Defamation, Public Firgures and the First Amendment: Part II

In the last post, I discussed the Supreme Court's decision that in cases involving public figures, the plaintiff must show more than falsity.  The plaintiff must show the statement was made with malice.

But what does that mean?

The most confusing part of this constitutional test is use of the term "malice."  In a footnote in a later-decided case, the Supreme Court even expressed some regret at choosing that term.

Ask most people what "malice" means, and they will say "ill will" or something to that effect.  But for purposes of constitutional defamation requirements, "malice" does not mean ill will.  In fact the court has been emphatic that ill will has nothing to do with the constitutional test.  So much so, that ill will is not evidence of constitutional malice.

So what is it?

The Court defines constitutional malice as knowledge of falsity, or reckless disregard as to whether the statement was true of false.   Knowledge of falsity is pretty easy to understand.  But not so with reckless disregard, which again has a meaning different than the way it is commonly understood.

Knowledge of falsity means just that.  A person knew the statement was not true, but stated it anyway.  Example:  Writer of a celebrity biography reports that a movie star provided drugs to Whitney Houston  despite knowing it was not true, but suspecting that the allegations will get publicity for the book.  If sued, the writer faces liability for defamation, even under the constitutional standard.

But reckless disregard is more problematic.  That's the topic for my next post.

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Defamation, Public Figures and the First Amendment - Part I

Photo Credit, see below *

When a writer or broadcaster, or a lawyer representing them, faces a defamation claim, one of the first issues to be determined is whether the person claiming to be defamed is a public figure or a private person.

The critical importance of this determination is due to the different legal standard applied to public figures and private persons.  This distinction is mandated by the First Amendment through the key U.S. Supreme Court cases of New York Times v. Sullivan, 376 U.S. 254 (1964) and Curtis Publishing Company v. Butts, 388 U.S. 130 (1967).

The New York Times case involved a suit by a City Commissioner in charge of the Montgomery, Alabama Police Department.  The suit against the Times was for an editorial advertisement run in the newspaper by a civil rights group.  

This became the first Supreme Court decision holding that the First Amendment placed limitations on liability for defamation.  The Court held that in a vibrant democracy, the First Amendment requires "breathing room" in order to encourage robust public debate.  This "breathing room" requires that not every inaccurate or false statement about a public official leads to liability in the courts.  

The rule that came out of the case is that to find liability, the court must find that the false statement was made with malice.  But malice in this context does not mean ill will.  Instead it means with "knowledge or reckless disregard of the falsity of the statement." 

Three years after the New York Times case, the Court in Curtis Publishing expanded the First Amendment standard of constitutional malice to cases involving public figures.  The Curtis Publishing decision actually involved the consolidation of two cases - and with two different results.  Wally Butts was the athletic director at the University of Georgia, and he was accused in a Saturday Evening Post article by of fixing the 1962 football game between Georgia and arch-rival Alabama.  

The Court also consolidated the case of Associated Press v. Walker, where former General Edwin Walker sued for accusations that he incited a crowd to riot over the enrollment of James Meridith as the first black student at the University of Mississippi.  

In deciding these cases, the Court held that the same constitutional standard that applied to public officials also applied to public figures.  In applying the facts to this standard, the court ruled 5-4 that there was sufficient evidence in the Butts case to meet this standard, and affirmed the libel judgment for Butts.  In the Walker case, the court held 9-0 that Walker's evidence failed to meet this constitutionally required standard.

Photo credit, see below **

Footnote to history:  Walker was a racist, fervent anti-communist and a right-wing reactionary whose diatribes inflamed the passions of the South. In his hometown of Dallas, a mentally unstable leftist loner saw Walker on television and likewise had his passions inflamed.  In April, 1963,  after stalking Walker for weeks, this lone gunman sat in wait outside Walker's house with his mail-order Carcano rifle with a scope.  When Walker appeared, he fired a single shot from about 100 feet away. The wooden frame of the window slightly deflected the shot, saving Walker's life.  Walker was hit with splinters, but the bullet narrowly missed.

Seven months later, on November 22, 1963,  that same disturbed gunman, Lee Harvey Oswald, used that same Carcano mail-order rifle and assassinated President John F. Kennedy. 


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Defamation by Inference: The Pinup, the Reporters, & the Well-Placed Photo

June Cockran was a well-known figure around Indycar racing circles in the 1960s.  The buxom Ms Cockran was a Playboy playmate and then one of the original Ms. Hurst Shifters  (later supplanted by Linda Vaughn).  She appeared in low-cut glittery outfits at racetracks across the country.

