律师李庄涉伪证受审直击：称黑老大自称被吊8天_新闻中心_新浪网
刑法306条对监控方应该同样适用才对.
星期三, 十二月 30, 2009
星期二, 十二月 29, 2009
星期一, 十二月 28, 2009
奥巴马要求伊朗释放示威者_新闻中心_新浪网
奥巴马要求伊朗释放示威者_新闻中心_新浪网
well, they are rioters, not just protesters. american police arrested those at st paul and prosecuted them. France probably did the same for those who burn cars.
well, they are rioters, not just protesters. american police arrested those at st paul and prosecuted them. France probably did the same for those who burn cars.
How to execute custom action only in install (not uninstall) - Stack Overflow
How to execute custom action only in install (not uninstall) - Stack Overflow
Add a condition on the action so it's only triggered during installation, not uninstallation.
Action run only during Install
NOT Installed AND NOT PATCH
Action runs during Install and repair
NOT REMOVE
Run on initial installation only:
NOT Installed
Run on initial install or when repair is selected.
NOT Installed OR MaintenanceMode="Modify"
Finally, to only run an action during uninstall use the following condition:
REMOVE星期五, 十二月 25, 2009
星期四, 十二月 24, 2009
Orca.exe (Windows)
Orca.exe (Windows)
1. There is a free alternative to Orca called InstEd available at www.instedit.com
2. There is a free alternative to InstEd available at http://www.microsoft.com/downloads/details.aspx?FamilyId=6A35AC14-2626-4846-BB51-DDCE49D6FFB6&displaylang=en
1. There is a free alternative to Orca called InstEd available at www.instedit.com
2. There is a free alternative to InstEd available at http://www.microsoft.com/downloads/details.aspx?FamilyId=6A35AC14-2626-4846-BB51-DDCE49D6FFB6&displaylang=en
Setup and deployment project, resilient feature
Setup and deployment project, resilient feature
1. If this is a shortcut that's prompting the repair (and it usually is) IMO the safest way to disable this is to get Orca from the Windows SDK (install from Orca.msi), open your MSI file after you've built it, go to the Property table (the tables are on the left) and add a new row (right click on the right side list of properties) with the name DISABLEADVTSHORTCUTS (that's case-sensitive) and the value 1, then save the MSI file. You can't totally prevent repair because the user could right-click on your MSI file (opr use Add/Remove Programs) and force a repair, and there are other occasions when repair will kick in, but this should help.
2. The FAQ has this entry:
1. If this is a shortcut that's prompting the repair (and it usually is) IMO the safest way to disable this is to get Orca from the Windows SDK (install from Orca.msi), open your MSI file after you've built it, go to the Property table (the tables are on the left) and add a new row (right click on the right side list of properties) with the name DISABLEADVTSHORTCUTS (that's case-sensitive) and the value 1, then save the MSI file. You can't totally prevent repair because the user could right-click on your MSI file (opr use Add/Remove Programs) and force a repair, and there are other occasions when repair will kick in, but this should help.
2. The FAQ has this entry:
Q: How do I turn off repair for a file that I expect my users to modify?
A: There is a solution if you are willing to edit the .msi file after its
built.
For each file that you don't want automatically repaired, use ORCA or the
Windows Installer Automation to edit the Component table and delete the
Keypath entry. You'll need to use the File table to determine the Component
value for the rows to edit in the Component table.
星期三, 十二月 23, 2009
星期二, 十二月 22, 2009
星期五, 十二月 11, 2009
星期四, 十二月 10, 2009
星期二, 十二月 08, 2009
After 2 deaths, Twin Cities company recalls baby bed | StarTribune.com
After 2 deaths, Twin Cities company recalls baby bed | StarTribune.com
the problem has nothing to do with where it's made in. it's bad design!
the problem has nothing to do with where it's made in. it's bad design!
星期五, 十二月 04, 2009
Climate alarm sounded over the wine industry - MarketWatch
Climate alarm sounded over the wine industry - MarketWatch
under worst case scenario, human has extincted for centuries.
under worst case scenario, human has extincted for centuries.
UPS: Tracking Information
UPS: Tracking Information
They need a link to this page on their front page, otherwise it takes too many clicks to get there.
They need a link to this page on their front page, otherwise it takes too many clicks to get there.
星期四, 十二月 03, 2009
星期二, 十二月 01, 2009
星期三, 十一月 25, 2009
星期日, 十一月 22, 2009
星期六, 十一月 21, 2009
T3CH XBMC BINARY RELEASES / DOWNLOADS for XBOX, Latest SVN = 2009-11-08 rev24421 : I AIM TO MISBEHAVE
T3CH XBMC BINARY RELEASES / DOWNLOADS for XBOX, Latest SVN = 2009-11-08 rev24421 : I AIM TO MISBEHAVE
Here you will find one thing and one thing only - The Best XBMC Builds compiled by T3CH!
I will make available my latest SVN builds of XBMC for XBOX. When a new SVN build arrives, the old build is moved to the Build Archive at the bottom.
Here you will find one thing and one thing only - The Best XBMC Builds compiled by T3CH!
