that all of the (7) required elements apply to the alleged defamatory material. As various forms of new media emerge the opportunities for defamatory speech increase, requiring the law to adapt. Libel law has been tailored to be applicable to various types of public figure. 
Libel lawsuits not only involve reputation, but may also be over emotional distress. A libelous story has the potential to simultaneously injure someone's reputation in addition to upsetting him/her emotionally. There are two distinct categories of emotional distress suits, both of which require the plaintiff to prove various elements. 

Defining Key Terms 
Slander: Spoken words that damage reputation.

Libel: Written defamation

Damages: Monetary compensation that a person who has suffered loss or injury may receive in court. Damages may compensate for actual loss or be punitive as punishment for illegal conduct. 

SLAPP (strategic lawsuit against public participation): A lawsuit intended to silence critics, curbing their First Amendment rights. An instance in which libel law is used as a weapon to prevent speech from occurring in the first place. 

Burden of Proof: The requirement for a party to demonstrate one or more claims by presenting evidence. In libel law the plaintiff has the burden of proof.

Libel Per Se: A state considered to be defamatory on its face requiring no further proof. 

Libel Per Quod: When the matter by itself does not appear to be defamatory, requiring proof of the statement's injurious nature. 

Actual Malice: The newer standard of fault. A statement made knowing it is false or with reckless disregard for its truth. 

Public Figure: A plaintiff who is in the public spotlight, usually voluntarily. He/she must prove the defendant acted with actual malice to win. 

All Purpose Public Figure: A person who occupies a position of such persuasive power and influence that they are deemed public figures for all purposes. 

Limited Purpose Public Figure: A person who has attained public status within a narrow set of circumstances. 

Involuntary Public Figure: A person who does not necessarily thrust themselves into public controversies voluntarily but is drawn into specific issues.

Private Figure: A plaintiff who cannot be categorized as either a public figure or a public official. Private figures are required to prove negligence, not actual malice. 

Negligence: The failure to exercise reasonable or ordinary care. In libel law, negligence is usually the minimum level of fault a plaintiff must prove. 

Strict Liability: A defendant is automatically responsible for damages. Fault is not required to receive damages. 

Emotional Distress: Serious mental anguish.

Intentional Infliction of Emotional Distress: Extreme intentional or reckless conduct causing the plaintiff emotional harm. 

Negligent Infliction of Emotional Distress: Careless breach of duty that causes the plaintiff serious emotional harm. 

Important Cases
New York Times Co. v. Sullivan (1964): Sullivan, a police commissioner filed a libel claim against the newspaper over a civil rights' advertorial discussing police violence against marchers. A revolutionary case which established a new standard of fault to libel cases involving public officials. In order for a public official to prove libel he/she must show that the defendant acted with actual malice. 

Relevant Doctrine
The Plaintiff's Libel Case: (1) A statement of fact (2) that is published, (3) that is of and concerning the plaintiff, (4) that is defamatory, (5) that is false and (6) that causes damage or harm and (7) for which the defendant is at fault. 

Current Issues or Controversies
Considering the nature of the internet as a platform for self expression the issue of libelous statements  becomes inevitable, how should the government go about regulating it?

My Questions & Concerns
1. Why is there a distinction between libel and slander? Are the two treated differently?
2. Could a corporation sue for libel?

References
Trager, R., Russomanno, J. & Ross, S.D. (2012), The law of journalism and mass communication. Thousand Oaks, CA: Sage Publications.

Ch 3: Speech Distinctions

Topic Overview
Chapter 3 focuses on different categories of speech as they are in conflict with First Amendment rights. The court must determine the boundaries between protected and disruptive speech, in some cases weighing the benefits of expression against any harm it poses to competing values case by case (ad hoc balancing), and in other cases weighing a broad category of speech against competing social interests (categorical balancing). History demonstrates the tendency for stricter government control on free speech during wartime, raising the importance of national security as a priority over first amendment rights under certain conditions. There are tests in place that have been developed through various cases which aid the court in determining if certain speech should be protected or punished. It is important to remember that speech is not just spoken word, but any form of expression, this extends to mass media and symbolic speech. 

Defining Key Terms
Negligence: The failure to exercise reasonable or ordinary care. 

Fighting Words: Words not protected by the First Amendment because they cause immediate harm or illegal acts. 

Hate Speech: Category of speech which includes name calling and pointed criticism that degrades others on the basis of race, color, gender, ethnicity, religion, national origin, disability, intellect or the like. 

True Threat: Speech directed toward one or more specific individuals with the intent of causing listeners to fear for their safety. 

Important Cases
Tinker v. Des Moines Independent Community School District (1969): Centering around the rights of two students to wear anti-war armbands in school. The Supreme Court upheld the constitutional first amendment rights of students in public schools. The Court ruled that the wearing of the arm bands represented constitutionally protected symbolic speech and that it was not found to be disruptive of school activities.

Elonis v. United States (2015): Concerning threat and intent to threaten via rap lyrics and true threat. Elonis was originally sentenced to jail however the court reversed its decision and remanded the case. 