In 1973, three reporters for the Indianapolis Star thought Ms. Cockran had information that would be helpful in their investigation of corruption in the Indianapolis Police Department.  Ms. Cockran was pressured by the reporters with statements about how her career would be damaged by bad publicity.  Ms. Cockran continued her non-cooperation.

A short time later, a news story appeared on the front page of the Indianapolis Star.  The headline read:  ""Pearcy Takes Personal Control of Grand Jury in Brothel Quiz".  "Pearcy" was Nobel Pearcy, the Marion County (IN) Prosecutor.  The headline was followed by an extensive story detailing Prosecutor Pearcy's investigation into area brothels and allegations that police were being paid off to protect the operations.  

 The front page story was illustrated with a large photo of June Cockran and her mother walking into the Grand Jury room accompanied by Prosecutor Pearcy.  The caption to the photo read:  "Ex-Bunny, Mom Meet Pearcy"

The problem was that Ms. Cockran's appearance before the Grand Jury had nothing to do with prostitution.  She was there to testify about her complaints that she was being harassed by certain police officers. This was mentioned in the story - but not until the "jump" page near the end of the article.

The newspaper argued that everything it said in it's article was true.  The Prosecutor was presenting evidence about operation of whorehouses in Indianapolis, and the photo did show Ms. Cockran, a former Playboy bunny, her mother, and the prosecutor.  

But the Court was not convinced.

Even though the statements were literally true, the juxtaposition of the headline, the text of the article, and the photo on the front page clearly supported an inference that Ms. Cockran was being called to testify before the Grand Jury about prostitution in Indianapolis.

The lesson from the case is that literal truth may not be enough to protect a writer from defamation claims.  Even where statements and/or photos are true, their juxtaposition may cause a defamatory inference.

The reported decision is Cochran v. Indianapolis Newspapers, Inc., 175 Ind.App. 548, 372 N.E.2d 1211 (1978).

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Defamation - Part V: Defaming He Who Shall Not Be Named

Defamation is actionable only when it identifies a specific person.  So I'll just be really smart and not use anyone's name.

I'll write:  "A boy scout leader who teaches fifth grade at a local school, who I will refer to as "Jim,"  is a child molester."

That will keep me safe, right?

Wrong.

Everybody at Hogwarts (except Harry) always referred to "He who shall not be named."  But everyone knew the reference was to Voldemort, the Dark Lord.

The same principle applies to defamation.  You don't actually have to use someone's name to defame him or her.  If reasonable people can figure out who you are talking about, a defamatory is still actionable even if you don't use the person's name.

If a writer's description of the subject is sufficiently specific that a reasonable person knows about whom the statement is made, it is actionable and the subject can sue.

There is a fundamental principal that so many people seem not to understand. Despite all the intricacies and complexities of the law, those who make the law are not stupid.  Most contrivances to avoid the impact of the law ("I just won't use his name", for example) do not actually work.  So you can't avoid liability for defamation by simply failing to name the subject. 

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Defamation - Part IV: You Talkin' About Me?

To be actionable, a defamatory statement must be about an identifiable person.

If I say or write "John Quinzy, who lives at 2248 Saverac Lane, Oswego, NM, is a child molester," the statement is obviously about a specific person.  There is no question about whom the statement was made.

But what if the statement was "John is a child molester"?  Who was the statement about?

If it can be determined from the context that the statement is about a particular person - John Quinzy, for example, then the statement can be found to be actionable and John Quinzy can sue.

Who makes that decision?  It is a 2-part analysis.  First, the judge must make the determination as to whether reasonable people could interpret the statement as being about the plaintiff in the case.

If the court is satisfied that, from the context, that the statement "John is a child molester" could reasonably be found to mean John Quinzy, then the case goes to the jury.  It is then up to the jury to decide if the statement actually referred to the plaintiff.

So, what if the writer thinks he will be really smart, and simply not name John Quinzy.  I'll deal with that issue in the next post.

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Defamation: What Is It? Part III - Publication

Not all defamatory statements are actionable.  A critical element of defamation is publication.  Without publication, the aggrieved party does not have a suit.

So what is publication?  For defamation purposes, this does not mean the same thing as publication to writers.  It means communications to a third party - that is someone other than the person making the statement and the person the statement is about.

In other words, the publication requirement does not mean you have to make the statement in a published book, magazine article, internet website or television broadcast.  If just one other person is part of the conversation, the publication requirement is met and the defamatory statement is actionable.

Example 1:  Betty walks up to Joe and tells him "I know you gave your mother poison and murdered her.  Then you stole the money out of her house.  And you kicked her dog, too."