I will make available my latest SVN builds of XBMC for XBOX. When a new SVN build arrives, the old build is moved to the Build Archive at the bottom.
星期五, 十一月 20, 2009
星期四, 十一月 19, 2009
星期三, 十一月 18, 2009
星期二, 十一月 17, 2009
星期一, 十一月 16, 2009
Interactive map of Minnesota Homicides | StarTribune.com
Interactive map of Minnesota Homicides | StarTribune.com
Sycamore Lane N., Maple Grove
04/21/2009
Heather McPherson, 24, of Plymouth was shot and killed by Sedric Jerome Larkins, 24, of Blaine, her sometime boyfriend at a McDonald's restaurant in Maple Grove. The two apparently had come to the restaurant to break up. Larkins fled from the scene and later killed himself in his car on Interstate Hwy. 694 near Brooklyn Blvd.
Heather Rose McPherson
Age: 24 (Died 4/19/2009)
Sycamore Lane N., Maple Grove
04/21/2009
Heather McPherson, 24, of Plymouth was shot and killed by Sedric Jerome Larkins, 24, of Blaine, her sometime boyfriend at a McDonald's restaurant in Maple Grove. The two apparently had come to the restaurant to break up. Larkins fled from the scene and later killed himself in his car on Interstate Hwy. 694 near Brooklyn Blvd.
Heather Rose McPherson
Age: 24 (Died 4/19/2009)
[MUL]現代戰爭2俄文版本全數召回 游戏业界新闻区 A9VG电玩部落社区论坛
[MUL]現代戰爭2俄文版本全數召回 游戏业界新闻区 A9VG电玩部落社区论坛
再把俄国入侵美国的关卡也都去了，这游戏就不见了。
再把俄国入侵美国的关卡也都去了，这游戏就不见了。
星期五, 十一月 13, 2009
vc atl Re: about wtl CComboBox
vc atl Re: about wtl CComboBox: "class CComboBoxExImpl: CWindowImpl<CComboBoxExImpl, CComboBox>"
something for subclass to access the methods on ccombobox?
something for subclass to access the methods on ccombobox?
星期四, 十一月 12, 2009
男子在街头群殴时拔仿真枪砸人为女友出气(图)_新闻中心_新浪网
男子在街头群殴时拔仿真枪砸人为女友出气(图)_新闻中心_新浪网
扫黑结束以后黑社会活动照常进行？只有黑老大通过媒体大肆宣扬自己的红歌扫黑行为？
扫黑结束以后黑社会活动照常进行？只有黑老大通过媒体大肆宣扬自己的红歌扫黑行为？
星期三, 十一月 11, 2009
星期一, 十一月 09, 2009
星期五, 十一月 06, 2009
星期四, 十一月 05, 2009
numericUpDown ValueChanged
numericUpDown ValueChanged
type text doesnt trigger the event, use validated if you need to.
type text doesnt trigger the event, use validated if you need to.
游侠NETSHOW论坛 eufloria 控制台（console）更多命令 - 机械迷城（独立/小型游戏专区） - game.ali213.net!
游侠NETSHOW论坛 eufloria 控制台（console）更多命令 - 机械迷城（独立/小型游戏专区） - game.ali213.net!: "To cheat, first enable the console by adding '-console' parameter without quotes to the game's shortcut.
第一步，按~键，打开控制台，如果没有效果的话，尝试在桌面右下的快捷方式名后加上-console。
In game, first press Ctrl+D and nothing will happen. Then press F4 to change faction visibility as well as camera lock. Press F12 to get desired asteroid ID. Use ~ key to call out the console, and enter
a = GetAsteroid(Asteroid ID) and check that you are indeed the owner of this asteroid:
a.owner this value is 1 for player. Don't panic if it shows error, clean out the input field and try again. Note: Pause your game before entering any of the following cheats. I have found that sometimes the commands would accelerate time in the game, i.e. everything is faster, way faster for some computers to handle I'm afraid.
第二步，按Ctrl+D，没有变化（应该是使F1-F12可用，表面没有变化而已），按F12得到星球的ID，输入（注意！！！为引号内内容）“ X = GetAsteroid(Asteroid ID)”，Asteroid ID就是那个数字即星球的序号，输入后会有如“GetAsteroid(Asteroid ID) OK”的字样，若没有，重试几遍。。。个人觉得控制台有点问题。。。强烈建议用控制台的时候先暂停游戏，否则会出现游戏速度整体变快。
以下是一些控制台/console的命令，个人觉得“a”可用“X”代替，（）内都是填数字，整数。。。请大家集思广益一哈
To add seedlings（加种子，）:
a:AddSeedlings(integer一个整数即可) To add enhanced seedlings:
a:AddSuperSeedlings(integer)
To modify max number of trees allowed（修改最大的树的棵数）:
a.TreeCap = integer
To add and level up a tree（加树和使树升级）:
s = a:AddDysonTree()
s:LevelUp() s = a.AddDefenseTree()
s:LevelUp()
To add a flower to a tree（在树上加一朵花）: (you have to have a name previously designated to the tree, currently I can't find any method to select an existing tree.)