Relevant Doctrine
Clear and Present Danger: Doctrine which establishes that restrictions on First Amendment rights will be upheld if they are necessary to prevent an extremely serious and imminent danger.

Incorporation Doctrine: Expanding on the idea of free speech protection by incorporating the Fourteenth Amendment's due process. This guarantees First Amendment rights on a state level, limiting the power of local/state gov to censor speech. 

The Incitement Test (Brandenburg/Hess): Created to replace the vague clear and present danger test. This test serves to determine when speech is sufficiently likely to prompt illegal action that it no longer deserves First Amendment protection. Speech may be punished if
1. It is directed toward inciting immediate violence or illegal action and 
2. Likely to produce that action. 

Media Liability for Negligence: The Courts generally side with the media in such cases concerning media incitement to harm. To win a lawsuit over media negligence, the plaintiff must prove breach of media's duty of care because the content posed a
1. Reasonable foreseeability of harm or 
2. Proximate (directly related) cause of the harm. 

Proximate Cause: Determining whether it is reasonable to conclude that the defendant's actions led to the plaintiff's injury. 

Fighting Words Doctrine: The First Amendment does not protect words that 
1. Are directed at an individual and 
2. Automatically inflict emotional harm or trigger violence 

The Tinker Test : Only when speech inside or adjacent to the school during school hours disrupts school activities may it be punished. 

The Fraser Approach: When student speech occurs during a school sponsored event the student's liberty of speech may be curtailed to protect the school's educational purpose, especially when young students are in the audience. 

The Hazelwood Test: When a school creates and supervises a forum for student speech, such as a student assembly or newspaper, the school endorses that speech and it not only permitted but required to control the content to achieve educational goals. Schools must exercise a supervisory function to promote a positive educational environment in all school sponsored mediums. 

Current Issues or Controversies
There was an interesting interview several months ago with Ben Carson on transgenderism which prompted me to think about gender pronouns. Carson has a controversial view point, seeming not to believe in the legitimacy of transgenderism. In the interview when questioned on whether there should be tolerance for transgender people he responds "Of course there should be tolerance. Let me put it this way. Tolerance goes in both directions and I believe that our Constitution protects everybody and every group. They have equal rights. But nobody gets extra rights. Nobody gets to redefine everything for everybody  else and then make them comply to it... that's not tolerance". Considering this, I wonder in the future if and how the law will deal with gender pronouns. Will it be considered hate speech to address someone in a way other than their preferred pronouns? Will a new category of speech be defined by this? 

My Questions & Concerns
1. How is intent determined? Many of these tests are contingent upon intent, e.g. intent "of causing the listener to fear bodily harm or death". How is intent proved? 

References
Trager, R., Russomanno, J. & Ross, S.D. (2012), The law of journalism and mass communication. Thousand Oaks, CA: Sage Publications.

Ch 2: The First Amendment

Topic Overview
Due to vague text within the First Amendment there are multiple ways to interpret its meaning. Various approaches exist to the text: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof: or abridging the freedom of speech, or of the press: or the right of the people peaceably to assemble, and petition the government for a redress of grievances", as the Courts struggle to define the jurisdiction of these ideas. Justices interpret the amendment in numerous ways, including original intent and ad hoc balancing. However, there are certain categories of speech the courts have ruled are unprotected. Unprotected speech includes fighting words, obscenity, defamation, blackmail, extortion, and various other true threats to national security. 

The First Amendment was originally intended to prevent the U.S. from enacting oppressive laws similar to those in England following the birth of the printing press. Numerous theorists and authors including John Milton, John Locke, and Jean-Jacques Rousseau influenced and outlined ideas which would serve as the basis of the First Amendment. The U.S. eventually rejected seditious libel and prior restraints, allowing for criticism of the government. 

As no explicit definition of "the freedom of speech and of the press" exists, the Supreme Court interprets the First Amendment as a means to further certain social functions and values. Another view regards free speech as valuable in and of itself, seeing it as an end rather than a means. Both viewpoints aim to provided guidelines for determining what types of speech should be protected and to what degree. This is further brought into question upon the emergence of mass media and its unique nature. 

The Courts have generally ruled against prior restraint, regarding it as being directly opposed to freedom of speech and of the press. Only in rare cases has the Court justified prior restraint. The Court also must examine whether certain laws violate or are protected by the First Amendment. Content based laws generally are unconstitutional whereas content neutral laws are generally accepted as advancing a legitimate government goal or social function. Courts utilize the O'Brien test to determine if a law is content neutral. The highest degree of protection is given to political speech. The Courts also govern the use of space in regards to free speech, imposing rules in designated public forums as to what is permissible. 

Defining Key Terms
Categorical Balancing: A judge's or court's practice of deciding cases by weighing different broad categories such as political speech against other categories of interest such as privacy to create rules that may be relevant in future similar situations. 

Prior Restraint: Government action to prohibit the publication of a specific text before it is distributed to the public. 

