LIBEL AND SLANDER

Twotortsthat involve the communication of false information about a person, a group, or an entity such as a corporation. Libel is anydefamationthat can be seen, such as a writing, printing, effigy, movie, or statue. Slander is any defamation that is spoken and heard.

Collectively known as defamation, libel and slander are civil wrongs that harm a reputation; decrease respect, regard, or confidence; or induce disparaging, hostile, or disagreeable opinions or feelings against an individual or entity. The injury to one's good name or reputation is affected through written or spoken words or visual images. The laws governing these torts are identical.

To recover in a libel or slander suit, the plaintiff must show evidence of four elements: that the defendant conveyed a defamatory message; that the material was published, meaning that it was conveyed to someone other than the plaintiff; that the plaintiff could be identified as the person referred to in the defamatory material; and that the plaintiff suffered some injury to his or her reputation as a result of the communication.

To prove that the material was defamatory, the plaintiff must show that at least one other person who saw or heard it understood it as having defamatory meaning. It is necessary to show not that all who heard or read the statement understood it to be defamatory, but only that one person other than the plaintiff did so. Therefore, even if the defendant contends that the communication was a joke, if one person other than the plaintiff took it seriously, the communication is considered defamatory.

Defamatory matter is published when it is communicated to someone other than the plaintiff. This can be done in several different ways. The defendant might loudly accuse the plaintiff of something in a public place where others are present, or make defamatory statements about the plaintiff in a newsletter or an on-line bulletin board. The defamation need not be printed or distributed. However, if the defendant does not intend it to be conveyed to anyone other than the plaintiff, and conveys it in a manner that ordinarily would prevent others from seeing or hearing it, the requirement of publication has not been satisfied even if a third party inadvertently overhears or witnesses the communication.

Liability for republication of a defamatory statement is the same as for original publication, provided that the defendant had knowledge of the contents of the statement. Thus, newspapers, magazines, and broadcasters are liable for republication of libel or slander because they have editorial control over their communications. On the other hand, bookstores, libraries, and other distributors of material are liable for republication only if they know, or had reason to know, that the statement is defamatory. Common carriers such as telephone companies are not liable for defamatory material that they convey, even if they know that it is defamatory, unless they know, or have reason to know, that the sender does not have a privilege to communicate the material. Suppliers of communications equipment are never liable for defamatory material that is transmitted through the equipment they provide.

In general, there are four defenses to libel or slander: truth, consent, accident, and privilege. The fact that the allegedly defamatory communication is essentially true is usually an absolute defense; the defendant need not verify every detail of the communication, as long as its substance can be established. If the plaintiff consented to publication of the defamatory material, recovery is barred. Accidental publication of a defamatory statement does not constitute publication. Privilege confers immunity on a small number of defendants who are directly involved in the furtherance of the public's business—for example, attorneys, judges, jurors, and witnesses whose statements are protected on public policy grounds.

Before 1964, defamation law was determined on a state-by-state basis, with courts applying the local common law. Questions of freedom of speech were generally found to be irrelevant to libel or slander cases, and defendants were held to be strictly liable even if they had no idea that the communication was false or defamatory, or if they had exercised reasonable caution in ascertaining its truthfulness. This deference to state protection of personal reputation was confirmed in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942), in which the U.S. Supreme Court stated, "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise constitutional problems." The Court in Chaplinsky held that defamatory speech is not essential to the exposition of ideas and that it can be regulated without raising constitutional concerns. This reasoning was confirmed in Beauharnais v. Illinois, 343 U.S. 250, 72 S. Ct. 725, 96 L. Ed. 919 (1952), where the Court again held that libelous speech is not protected by the Constitution.

In 1964, the Court changed the direction of libel law dramatically with its decision in new york times v. sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). For the first time, the Court placed some libelous speech under the protection of the first amendment. The plaintiff, a police official, had claimed that false allegations about him were published in the New York Times, and he sued the newspaper for libel. The Court balanced the plaintiff's interest in preserving his reputation against the public's interest in freedom of expression in the area of political debate. The Court wrote that "libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment." Therefore, in order to protect the free flow of ideas in the political arena, the law requires that a public official who alleges libel must prove actual malice in order to recover damages. The First Amendment protects open and robust debate on public issues even when such debate includes "vehement, caustic, unpleasantly sharp attacks on government and public officials."

Since Sullivan, a public official or other person who has voluntarily assumed a position in the public eye must prove that a libelous statement "was made with 'actual malice'—that is, with knowledge that it was false or with reckless disregard to whether it was false or not" (Sullivan). The actual-malice standard does not require any ill will on the part of the defendant. Rather, it merely requires the defendant to be aware that the statement is false or very likely false. Reckless disregard is present if the plaintiff can show that the defendant had "serious doubts as to the truth of [the] publication" (see St. Amant v. Thompson, 390 U.S. 727, 88 S. Ct. 1323, 20 L. Ed. 2d 262 [1968]).

Also since Sullivan, the question of who is a public official has been raised often. In Rosenblatt v. Baer, 383 U.S. 75, 86 S. Ct. 669, 15 L. Ed. 2d 597 (1966), the Court found that a nonelected official "among the hierarchy of government employees who have, or appear to have, substantial responsibility for, or control over, the conduct of public affairs" was a public official within the meaning of Sullivan. Similarly, inMonitor Patriot Co. v. Roy, 401 U.S. 265, 91 S. Ct. 621, 28 L. Ed. 2d 35 (1971), the Court found that a candidate for public office fell within the category of public officials who must prove actual malice in order to recover.

