Chapter 4 Libel
True/False Questions
1) Although the Supreme Court never ruled on the constitutionality of the Alien and Sedition Acts of 1798, the Supreme Court said in New York Times v. Sullivan that seditious libel laws violate the central purpose of the First Amendment.
Answer: True
Rationale:
This statement is true. While the Supreme Court did not directly address the Alien and Sedition Acts of 1798, in New York Times v. Sullivan (1964), it emphasized that seditious libel laws, which were similar in nature to the Alien and Sedition Acts, are incompatible with the central purpose of the First Amendment, which protects freedom of speech and of the press.
2) Once libel plaintiffs establish they have been defamed by the media, they are entitled to compensatory damages.
Answer: False
Rationale:
This statement is false. While establishing defamation is a necessary condition for a successful libel lawsuit, it does not automatically entitle the plaintiff to compensatory damages. The plaintiff must also prove actual harm, such as damage to reputation or financial loss, in order to be awarded compensatory damages.
3) A reporter claims the privilege of "neutral reportage" by including any two opposing viewpoints in a story.
Answer: False
Rationale:
This statement is false. "Neutral reportage" is a doctrine that allows journalists to report on newsworthy allegations made by a responsible source, even if the journalist personally doubts the truth of those allegations. It does not require the inclusion of two opposing viewpoints in a story.
4) To be defamatory, a libelous statement must be "published" to at least one person beyond the person libeled.
Answer: True
Rationale:
This statement is true. In order for a statement to be considered defamatory, it must be communicated or published to at least one person other than the individual who has been defamed. This requirement is known as the "publication" element of defamation.
5) The campus newspaper columnist writes that the 10 sisters of the APT Sorority House are "so easy they were arrested for prostitution." Thelma G, a member of the sorority, might successfully file a libel suit because she has been identified and defamed.
Answer: True
Rationale:
This statement is true. Thelma G, as a member of the sorority identified in the defamatory statement, has been defamed. If the statement is false, made with negligence or malice, and causes harm to Thelma G's reputation, she might have grounds to successfully file a libel suit.
6) Calling a police officer a butthead is likely to land a citizen in jail for criminal libel.
Answer: False
Rationale:
This statement is false. While insulting a police officer could potentially lead to legal consequences, such as disorderly conduct charges, it is unlikely to result in criminal libel charges unless the statement meets the specific legal criteria for defamation and is considered to have caused harm to the officer's reputation.
7) The New York Times v. Sullivan decision is important, in part, because it required public officials in all 50 states to prove actual malice when suing the media for defamation relating to their official conduct.
Answer: True
Rationale:
This statement is true. In New York Times v. Sullivan (1964), the Supreme Court established the actual malice standard for public officials in defamation lawsuits, requiring them to prove that the media acted with knowledge of falsity or reckless disregard for the truth when publishing defamatory statements about their official conduct. This standard applies in all states.
8) The Supreme Court established in Gertz v. Welch, Time v. Firestone and other cases that a libel plaintiff might be quite well-known in some circles but remain a private person as a libel plaintiff.
Answer: True
Rationale:
This statement is true. In cases such as Gertz v. Welch (1974) and Time, Inc. v. Firestone (1976), the Supreme Court recognized that a person could be well-known in certain circles but still be considered a private individual for the purposes of a libel lawsuit, depending on the context and nature of the defamatory statement.
9) The Supreme Court has ruled that lawyers must be considered "public figures" in libel cases if they take on a controversial client.
Answer: False
Rationale:
This statement is false. Taking on a controversial client does not automatically make a lawyer a public figure for the purposes of libel law. Whether someone is considered a public figure depends on their level of involvement in public affairs and their access to the media, among other factors.
10) Mrs. Firestone was a vortex or limited public figure because she participated in a well-publicized divorce.
Answer: False
Rationale:
This statement is false. The term "vortex" is not typically used in discussions of public figures in libel law. Mrs. Firestone's participation in a well-publicized divorce might make her a limited purpose public figure, but this would depend on various factors determined by the courts.
11) The Speech and Debate Clause of the U.S. Constitution protects members of the [state] legislature from defamation actions based on remarks during legislative debates.
Answer: False
Rationale:
This statement is false. While the Speech and Debate Clause protects legislators from liability for their legislative acts and speech within the legislative chamber, it does not provide immunity from defamation actions for statements made outside the legislative context.
12) The University of ________ might sue for defamation over the published statement "All University of ________ professors are crack heads."
