When the Civil Rights movement emerged, the common law tolerance for fair comment and criticism (as in the Cherry Sisters case) was severely tested. State officials attacked the news media for merely reporting the Civil Rights movement, and libel suits were part of the attack. In response, the U.S. Supreme Court decided in 1964 to hear an appeal by the New York Times in a libel case brought by Louis Sullivan.
**** New York Times v. Sullivan, 1964
An important civil rights advertising case became the “bedrock” foundation for most modern social and political discussion in the US. Sullivan is a crucial case in understanding how libel law is interpreted today.
The case began with a March, 1960 advertisement (picture) placed by Alabama civil rights activists in the New York Times. It was headlined “Heed their Rising Voices.” (Text). The advertisement described resistance to the civil rights movement in the South, and had some minor inaccuracies. The police commissioner of Birmingham, Ala., Louis Sullivan, was not named in the ad, but he sued anyway under the state’s libel law. Sullivan won the case at the trial court level. Sullivan also won appeals brought by the New York Times in the Alablama appeals court and then the state supreme court.
The New York Times then petitioned for certiorari to the U.S. Supreme Court and the court heard oral arguments in January, 1964. In its decision supporting the Times, the U.S. Supreme Court held “… that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on public officials.” For a public official to successfully sue for libel, he or she would have to prove “actual malice,”
What is actual malice?
- Knowingly publishing something that is false; or
- Reckless disregard for the truth
Clarifying the Sullivan “actual malice” standard
Many questions remained after the Sullivan case, such as: How do you define “reckless disregard?” Who is a public figure?
** Curtis Publishing Co. v Butts, 1967 — What’s reckless disregard? Saturday Evening Post printed a story that said a coach conspired to “fix” a game, but the magazine (owned by Curtis) had plenty of time to check facts. Thus, the circumstances of the report, including the time element, are important in determining reckless disregard.
** AP v. Walker, 1967 — What’s reckless disregard? (2) The opposite of the Curtis case, the AP case set a “hot news” standard for reckless disregard. The court basically said that an honest mistake made in a “hot news” situation involving a public figure is not reckless disregard.
** Gertz v. Welch, 1974 – Who is a public figure? An attorney suing Chicago police after a young black man was killed was described by American Opinion (the ultra-right-wing wacko John Birch Society magazine) as a “communist fronter” and a “Lenninist.” Gertz claimed he was not a public figure because he had not sought public figure status. Thus, Gertz only had to prove negligence, and not malice as would be required in the case of a public official or public figure. Also, the case set a requirement of fault on the part of the media, rather than “strict liability.” In other words, the media has to be guilty of something beyond a mere falsehood. There has to be some level of fault.
** Ollman v. Evans, 1979 (and Milkovich v. Loraine Journal, 1990) — How do we distinguish fact from opinion? The Ollman test (affirmed in Milkovich) is:
- Common meaning
- Journalistic context
- Social context
Bertel Ollman was a professor offered a job at the University of Maryland. He was called a Marxist by columnists Rowland Evans and Robert Novak, and the job offer was withdrawn. “If an author bases his opinion on disclosed facts, the opinion itself does not give rise to a cause of action. Should the underlying facts prove false, they (rather than the opinion) would be actionable. If the author supplies no such facts, but utters a defamatory opinion, a claim arises. It is the libelous underlying “facts,” rather than the opinion, that makes the defamatory statement actionable.
The Milkovich case had to do with accusations that a basketball coach encouraged violence. In both cases, the courts said, the opinions assumed underlying facts and therefore could be seen as going beyond fair comment and criticism.
Libel & privacy law; public vs private people
|Public Person||Private Person|
|Defamatory falsehood||Plaintiff must prove actual malice (as in NYT v. Sullivan)||Plaintiff must only prove negligenceunder state laws guided by federal court decisions.|
|Defamatory truth||Usually no legal issue; Watch for ethical issues||Publication of private facts suit possible;Defendant must prove public interest or news value.|
One of the first web libel cases was in the early 1990s, when CompuServe and Prodigy internet libel cases left ISPs with the difficult choice of either a) fully editing all content or b) not editing any content at all. ISPs, especially those in traditional media, wanted a middle ground where some editing would encourage the free flow of ideas.