Eventually, Sullivan's actual-malice requirement was extended to include defendants who are accused of defaming public figures who are not government officials. In the companion cases of Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967), the Court held that a football coach at the University of Georgia and a retired Army general were similar to public officials in that they enjoyed a high degree of prominence and access to the mass media that allowed them to influence policy and to counter criticisms leveled against them.

These rules make it difficult for a plaintiff to prevail in a libel action. For example, in Levan v. Capitol Cities/ABC, 190 F.3d 1230 (11th Cir. 1999), a federal appeals court dismissed a libel action against a television network because the plaintiff could not prove actual malice. BFC Financial Corporation ("BFC") and its president, chief executive officer, and controlling shareholder, Alan Levan, brought an action for defamation against Capital Cities/ABC, Inc. ("ABC") and one of its producers, Bill Willson. Levan and BFC based their case on a segment that had been aired on ABC's television program "20/20." The segment portrayed BFC and Levan as unfairly taking advantage of investors in real estate-related limited partnerships, by inducing them to participate in transactions known as "rollups." BFC and Levan claimed that ABC had made numerous false or misleading statements with actual malice and that it had misused videotaped statements and congressional testimony.

The Public Figure Doctrine: An Unworkable Concept?

The "public figure" doctrine announced by the Supreme Court in Curtis Publishing v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967), held that prominent public persons had to prove actual malice (knowledge of falsity or reckless disregard of whether a statement is true or false) on the part of the news media in order to prevail in a libel lawsuit. Prior to Butts only public officials had to prove actual malice. In the years since this decision, the public figure doctrine has proved a troublesome area of the law, primarily because it is difficult to apply with any consistency. Some, generally from the news media, have called for making it easier to classify a person as a public figure. Others believe that a strict line must be maintained between public and private figures, so as to prevent the damaging of personal reputations by the media. Both sides agree that greater clarity is needed in defining what constitutes a public figure.

Those who favor a less restrictive definition of public figure argue that freedom of the press requires such a definition. It is in the public interest to encourage the reporting of news without fear that the subject of a story will sue the news organization for libel. Without adequate safeguards news editors may resort to self-censorship to avoid the possibility of a lawsuit. In a democratic society, self-censorship would prove to be a damaging restriction on the public's right to information.

For these advocates the Supreme Court's decision in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974), signified a step away from the protections of the first amendment. The Court held that a person who "voluntarily injects himself or is drawn into a particular public controversy" becomes a public figure "for a limited range of issues." The Court also held that there are persons who "occupy positions of such persuasive power and influence that they are deemed public figures for all purposes." This category would include, for example, a national labor or civil rights leader.

Critics of Gertz argue that these two categories make little sense and are of no help to a court in determining whether a person is a public figure. For example, should a Hollywood entertainer or a professional athlete be cast as a public person in a libel suit? Do these persons have "persuasive power and influence"? As for persons who become involved in public events, courts have been unable to articulate a consistent standard for measuring whether a person "thrust" himself or herself into the status of a public figure. Studies have revealed contradictory ways of applying the Gertz standard.

Some commentators have advocated abandoning Gertz and replacing it with a "subject matter" test. Under this test if an article or story involves public policy or the functioning of government, it should be protected by the public figure doctrine. Therefore, if a story discusses a relatively unknown person's divorce proceeding or supposed Communist political leanings, this would be a matter of public policy (divorce law or political parties) that invokes the actual-malice standard in a libel suit.

The use of subject matter analysis would give public figures more protection than they currently have under Gertz. A story about the private life of an entertainer or professional athlete would generally not involve a public issue under even the broadest definition. Under the subject matter test, the celebrity would not be forced to prove actual malice.

Defenders of the Gertz decision admit that the public figure concept has been difficult to apply, but argue that the subject matter test is not a good alternative. They note that although freedom of the press is an important value, the need to protect the reputation of private citizens is also an important societal value. Citizens are encouraged to participate in public affairs, yet a liberal reading of the public figure doctrine could discourage participation if there is no redress for injury to reputation. In addition, private citizens who are deemed public figures could never match the news media's power and pervasiveness in telling one side of the story.

Even with the difficulties inherent in Gertz, defenders note that it narrowed the public figure category in ways that protect the public. Simply appearing in the newspapers in connection with some newsworthy story or stories does not make one a public figure. Forced involvement in a public trial does not by itself make one a public figure. Most important, those charged with libel cannot create their own defense by converting a private citizen into a public figure solely by virtue of their news coverage.

Defenders of Gertz are leery of the subject matter test. They contend this test is too one-sided in favor of the news media. Almost any topic in human affairs can be generalized into a public policy issue or one that involves the government. It would be unfair to allow a publication to falsely brand a relatively unknown person a Communist and then assert the person is a public figure because radical political parties are a matter of public concern. The victim of this charge would have a difficult time proving actual malice to win a libel suit.

Those who favor a restrictive definition of the public figure doctrine also note that a libel action serves as a private means of controlling irresponsible journalism. Gertz, even with its difficulties in application, has allowed private persons a better chance of success in libel suits, which in turn sends a strong message to the media to be more careful in their reporting. As to the concerns about self-censorship, defenders of Gertz point out that journalists make choices every day about what is published. Falsely tarnishing the reputation of a person should be the object of self-censorship in professional news-gathering organizations.

further readings

Jones, Nora. 2003. "Defamation Lawsuit Sparks a 'Public Figure' Debate." Rochester (N.Y.) Daily Record (May 30).

Lore, Michelle. 2002. "High Court Mulls Limited Public Figure Doctrine." Minnesota Lawyer (November 18).

Mitchell, James C. 2002. "The Accidental Purist: Reclaiming the Gertz All Purpose Public Figure Doctrine in the Age of 'Celebrity Journalism'." Loyola of Los Angeles Entertainment Law Review 22 (spring): 559–81.