Answer: False
Rationale:
This statement is false. The statement "All University of ________ professors are crack heads" is clearly an exaggerated and defamatory statement. However, the likelihood of a successful defamation suit by the university would depend on various factors, including whether the statement could reasonably be understood as referring to identifiable individuals and whether it caused reputational harm.
13) Defamation can occur only through the plain meaning of words, not by implication or innuendo.
Answer: False
Rationale:
This statement is false. Defamation can occur through implication or innuendo as well as through the plain meaning of words. Courts consider the overall context and effect of a statement in determining whether it is defamatory.
14) General Motors can recover only for defamatory statements about a particular product, such as "The Chevy Tahoe has an engineering defect that causes the brakes to fail after 1,000 miles." GM has no legal protection against false statements that do not refer to products, such as "GM illegally dumps hazardous waste."
Answer: False
Rationale:
This statement is false. General Motors (GM) can potentially recover for defamatory statements that harm its reputation, whether they concern specific products or the company as a whole. False statements about illegal activities, such as illegal waste dumping, could be grounds for defamation if they harm GM's reputation.
15) Defamation suits must be filed before expiration of the statute of limitations.
Answer: True
Rationale:
This statement is true. Defamation suits must be filed within the specified statute of limitations period, which varies by jurisdiction. Once the statute of limitations has expired, the plaintiff loses the right to bring a defamation claim.
16) The term "actual malice," as used by the U.S. Supreme Court in New York Times v. Sullivan, refers to intent to cause harm and is also described as common law malice.
Answer: False
Rationale:
This statement is false. In the context of defamation law, "actual malice" refers to a specific legal standard established by the Supreme Court in New York Times v. Sullivan (1964). It requires that a defamatory statement about a public figure be made with knowledge of its falsity or with reckless disregard for the truth, rather than simply an intent to cause harm. It is distinct from common law malice.
17) Under defamation laws in most states, journalists cannot be sued successfully for defamation if their reporting of legislative and judicial bodies is fair and accurate, even if those reports repeat false statements of fact spoken during the proceedings.
Answer: True
Rationale:
This statement is true. Many states have enacted "fair report privilege" or "reporter's privilege" laws that protect journalists from defamation suits when reporting on official proceedings, such as legislative or judicial proceedings, as long as the reports are fair and accurate representations of those proceedings.
18) The U.S. Supreme Court's contemporary defamation doctrine is based on the premise that some falsehoods must be protected in order to provide an environment for uninhibited debate on public issues.
Answer: True
Rationale:
This statement is true. The Supreme Court has recognized the importance of protecting speech on matters of public concern, even when that speech includes false statements. The contemporary defamation doctrine, as reflected in cases like New York Times v. Sullivan, aims to strike a balance between protecting reputation and fostering robust public debate.
19) According to the U.S. Supreme Court, the Saturday Evening Post did not act with actual malice in the case involving Wally Butts. Evidence presented at trial showed that the magazine's editors acted in good faith regarding the source and the truthfulness of the charges made against Butts.
Answer: False
Rationale:
This statement is false. In Curtis Publishing Co. v. Butts (1967), the Supreme Court held that the Saturday Evening Post did act with actual malice in publishing defamatory statements about Wally Butts, a college football coach. The Court found that the magazine's editors had published the statements with reckless disregard for their truth or falsity.
20) Even though SLAPP suits are seldom successful, they often discourage citizen activism because defending libel suits is so time consuming and expensive.
Answer: True
Rationale:
This statement is true. SLAPP (Strategic Lawsuit Against Public Participation) suits are often filed with the intent of intimidating or silencing critics by burdening them with the cost and inconvenience of defending against a lawsuit. Even if SLAPP suits are ultimately unsuccessful, they can have a chilling effect on citizen activism and free speech.
Multiple Choice Questions
1) A story in a U.S. travel magazine calls the City of Beaufleuve, New York, an "armpit" run by "corrupt officials" who should be sent over Niagara Falls. Beaufleuve might successfully sue on the grounds that the article is ________.
A) criminally libelous because it might lead to a breach of the peace
B) criminally libelous because it defames a fine city
C) criminally libelous because it is written with hatred and ill will
D) All of the Above.
E) None of the above.
Answer: E
Rationale:
This statement is false. The article, while potentially offensive, does not meet the criteria for criminal libel. It does not incite violence or present false information of a criminal nature, nor does it demonstrate an intent to cause harm. Additionally, defamation law applies to civil, not criminal, actions.
2) The New York Times v. Sullivan decision is important because
A) it made important aspects of libel law affecting public officials the same in all states.
B) it held that paid editorial advertisements have First Amendment protection.
C) it made it easier for public officials to collect "presumed" damages.
