Chapter 6: Libel Chapter 6: Libel Defenses and Defenses and

DamagesDamagesKathleen Fox and Ashley WislockKathleen Fox and Ashley Wislock

What is a Libel Defense?What is a Libel Defense?• Grew out of common law, now Grew out of common law, now

contained within many state contained within many state statutesstatutes

• Remember libel law= state lawRemember libel law= state law• Defenses attempt to decrease the Defenses attempt to decrease the

number of defamation lawsuitsnumber of defamation lawsuits• Can end a case quickly (saving Can end a case quickly (saving

time, money)time, money)• Most common reason for plaintiff Most common reason for plaintiff

loses loses

-> cannot meet the burden of proof-> cannot meet the burden of proof

Summary JudgmentsSummary Judgments

• With an appropriate defense, judge can With an appropriate defense, judge can dismiss a case before it beginsdismiss a case before it begins

• Judge will issue this ruling if he/she does Judge will issue this ruling if he/she does not believe the plaintiff can prove what is not believe the plaintiff can prove what is requiredrequired

• Three-fourths of requests for summary Three-fourths of requests for summary judgments by media are grantedjudgments by media are granted

• Case ends without a trial, can save Case ends without a trial, can save substantial resources for media companysubstantial resources for media company

Outline of a Summary Outline of a Summary JudgmentJudgment

• Plaintiffs file written allegations to the courtPlaintiffs file written allegations to the court• Defendants argue case should be dismissed Defendants argue case should be dismissed

without trial (either libel was not proven by the without trial (either libel was not proven by the plaintiff or by the use of a libel defense)plaintiff or by the use of a libel defense)

• Court must look at plaintiff’s allegation in the Court must look at plaintiff’s allegation in the most favorable perspectivemost favorable perspective

• Any dispute over the facts of the case-> case will Any dispute over the facts of the case-> case will go to trialgo to trial

Outline of Summary Outline of Summary Judgment conti.Judgment conti.

• If a reasonable juror, acting reasonably, could If a reasonable juror, acting reasonably, could not find for plaintiff-> summary judgment is not find for plaintiff-> summary judgment is grantedgranted

• Plaintiff can also file for summary judgmentPlaintiff can also file for summary judgment• Losing party will appeal the rulingLosing party will appeal the ruling• If appellate court agrees and sustains the If appellate court agrees and sustains the

summary judgment-> case endssummary judgment-> case ends• If appellate court disagrees and reverses the If appellate court disagrees and reverses the

ruling-> case goes to trialruling-> case goes to trial

Importance of Summary Importance of Summary JudgmentsJudgments• Supreme Court gives increased power to Supreme Court gives increased power to

trial/appellant courts to issue summary trial/appellant courts to issue summary judgmentsjudgments

• However some judges are fearful of granting However some judges are fearful of granting summary judgments-> force a trial although libel summary judgments-> force a trial although libel claim is weakclaim is weak

• ““The costs of vindications may soon be too great The costs of vindications may soon be too great for such media defendants to print or publish…it for such media defendants to print or publish…it is a sorry state of affairs for the media, and, is a sorry state of affairs for the media, and, more important, for the country.”more important, for the country.”

-Federal Judge Stanley Sarokin-Federal Judge Stanley Sarokin

Example Case on Summary Example Case on Summary JudgmentsJudgments

• Christiansen v. WCLT et al decided by Ohio appellate Christiansen v. WCLT et al decided by Ohio appellate court in June 2010court in June 2010

• Before a November 2008 general election, a radio Before a November 2008 general election, a radio station (WCLT) posted an editorial written by the station (WCLT) posted an editorial written by the radio station’s general managerradio station’s general manager

• The editorial claimed that two of the three The editorial claimed that two of the three candidates for Domestic Relations Court Judge were candidates for Domestic Relations Court Judge were inappropriate for the positioninappropriate for the position

• The editorial stated, “in July of 2007 a police report The editorial stated, “in July of 2007 a police report alleging assault was filed with the Newark Police alleging assault was filed with the Newark Police Department against [the plaintiff]. In the report she Department against [the plaintiff]. In the report she is accused of striking a person in a courthouse is accused of striking a person in a courthouse elevator. She has also had several complaints elevator. She has also had several complaints concerning her behavior filed with the Ohio Supreme concerning her behavior filed with the Ohio Supreme Court’s disciplinary counsel.”Court’s disciplinary counsel.”