The U.S. Court of Appeals for the Eleventh Circuit ruled that Levan and BFC failed to prove that ABC had "entertained serious doubts" that the underlying theme of the broadcast was untrue. The court pointed to the numerous objective experts whom ABC had interviewed, who all agreed that the rollup transactions were bad for the investors and very good for Levan and BFC. The court also noted that Levan had had a conflict of interest, as he had advised the investors to agree to the rollups, and he then had reaped the benefits. As to ABC's alleged misuse of Levan's videotaped statement and congressional testimony, the court found that that this evidence "pales in contrast" to the sources who told ABC that Levan had traded worthless junk bonds in return for valuable real estate. In sum, most of the evidence that related to actual malice all pointed to the lack of it by ABC.

The Court refined its definition of public figure in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974), where it held that public figures are those who thrust themselves into the public eye and invite close scrutiny. The Court also recognized two types of public figures: those who are "public figures for all purposes" and those who are public figures for limited purposes. For an individual to be considered a public figure in all situations, the person's name must be so familiar as to be a household word—for example, Johnny Carson. A limited-purpose public figure is one who voluntarily injects himself or herself into a public controversy and becomes a public figure for a limited range of issues. Limited-purpose public figures have at least temporary access to the means to counteract false statements about them. By voluntarily placing themselves in the public eye, they relinquish some of their privacy rights. For these reasons, false statements about limited-purpose public figures that relate to the public controversies in which they are involved are not considered defamatory unless they meet the actual-malice test that is set forth in Sullivan.

Richard Jewell and the Olympic Park Bombing

The strange ordeal of Richard Jewell grew out of the 1996 Summer Olympics bombing. One of thousands of security guards hired for the Atlanta games, Jewell discovered a suspicious knapsack containing a bomb on July 27, 1996. Before it exploded, he helped lead an evacuation that limited casualties to two dead and more than one hundred wounded. His heroism was widely praised. But within three days, celebrity turned into notoriety as the FBI had made him a primary suspect.

Suspicious of the 11 interviews Jewell granted following the bombing, the FBI theorized that he might have planted the bomb in order to be seen as a hero. This theory was promptly leaked to the press, which made it a cause célébre. The Atlanta Journal-Constitution published an extra edition on July 30, with a headline that read "FBI Suspects 'Hero' May Have Planted Bomb." The allegations mounted: Jewell had reportedly sought publicity for his heroism, while persons at Piedmont College, his former employer, were said to have made allegations to the FBI about his character and conduct. On NBC's nightly news program, Tom Brokaw stated that the FBI "probably" had enough evidence to arrest and try Jewell.

The investigation lasted three months. During this time Jewell became the target of two lawsuits by bombing survivors, which were later dismissed. He maintained his innocence and tried to clear his name by pointing out that he had not approached the news media seeking attention, a fact which was quickly confirmed. Only on October 26, 1996, did the FBI finally clear him as a suspect. He appeared at a press conference where he declared that he had spent 88 days living in fear. Nearly a year later, after initially refusing, Attorney General janet reno formally apologized to Jewell.

After being cleared in the fall of 1996, Jewell sued or threatened suit against several media companies for defamation. They included ABC, NBC, CNN, the New York Post, NBC anchor Tom Brokaw, and a local Georgia radio station. Initially, he was successful. In December 1996, NBC negotiated a settlement with Jewell for a reported $500,000. CNN and ABC settled, too, as did Piedmont College, which Jewell had sued for allegedly supplying false information.

The most controversial lawsuit was filed in January 1997 against the Atlanta Journal-Constitution and its parent company, Cox Enterprises Inc. Although truth is the key defense in a defamation case and Jewell was a suspect in the bombing, the libel action was based on more than just a statement of his status as a suspect. Listing 19 allegedly libelous headlines and excerpts from articles, the suit claimed that the newspaper libeled him "in a series of false and defamatory articles that portrayed him as an individual with a bizarre employment history and an aberrant personality who was likely guilty" (Jewell v. Cox Enterprises Inc.).

But early on, an unusual ruling went against the plaintiff. Fulton County state court judge John R. Mather ruled on October 5, 1999, that Jewell was a "public figure" for purposes of his legal burden in the defamation case. Mather determined that Jewell made himself a public figure through his extensive media interviews following the bombing.

Unexpected and far-reaching, the ruling put a huge obstacle before the plaintiff. As the U.S. Supreme Court made clear in its oft-cited 1964 ruling in new york times v. sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d. 686 (1964), there is a distinction in defamation cases between private individuals and public figures. Private individuals have the easier task. As a private individual, Jewell would simply need to prove that the newspaper acted with negligence or carelessness in reporting information that was false and defamatory in content. But in order for a public figure to prevail, the plaintiff must prove "actual malice" on the part of the media defendants. Meeting the test for actual malice requires showing that the defendants knew that the reported information was false or had a reckless disregard for the truth.

Faced with meeting this significantly higher burden of proof, Jewell appealed the ruling unsuccessfully. In October 2001, the state Court of Appeals upheld the lower court, Atlanta Journal-Constitution v. Jewell, 555 S.E.2d 175 (Ga. Ct. App. 2001), and a year later appeals were turned down by both the Supreme Court of Georgia and the U.S. Supreme Court. As the lawsuit moved toward trial in 2003, Lin Wood, his attorney, warned that the decision to hold Jewell a public figure "threatens the reputations of any private citizen who is discussed by a member of the media." (The Associated Press. October 7, 2002. "Supreme Court Sends Several First Amendment Cases Packing.") The newspaper's attorney Peter Canfield observed that Jewell had already admitted to being the focus of the FBI investigation about which the paper had reported.

further readings

Calvert, Clay, and Robert D. Richards. 2002. "A Pyrrhic Press Victory: Why Holding Richard Jewell as a Public Figure Is Wrong and Harms Journalism." The Loyola of Los Angeles Entertainment Law Review (April 2).