D) All of the above.
E) A and B only.
Answer: E
Rationale:
This statement is true. The New York Times v. Sullivan decision established important precedents regarding libel law and the First Amendment. It clarified that public officials must prove actual malice to recover damages in defamation suits, regardless of state laws. Additionally, it extended First Amendment protection to paid editorial advertisements, as long as they concern matters of public interest.
3) The Supreme Court has ruled that a private person might become a public figure if he or she
A) takes on a controversial client, as lawyer Elmer Gertz did.
B) participates in a publicized divorce, as Mary Alice Firestone did.
C) voluntarily participates in a controversy, as General Edwin Walker did when he led the opposition to the integration of the University of Mississippi.
D) All of the above.
E) None of the above.
Answer: C
Rationale:
This statement is true. The Supreme Court has ruled that a private individual may become a limited purpose public figure if they voluntarily involve themselves in a particular public controversy or issue, such as by actively participating in public debates or advocacy efforts.
4) More than one journalistic practice may constitute actual malice, including:
A) failure to check facts.
B) haste to publish when there are no pressing deadlines
C) fabricating interviews
D) All of the above.
E) None of the above.
Answer: D
Rationale:
This statement is true. Actual malice, as defined in New York Times v. Sullivan, includes reckless disregard for the truth, which can manifest in various journalistic practices such as failing to check facts, publishing hastily without proper verification, or fabricating information.
5) The media's "qualified" privilege to report false, defamatory statements at official proceedings
A) derives from the absolute privilege from libel suits enjoyed by officials participating in some official proceedings.
B) requires that the media reports be accurate.
C) allows journalists to report courtroom testimony they know to be false.
D) All of the above.
E) None of the above. Reports of falsehoods are never protected.
Answer: D
Rationale:
This statement is true. The qualified privilege protects the media when reporting on official proceedings, such as court hearings or legislative sessions, even if the reports contain false or defamatory statements. However, the reports must be fair and accurate representations of the proceedings.
6) In a letter to the editor, a citizen calls a developer a "blackmailer" because the developer has demanded that the city council rezone a property before the developer will give the city park land. The Supreme Court has ruled in a similar case the term "blackmailer" in the rezoning controversy is
A) libel per quod.
B) criminal libel.
C) false light.
D) rhetorical hyperbole amounting to opinion.
E) None of the above.
Answer: D
Rationale:
This statement is true. The Supreme Court has recognized that certain statements, such as rhetorical hyperbole or figurative language, may be considered expressions of opinion rather than assertions of fact. In the context of a rezoning controversy, calling someone a "blackmailer" could be seen as hyperbolic expression rather than a statement of verifiable fact.
7) The Supreme Court said that the failure of the New York Times to check the accuracy of the advertisement, "Heed Their Rising Voices," constituted
A) actual malice.
B) negligence.
C) gross unfairness.
D) Acceptable professional practice.
E) None of the above.
Answer: B
Rationale:
This statement is true. In New York Times v. Sullivan, the Supreme Court held that the failure to check the accuracy of a defamatory statement, when there are obvious reasons to doubt its truthfulness, can constitute negligence rather than actual malice. Negligence in this context refers to a failure to exercise reasonable care in verifying the truth of a statement before publishing it.
8) Ace Reporter reports accurately from the police blotter that Barry Crackup was intoxicated when the car he was driving killed Denise Dead. The police blotter was wrong; Crackup was not driving the "death car." Crackup sues Ace Reporter and his newspaper. Which of the following is Ace's best defense?
A) Truth
B) Neutral reportage
C) Qualified privilege of reporting
D) Due care
E) None of the above. Ace is cooked.
Answer: C
Rationale:
This statement is true. The qualified privilege of reporting provides protection to journalists when reporting on matters of public interest, such as information obtained from police sources like a police blotter. As long as Ace Reporter accurately reported the information from the police blotter without malice, the qualified privilege would likely be a strong defense against Crackup's defamation claim.
9) A broadcast station WZZZ is fulfilling its obligations under Section 315 of the Communications Act when a candidate for public office falsely calls Kirk Kounter, treasurer of Liberty Bank, an embezzler. Kounter sues the candidate and the station for libel. WZZZ's strongest defense would be
A) Kounter is a public figure.
B) truth is a complete defense.
C) stations fulfilling Section 315 obligations are not responsible for candidates' libel.
D) the First Amendment encourages defamatory statements in campaigns.
E) None of the above. WZZZ may have to pay.