Can Joe sue Betty for defamation?  The answer is no, even if not a single word is true.  There has not been legal publication.   As long as the conversation remains between just the person making the statement and the subject of the statement, there is no legal defamation.

At first that may seem a bit odd, but tort law is intended to compensate for damages caused by wrongful conduct, not to regulate manners or even boorish behavior.  If the alleged defamation is confined to a one-on-one statement made directly to the target, it may result in hurt feelings, but it cannot lower the target's reputation in the community -- because no one else heard it or knows about it.

 Example 2:  Same as above, except the statement is made within ear-shot of several other persons (or just one other person).  In this case, if Joe can prove others heard the statement, it is actionable.  Joe can sue because there has been legal publication to third parties.

Example 3:  Instead of making the statement directly to Joe, Betty makes the statement to her best friend Carol.  Even though the statement was made to only one other person, it is actionable.  Betty "published" the defamatory statement by making it to someone other than Joe. Joe can sue.

Example 4:  Same as 1, except Betty made the statement to Joe in writing in an email.  Same rule applies. Just putting something in writing does not mean it is "published."  Even though the statement was in writing, if it was made only to Joe, there was no legal publication.  Joe cannot sue.

Example 5:  Same as 4, except Joe forwards the email to  his family and friends to demonstrate the horrible things Betty has said about him.  Result:  Joe does not have a defamation case against Betty.  The only publication was the result of Joe's own actions.  There was no publication by Betty, and Joe cannot create a lawsuit by publishing it to others himself.


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Defamation - What Is It? Part II

Not every nasty thing that is said about a person is defamatory.

The rumble and tumble of speech in a free society means that not every statement at which a person takes offense is legally actionable.  In short, you can't sue over every bad thing someone says about you.

Generally, factual allegations can be defamatory.  Epithets are not.

Here are a couple of  examples to illustrate the point.  Thief and crook.  Murderer and killer.  Thief and murderer are accusations of specific crimes.  Crook and killer, while not flattering, are not of themselves accusations of crimes.

Falsely calling someone a thief is defamatory - usually.  Calling someone a thief is a specific accusation of a crime.  Stealing is a crime.  A thief is one who steals.  It is a statement of fact, and unless qualified by surrounding context, is defamatory per se (that is, of itself).  The same is true of calling someone a rapist or a murderer.

Crook is a bit different.  There is no crime of being a crook.  It is derogatory, but not necessarily defamatory.  Generally, it is not  considered defamatory per se.

But there are a whole range of epithets that are thrown around in our modern, less-than-delicate society.  They are derogatory, but not defamatory.

 "Punk." "Asshole." "Bitch."  "Son of a bitch."  They all have the green light. It's name calling, but it's not a statement of fact.  No one would take the word to mean that one is literally a rectum or a female dog.

And of course the queen mother of all epithets, the "M" dash dash dash "F" dash dash dash.  It may get you punched in the nose, but it won't get you sued.

On the other hand, if you make a statement that "Joe had sex with his mother," that is a a different legal issue entirely.  That leads to the fascinating case of Falwell vs. Hustler Magazine, but that is a topic for a future post.


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Defamation - What Is It?

Defamation.  It is a concern for every writer - or should be.  For those writing non-fiction - whether newspaper reporters, free-lance magazine writers, or authors of non-fiction books, defamation must always be a consideration.  Even those who write fiction can stumble into the area.

In a series of posts I play to explore defamation:  What is it?  Is it really a risk?  Who can be liable?  What are the different standards that apply? What privileges apply to protect writers from defamation claims?  What does the contract with my publisher say about defamation?  Am I covered by my insurance?

Defamation is one of the more complex areas of civil law.  It involves an intricate intertwining of old common law, First Amendment protections, state constitutional provisions and state statutes, court-created privileges and a sometimes-confusing maze of federal and state court decisions.

 But lets start with the very basics:  What is defamation?

Defamation is a false statement of fact about a person that damages that person's reputation.  If it is written, it is libel.  If it's spoken, it is slander.

That's simple, isn't it?  Ready to move on?  Well, maybe not quite so simple.

"John is a child molester."

 (We'll deal with the issue of identification in a later post.  But for now, let's assume that "John" sufficiently identifies a specific person.)

If the statement is true, no matter how heinous, it is not defamatory.  As many cases say, truth is an absolute defense.

But if that statement is not true, it is defamatory.  No question. It accuses John of a heinous criminal act.  It accuses him of misconduct in his profession.  It states that he has engages in a sexually deviant act.