Summary Judgment Case Summary Judgment Case Conti.Conti.• One of the candidates filled a defamation suit and One of the candidates filled a defamation suit and

attempted to enjoin further publication of the attempted to enjoin further publication of the material (which was denied)material (which was denied)

• The plaintiff admitted the statements were true, but The plaintiff admitted the statements were true, but claimed the text gave the wrong impression that she claimed the text gave the wrong impression that she was charged for assault and punished for her was charged for assault and punished for her behaviorbehavior

• The court granted the motion for a summary The court granted the motion for a summary judgment? WHY?judgment? WHY?

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

• Court found there was no actual malice (statements Court found there was no actual malice (statements were true), the material was a protected opinion, and were true), the material was a protected opinion, and the material could have been read as non-defamatorythe material could have been read as non-defamatory

• Important current case for the freedoms of Important current case for the freedoms of organizations and individuals to engage in political organizations and individuals to engage in political speech during electionsspeech during elections

Statute of LimitationsStatute of Limitations

• Libel case has to be started within a specific Libel case has to be started within a specific amount of time following the date material amount of time following the date material was published (all U.S. states 1-3 years)was published (all U.S. states 1-3 years)

• Statute of limitations in TN= one year but in Statute of limitations in TN= one year but in AR= three yearsAR= three years

• Single publication rule (magazines, Single publication rule (magazines, newspaper, online) republication does not newspaper, online) republication does not restart statute of limitationsrestart statute of limitations

• Rebroadcast of television/radio material Rebroadcast of television/radio material = new publication, does restart = new publication, does restart statute of limitationsstatute of limitations

Jurisdiction of Statute of Jurisdiction of Statute of LimitationsLimitations

• Plaintiff can file libel suit outside of home state IF Plaintiff can file libel suit outside of home state IF publication was circulated in that statepublication was circulated in that stateKeeton v. Hustler (only 15,000 out of 1 million Keeton v. Hustler (only 15,000 out of 1 million

circulated in New Hampshire)- can sue for libelcirculated in New Hampshire)- can sue for libelCalder v. Jones (only 600,000 out of 5 million Calder v. Jones (only 600,000 out of 5 million

circulated in California)- can sue reporters/editorscirculated in California)- can sue reporters/editors• If primary material, sources and injury or harm to If primary material, sources and injury or harm to

reputation occurred in state-> can sue for libel in statereputation occurred in state-> can sue for libel in state

First Amendment First Amendment QuestionsQuestions

• Calder v. Jones-> Calder v. Jones-> disagreement between lower disagreement between lower courts and Supreme Courtcourts and Supreme Court

• Lower courts: requiring Lower courts: requiring reporters to appear outside of reporters to appear outside of home jurisdictions will affect home jurisdictions will affect their first amendment rightstheir first amendment rights

• Supreme Court: depends on Supreme Court: depends on where the primary negative where the primary negative affect occurred, injured party affect occurred, injured party should not have to travel in should not have to travel in order to file a suit. Will not order to file a suit. Will not affect first amendment rightsaffect first amendment rights

• What do you think? Which What do you think? Which side do you align with?side do you align with?

Jurisdiction on the Jurisdiction on the InternetInternet• Supreme Court has not ruled on a case Supreme Court has not ruled on a case

regarding this question-> look to lower courtsregarding this question-> look to lower courts Evidence that out of state Internet publisher was aware Evidence that out of state Internet publisher was aware

material was aimed at residents, had contact with residents material was aimed at residents, had contact with residents or was aware material could case harm to residents in that or was aware material could case harm to residents in that statestate

Material has to be aimed at citizens in that particular stateMaterial has to be aimed at citizens in that particular state States disagree whether the key is the geographic focus on States disagree whether the key is the geographic focus on

the article or where the majority of harm was inflicted as a the article or where the majority of harm was inflicted as a result of the articleresult of the article

Libel tourism- some countries rule defamation begins when Libel tourism- some countries rule defamation begins when it is downloaded in that countryit is downloaded in that country

Traditional Libel Traditional Libel DefensesDefenses

• Applicability determined by facts of Applicability determined by facts of case, subject of the story, how case, subject of the story, how information was obtained, and the information was obtained, and the manner of publicationmanner of publication

Truth Truth Privileged CommunicationsPrivileged CommunicationsFair commentFair commentConsent Consent Right of ReplyRight of Reply

TruthTruth• Decreasing in importance because of Decreasing in importance because of

current libel rulings that shift burden on current libel rulings that shift burden on proof to plaintiff (in stories of public proof to plaintiff (in stories of public concern)concern)

