Libel 101

A brief introduction

Six elements of libel

• Defamation

Six elements of libel

• Defamation• Identification

Six elements of libel

• Defamation• Identification• Publication

– Libel versus slander

Six elements of libel

• Defamation• Identification• Publication• Falsity

– Seditious libel: “The greater the truth, the greater the libel”

– John Peter Zenger trial, 1735

Six elements of libel

• Defamation• Identification• Publication• Falsity• Injury

Six elements of libel

• Defamation• Identification• Publication• Falsity• Injury• Fault

Times v. Sullivan

• 1964 case involving advertisement on behalf of Martin Luther King Jr.

Times v. Sullivan

• 1964 case involving advertisement on behalf of Martin Luther King Jr.

• Libel suits brought by public officials could stifle free and robust debate of public issues

Times v. Sullivan

• 1964 case involving advertisement on behalf of Martin Luther King Jr.

• Libel suits brought by public officials could stifle free and robust debate of public issues

• For the first time, the courts decide that the media must be at fault — “actual malice”

What is “actual malice”?

• Knowingly false

What is “actual malice”?

• Knowingly false• Reckless disregard for whether something

is true or false

What is “actual malice”?

• Knowingly false• Reckless disregard for whether something

is true or false• This new standard applied to public officials

— later to public figures, too

Fault and private figures

• Libel was previously a “no fault” tort

Fault and private figures

• Libel was previously a “no fault” tort• Supreme Court briefly applied the “actual

malice” standard to private figures

Fault and private figures

• Libel was previously a “no fault” tort• Supreme Court briefly applied the “actual

malice” standard to private figures• Finally arrived at the “negligence” standard

What is negligence?

• Failure to exercise the care that a reasonable person would show in verifying truth

What is negligence?

• Failure to exercise the care that a reasonable person would show in verifying truth

• What about relying on police reports?

Libel defenses

• Truth– Journalism is protected if it is “substantially”

true

Libel defenses

• Truth• “Fair report” privilege

– Public officials’ libelous comments may only be quoted if uttered in a public, official setting

– Knowledge of falsity can negate this defense– Lawsuits and other public documents may be

quoted from without penalty

Libel defenses

• Truth• “Fair report” privilege• Fair comment and criticism

– Does not protect provable assertions of fact• Protected: It is my opinion that Smith is a jerk• Not protected: It is my opinion that Smith is a drug

addict

Libel defenses

• Truth• “Fair report” privilege• Fair comment and criticism• “Wire service” defense

– A news organization can’t be successfully sued for running a libelous wire-service story

– Unless news organization has knowledge that story is false

“Steps for AvoidingLibel Suits” (Bender)

• Fully identify all sources– Complete name with middle initial– Age– Address

“Steps for AvoidingLibel Suits” (Bender)

• Fully identify all sources• Always obtain comment from those who

are attacked or criticized

“Steps for AvoidingLibel Suits” (Bender)

• Fully identify all sources• Always obtain comment from those who

are attacked or criticized• Be thorough in finding sources and

reviewing documents

“Steps for AvoidingLibel Suits” (Bender)

• Fully identify all sources• Always obtain comment from those who

are attacked or criticized• Be thorough in finding sources and

reviewing documents• Be careful with confidential sources

– Try to avoid using them– Never use them to attack someone

“Steps for AvoidingLibel Suits” (Bender)

• Fully identify all sources• Always obtain comment from those who

are attacked or criticized• Be thorough in finding sources and

reviewing documents• Be careful with confidential sources• Don’t rush a non-breaking-news story