Answer: C
Rationale:
This statement is true. Section 315 of the Communications Act provides a "right of reasonable access" to broadcast stations by political candidates, requiring stations to provide equal opportunities for all candidates to use their facilities. However, stations are not held responsible for the content of political broadcasts made by candidates, even if the content includes defamatory statements. Therefore, the strongest defense for WZZZ would be that they were fulfilling their obligations under Section 315 and are not liable for the candidate's statements.
10) Which of the following are good media practices when a caller threatens to sue for libel?
A) take notes
B) contact the editor or publisher
C) readily admit any possible error
D) All of the above
E) A and B only
Answer: E
Rationale:
This statement is true. When faced with a threat of a libel lawsuit, good media practices include taking notes to document the conversation, and contacting the editor or publisher to inform them of the situation. Admitting error without proper investigation or legal advice can potentially harm the media organization's position in a defamation case, so it's not advisable as an immediate response. Therefore, options A and B represent the most appropriate actions to take in such a situation.
Short Answer and Key Terms
1) Gene Green, a widely published professor of accounting, is suing the Daily Caper, the campus newspaper, for libel. The paper reported on its web site that Green was being investigated by a campus committee for drunken behavior and harassing secretaries. The Caper's web site quoted an anonymous source saying rumors had circulated "for years" about Green's "undisciplined and offensive behavior." An unnamed member of the accounting department tells the Caper that Green is "one buttoned down horny dude." Green is a respected scholar who served eight years ago for a brief time in Washington as assistant deputy director of the Planning Office in the White House Office of Management and Budget.
University regulations provide that complaints and grievances will be heard in closed session by the University Disciplinary Tribunal. But usually reliable anonymous sources tell the Caper the chair of the accounting department—to save time—appointed a temporary committee of five faculty to investigate the rumors. However, the department committee dropped the inquiry after two meetings when the members could not get students, secretaries or other faculty to testify. No one filed charges or formal complaints against Professor Green. No one will talk to the newspaper on the record. Just before publication, the dean of the business school called the Caper to warn that the damaging rumors about Professor Green were being circulated by an administrator who was jealous of Green and hoped he would be driven from campus. Thirty percent fewer females signed up for Green's classes after the web stores were published.
Green files suit claiming that the Caper has defamed him by publishing false accusations about drunken and harassing behavior. Green says the paper published with negligence. Caper's attorney argues the Caper did not defame Green by publishing the "opinion" of many students and staff on campus that Green sometimes appears drunk and harasses women. The Caper also argues the paper has a qualified privilege to publish fair and accurate reports of the department investigation, just as it would have a privilege to make accurate reports of a legislative committee investigation or a court proceeding. Furthermore, the paper argues, Green cannot successfully sue because he is a public figure who cannot prove actual malice, as he must.
(1) Tell whether Green has a good chance of establishing that he was defamed. Then discuss the Caper's defenses, including (2) the paper's claim that it published protected opinion, (3) that the paper has a qualified privilege to report the investigation, (4) that Green is a public figure and (5) that the paper did not publish with negligence or actual malice. Provide definitions and case examples as appropriate. Tell first whether you think the Caper will win or lose.
Answer: I think the Caper could lose this one.
(1) Green has been defamed by apparently false statements about his drinking andharassing. There is no evidence—only rumor—that Green drinks or harasses. Defamation is a false, unprivileged statement that harms someone's reputation. Courts have ruled that false statements of alcohol abuse and illegal behavior will cause people to think less of, and perhaps avoid or shun the defamed person. So far, there is no evidence that the statements about Green are true. Green appears to be harmed; female students are already avoiding his class.
(2) The claim that the Caper is publishing opinion is sophomoric. Opinion is a factual statement that cannot be proven false, according to the Supreme Court. Like statements in the Milkovich case that a coach instigated a melee, statements that Professor Green drinks too much and harasses women can be proven false. Anonymous, damaging rumors published on a web page are not opinion based on fact, as illustrated in the Phantom of the Opera case. Nor is calling someone a harasser or drunkard mere hyperbole, which the Supreme Court said is protected opinion.
(3) The paper has no qualified privilege because it is not reporting on an officialproceeding such as a legislative session, an open trial or, perhaps, the campus Disciplinary Tribunal. In those circumstances, reporters are privileged to make fair and accurate reports even of defamatory statements. A brief "investigation" by an ad hoc department committee, appointed by the department head, is hardly an official proceeding. The department head has no authorization to form a committee to gather criminal evidence, no power to subpoena, no power to punish. Perhaps an official investigation might have been conducted by the University Disciplinary Tribunal.