• Truth is a defense in cases regarding a Truth is a defense in cases regarding a private person and a non-public matter-> private person and a non-public matter-> burden of proof shifts to defendantburden of proof shifts to defendant

• Defendant can avoid liability if material is Defendant can avoid liability if material is truetrue

Absolute PrivilegeAbsolute Privilege

• Absolute privilege (privilege of the Absolute privilege (privilege of the participant)- Any speech in the participant)- Any speech in the legislative forum (essential to legislative forum (essential to deliberations), judicial forum (during deliberations), judicial forum (during official portions) and in administrative official portions) and in administrative or executive branches of government or executive branches of government (official communications)(official communications)

• Speaker in any above forums cannot Speaker in any above forums cannot be sued for defamationbe sued for defamation

Qualified PrivilegeQualified Privilege• Qualified privilege (privilege of the reporter)- Qualified privilege (privilege of the reporter)-

can report on official government proceedings can report on official government proceedings or documents without being sued for libelor documents without being sued for libel

• Conditional privilege according to:Conditional privilege according to:Only applied to certain privileged documentsOnly applied to certain privileged documentsReports have to be fair, accurate summary of Reports have to be fair, accurate summary of

proceeding or documentsproceeding or documents

• Defendant has the burden of proving Defendant has the burden of proving “qualified privilege” (nursery workers’ libel “qualified privilege” (nursery workers’ libel action)action)

Examples of Qualified Examples of Qualified PrivilegePrivilege

LEGISLATIVELEGISLATIVE• During meetings of legislative bodiesDuring meetings of legislative bodies• Reports of committee meetings/other official communicationsReports of committee meetings/other official communications• Any event with great public interestAny event with great public interest• ONLY applies after official body receives official communicationsONLY applies after official body receives official communications

JUDICIALJUDICIAL• Testimony, depositions, trials, decisions, verdicts, opinions and Testimony, depositions, trials, decisions, verdicts, opinions and

indictmentsindictments• Sometimes applies to cases closed to the public (juveniles, family court)Sometimes applies to cases closed to the public (juveniles, family court)• ONLY applies after some judicial action has been taken or after ONLY applies after some judicial action has been taken or after

complaint has been filed and case receives docket number complaint has been filed and case receives docket number EXECUTIVE ACTIONSEXECUTIVE ACTIONS

• Acts of state official statements or actionsActs of state official statements or actions• ““Allows public officials to speak freely on matters of public importance in Allows public officials to speak freely on matters of public importance in

the exercise of their official duties.”the exercise of their official duties.”• Reports of police activities, police reports, witness statements, petitions, Reports of police activities, police reports, witness statements, petitions,

important public business, any public meetingsimportant public business, any public meetings• Does not apply to personal statements beyond police reports and Does not apply to personal statements beyond police reports and

statements not generation in the U.S.statements not generation in the U.S.

Neutral ReportingNeutral Reporting

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

• Most courts have rejected it- does not align with Most courts have rejected it- does not align with other Supreme Court rulings (Gertz v. Robert Welch other Supreme Court rulings (Gertz v. Robert Welch Inc.)Inc.)

• Four elements of neutral reporting are:Four elements of neutral reporting are: Allegations must be newsworthy that create or are Allegations must be newsworthy that create or are

associated with a public controversyassociated with a public controversy Charges must be made from a prominent and responsible Charges must be made from a prominent and responsible

sourcesource Charges must be reported accurately and neutrallyCharges must be reported accurately and neutrally Charges must be about a public figure or public officialCharges must be about a public figure or public official

Abuse of PrivilegeAbuse of Privilege

• What is a fair and accurate account of What is a fair and accurate account of what took place or of the record?what took place or of the record?

Report should be balanced (portrays the positive Report should be balanced (portrays the positive and negative sides equally)and negative sides equally)

Report should accurately reflect what was said or Report should accurately reflect what was said or printedprinted

Errors that change the impact of the report, will Errors that change the impact of the report, will lose rights of the qualified privilegelose rights of the qualified privilege

Report has to make clear to the reader, that Report has to make clear to the reader, that material was obtained at a public meeting or from material was obtained at a public meeting or from the public record (in the headline and lead)the public record (in the headline and lead)

In some states common law malice (desire to In some states common law malice (desire to injury subject rather than inform public) is still injury subject rather than inform public) is still applicableapplicable