"Court Upholds Ruling that Jewell Was Public Figure." 2001. Associated Press (October 11).

"Georgia High Court Won't Hear Jewell Appeal." 2002. Associated Press (February 12).

Noe, Denise. 2003. "The Olympics Bombed." Court TV's Crime Library. Available online at <www.crimelibrary.com/terrorists_spies/terrorists/eric_rudolph/2.html?sect=22> (accessed July 15, 2003).

"Supreme Court Sends Several First Amendment Cases Packing." 2002. Associated Press (October 7).

cross-references

Public Figure; Terrorism.

Defining who is a limited-purpose public figure has been compared with trying to nail a jellyfish to a wall. Nonetheless, the Court has attempted this feat on several occasions. In Time, Inc., v. Firestone, 424 U.S. 448, 96 S. Ct. 958, 47 L. Ed. 2d 154 (1976), it held that a wealthy socialite who was involved in a widely publicized divorce was not a public figure because she had not thrust herself into the public eye in order to influence the resolution of any public issue. Her divorce was not a public controversy, although it had undeniable public interest. Likewise, in Hutchinson v. Proxmire, 443 U.S. 111, 99 S. Ct. 2675, 61 L. Ed. 2d 411 (1979), a scientist whose research was subjected to ridicule when he received a Golden Fleece Award from Senator William Proxmire was not a public figure because he had neither thrust himself into the public spotlight nor sought to influence public opinion. Proxmire gave these awards to people whom he felt were fleecing the public by using tax dollars on frivolous or useless causes. The Court found that the scientist's notoriety arose strictly from Proxmire's libelous statements about him and his research. Proxmire's claim that Hutchinson was a public figure was rejected because Proxmire's libelous actions were responsible for thrusting Hutchinson into the public eye.

The California Supreme Court rejected the claim of the news media that it is not liable for reporting someone else's libelous statements about a private figure. In Khawar v. Globe International, Inc., 19 Cal. 4th 254, 965 P.2d 696, 79 Cal. Rptr. 2d 178 (1998), the court rejected the media's argument that a "neutral reportage" defense that applies to public figures in some jurisdictions should also apply to private figures. The tabloid newspaper the Globe presented an uncritical report about a little-known book in which the author claimed that Sirhan Sirhan had not been the assassin of robert f. kennedy in 1968. Robert Morrow, the author of The Senator Must Die asserted that the real murderer was Khalid Khawar, a Pakistani reporter who was covering Kennedy's victory rally that night in a Los Angeles hotel for a newspaper in Pakistan. Khawar had not been named in the article, but the Globe had published a photograph with a circle and arrow pointing him out. By then a California farmer, Khawar sued the tabloid for libel and was awarded $1.175 million in damages.

The California Supreme Court upheld the verdict. In so ruling, it declined to adopt the neutral reportage libel defense. In jurisdictions that recognize this defense, the news media entity must be neutral, merely reporting charges made by other persons without taking a position itself. In addition, the charges must be reported in a substantially accurate way. The news media argue that such a defense is necessary for them to report the news without the fear of unwarranted libel suits. The court concluded that Khawar was neither an all-purpose or limited-purpose public figure, but rather a private individual. Unlike public figures, who give up part of their interest in protecting their good name, private individuals do not. Therefore, private individuals are more vulnerable to injury than are public officials and public figures. Reports such as the one that the Globe printed rarely benefit the public when the allegations are against a private individual. In addition, private persons rarely have sufficient media access to counter false accusations against them. The Court stated that "republications of accusations made against private figures are never protected by the neutral reportage privilege." However, the court stopped short of recognizing such a privilege when public officials and figures are involved.

A 1991 case made it somewhat easier for public figures to sue authors and publishers for libel. Masson v. New Yorker Magazine, 501 U.S. 496, 111 S. Ct. 2419, 115 L. Ed. 2d 447 (1991), held that a plaintiff alleging libel satisfies the actual-malice standard if it can be proved that the author deliberately altered the plaintiff's words and that the alteration resulted in a material change in the meaning conveyed by the plaintiff in the original statement. Jeffrey M. Masson, a prominent psychoanalyst, had sued Janet Malcolm, the author of an article and book about him, as well as The New Yorker magazine and Alfred A. Knopf, Inc., which had published the article and book, respectively. Masson claimed that quotations that were attributed to him in those publications were false and libelous. Malcolm conceded that she had altered quotations in order to make the finished product more readable, but she maintained that the essence of Masson's words had not been changed. The Court held that quotation marks around a passage "indicate to the reader that the passage reproduces the speaker's words verbatim." It was careful to protect journalistic freedom and went on to write that deliberate alteration of quotations does not automatically prove actual malice:

We conclude that a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity for purposes of New York Times Co. v. Sullivan … and Gertz v. Robert Welch, Inc. … unless the alteration results in a material change in the meaning conveyed by the statement. The use of quotations to attribute words not in fact spoken bears in a most important way on that inquiry, but it is not dispositive in every case.

The tremendous growth of electronic communications networks since the 1990s has raised numerous questions about liability for defamation. Suddenly, it is possible to commit libel and to communicate a libelous statement to thousands of people, instantly. When libel is perpetrated in cyberspace, who is responsible? Are online information providers considered publishers, distributors, or common carriers? What level of First Amendment protection should be afforded to defamatory statements transmitted electronically?