(4) Green is not a public figure. He is neither an all-purpose figure—a household name— nor a vortex figure, someone who voluntarily thrusts himself into a public controversy. Like Green, Elmer Gertz was well known in professional circles and more publicized than Green, but the Supreme Court ruled he was a private person. Involuntary participation in a legal proceeding does not make one a public figure. (Wolston.)
(5) The Caper may have published with negligence, even actual malice. Negligence is the failure to act as a reasonable person or a reasonable reporter would. Actual malice is knowing falsehood or reckless disregard for the truth. Failure to check is negligence, the Supreme Court said in Sullivan. The Caper checked nothing. In fact, the Caper avoided plausible warnings that it was publishing falsehoods. It might be said the Caper avoided the truth, which is evidence of actual malice, according the Supreme Court in Connaughton.
Short Answer and Key Terms
1) Why do media defense attorneys in defamation cases so often (and frequently successfully) ask a judge to issue an order of summary judgment?
Answer: The media seek summary judgment because the media avoid the cost, the risks, the disruption and the stress of a trial when a judge orders summary judgment for the media. With summary judgment, a judge rules as a matter of law that the plaintiff has insufficient evidence to win the case against the media. A judge can issue summary judgment only if there are no facts in dispute that a jury would have to decide. In libel suits, for example, a judge may issue summary judgment for the media if a public official plaintiff fails before trial to present "clear and convincing evidence" that the official can prove—as he must—that a defamatory publication was published with actual malice.
2) Describe the combination of sloppy and unprofessional reporting practices that might add up to actual malice.
Answer: Actual malice is knowing falsehood or reckless disregard for the truth. Reporters are reckless when they publish with a high degree of awareness of the probable falsity of their story. Negligence may be a single unprofessional journalistic practice, such as failing to check a fact.(Sullivan) But actual malice is usually a combination of sloppy and reckless practices, including failure to check facts, reliance on a questionable source, failing to interview obvious relevant sources, and ignoring credible warnings of falsity. In Connaughton, the Supreme Court said deliberate avoidance of the truth is evidence of actual malice. Fabricating stories is also strong evidence of actual malice. (Cantrell) In Curtis Publishing Co. v. Butts the Supreme Court found malice where the Saturday Evening Post failed to review films of an allegedly "fixed" football game even though the magazine had time to conduct the review. Furthermore the magazine relied on reports by a known check forger of an overheard telephone conversation.
3) Why did the Supreme Court compare large civil damages to a criminal libel statutes in New York Times v. Sullivan?
Answer: In Sullivan the Court said that large civil awards—$500,000 in Sullivan—can be as intimidating as criminal penalties were in the days of seditious libel. It is unconstitutional for the government to fine, jail or physically punish journalists as the government could once do under criminal libel statutes. But the Supreme Court said in Sullivan that large civil monetary awards to public officials, without a showing of actual malice, are also unconstitutional because the large awards also infringe freedom of the press. Large civil awards may make the press excessively cautious, just as criminal penalties can.
4) Why is it NOT protected opinion for the campus television station to report in a newscast:
“Some students think Professor Jones may be an alcoholic?”
Answer: An opinion is protected speech if it is not provably false. But protected opinion must so exaggerate as to be unbelievable or be based on fact, not on unsubstantiated rumor. The Supreme Court has ruled that calling a developer a blackmailer in the heat of political controversy is hyperbolic speech constituting opinion. Likewise, opinions based on fact —opinions that do not imply unstated, defamatory falsehoods—are protected. The Lorain Journal Co. may have libeled Milkovich because the paper had no facts to support its accusation that Milkovich was a "liar" when he denied contributing to a high school brawl. Jones "may be" an alcoholic, but the statement is defamatory absent facts that Jones has been treated for alcoholism, has admitted to alcohol abuse, been convicted of drunk driving or other factual, public evidence.
The context does not suggest opinion. The accusation of alcoholism is made in a newscast, not a commentary segment. The format is not an entertainment show during which viewers might expect opinion or fantasy. The subject matter is serious.
5) Briefly describe best practices for handling libel complaints at a newspaper or broadcast station.
Answer: The medium should have a policy for handling complaints politely, accurately and efficiently. A reporter or designated person should take down a complaint accurately and professionally, and pass the information to a designated editor, producer or publisher. No apologies or admissions should be made early on. After investigation and discussion and perhaps consultation with an attorney, the media should get back to the complaining party to explain the publication. If a retraction or correction is to be run, a decision to be made by senior editors and the publisher, it should follow statutory requirements of timeliness, accuracy and prominence.
Test Bank for The Law of Public Communication
Kent R. Middleton, William E. Lee
9780205484683
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