Rhetorical HyperboleRhetorical Hyperbole• Opinion-filled material (whether heated or exaggerated) is Opinion-filled material (whether heated or exaggerated) is

fundamental to social/political discourse in U.S.fundamental to social/political discourse in U.S.• Rhetorical hyperbole is defined as lusty, imaginative expressionRhetorical hyperbole is defined as lusty, imaginative expression• It is protected because the tone of the language is so extreme It is protected because the tone of the language is so extreme

the reasonable reader knows it is an opinionthe reasonable reader knows it is an opinion• Satire/parody writers have to confirm that a reasonable reader Satire/parody writers have to confirm that a reasonable reader

will not believe the material to be factualwill not believe the material to be factual• Courts look to “cues” within text to prove or disprove it as Courts look to “cues” within text to prove or disprove it as

fiction (New Times Inc. Isaacks)fiction (New Times Inc. Isaacks)

Current Examples of Current Examples of Rhetorical HyperboleRhetorical Hyperbole

• Case of Chicago tenant versus real estate company. Horizon Group Case of Chicago tenant versus real estate company. Horizon Group Management v. Bonnen. She tweeted, “Who said sleeping in a moldy Management v. Bonnen. She tweeted, “Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it's okay." Bonnen apartment was bad for you? Horizon realty thinks it's okay." Bonnen was sued for defamation but the case was dismissed as rhetorical was sued for defamation but the case was dismissed as rhetorical hyperbole (an opinion and clearly untrue)hyperbole (an opinion and clearly untrue)

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202439486524&slrhttp://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202439486524&slreturn=1&hbxlogin=1eturn=1&hbxlogin=1

• The rap lyrics sung by George Clinton on Warren G’s 2001 song “Sped The rap lyrics sung by George Clinton on Warren G’s 2001 song “Sped Dreamin” about music producer Armen Boladin were ruled to be Dreamin” about music producer Armen Boladin were ruled to be rhetorical hyperbolerhetorical hyperbole

• http://www.rcfp.org/newsitems/index.php?i=4107http://www.rcfp.org/newsitems/index.php?i=4107• Blogger Stephanie Grasmick was sued for libel by Michael Leahy Blogger Stephanie Grasmick was sued for libel by Michael Leahy

(founder of the “Top Conservatives on Twitter”) because she implied (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?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-suehttp://www.dailykos.com/story/2009/5/19/733183/-Liberal-blogger-sued-for-libel-by-teabagger-Michael-Leahyd-for-libel-by-teabagger-Michael-Leahy

Pure Opinion: Pure Opinion: The Milkovick StandardThe Milkovick Standard

• Libel actions cannot proceed when Libel actions cannot proceed when regarded as a statement of “pure opinion”regarded as a statement of “pure opinion”

• Defined as a statement that cannot be Defined as a statement that cannot be proven true to false and does not assert or proven true to false and does not assert or imply a provably false factimply a provably false fact Milkovich v. Lorain Journal Co.Milkovich v. Lorain Journal Co. The Supreme Court ruled that writer’s statement was not “pure The Supreme Court ruled that writer’s statement was not “pure

opinion” and instead a statement of fact (adding “In my opinion” or “I opinion” and instead a statement of fact (adding “In my opinion” or “I think” would not have changed the verdict)think” would not have changed the verdict)

Many lower courts are dissatisfied with this ruling and believe it to be Many lower courts are dissatisfied with this ruling and believe it to be too conservativetoo conservative

Lower courts use The Ollman Test to examine other dimensions of Lower courts use The Ollman Test to examine other dimensions of questionable materialquestionable material

The Ollman TestThe Ollman Test• Four part test to determine if material is Four part test to determine if material is

an assertion of fact or the writer’s opinion an assertion of fact or the writer’s opinion (Ollman v. Evans)(Ollman v. Evans)Can the statement be proven true or Can the statement be proven true or

false? (Milkovich standard)false? (Milkovich standard)What is the common or ordinary What is the common or ordinary

meaning of the words? Some words meaning of the words? Some words have untraditional meanings (turkey, have untraditional meanings (turkey, moron)moron)

What is the journalist context of the What is the journalist context of the remark? Where does the piece appear remark? Where does the piece appear in the paper (news v. editorial section)in the paper (news v. editorial section)

What is the social context of the What is the social context of the remark? Political or social settings are remark? Political or social settings are important (lecture v. protest)important (lecture v. protest)

The Ollman Test: The Ollman Test: Important CasesImportant Cases

• Immuno A.G. v. Moor-JankowskiImmuno A.G. v. Moor-JankowskiScholarly scientific journal published a letter Scholarly scientific journal published a letter

to the editor accusing the company of to the editor accusing the company of causing harm to the chimpanzee populationcausing harm to the chimpanzee population