In Cubby, Inc. v. CompuServe, 776 F. Supp. 135 (S.D.N.Y. 1991), the plaintiff sued CompuServe, an online service company, for libel because of statements that had appeared in a newsletter written and uploaded by an independent company and transmitted through CompuServe's network. The federal district court found that CompuServe had no editorial control over the contents of the newsletter and that it was therefore only a distributor of the newsletter. CompuServe could not be held liable for the newsletter's contents unless it had known, or had had reason to know, that the newsletter contained defamatory statements. Conversely, in Stratton Oakmont v. Prodigy Services Co., 63 U.S.L.W. 2765, 23 Media L. Rep. 1794, 1995 WL 323710 (N.Y. Sup. Ct. 1995); reh'g denied, 24 Media L. Rep. 1126 (N.Y. Sup. Ct. 1995), the court found that Prodigy, an online provider similar to CompuServe, was a publisher rather than a distributor, and that it was liable for the defamatory material in question because it exercised considerable editorial control over what appeared on its system.

Some states have laws that seek to protect vital industries and businesses from unfounded rumors and scare tactics. Such was the case in Texas, which enacted food- and business-disparagement laws that allow victims of false statements about their perishable food or business to sue for damages. Television host Oprah Winfrey was ensnared in litigation involving these laws after she broadcast an episode of her show in 1996 about the problems surrounding the outbreak of mad cow disease in Great Britain. The episode, which was labeled "dangerous food," included a guest who suggested that unless the U.S. banned certain practices, a mad cow disease epidemic in the U.S. would "make AIDS look like the common cold." Beginning the day of the broadcast, the price of beef dropped drastically and remained low for two weeks. The Texas Beef Group filed a civil lawsuit against Winfrey, her company, and the guest, alleging that comments made on the program had violated Texas's disparagement laws. The judge dismissed the food-disparagement charge, and a jury found the defendants not guilty of business disparagement. The Fifth Circuit Court of Appeals upheld these rulings in Texas Beef Group v. Winfrey, 201 F.3d 680 (5th Cir: 2000). The appeals court concluded that the key issue was the statute's definition of a "perishable food product." At trial, the defendants argued that live cattle are not perishable food, but the appeals court declined to rule on that issue. Instead, it focused on whether the defendants had knowingly disseminated false information about beef. The court grounded its analysis on the legal precedent that the First Amendment protects the expression of opinion as well as fact "so long as a factual basis underlies the opinion." It found that, at the time of the broadcast, the factual basis for the guest's opinions was truthful. As for the AIDS comparison, the court characterized it as hyperbole; in its view, exaggeration did not equal defamation. Because the challenged comments had a factual basis, Winfrey and her guest had a First Amendment right to say them.

further readings

"Beyond Words: The Potential Expansion of Defamation By Conduct In Massachusetts." 2003. Boston University Law Review 83 (June).

Coad, Jonathan. 2003. "The Price of Truth In the New Law of Libel." New Law Journal 153 (April 18).

Fenno, Edward T. 1995. "Public Figure Libel: The Premium on Ignorance and the Race to the Bottom." Southern California Interdisciplinary Law Journal 4.

Friedman, Jessica R. 1995. "Defamation." Fordham Law Review 64.

Hiemstra, Nathalie L. 1993. "Masson v. New Yorker Magazine, Inc.: A 'Material Alteration'." University of Miami Entertainment and Sports Law Review 10.

"Jewell Box: An Archive on Richard Jewell and the Olympic Park Bombing." 1997. Creative Loafing Network site. Available online at <www.cln.com> (accessed February 10, 2003).

"The Media and Richard Jewell: Rush to Judgment." 1997. Media Studies Center site. Available online at <www.mediastudies.rutgers.edu> (accessed February 10, 2003).

Ransom, Elsa. 1995. "The Ex-Public Figure: A Libel Plaintiff without a Class." Seton Hall Journal of Sport Law 5.

Stonecipher, Harry W. 1993. "A Survey of the Professional Person as Libel Plaintiff: Reexamination of the Public Figure Doctrine." Arkansas Law Review 46.

cross-references

Freedom of the Press.

Libel and Slander

Sections within this essay:

Background

The law of defamation protects a person's reputation and good name against communications that are false and derogatory. Defamation consists of two torts: libel and slander. Libel consists of any defamation that can be seen, most typically in writing. Slander consists of an oral defamatory communications. The elements of libel and slander are nearly identical to one another.

Historically, the law governing slander focused on oral statements that were demeaning to others. By the 1500s, English courts treated slander actions as those for damages. Libel developed differently, however. English printers were required to be licensed by and give a bond to the government because the printed word was believed to be a threat to political stability. Libel included any criticism of the English government, and a person who committed libel committed a crime. This history carried over in part to the United States, where Congress under the presidency of John Adams passed the Sedition Act, which made it a crime to criticize the government. Congress and the courts eventually abandoned this approach to libel, and the law of libel is now focuses on recovery of damages in civil cases.

Beginning with the landmark decision in New York Times v. Sullivan (1964), the U.S. Supreme Court has recognized that the law of defamation has a constitutional dimension. Under this case and subsequent cases, the Court has balanced individual interests in reputation with the interests of free speech among society. This approach has altered the rules governing libel and slander, especially where a communication is about a public official or figure, or where the communication is about a matter of public concern.

Elements of Libel and Slander

Specific requirements that a plaintiff must prove in order to recover in a defamation action differ from jurisdiction to jurisdiction. Under the Restatement (Second) of Torts, which is drafted by the American Law Institute and has been influential among state courts, a plaintiff must prove four elements. First, the plaintiff must prove that the defendant made a false and defamatory statement concerning the plain-tiff. Second, the plaintiff must prove that the defendant made an unprivileged publication to a third party. Third, the plaintiff must prove that the publisher acted at least negligently in publishing the communication. Fourth, in some cases, the plaintiff must prove special damages.