So the rules were clarified in the Telecommunication Act of 1996, specifically in 47 U.S.C. §230 , especially section 2A, which immunizes interactive service providers from liability for information provided by others.
No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected…
Cases upholding the Telecommunications Act of 1996:
** Zeran v. AOl, 1997 – When an anonymous AOL poster repeatedly said that Kenneth Zeran was selling t-shirts praising the Oklahoma City bombers, Zeran’s home phone was inundated with death threats. An Oklahoma radio station even broadcast the false information. Zeran tried to get AOL to change the material but that did not happen quickly enough to prevent damage to Zeran’s reputation. He sued AOL for libel. The trial court said that the Communications Decency Act of 1996 (“CDA”) — 47 U.S.C. § 230 — barred Zeran’s claims. Zeran appealed, arguing that the CDA still makes providers liable if they possess notice of defamatory material posted through their services and do not take action. But Section 230 “plainly immunizes computer service providers like AOL from liability for information that originates with third parties,” The US Fourth District Court said. The Supreme Court denied cert. (Also see AOL’s views on the case: “Section 230 of the Telecommunications Act of 1996 was passed to ensure that ISP’s would not have to pre-screen all member communications to avoid legal liability and, at the same time, leave ISP’s free to take responsible measures to screen or block objectionable content.”).
Barnes v Yahoo, 2006 — Ms. Barnes sued Yahoo!, Inc. because (she said) the company did not honor promises to remove her phone number and nude picturese by her former boyfriend. The postings seem to have been malicious. The court said Yahoo was immunized by Section 230 of the Telecommunications Act. Of course, Ms. Barnes’ former boyfriend could be held responsible in a separate lawsuit. (See “For a good time call…” in ars technica).
Other contemporary libel cases
ENVIRONMENT: Edwards v. National Audubon Society, 1977 – The New York Times reported both sides of a heated dispute over pesticide science, and noted that the Audubon society said scientists consulting for industry were “paid to lie.” The scientists sued the New York Times, which successfully defended itself with the“neutral reportage” defense.
PUBLIC RELATIONS: Hutchinson v Proxmire, 1979 -- The doctrine of privilege is confined to floor debate, not press releases issued by U.S. senators. The case occurred when Sen. William Proxmire gave a “Golden Fleece” award to a scientist working on a federal grant and publicized it in a press release.
FACT VS OPINION: Janklow v. Newsweek, 1986 -- South Dakota Gov. William Janklow sued Newsweek after an article described his prosecution of Indian activist Dennis Banks as revenge after Banks (apparently falsely) accused him of raping an Indian woman. Courts found that the opinion expressed fell under the fair comment and criticism defense (See above)
BURDEN OF PROOF: Philadelphia Newspapers v. Hepps, 1986
– Plaintiff has burden of proof to show that information is false; the media doesnt even have to show its true, even in a case where a private person is suing about public issue.
** Hustler Magazine and Larry C. Flynt v. Jerry Falwell, 1988 – An ad
parody was not a believable defamation, and the Virginia common law tort against “Intentional infliction of emotional distress” is not permissible as a form of libel action. Oral arguments before the US Supreme Court in this case were very accurately presented in The People Versus Larry Flynt.
Michael Milkovich v. Lorain Journal Co, 1990 – When “opinion” rests on facts known to be false, plaintiff can sue; some fear this is loss of “fair comment” defense. However, the court also reaffirmed the Philadelphia Newspapers decision (above, in this section) and said an expression of pure opinion which can’t be proven false cannot be libel.
Corporate libel / Veggie Libel / SLAPP cases
Auvil v. CBS 60 Minutes, 1995 – Federal court dismissed a suit by makers of Alar, a chemical used on apples to improve their appearance, saying that Auvil had to prove the CBS report detailing= concerns over cancer causing pesticides was false.
Dixon v. Superior Court of Orange County, 1994 – In a classic SLAPP case (strategic lawsuit against public participation) a retired college professor who questioned the competence of an environmental assessment company was sued. Since California law invites public comment on such environmental issues, the court held that the professor’s comments were absolutely privileged regardless of his motives. Many similar cases have been heard in California and other states in recent years, and most have resulted in summary dismissal. A Virginia case involving a professor at Clinch Valley Community College dragged on for many years before it was dismissed.