Injunction: A court order prohibiting a person or organization from doing a certain specified act. 

Content Based Laws: Laws that regulate what may be said; singling out messages for punishment specifically due to the government's dissatisfaction with its ideas. Unconstitutional. 

Content Neutral Laws: Laws restricting when, where, and how ideas are expressed. Said to advance public interests and government goals. Constitutional. 

Important Cases
Near v. Minnesota (1931): The Supreme Court ruled that prior restraint on The Saturday Press in Minneapolis was unconstitutional. Recognizing the freedom of the press, rejecting prior restraint as an infringement on First Amendment rights. 

New York Times Co. v. United States (1971): The Supreme Court rejected Nixon's injunction to stop the publication of the Pentagon papers, ruling that to do so would be unconstitutional prior restraint as it posed no immediate risk of harm to compelling government interest. 

Relevant Doctrine 
The O'Brien Test: A three part test to determine if a content neutral law is constitutional. It holds that a law is constitutional if 
1) It is not related to the suppression of speech.
2) It advances an important government interest.
3) Is structured in such a way to achieve said interest with little to no restriction of free speech. 

Current Issues or Controversies
The juxtaposition of PC culture and the First Amendment.

My Questions & Concerns
1. In what (if any) situations aside from immediate threats to national security may an injunction be issued?
2. Is it possible to consistently regulate online speech that violates the First Amendment?

References 
Trager, R., Russomanno, J. & Ross, S.D. (2012), The law of journalism and mass communication. Thousand Oaks, CA: Sage Publications.

Ch 1: The Rule of Law

Topic Overview
The U.S. Court System consists of multiple levels, each with its own jurisdiction and unique function. Both state and federal systems have trial and appellate courts. Trial courts being where cases are tried in the first place, consisting of a jury deciding guilty/not guilty. Appellate courts are the next part of the judicial system, tasked with reviewing the trial courts' performance and process, examining if it was a fair, just trial. Cases go to appellate courts only if a party involved in the case wishes to further dispute the trial courts' decision. Unlike trial courts appellate courts consist only of a judge, lawyers, and brief arguments. Both the federal and state system have two levels of appellate courts, a mid level court and supreme court. In order for the supreme court to take on a case, four of the justices must agree to do so (The Rule of Four). Choosing not to means that the lower level intermediate courts' decision stands. 

The U.S. Supreme Court is tasked with judicial review, making the final decision on the constitutionality of government and state laws. This serves to examine whether laws conform to the constitution's principles. The justices of the Supreme Court vary in their approach to the interpretation of the constitution. 

Laws originate from six sources: constitutions, statutes, equity laws, common laws, administrative laws, and executive orders. Constitutions both at the state and federal level serve to allocate government authority and provide structure for the government. Equity law is created by judges, applying broad principles of ethics and fairness. Common law is also judge made, consisting of rules and precedent developed through tradition and precedent. Administrative law originates from administrative agencies following executive instruction. Lastly, executive orders carrying the force of a law are signed into existence by the heads of executive branches, such as the President. 

There are two categories of lawsuits, civil and criminal. Criminal cases involve the government v. person, whereas civil cases involves a plaintiff v. defendant, on the basis of tort law (harm done from one to another). 

Defining Key Terms
Precedent: To follow precedent is to follow the rulings of previously decided cases with facts similar to the case at hand. 

De novo: "New" or "new again". In rare instances courts of appeal make findings of fact or receive new evidence in the case, consequently reviewing the case de novo.

Remand: Courts of appeal sending back a case to the lower courts for further review. Appellate courts remand cases in instances in which they believe the lower court did not fully explore or develop the issue. 

Political Questions: Questions courts do not review as they fall out of judicial jurisdiction and should be handled by a different branch. 

Important Cases
Marbury v. Madison (1803): The case in which the Supreme Court established its power of judicial review. 

Citizens United v. FEC (2010): Concerning campaign funding by corporations. The courts ruled that corporations were to be considered as an individuals and that to prevent political spending would be an infringement of first amendment rights. 

Relevant Doctrine
Probable Cause: The standard of evidence required for an arrest or in order to issue a search warrant. Probable cause consists of more than suspicion, it is a showing on the basis of reliable information that the defendant is likely the person who committed the crime. 

Federalism: The principle under which states are related to yet independent of the federal government and one another.  

Current Issues or Controversies
The constitutionality of executive orders is often brought into question. Critics regard it as a bypass of government checks and balances or an abuse of power, especially so when a president is perceived as issuing an excess of executive orders. The temporary nature of executive orders is also questionable as they may be undone by the subsequent president.

My Questions & Concerns
1. What is the purpose of a per curiam opinion?
2. Aside from originalism and textualism are there other forms of judicial interpretation of the constitution? 
3. Are there limitations on the power of executive orders? 

References
Trager, R., Russomanno, J. & Ross, S.D. (2012), The law of journalism and mass communication. Thousand Oaks, CA: Sage Publications.