The state Supreme Court ruled for the The state Supreme Court ruled for the journal because of the context of the letter journal because of the context of the letter (within an opinion section), the warning that (within an opinion section), the warning that the views expressed were opinions, and that the views expressed were opinions, and that the specialized readers of the journal the specialized readers of the journal understood the context of the debateunderstood the context of the debate

• Mann v. AbelMann v. AbelReasonable reader would conclude Reasonable reader would conclude

statements were opinions (it was published statements were opinions (it was published on the opinion page and and included an on the opinion page and and included an editor’s note)editor’s note)

• Cochran v. NYP Holdings Inc.Cochran v. NYP Holdings Inc.

Important Cases: Lessons Important Cases: Lessons about about

The Ollman TestThe Ollman Test• Context and inclusion of all the relevant facts is Context and inclusion of all the relevant facts is important in libel suits regarding pure opinion important in libel suits regarding pure opinion statementsstatements NoWitness LLC v. Cumulus Media Partners LLC- pure opinion NoWitness LLC v. Cumulus Media Partners LLC- pure opinion

defense does not always protect false facts within opinion defense does not always protect false facts within opinion statementsstatements

Pepler v Rugged Land LLC- statements with mixed Pepler v Rugged Land LLC- statements with mixed defamatory facts and opinion statements are not always defamatory facts and opinion statements are not always protectedprotected

Healy v. New England Newspapers- story Healy v. New England Newspapers- story

gave an untrue impression of the doctor gave an untrue impression of the doctor

because the journalist left out essential factsbecause the journalist left out essential facts

-> not protected anymore-> not protected anymore

Fair CommentFair Comment• Common law defense that protects Common law defense that protects publications of statements of opinionpublications of statements of opinion• Not used in current libel law, although Not used in current libel law, although

many precedents still remain on the many precedents still remain on the booksbooks

• The three part test includes:The three part test includes: Is the comment an opinion statement?Is the comment an opinion statement? Does the defamatory comment focus on a Does the defamatory comment focus on a

subject of legitimate public interest? (very subject of legitimate public interest? (very broad)broad)

Is there a factual basis for the comment?- Is there a factual basis for the comment?- U.S. culture is enhanced by the free U.S. culture is enhanced by the free exchange of ideas/opinions (some exchange of ideas/opinions (some people/stories are so widely known, people/stories are so widely known, background information is not necessary)background information is not necessary)

How to Avoid an Opinion-How to Avoid an Opinion-based based

Libel LawsuitLibel Lawsuit• Make sure a reasonable Make sure a reasonable

reader understands material reader understands material as an opinionas an opinion

• Do not rely on the context to Do not rely on the context to protect opinion statements protect opinion statements 100 percent of the time.100 percent of the time.

• Clearly and concisely Clearly and concisely summarize the background summarize the background information for the opinioninformation for the opinion

• Make sure all the facts are Make sure all the facts are true, be objective and portray true, be objective and portray both sides of any issueboth sides of any issue

Consent and Right of Consent and Right of ReplyReply• Both are rarely used- not universally acceptedBoth are rarely used- not universally accepted

• Consent- an individual cannot sue for libel if he/she consented to Consent- an individual cannot sue for libel if he/she consented to the publication of the materialthe publication of the material

• Indirect (implied) consent- included when an individual’s response Indirect (implied) consent- included when an individual’s response is published or told others about the material. Always important to is published or told others about the material. Always important to get quote from subject of story to double check informationget quote from subject of story to double check information

• Right of Reply (self defense)- If an individual has been defamed Right of Reply (self defense)- If an individual has been defamed he/she can respond with a libelous statement without being sued he/she can respond with a libelous statement without being sued for libelfor libel

• The right of reply has to equal the original material in the The right of reply has to equal the original material in the magnitude of the libelous statementsmagnitude of the libelous statements

• Most individual would rather sue than use right of replyMost individual would rather sue than use right of reply

DamagesDamages• Actual damages- most common libel damagesActual damages- most common libel damages

Damages for actual injury (impairment of reputation, monetary loss, Damages for actual injury (impairment of reputation, monetary loss, personal humiliation, mental suffering) personal humiliation, mental suffering)

Not a precise process- jury will award what they believe plaintiff Not a precise process- jury will award what they believe plaintiff deserves (in general, the amount is heavily decreased by the deserves (in general, the amount is heavily decreased by the appellate court)appellate court)

