Blogging 2: libel

Bill of Rights

One of the things a blogger has to consider is libel law. For those writing about politics and other newsworthy events, libel law is important. Just like every soldier learns basic first aid, every writer mut have a grasp of libel law.

Now, you can say Matt Drudge is a gay man. He may not like to publicize that fact, but it is in the public record. I cannot, however say Drudge is a cannibal. Because that is, as far as I know, untrue, and suggesting that he seriously eats other humans, is libelous. Because he's a public figure, he might find it hard to sue, but you cannot print known untruths about people.

The State Department has a simple explaination of libel law.

Libel is a legal term that describes a written form of defamation, which the dictionary defines as a "false or unjustified injury to someone's good reputation." Sometimes the word slander is used in the same breath as libel. The two terms mean the same thing, except that slander usually refers to defamatory statements about someone that are spoken to others rather than written in a newspaper, magazine article, or book. Today the legal differences between libel and slander have all but disappeared due largely to the dawning of the electronic age. American television networks, for example, are sometimes sued for libel even though news reporters and correspondents "speak" their words to a viewing and listening audience rather than to a reading audience.

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The 18th-century framers of the U.S. Constitution guaranteed freedom of the press by writing that protection into the First Amendment of the Bill of Rights. Even so, the Supreme Court of the United States -- the highest court in America -- for years refused to protect the media from libel lawsuits by relying on the First Amendment. Instead, libel laws varied from state to state without a single coherent rule in the nation.

That all changed in 1964 when the Supreme Court issued a ruling that revolutionized libel law in the United States. The famous decision in New York Times Co. v. Sullivan once and for all created a national rule that squared more fully with the free press guarantees of the First Amendment. In its ruling, the Court decided that public officials no longer could sue successfully for libel unless reporters or editors were guilty of "actual malice" when publishing false statements about them.

And just what is malice when it comes to proving libel? Retired Justice William J. Brennan, Jr., who wrote the Sullivan decision, defined it as "knowledge that the [published information] was false" or that it was published "with reckless disregard of whether it was false or not." In other words, public officials no longer could sue for libel simply by proving that something that had been broadcast or printed about them was false. Now they would have to prove that a journalist had knowingly printed false information while making little, if any, attempt to distinguish truth from lies.

The Supreme Court later extended its so-called Sullivan rule to cover "public figures," meaning individuals who are not in public office but who are still newsworthy because of their prominence in the public eye. Over the years, American courts have ruled that this category includes celebrities in the entertainment field, well-known writers, athletes, and others who often attract attention in the media.

For purely private individuals, the test for proving libel is not as difficult. Although Supreme Court rulings such as the Sullivan decision apply everywhere in the United States, most states continue to have their own libel laws that cover private individuals. Usually those laws require that public figures who believe they have been libeled prove that a journalist has been negligent when publishing false information about them. Negligence, like malice, is a legal term that generally means carelessness on the part of a reporter or editor. Because private individuals have more reason than public officials to be left alone in the media, American libel laws recognize that they are entitled to more legal protection against false statements made about them.

Every year hundreds of libel lawsuits are filed against newspapers, magazines, and radio and television stations in the United States. Typically, these cases are brought by current or former public officials, by entertainers, or by business executives who feel they have been damaged by critical media publicity -- usually accusing or suggesting that the person has engaged in unlawful, improper, or questionable activities.

In December 1990, for example, a judge on the Pennsylvania Supreme Court won a $6 million libel verdict against the Philadelphia Inquirer newspaper because of a series of articles it carried in 1983 that suggested he was guilty of influence peddling. And in one of the largest libel verdicts ever reached against the media, a former district attorney from Texas named Victor Feazell was awarded $58 million in April 1991 after a Dallas television station accused him of accepting bribes to fix drunken driving cases. "This verdict sends a message to the rest of the media to get your facts straight," Feazell said after the jury announced its verdict.

Two months later, a state district court judge not only upheld the judgment but included a provision adding a 10 percent annual interest charge to the award if the station appealed the case and lost. A settlement was reached shortly afterwards.

A jury in Chicago, Illinois, awarded businessman Robert Crinkley $2.25 million in May 1991 because a Wall Street Journal article falsely linked him to bribery payments made to foreign officials. Crinkley said the newspaper story prevented him from being hired after he left his former employer. The jury agreed that he was a victim of libel even though the newspaper published a correction to its original story. The award was thrown out in September 1991 by circuit court judge Howard Miller. Miller ordered a new trial on damages after ruling that the evidence in the case was insufficient to support such a large award. Crinkley's lawyer began planning his appeal.

In these and other cases, the person bringing the libel suit has the burden of proving that he or she has been libeled. In other words, a public figure must prove that a reporter not only published false information but also did so recklessly and maliciously without attempting to determine whether it was true. Libel cases are not limited to disputes between the media and the people they cover. In July 1989, the American Express Company admitted to spreading false information about an international banker who controlled New York's Republic National Bank. When the banker's attorney threatened to sue for libel, American Express confessed to its role and agreed to donate $8 million to charities as a settlement in the case.

