Libel LawLibel LawParts 3-5

From a booklet published by the University of Iowa PressParts 3-5

From a booklet published by the University of Iowa Press

III. Liability

Now that you know a definition of libel and the necessary conditions for its occurrence, you need to know who is liable in libel.

(These two words sound very much alike, and they are often confused. You know the definition of libel. Liability refers to the responsibility for libel — or other torts, crimes and the like.)

Considered at a theoretical level, liability is frightening, for everyone who takes part in defamation, identification, and publication is liable.

This means that the reporter who wrote the story, the editor who marked it up and put a headline on it, the publisher or managing editor who allowed it to be printed, the worker who did the final format check or allowed the story to go on the air, and on and on, is liable — responsible — for the libel. Theoretically, there is no reason why each and every one of them could not be sued.

Practically, however, most libel suits are brought against the publication — newspaper, magazine, or other form of the media — which uttered or printed the defamation. There’s a good and rather obvious reasons for this. The publication will probably have the money for the pay-off, if it loses.

Consider the following hypothetical situation:

A feature writer for the Smalltown Bugle gets a byline on a “humorous” feature about a farmer who lives just outside the Smalltown city limits. The story focuses on the farmer’s idiosyncracies, poking what the writer believes to be gentle fun at the man. The story also points out that, in fact, the farmer operates a successful business, and is also relatively well known around the state.

The final paragraph of the story says:

“It’s like they say — you don’t have to crazy, but it sure helps.”

The feature writer is talented, although the rather trite final paragraph may not demonstrate this, and after the story appears in the Bugle, the Associated Press picks up the story to send on its state wire. Six other small dailies in the state use the AP story, and the Urban Drum — the biggest metropolitan newspaper in the state — also picks it up.

Question

Considering only the facts given above, and operating at a fairly practical level, and assuming that a libel has occurred, how many persons or entities are — at the least — liable? Make a list on a sheet of paper. Do this now.

Wait a minute…Did you REALLY write it down on a sheet of paper?

I didn’t think so.

Seriously, do that now. Then seal it in an envelope and give it to me tomorrow. If you write me a note telling me what a great teacher I am, I’ll give you extra credit… well, maybe… it depends on how convincing your note is.

Answer

Did you say that at least six persons or entities are liable?

If you did, you’re dead right. If you didn’t, I either didn’t make myself clear to you or you missed the point. Recall that I said that everyone who takes part in defamation, identification and publication is liable. In the hypothetical, therefore, at the least, the following have liability:

Answer

• The feature writer (He got a byline)

• The feature writer’s editor (She approved the story)

• The copyeditor (also approved the story)

• The Smalltown Bugle (It ran the story first)

• The Associated Press (They also ran the story)

• Six small-town dailies (They also ran the story)

• The Urban Drum (It, too, published the story)

Assuming the farmer was really angry, he could sue a lot of other people as well. For example, the publisher or the managing editor of The Smalltown Bugle or both; the AP state bureau chief; the publishers of the six small dailies, the publisher of the Urban Drum and on and on.

To repeat: Everyone who takes part in the defamation, identification, and publication is potentially liable.

What do you think? In the hypothetical situation above, would the libel have been per se or per quod?

IV. MaliceYou need to understand another extremely important concept. That’s malice. Below are a dictionary’s definitions:

1. The desire to harm others, or see others suffer; ill will; spite.

2. In law: The intent, without just cause or reason, to commit an unlawful act that will result in injury to another or others.

You may need to ponder these definitions for a time. Ask yourself how they fit with what you now know about the law of libel.

The definitions suggest that something is going on in the mind of the malicious person, don’t they? The use of the words “desire” and “intent” implies this. How do you determine someone’s desires and intentions?

That last may seem like a simple question. But think about it for a minute., When you say something like “George wants to go to the movies,” how do you know this? Do you think you might be basing your statement on some observation of George’s behavior? You see George looking at the movie ads; you see him check his wallet; you hear him say “Good.” Therefore, you reason, George must want to go to the movie.

Now put the same thing in the context of libel. You see a defamation in print or hear one on radio or TV. Couldn’t you infer, from Definition 1, that whoever printed or aired the defamation had the “desire to harm” someone? I hope you’ll agree that you could make such an inference. I hope you’ll also agree that you could be wrong.

Do you know of any practical way to get into someone else’s mind?

Now think again of Ashley’s definition of libel. If we utter a false statement that harms someone, then could someone else infer that we had the desire or intent to cause injury?

If someone sues us, then we know that at least one person has made such an inference.

At one level, the idea of malice is simple. It’s easy enough to see that lies which injure someone could be considered malicious. (Incidentally, can you think of any practical difference between a lie and a false statement?)

If you’ll recall the discussion of libel per se, you’ll remember that I described how a suit proceeds. One of the ways in which a plaintiff can nullify a defendant’s defense plea is to show malice. In many instances now, actual malice must be shown to nullify a defense.

The evolving contemporary definition of actual malice is knowledge that the defamatory material was, in fact, false, or a reckless disregard for the truth or the establishment of the defamation’s truth or falsity.