Defamatory Statements

One essential element in any defamation action is that the defendant published something defamatory about the plaintiff. The Restatement defines a communication as defamatory "if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating with him." Examples of defamatory statements are virtually limitless and may include any of the following:

• The communication that imputes a serious crime involving moral turpitude or a felony
• A communication that exposes a plaintiff to hatred
• A communication that reflects negatively on the plaintiff's character, morality, or integrity
• A communication that impairs the plaintiff's financial well-being
• A communication that suggests that the plaintiff suffers from a physical or mental defect that would cause others to refrain from associating with the plaintiff

One question with which courts have struggled is how to determine which standard should govern whether a statement is defamatory. Many statements may be viewed as defamatory by some individuals, but the same statement may not be viewed as defamatory by others. Generally, courts require a plaintiff to prove that he or she has been defamed in the eyes of the community or within a defined group within the community. Juries usually decide this question.

Courts have struggled to some degree with the treatment of statements of opinions. At common law, statements of opinion could form the basis of a defamation action similar to a statement of pure fact. Generally, if a statement implies defamatory facts as the basis of the opinion, then the statement may be actionable.

Publication Requirement

Another requirement in libel and slander cases is that the defendant must have published defamatory information about the plaintiff. Publication certainly includes traditional forms, such as communications included in books, newspapers, and magazines, but it also includes oral remarks. So long as the person to whom a statement has been communicated can understand the meaning of the statement, courts will generally find that the statement has been published.

Meaning of a Communication

In some instances, the context of a statement may determine whether the statement is defamatory. The Restatement provides as follows: "The meaning of a communication is that which the recipient correctly, or mistakenly but reasonably, understands that it was intended to express." Courts generally will take into account extrinsic facts and circumstances in determining the meaning of the statement. Thus, even where two statements are identical in their words, one may be defamatory while the other is not, depending on the context of the statements.

Reference to the Plaintiff

In a defamation action, the recipient of a communication must understand that the defendant intended to refer to the plaintiff in the communication. Even where the recipient mistakenly believes that a communication refers to the plaintiff, this belief, so long as it is reasonable, is sufficient. It is not necessary that the communication refer to the plaintiff by name. A defendant may publish defamatory material in the form of a story or novel that apparently refers only to fictitious characters, where a reasonable person would understand that a particular character actually refers to the plaintiff. This is true even if the author states that he or she intends for the work to be fictional.

In some circumstances, an author who publishes defamatory matter about a group or class of persons may be liable to an individual member of the group or class. This may occur when: (1) the communication refers to a group or class so small that a reader or listener can reasonably understand that the matter refers to the plaintiff; and (2) the reader or listener can reasonably conclude that the communication refers to the individual based on the circumstances of the publication.

Fault

One of the more difficult issues in a defamation case focuses on whether the defendant is at fault for publishing defamatory comments. Common law rules created strict liability on the part of the defendant, meaning that a defendant could be liable for defamation merely for publishing a false statement, even if the defendant was not aware that the statement was false. Cases involving an interpretation of the First Amendment later modified the common law rules, especially in cases involving public officials, public figures, or matters of public concern.

Common Law Rules

At common law, once a plaintiff proved that a statement was defamatory, the court presumed that the statement was false. The rules did not require that the defendant know that the statement was false or defamatory in nature. The only requirement was that the defendant must have intentionally or negligently published the information.

Public Officials and Public Figures

In New York Times v. Sullivan, the Supreme Court recognized that the strict liability rules in defamation cases would lead to undesirable results when members of the press report on the activities of public officials. Under the strict liability rules of common law, a public official would not have to prove that a reporter was aware that a particular statement about the official was false in order to recover from the reporter. This could have the effect of deterring members of the press from commenting on the activities of a public official.

Under the rules set forth in Sullivan, a public official cannot recover from a person who publishes a communication about a public official's conduct or fitness unless the defendant knew that the statement was false or acted in reckless disregard of the statements truth or falsity. This standard is referred to as "actual malice," although malice in this sense does not mean ill-will. Instead, the actual malice standard refers to the defendant's knowledge of the truth or falsity of the statement. Public officials generally include employees of the government who have responsibility over affairs of the government. In order for the First Amendment rule to apply to the public official, the communication must concern a matter related directly to the office.

Later cases expanded the rule to apply to public figures. A public figure is someone who has gained a significant degree of fame or notoriety in general or in the context of a particular issue or controversy. Even though these figures have no official role in government affairs, they often hold considerable influence over decisions made by the government or by the public. Examples of public figures are numerous and could include, for instance, celebrities, prominent athletes, or advocates who involve themselves in a public debate.

Private Persons

Where speech is directed at a person who is neither a public official nor a public figure, the case of Gertz v. Robert Welsh, Inc. (1974) and subsequent decisions have set forth different standards. The Court in Gertz determined that the actual malice standard established in New York Times v. Sullivan should not apply where speech concerns a private person. However, the Court also determined that the common law strict liability rules impermissibly burden publishers and broadcasters.

Under the Restatement (Second) of Torts, a defendant who publishes a false and defamatory communication about a private individual is liable to the individual only if the defendant acts with actual malice (applying the standard under New York Times v. Sullivan) or acts negligently in failing to ascertain whether a statement was false or defamatory.

Defenses

A defendant in a defamation case may raise a variety of defenses. These are summarized as follows:

Truth

The common law traditionally presumed that a statement was false once a plaintiff proved that the statement was defamatory. Under modern law, a plaintiff who is a public official or public figure must prove falsity as a prerequisite for recovery. Some states have likewise now provided that falsity is an element of defamation that any plaintiff must prove in order to recover. Where this is not a requirement, truth serves as an affirmative defense to an action for libel or slander.