Besides making distinctions between public and private figures, American courts also have ruled that various kinds of published information are generally immune from libel charges. For example, it is almost impossible for a writer to be found guilty of libel if the writing deals with opinions rather than facts. "Under the First Amendment, there is no such thing as a false idea," the Supreme Court said in a 1974 libel ruling.

Not long ago, the owner of a restaurant in New Orleans sued a food critic for writing unflattering things about his eating establishment. Too bad, the Louisiana Supreme Court told the restaurant owner, before sending him back to his kitchen empty-handed.

More recently, Jerry Falwell, an American religious leader, sued a magazine after it published a biting satire of Falwell that mocked his piety. Indeed, a state of Virginia jury awarded Falwell $200,000 after concluding that the magazine had inflicted "emotional distress" on the well-known clergyman. But the U.S. Supreme Court later threw out the award by explaining that satire, no matter how scathing and upsetting to its target, was protected by the First Amendment.

Floyd Abrams, a New York lawyer who specializes in representing media organizations, estimates that individuals who sue for libel win about 75 percent of the cases that end up before a jury. But the media succeed in reversing jury verdicts most of the time after they appeal to higher courts. Abrams says the reason is that jurors often do not fully understand or apply the proper legal standards that cover libel cases. As a result, it is common for media organizations to carry libel cases to intermediate appellate courts if they lose at the first stage of a trial.

What people need to know is this: libel is hard to prove, but you must be wary of it in everything you write.

how a libel suit goes

Of the 12 lawsuits against media, the media won seven of them according to the Media Law Resource Center

They describe what libel is:

What is Libel?

Libel and slander are legal claims for false statements of fact about a person that are printed, broadcast, spoken or otherwise communicated to others. Libel generally refers to statements or visual depictions in written or other permanent form, while slander refers to verbal statements and gestures. The term defamation is often used to encompass both libel and slander.

In order for the person about whom a statement is made to recover for libel, the false statement must be defamatory, meaning that it actually harms the reputation of the other person, as opposed to being merely insulting or offensive.

The statement(s) alleged to be defamatory must also have been published to at least one other person (other than the subject of the statement) and must be "of and concerning" the plaintiff. That is, those hearing or reading the statement must identify it specifically with the plaintiff.

The statement(s) alleged to be defamatory must also be a false statement of fact. That which is name-calling, hyperbole, or, however characterized, cannot be proven true or false, cannot be the subject of a libel or slander claim.

The defamatory statement must also have been made with fault. The extent of the fault depends primarily on the status of the plaintiff. Public figures, such as government officials, celebrities, well-known individuals, and people involved in specific public controversies, are required to prove actual malice, a legal term which means the defendant knew his statement was false or recklessly disregarded the truth or falsity of his statement. In most jurisdictions, private individuals must show only that the defendant was negligent: that he failed to act with due care in the situation.

A defamation claim -- at least one based upon statements about issues that are matters of public interest -- will likely fail if any of these elements are not met.

While on many of these issues the burden of proof is on the plaintiff, the primary defenses to a defamation claim are that the statements are true, are not statements of fact, or are privileged. Some defamatory statements may be protected by privilege, meaning that in certain circumstances the interest in communicating a statement outweighs the interest in protecting reputation. For example, most, if not all, jurisdictions recognize a privilege for fair reports of what is said, done, or published out of government and judicial proceedings, and for reports of misconduct to the proper authorities or to those who share a common interest (such as within a family or an association). Privileges do vary somewhat from state to state in their scope and requirements. They generally apply to non-media defendants to the same degree as to media defendants.

A successful defamation plaintiff may be entitled to a jury award of money damages. In some instances, the plaintiff may also be awarded punitive damages for particularly reprehensible conduct. The parties to the claim are entitled to appeal and cases are carefully scrutinized on review to protect the defendant’s First Amendment rights.

Defamation claims can be brought by living persons and entities that are considered "persons" under the law such as corporations, unincorporated businesses, associations and unions. Governmental entities cannot maintain actions for libel or slander, although a government official can bring suit for statements about the official individually.

Libel and slander are civil claims, but a handful of the states recognize an action for criminal defamation. Prosecutions are rare, especially against the media.

Under the American federal law system, defamation claims are largely governed by state law, subject to the limitations imposed by the free speech and press provisions of the First Amendment to the U.S. Constitution as interpreted and applied by the Supreme Court and other courts. While the elements of defamation are largely identical throughout the country, because defamation is a matter of state law there can be important differences on substantive and procedural details of the claim in the separate jurisdictions. And as a result of the application of First Amendment requirements to the claims, the specific elements as well as the burdens of proof with respect to those elements may be different depending upon whether the plaintiff is a public or private figure, whether the defendant is media or non-media, and the character of the statement(s) at issue.

posted by Steve @ 8:40:00 PM