But what if the statement is this:  "John engaged in inappropriate conduct with a child."

Is that defamatory?  What is "inappropriate conduct"?   It could be child molesting.  It could be using profanity or lifting a middle finger when children were present.  I could be turning a garden hose on an annoying 5-year-old at a backyard picnic.

A lot depends on context.  From a legal perspective, it is a question that must be answered by the judge in a case (and often later by the appellate court).

In nearly all states* the first question that must be answer by the trial judge is whether  a reasonable person could interpret the statement in a way to be a defamatory statement of fact.

It is, as lawyers say, a question of law.  Questions of law (as opposed to issues of fact) must be decided by the judge.

So in this case, the judge must decide whether the statement "John engaged in inappropriate conduct with a child" could be interpreted by reasonable persons to be defamatory.  In looking at this, the judge may take into account the circumstances and the context of the statement.  For example, if the statement was:

"John engaged in inappropriate conduct with a child.  His actions in pointing to the child's stained shirt and laughing displayed a total lack of compassion and understanding."

The judge in this case would likely find that, while boorish, the statement was not capable of defamatory meaning.

On the other hand, if the statement was "John engaged in inappropriate conduct with a child.  He took the child into a closed room and moments later the child emerged crying while John emerged with a guilty look on his face."

The judge in this situation would likely find that reasonable people are capable of taking a defamatory meaning from this statement.

At that point, it is up to the jury to decide whether in fact they will attribute a defamatory meaning to the words, or a more innocent construction.  If they decide the statement does have the defamatory meaning, they then must address whether they find the statement is true.

We'll talk more about what is, and what isn't defamatory in the next post.



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The Baby's Got Back Attack: Glee v. Coulton in Court of Public Opinons

"I like big butts and I cannot lie . . ."

I like Big Butts, especially when I'm watching Glee*

With lyricism like that, you would think Sir Mix-a-lot's rap anthem of the 1980s would have been safe from a copying dispute.  But alas, it seems that such poetry is in much demand.

So much so that Johnathan Coulton released a new version, sampling from the original Mix-a-lot recording.

So much so that Fox's popular show Glee ripped off the Coulton version, deleted his vocals, added its own track, and aired it as part of its January 24 show.

So much so that Coulton then ripped off the Glee version and his fans inundated Itunes with 1-star ratings for the Glee version, driving it down the Itunes charts.

Coulton recorded a "folksier" version of the rap classic testifying to the benefits of the booty.  He changed the lyrics a bit, too.  He was within his legal rights.  And apparently so Fax when it utilized Coulton's version as the basis for the Glee performance without permission or credit.

Despite lawyer letters flying, Fox went forward with the January 24 "Sadie Hawkins" program without crediting or paying Coulton.

But sometimes the best remedy isn't in Court.  Coulton used his presence on the internet to activate his fan base.  Coulton's legions stormed Itunes to skewer the Glee song with 1-star ratings, as Coulton's re-released version jumped up on the charts.

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Justice Department to Side With Publishers Against University Libraries?

A subtle legal filing last week has many in the university community gnashing their teeth at the prospect of the Department of Justice siding with publishers in a major case headed to the U.S. Supreme Court which may help define the boundaries of "fair use."

The DOJ filed a motion for extension of time to file a brief in the case of Cambridge University v. Becker, otherwise known as the Georgia State Copyright Case.  While not conclusive, the fact the DOJ filed this motion signals that the DOJ may enter the case on the side of publisher.

And that possibility has disappointed, upset, and in some cases, terrified university librarians and university communities across the country.

The case is complex.  The District Court's decision on May 11, 2012 was 340 pages long. That's effectively a book on copyright and fair use.

In essence, the case is about 99 examples where the Georgia State University library electronically copied portions of hardcover books used in classes at the university -- so-called e-reserves.  For many, the galling part of this litigation is that it was brought by Cambridge University Press and two other university presses.  Many consider that these university presses are simply carrying water for bigger for-profit publishers, who have used the non-profit university presses to present a more sympathetic case.

The District Court held in favor of Georgia State in 94 of the 99 copies at issue. The Court found a presumption that if the copying involved less than 10 percent, it was fair use.  However the Court set out the possibility that if publishers established a reasonable cost structure for limited copying of books, that universities (and others) may be required to pay for their copying, even if it was less than 10 percent of the book.

The case is another example of the inherent conflict between fair use and protecting the property interests of publishers and authors, brought on by technology, specifically scanning and the ease of electronic copying. 

For a good detailed account of the reaction in academia, take a look at Scott Jaschik's report on the Higher Ed website.  CLICK HERE.

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