A statement does not need to be literally true in order for this defense to be effective. Courts require that the statement is substantially true in order for the defense to apply. This means that even if the defendant states some facts that are false, if the "gist" or "sting" of the communication is substantially true, then the defendant can rely on the defense.

Consent

Where a plaintiff consents to the publication of defamatory matter about him or her, then this consent is a complete defense to a defamation action.

Absolute Privileges

Some defendants are protected from liability in a defamation action based on the defendant's position or status. These privileges are referred to as absolute privileges and may also be considered immunities. In other words, the defense is not conditioned on the nature of the statement or upon the intent of the actor in making a false statement. In recognizing these privileges, the law recognizes that certain officials should be shielded from liability in some instances.

Absolute privileges apply to the following proceedings and circumstances: (1) judicial proceedings; (2) legislative proceedings; (3) some executive statements and publications; (4) publications between spouses; and (5) publications required by law.

Conditional Privileges

Other privileges do not arise as a result of the person making the communication, but rather arise from the particular occasion during which the statement was made. These privileges are known as conditional, or qualified, privileges. A defendant is not entitled to a conditional privilege without proving that the defendant meets the conditions established for the privilege. Generally, in order for a privilege to apply, the defendant must believe that a statement is true and, depending on the jurisdiction, either have reasonable grounds for believing that the statement was true or not have acted recklessly in ascertaining the truth or falsity of the statement.

Conditional privileges apply to the following types of communications:

• A statement that is made for the protection of the publisher's interest
• A statement that is made for the protection of the interests of a third person
• A statement that is made for the protection of common interest
• A statement that is made to ensure the wellbeing of a family member
• A statement that is made where the person making the communication believes that the public interest requires communication of the statement to a public officer or other official
• A statement that is made by an inferior state officer who is not entitled to an absolute privilege

State Statutes of Limitations in Defamation Actions

ALABAMA: A two-year statute of limitation applies to defamation actions.

ALASKA: A two-year statute of limitation applies to defamation actions.

ARIZONA: A one-year statute of limitation applies to defamation actions.

ARKANSAS: A one-year statute of limitation applies to slanders actions, while a three-year statute of limitation applies to libel actions.

CALIFORNIA: A one-year statute of limitation applies to defamation actions.

COLORADO: A one-year statute of limitation applies to defamation actions.

CONNECTICUT: A two-year statute of limitation applies to defamation actions.

DELAWARE: A two-year statute of limitation applies to defamation actions.

DISTRICT OF COLUMBIA: A one-year statute of limitation applies to defamation actions.

FLORIDA: A two-year statute of limitation applies to defamation actions.

GEORGIA: A one-year statute of limitation applies to defamation actions.

HAWAII: A two-year statute of limitation applies to defamation actions.

IDAHO: A two-year statute of limitation applies to defamation actions.

ILLINOIS: A one-year statute of limitation applies to defamation actions.

INDIANA: A two-year statute of limitation applies to defamation actions.

IOWA: A two-year statute of limitation applies to defamation actions.

KANSAS: A one-year statute of limitation applies to defamation actions.

KENTUCKY: A one-year statute of limitation applies to defamation actions.

LOUISIANA: A one-year statute of limitation applies to defamation actions.

MAINE: A two-year statute of limitation applies to defamation actions.

MARYLAND: A one-year statute of limitation applies to defamation actions.

MASSACHUSETTS: A three-year statute of limitation applies to defamation actions.

MICHIGAN: A one-year statute of limitation applies to defamation actions.

MINNESOTA: A two-year statute of limitation applies to defamation actions.

MISSISSIPPI: A one-year statute of limitation applies to defamation actions.

MISSOURI: A two-year statute of limitation applies to defamation actions.

MONTANA: A two-year statute of limitation applies to defamation actions.

NEBRASKA: A one-year statute of limitation applies to defamation actions.

NEVADA: A two-year statute of limitation applies to defamation actions.

NEW HAMPSHIRE: A three-year statute of limitation applies to defamation actions.

NEW JERSEY: A one-year statute of limitation applies to defamation actions.

NEW MEXICO: A three-year statute of limitation applies to defamation actions.

NEW YORK: A one-year statute of limitation applies to defamation actions.

NORTH CAROLINA: A one-year statute of limitation applies to defamation actions.

NORTH DAKOTA: A two-year statute of limitation applies to defamation actions.

OHIO: A one-year statute of limitation applies to defamation actions.

OKLAHOMA: A one-year statute of limitation applies to defamation actions.

OREGON: A one-year statute of limitation applies to defamation actions.

PENNSYLVANIA: A one-year statute of limitation applies to defamation actions.

RHODE ISLAND: A one-year statute of limitation applies to slander actions. A three-year statute of limitation applies to libel actions.

SOUTH CAROLINA: A two-year statute of limitation applies to defamation actions.

SOUTH DAKOTA: A two-year statute of limitation applies to defamation actions.

TENNESSEE: A six-month statute of limitation applies to slander actions. A one-year statute of limitation applies to libel actions.

TEXAS: A one-year statute of limitation applies to defamation actions.

UTAH: A one-year statute of limitation applies to defamation actions.

VERMONT: A three-year statute of limitation applies to defamation actions.

VIRGINIA: A one-year statute of limitation applies to defamation actions.

WASHINGTON: A two-year statute of limitation applies to defamation actions.

WEST VIRGINIA: A one-year statute of limitation applies to defamation actions.

WISCONSIN: A two-year statute of limitation applies to defamation actions.

WYOMING: A one-year statute of limitation applies to defamation actions.