** Texas Beef Group v. Oprah Winfrey, 1998 – A group of Texas cattlemen sued Oprah Winfree for violating a state law against “product disparagement.” The segment of the show was called “dangerous foods,” and Winfree invited several people concerned about mad cow disease and e-coli onto the show, along with others who defended the food industry. The suit was dismissed at the federal trial court level in Texas in Feb., 1998 and is under appeal. The Texas state legislature, meanwhile, may repeal the law.
Cape Wind v. Donnelan, 2006 — Not a path-breaking case, but more of an example of how libel law works on a day to day basis. Donelan, a Massachusetts activist, sent out a fake press release saying a local business was boycotting Cape Wind, a wind energy development group that has a controversial project off Cape Cod. Cape Wind hired an investigator and then sued for libel. This was not a slap suit but rather a case of a company protecting its reputation.
Recent local and regional libel cases
Not precedent setting necessarily, but rather an interesting glimpse into how the law works locally.
Woody v Carter, 2008 -- Developer Roger W. Woody sued a Christiansburg VA resident and blogger Terry Ellen Carter for complaining about a large mound of dirt on one of Woody’s properties. A Montgomery County judge said that the allegations did not support claims that Carter’s speech was unlawful, and refused to let the case go to trial. The judge ruled on what is called a demurer,. A copy of the filing is at this ACLU web site.
Jordan v. Kollman, 2005 – Virginia Supreme Court found that a political ad was not libelous, reversing a trial court’s decision. The ad attacked J. Chris Kollman, III, former mayor of the city of Colonial Heights (a suburb south of Richmond), for supposedly approving a low income housing project. Kollman sued for libel. The ad said in part: “It’s unbelievable that a massive housing project adjacent to a flood plain would be located in such a congested residential area . . . Think of the potential for crime, drugs, and demands on our school system . . . think of the impact on all of us . . . how much higher will reassessments go to pay the horrendous cost to the taxpayer . . . over $700,000 to widen Archer Avenue and untold costs for police, fire, and EMS services.” But the political criticism was wrong. In fact, Kollman was concerned about the project and attempted to have the city buy the land from the developer and create a park. Even so, the court found for the defendant: “There is insufficient evidence in the record to support a finding under the clear and convincing proof standard that Jordan’s ads in The Progress Index, which Kollman claimed as defamatory, were published with actual malice. Thus, the trial court erred …”
Rappleyea v. WDBJ, 2001 – WDBJ TV Roanoke did not defame a toy store employee by reporting that she had been charged with assaulting a 7-year-old shoplifting suspect, a jury found. Charlene Rappleyea, an employee of Toys R Us in Lynchburg, filed a libel suit after a TV reporter filed a story based on the public record and also including comments from the store manager denying the allegations and an interview with the 7-year-old girl’s parents. Although the assault charge brought by the parents against Rappleyea was dismissed, Rappleyea claimed her reputation was harmed by WDBJ’s coverage. A Roanoke Times article said: “The girl’s parents told WDBJ that their daughter was ordered to lift her shirt and unbutton her pants after Rappleyea questioned her in the store’s restroom about a possible theft at the store. Rappleyea then “allegedly stuck her hand into [the child's] pants to see if she was concealing any merchandise,” the report stated. The longtime store employee denied the allegations, and an assault charge against her was later dismissed – as Channel 7 reported in a follow-up story…. Rappleyea’s lawyer contended [that the reporter] went too far by interviewing the child’s parents without checking into the allegations or giving Rappleyea an opportunity to comment. ‘He sent this story out to hundreds of thousands of people, and it was false’ Richmond attorney Hayden Fisher said.
Murray Energy v The Gazette, 2012 — Notorious Murray coal company sued to Charleston WV Gazette in August, 2012 for a column by Ken Ward, entitled Mitt Romney, Murray Energy and Coal Criminals. The lawsuit, Murray Energy v Gazette (brief), was filed in the State of Ohio, where defamation law is similar to most other states. Commentary about the suit includes:
- Jim Romanesko’s blog