Libel and the media

Times v. Sullivan ushers in anuncertain new age of press freedom

Elements of libel

• Defamation

Elements of libel

• Defamation• Falsity

Elements of libel

• Defamation• Falsity• Fault

– Different standards for public officials (and public figures) and private figures. But no longer is libel a no-fault tort.

Elements of libel

• Defamation• Falsity• Fault• Publication

Elements of libel

• Defamation• Falsity• Fault• Publication• Identification

Elements of libel

• Defamation• Falsity• Fault• Publication• Identification• Harm

Evolution of libel

• Falsity was not always an element of libel: The greater the truth, the greater the harm

Evolution of libel

• Falsity was not always an element of libel: The greater the truth, the greater the harm

• Fault was not an element of libel until the 1960s — it was a no-fault tort

Evolution of libel

• Falsity was not always an element of libel: The greater the truth, the greater the harm

• Fault was not an element of libel until the 1960s — it was a no-fault tort

• How does requiring fault advance the purpose of the First Amendment?

Libel versus slander

• What is the difference?

Libel versus slander

• What is the difference?• Classic definition is that libel is written and

slander is spoken

Libel versus slander

• What is the difference?• Classic definition is that libel is written and

slander is spoken• Packaged television and radio reports have

blurred the difference. Today we talk mainly about libel.

Libel versus slander

Can libel = prior restraint?

• In Near, Chief Justice Hughes wrote that the Minnesota Public Nuisance Law amounted to prior restraint

Can libel = prior restraint?

• In Near, Chief Justice Hughes wrote that the Minnesota Public Nuisance Law amounted to prior restraint

• Hughes cited Blackstone on post-publication punishment

Can libel = prior restraint?

• In Near, Chief Justice Hughes wrote that the Minnesota Public Nuisance Law amounted to prior restraint

• Hughes cited Blackstone on post-publication punishment

• Milton, in the Areopagitica, advocated after-the-fact punishment, including death

Civil rights and libel

• As with Gitlow v. New York, the Times v. Sullivan decision must be seen within the broader context of the civil-rights movement

Anthony Lewis

• Wrote Make No Law, a history of Times v. Sullivan

• Retired New York Times columnist

• Married to Margaret Marshall, chief justice of Mass. SJC

Ad on King’s behalf

• Published inNew York Times

in 1960

• Contained several minor errors

Four ministers also sued

• Rev. Ralph Abernathy (right) with King in Alabama

• Idea was to keep Sullivan’s suit in state court

Times, ministers lose

• Found liable in courtroom of judge who presided atre-enactment of Jefferson Davis’s inauguration

• $500,000 judgment• Libel a state matter —

or is it?

Times v. Sullivan (1964)• Unanimous decision written by

William Brennan• Says Alabama court’s decision amounts to

punishment of seditious libel: criticism of government officials

• Therefore, the Alabama court’s action is unconstitutional under the First and Fourteenth Amendments

William Brennan’s view

“[D]ebate on public issues should be uninhibited, robust, and wide-open, and … it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials”

Actual malice

• New standard of fault that public officials must show to prove libel

Actual malice

• New standard of fault that public officials must show to prove libel

• Knowingly false

Actual malice

• New standard of fault that public officials must show to prove libel

• Knowingly false• Reckless disregard for the truth

A libel earthquake

• 1967: Actual malice standard extended to public figures as well as officials

A libel earthquake

• 1967: Actual malice standard extended to public figures as well as officials

• 1974: Private figures must at least show negligence to win a libel suit

A libel earthquake

• 1967: Actual malice standard extended to public figures as well as officials

• 1974: Private figures must at least show negligence to win a libel suit

• 1989: Reckless disregard is defined as knowledge of probable falsehood

Disadvantages for media

• Opens press defendants up to examination as to their state of mind

Disadvantages for media

• Opens press defendants up to examination as to their state of mind

• Harms media credibility by creating a cynical attitude among press critics

Disadvantages for public

• Virtually no recourse for public official or public figure

Case study: Dan Rather

• A 1980s case very similar to the story that brought him down in 2004

• Won by testifying he believed documents were authentic

• If he had lost, could Rathergate have been avoided?