Do you see that it might be as difficult to prove that someone had knowledge that a defamation was false as it would be to prove “intent” or “desire?” Do you think it would be as difficult to demonstrate “reckless disregard?” Think back to our shoplifting example. Could the reporter’s failure to check his facts be considered “reckless disregard?”

Try a ProblemYou’re assigned to cover a political candidate — one whom you happen to oppose. At one point in the campaign, the candidate angers you with one of his statements. When he has finished his speech, you walk up to him and say:

“Whatever else happens, I’m going to get you. Before this campaign is over, I’ll bury you. You wouldn’t be able to win an election for garbage collector.”

You make this statement in anger in the presence of witnesses. Later, from one of your tipsters, you hear that the candidate keeps a mistress and that he drinks heavily.

Gleefully, you write the story, and your newspaper, which also opposes the candidate, publishes it. The candidate sues.

The next question deals with probability. Do you think the odds that the candidate will be able to show actual malice are better or worse than 50-50?

If you think they are worse, click here:

If you think they are better, click here:

Assuming the farmer was really angry, he could sue a lot of other people as well. For example, the publisher or the managing editor of The Smalltown Bugle or both; the AP state bureau chief; the publishers of the six small dailies’ the pubisher of the Urban Drum and on and on.

To repeat: Everyone who takes part in the defamation, identification, and publication is potentially liable.

What do you think? In the hypothetical situation above, would the libel have been per se or per quod?

I disagreeI hope you understand that both of us are speculating. The only way we could really know the “right” answer would be if a case which arose from circumstances similar to those used in the hypothetical case was actually tried.

The point here is that, in the hypothetical case, you made your threat in the presence of witnesses. They might testify for the candidate. An inference to your desire or intent might be made from your own words. “I’m going to get you” is pretty strong language. A jury might believe that you meant what you said.

Further, a jury might believe that you would go to any lengths to do what you said you intended to do.

Now, look at another aspect of this hypothetical case.

You heard “from one of your tipsters” about the candidate’s sexual and drinking habits. If you didn’t check out the tip further — and nothing in the hypothetical case suggests that you did — a jury might see this as reckless disregard, particularly if the defamation was false.

Malice is a difficult thing to prove. But if the plaintiff can show it through your own words, it’s at least highly probable that it could be shown. A jury might believe that you had been malicious.

If one does, you’re likely to lose your case

Click here to continue:

I agree

I hope you understand that both of us are speculating. The only way we could really know the “right” answer would be if a case which arose from circumstances similar to those used in the hypothetical case was actually tried.

The point here is that, in the hypothetical case, you made your threat in the presence of witnesses. They might testify for the candidate. An inference to your desire or intent might be made from your own words. “I’m going to get you” is pretty strong language. A jury might believe that you meant what you said. Further, a jury might believe that you would go to any lengths to do what you said you intended to do.

Now, look at another aspect of this hypothetical case.

You heard “from one of your tipsters” about the candidate’s sexual and drinking habits. If you didn’t check out the tip further — and nothing in the hypothetical case suggests that you did — a jury might see this as reckless disregard, particularly if the defamation was false.

Malice is a difficult thing to prove. But if the plaintiff can show it through your own words, it’s at least highly probable that it could be shown. A jury might believe that you had been malicious. If one does, you’re likely to lose your case

Click here to continue:

V. Damages

Libel can be costly — even if you win. Two examples may illustrate this point.

A student newpaper at a Midwestern university was sued for libel and the case went to court. The student newspaper won. But the defense against the charge cost between $2,000 and $3,000.

Eleven parents who initiated a recall petition for several city councilmen in a Pacific Coast city were sued for libel by one of the persons — not a councilman — who was mentioned in the petition. This case did not even go to trial. The bill for the defense, however, was about $7,000.

Attorneys seldom do work for nothing. Defending you against a libel charge will take a good deal of their time. It will also involve costs in filing papers with the court, taking depositions, and the like. Your time is valuable, too. Spending it in court could be considered nonproductive.

The above is something to think about. This is probably the place where I should mention the Student Press Law Center (SPLC). The SPLC is a nonprofit organization which offers free legal support to students. This means that you can access legal advice without racking up a massive bill. If your case is significant enough, the SPLC may even offer to take your lawsuit to court without charge to you. Rather than hope for the SPLC’s services after you have committed libel or some other journalistic transgression, call the SPLC (703.807.1904) and get their advice whenever you are unsure of what is legal to print. (www.splc.org)

What I want you to know, however, are the kinds of damages which may be asked — and, if you lose, levied — in a libel suit.

There are three kinds of damages:

1. General or compensatory

2. Special or actual

3. Punitive or exemplary

I’ll expect you to remember those terms. And I’ll expect you to know what they mean after I’ve explained them.

A. General or compensatory

General or compensatory damages are intended to compensate the plaintiff for injury to his reputation.

You need to remember two things about such damages. First, the plaintiff need not prove such damages, and second, the jury will determine the amount in general damages the plaintiff will receive if it decides against you and for him.

It might be well to recall a couple of things at this point. First, if a person sues for libel and wins, then the assumption is that his reputation — his good name — has been injured.

Second, you should remember the question of burden.