Additional Resources

Law of Defamation, Second Edition. Smolla, Rodney A., Thomson/West, 1997.

The Law of Torts. Dobbs, Dan B., Thomson/West, 2000.

Sack on Defamation: Libel, Slander, and Related Problems, Third Edition. Sack, Robert D., Practising Law Institute, 2005.

Torts in a Nutshell. Kionka, Edward J., Thomson/West, 2005.

West's Encyclopedia of American Law, 2nd Edition, Thomson/Gale, 2004.

Organization

Media Law Resource Center, Inc.

80 Eighth Avenue, Suite 200
New York, NY 10011 USA

Phone: (212) 337-0200
URL: http://www.medialaw.org

Organization

Reporters' Committee for Freedom of the Press

1101 Wilson Blvd., Suite 1100
Arlington, VA 22209 USA
Phone: (800) 336-4243
URL: http://www.rcfp.org

LIBEL

LIBEL refers to a highly technical common-law concept concerning defamation that has broad political implications and a lengthy, confusing history. In its seventeenth-century form, libel covered any written statement, whether true or false, that tended to damage the opinion which "right-thinking" people might otherwise hold of the government, public officials, or ordinary citizens.

The seminal early libel case in America occurred in 1735, when John Peter Zenger, publisher of the New York Weekly Review, stood trial for seditious libel for articles criticizing New York's colonial governor. Andrew Hamilton, Zenger's attorney, argued that truth should constitute a sufficient defense against such charges. At the time, the strict common-law rule, as reiterated by Sir William Blackstone, rejected truth as a defense and held that "the greater the truth, the greater the libel." Yet, the jurors agreed with Hamilton, used their power of nullification, and found Zenger not guilty.

The Federalist Party's Sedition Act of 1798 incorporated these "Zengerian Principles," truth as a defense and a jury's power to determine whether or not a statement was libelous. Although the law was never tested in the courts, Jeffersonians, especially those targeted for prosecution, complained that the Zengerian principles provided little protection in libel cases marked by partisan passion.

In the aftermath of the Sedition Act, debate over legal-constitutional protections for political expression became closely connected to the rules of libel law. During the nineteenth century, most states adopted specific constitutional provisions on criminal libel that resembled the Zengerian principles. Thus, most of the controversy over libel during the nineteenth and early twentieth centuries involved civil suits by political figures, especially those against newspapers.

In civil suits, in addition to the absolute defense of truth, defendants could invoke other "conditional privileges" that could excuse a libelous publication. "Fair comment," for example, covered libelous opinions about issues of general public interest, such as the quality of artistic works. A privilege, not a right, fair comment did justify libelous factual statements or any defamatory comment made with malice. A few states adopted a "minority rule" that did extend protection to libelous falsehoods published without malice.

The law of libel operated within this doctrinal framework for much of the twentieth century. The situation changed during the 1960s and 1970s. Libel suits by segregationists against civil rights activists and northern media outlets, and a perceived increase in other types of political libel litigation, led the activist majority of the U.S. Supreme Court, in Times v. Sullivan (1964) and Garrison v. Louisiana (1964), to bring both civil and criminal libel within the structure of constitutional law. In effect, the Court belatedly declared the Sedition Act of 1798 unconstitutional and adopted the minority rule on falsehoods as the new First Amendment standard in both civil and criminal actions. Unless a case involved libelous falsehoods published knowingly with actual malice, such as with "reckless disregard" of their veracity, the law of libel violated the principle that public debate should be "uninhibited, robust, and wide open." The Court also rejected the venerable common-law rule that required defendants, rather than plaintiffs, to bear the greater evidentiary burden and held that, at least in cases involving public officials and the media, even the most outrageous opinion could not become the basis for a libel suit.

Changes in the law of libel intensified debate over the overly complex nature of specific doctrines. Even so, libel seemed an area of the law that—as an earlier commentator had observed about the pre-Sullivan situation—looked much worse in theory than it actually operated in practice.

BIBLIOGRAPHY

Lewis, Anthony. Make No Law: The Sullivan Case and the First Amendment. New York: Random House, 1991.

Rosenberg, Norman L. Protecting the "Best Men": An Interpretive History of the Law of Libel. Chapel Hill: University of North Carolina Press, 1985.

Smolla, Rodney. Jerry Falwell vs. Larry Flynt: The First Amendment on Trial. New York: St. Martin's Press, 1988.

NormanRosenberg

See alsoCommon Law ; First Amendment ; New York Times v. Sullivan ; Sedition Acts ; Zenger Trial .

li·bel / ˈlībəl/ • n. 1. Law a published false statement that is damaging to a person's reputation; a written defamation.Compare with slander. ∎  the action or crime of publishing such a statement: a councilor who sued two national newspapers for libel [as adj.] a libel action. ∎  a false and malicious statement about a person. ∎  a thing or circumstance that brings undeserved discredit on a person by misrepresentation.2. (in admiralty and ecclesiastical law) a plaintiff's written declaration.• v. (-beled, -bel·ing; Brit. -belled, -bel·ling) [tr.] 1. Law defame (someone) by publishing a libel: she alleged the magazine had libeled her. ∎  make a false and malicious statement about.2. (in admiralty and ecclesiastical law) bring a suit against (someone).DERIVATIVES: li·bel·er n.

slan·der / ˈslandər/ • n. Law the action or crime of making a false spoken statement damaging to a person's reputation: he is suing the TV network for slander.Compare with libel. ∎  a false and malicious spoken statement: I've had just about all I can stomach of your slanders.• v. [tr.] make false and damaging statements about (someone): they were accused of slandering the head of state.DERIVATIVES: slan·der·er n.slan·der·ous / -rəs/ adj.slan·der·ous·ly / -rəslē/ adv.