• Special damages- specific items of pecuniary loss caused by libelSpecial damages- specific items of pecuniary loss caused by libel Precise monetary amount lost as a result of the libel (trade libel)Precise monetary amount lost as a result of the libel (trade libel)

• Presumed damages- plaintiff can receive without proof of Presumed damages- plaintiff can receive without proof of injury/harminjury/harm Called general or compensatory damagesCalled general or compensatory damages One form of payment for matters of public concerns (when plaintiff One form of payment for matters of public concerns (when plaintiff

shows actual malice) or a private person regarding a private shows actual malice) or a private person regarding a private concern (negligence)concern (negligence)

• Punitive damages- exemplary damages or “smart money”Punitive damages- exemplary damages or “smart money” Largest award- designated to punish defendant and warn othersLargest award- designated to punish defendant and warn others Same as presumed damages for burden of proof for plaintiffSame as presumed damages for burden of proof for plaintiff Have been barred in six U.S. states and limited in eight U.S. statesHave been barred in six U.S. states and limited in eight U.S. states

The Debate over Punitive The Debate over Punitive DamagesDamages

• Purpose of punitive damages to Purpose of punitive damages to aggressively punish repeated offenders aggressively punish repeated offenders (selling harmful products, continuing to (selling harmful products, continuing to print lies)print lies)

• However in general amount does not However in general amount does not equal the harm inflicted (some argue it is equal the harm inflicted (some argue it is a violation of the Eighth Amendment) a violation of the Eighth Amendment)

• No specific test, but there are three No specific test, but there are three guideposts imposed by the Supreme guideposts imposed by the Supreme Court:Court: Degree of reprehensibility of the defendants Degree of reprehensibility of the defendants

conductconduct Ratio between punitive and actual damagesRatio between punitive and actual damages Comparison between punitive damages Comparison between punitive damages

award and other fines for similar conductaward and other fines for similar conduct• Lower appellate courts are charged with Lower appellate courts are charged with

deciding if award is excessive- the wealth deciding if award is excessive- the wealth of the defendant cannot justify a larger of the defendant cannot justify a larger punitive award (State Farm v. Campbell- punitive award (State Farm v. Campbell- $145 million award)$145 million award)

Retraction StatutesRetraction Statutes

• A retraction is an apology and an effort to “set A retraction is an apology and an effort to “set the record straight”the record straight”

• Need to state the mistake, apologize for Need to state the mistake, apologize for embarrassment, and say some positive things embarrassment, and say some positive things about the individualabout the individual

• 33 states have retraction statutes33 states have retraction statutesPlaintiff has to give publisher an opportunity to Plaintiff has to give publisher an opportunity to

publish a retraction before libel suit can beginpublish a retraction before libel suit can begin If retraction is printed, it can reduce or cancel any If retraction is printed, it can reduce or cancel any

later damage judgment later damage judgment If individual does not ask for a retraction, the libel If individual does not ask for a retraction, the libel

complaint will be dismissedcomplaint will be dismissedTwo states (Arizona and Montana) have ruled Two states (Arizona and Montana) have ruled

retraction statutes are unconstitutional (citizens retraction statutes are unconstitutional (citizens have the right to sue for injury)have the right to sue for injury)

Criminal LibelCriminal Libel• Theory that rarely a state has to act on Theory that rarely a state has to act on

behalf of injured party-> bring criminal behalf of injured party-> bring criminal chargescharges

• State has interest in preventing State has interest in preventing defendant from taking violent action defendant from taking violent action against libeleragainst libeler

• Only 16 states still have criminal libel Only 16 states still have criminal libel statutes on the booksstatutes on the books

• Most prosecutions stem from political Most prosecutions stem from political reasons (law enforcement, elected public reasons (law enforcement, elected public officers most frequent complainants)officers most frequent complainants)

• Most authorities will not take action if Most authorities will not take action if there is a civil option, most voters want there is a civil option, most voters want criminal actions focused on violent criminal actions focused on violent offendersoffenders

• Can criminally libel someone who is Can criminally libel someone who is dead-> tied to a breach of the peace dead-> tied to a breach of the peace (Ashton v. Kentucky)(Ashton v. Kentucky)

• Garrison v. Louisiana- State has to prove Garrison v. Louisiana- State has to prove actual malice in a criminal libel suit actual malice in a criminal libel suit based on the defamation of a public based on the defamation of a public official (Supreme Court did not answer official (Supreme Court did not answer the question of the burden of proof for a the question of the burden of proof for a private citizen)private citizen)