In libel per se, the burden initially rests upon the defendant, who must show, through his defense, that despite the defamation, he is not liable for it. In effect, the defendant must argue, “Yes, we know this person was defamed (his reputation was injured), but we had a right to defame him.”

In libel per quod, on the other hand, the initial burden is on the plaintiff, who must show that his reputation was in fact injured.

Injury to reputation is the basis for general or compensatory damages.

There have been cases where people have sued for hundreds of thousands of dollars. In some of these cases, plaintiffs have been awarded $1 in general damages.

In these cases, it seems reasonable to infer that the juries were saying “We recognize that your reputation has been injured, and the $1 award will stand as a symbol for this recognition, but $1 is enough.”

Such awards are sometimes called “nominal” damages to show the nature of the judgment. Plaintiffs may not have been too thrilled at such outcomes, but in some cases the award may have been equitable.

B. Special or Actual Damages

Special or actual damages in some jurisdictions are called “real or monetary” damages.

These damages must be proved by the plaintiff. For example, a businessman who alleges that he has been libeled might bring his books to court to show that he made a certain amount of money before the defamation and that his profit has been reduced afterward. Or a college professor might attempt to show that he had lost an opportunity for a higher-paying job after he was libeled.

Personally, I like to use the term “real” when I think of this category of damages. “Real” helps me remember that, if I am ever libeled, I must show I have, in fact, been damaged in some measurable, financial way.

The second thing to remember about special or actual damages is that malice is not an issue. In most instances of libel per quod, malice is not at issue — and if you’ll recall — the plaintiff must plead and prove that special damages have occurred. This is not to say that special damages may not also be pleaded in libel per se; in such an event, however, such pleadings would probably be intended to support arguments for a high monetary award.

To summarize:

Plaintiff must prove special damages

Malice is not an issue.

• Before we go on, look at the two examples I gave. In the first instance, the business man might be able to show with relative clarity exactly how much money he had lost after the libel occurred. Do you think there might be reasons why such loss might occur other than defamation?

• Assuming that the college teacher could show that he had lost a higher-paying job, how do you think he might compute real damages? Would he figure his loss for one year? Two? The remainder of his working life?

• These are not easy questions to answer.

What about competition from a new company selling a similar product that moved into the area? Or perhaps due to rising gas prices, he is experiencing increased costs and therefore his profit margin has declined?

Chances are good that he will determine the loss based on the remainder of his working life, which will cost the publication that has to pay that settlement a considerable amount of money. But it’s hard to say for sure.

C. Punitive or Exemplary

Punitive or exemplary damages are meant to punish past libelous conduct and to discourage or deter similar future conduct.

You need to know two things:1. Plaintiff must prove actual malice

2. The damages are direct punishment for actual malice.

All the things we discussed earlier regarding actual malice apply here.

When they are allowed, punitive damages can be devastating. In one case, a football coach was awarded more than $300,000 in punitive damages — and this award was made by an appeals court, which reduced the amount the jury had awarded.

• You should remember, too, that this is tax-free money for the plaintiff. That makes the haul even richer.

• In some situations, it has been argued, publications have gone broke largely as a result of heavy punitive damages levied against them in libel suits. Punitive damages can financially destroy an individual or publication.

Question

In an libel action, is it conceivable that general, special and punitive damages might all be awarded?

If you think the answer is yes, click here:

If you think the answer is no, click here:

Right

You said you thought the answer to the question on damages was yes. Certainly damages stemming from a single libel incident could be awarded on all three levels.

Let’s review:

A. General or compensatory damages compensate for injury to one’s reputation.

• 1. The plaintiff need not prove such damages. Damage to reputation is assumed if a libel has, in fact, occurred.

• 2. The jury determines the amount of such damages.

• B. Special or actual damages are sometimes called real or monetary damages.

• 1. The plaintiff has to prove such damages, if he is to receive them.

• 2. Malice is not an issue

• C. Punitive or exemplary damages are designed to punish past libelous conduct and to discourage similar future conduct.

• 1. Such damages are direct punishment for actual malice.

• 2. Plaintiff must prove actual malice.

• Click here to continue

Wrong

You said that you thought that the answer to the question on damages was no.

It’s certainly conceivable that general, special and punitive damages might be awarded in one libel action.

Let’s review.

A. General or compensatory damages compensate for injury to one’s reputation.

• 1. The plaintiff need not prove such damages. Damage to reputation is assumed if a libel has, in fact, occurred.

• 2. The jury determines the amount of such damages.

• B. Special or actual damages are sometimes called real or monetary damages.

• 1. The plaintiff has to prove such damages, if he is to receive them.

• 2. Malice is not an issue

• C. Punitive or exemplary damages are designed to punish past libelous conduct and to discourage similar future conduct.

• 1. Such damages are direct punishment for actual malice.

• 2. Plaintiff must prove actual malice.

• You should remember, too, that this is tax-free money for the plaintiff. That makes the haul even richer.

• In some situations, it has been argued, publications have gone broke largely as a result of heavy punitive damages levied against them in libel suits. Punitive damages can financially destroy an individual or publication.

• Click here to continue

Tomorrowthe final parts

Tomorrowthe final parts