s = a:AddDysonTree()
s:LevelUp()
s:LevelUp()
s:LevelUp()
flower = s:AddFlower()
flower:GrowToMax()
To add a LASER MINE!!（加一朵激光防御花）: (laser mines are, in the game's view, flowers of the defense tree.)
s = a.AddDefenseTree()
s:LevelUp()
s:LevelUp()
s:LevelUp()
flower = s:AddFlower()
flower:GrowToMax()"
第一步，按~键，打开控制台，如果没有效果的话，尝试在桌面右下的快捷方式名后加上-console。
In game, first press Ctrl+D and nothing will happen. Then press F4 to change faction visibility as well as camera lock. Press F12 to get desired asteroid ID. Use ~ key to call out the console, and enter
a = GetAsteroid(Asteroid ID) and check that you are indeed the owner of this asteroid:
a.owner this value is 1 for player. Don't panic if it shows error, clean out the input field and try again. Note: Pause your game before entering any of the following cheats. I have found that sometimes the commands would accelerate time in the game, i.e. everything is faster, way faster for some computers to handle I'm afraid.
第二步，按Ctrl+D，没有变化（应该是使F1-F12可用，表面没有变化而已），按F12得到星球的ID，输入（注意！！！为引号内内容）“ X = GetAsteroid(Asteroid ID)”，Asteroid ID就是那个数字即星球的序号，输入后会有如“GetAsteroid(Asteroid ID) OK”的字样，若没有，重试几遍。。。个人觉得控制台有点问题。。。强烈建议用控制台的时候先暂停游戏，否则会出现游戏速度整体变快。
以下是一些控制台/console的命令，个人觉得“a”可用“X”代替，（）内都是填数字，整数。。。请大家集思广益一哈
To add seedlings（加种子，）:
a:AddSeedlings(integer一个整数即可) To add enhanced seedlings:
a:AddSuperSeedlings(integer)
To modify max number of trees allowed（修改最大的树的棵数）:
a.TreeCap = integer
To add and level up a tree（加树和使树升级）:
s = a:AddDysonTree()
s:LevelUp() s = a.AddDefenseTree()
s:LevelUp()
To add a flower to a tree（在树上加一朵花）: (you have to have a name previously designated to the tree, currently I can't find any method to select an existing tree.)
s = a:AddDysonTree()
s:LevelUp()
s:LevelUp()
s:LevelUp()
flower = s:AddFlower()
flower:GrowToMax()
To add a LASER MINE!!（加一朵激光防御花）: (laser mines are, in the game's view, flowers of the defense tree.)
s = a.AddDefenseTree()
s:LevelUp()
s:LevelUp()
s:LevelUp()
flower = s:AddFlower()
flower:GrowToMax()"
星期三, 十一月 04, 2009
星期五, 十月 30, 2009
Head-to-head performance analysis of App-V, SVS, ThinApp and XenApp - Ruben Spruijt - BrianMadden.com
Head-to-head performance analysis of App-V, SVS, ThinApp and XenApp - Ruben Spruijt - BrianMadden.com: "Altiris SVS Pro, Citrix XenApp, Microsoft App-V and VMware ThinApp"
星期三, 十月 28, 2009
星期二, 十月 27, 2009
星期一, 十月 26, 2009
星期日, 十月 25, 2009
星期六, 十月 24, 2009
星期五, 十月 23, 2009
Ken Moore Design: Connecting a Wiimote to your PC
Ken Moore Design: Connecting a Wiimote to your PC
tutorial that's not using blue solei, just remember to press 1 + 2 to connect.
tutorial that's not using blue solei, just remember to press 1 + 2 to connect.
星期四, 十月 22, 2009
If you think you cant make a profit, then just dont do it
Heard this on NPR the other day, a guy talks about how walmart lowers new book price to something like $3.99(?), or even 1c lower than target, blah blah. He said that it's no longer $29.99 so they wont be able to publish books in future. Also 'if new movie DVDs are $5 each, there wont be any movies'.
B.S.
Most of those expensive books are just crappy ones any way, they mark the price high so the publishing company and publisher can make a huge profit on it even when they dont sell a whole lot, same for the movie. If they can only sell book/movies at $5 each, there will be many smaller publishers or people can just publish the stuff themselves online. Let those associations and big firms who are trying to make huge profit on OTHER pepole's work go belly up. I am pretty sure there will be many new books, many new music and movies out there even when they only ask for small amount of money. There might be less special effect, less polishing up but there will also be more talent, more good new songs and movies everybody can enjoy without those big box office names.
Same kind of barrier exists in finance, realty industry and practically every where else. The brokerage system and MLS system are the ones causing those extra greedy people to try their best to get their money while putting the entire society at maximum risk. That's CAPITALISM, that's FREE MARKET, it never worked on its own, it will never on its own.
Heard this on NPR the other day, a guy talks about how walmart lowers new book price to something like $3.99(?), or even 1c lower than target, blah blah. He said that it's no longer $29.99 so they wont be able to publish books in future. Also 'if new movie DVDs are $5 each, there wont be any movies'.
B.S.
Most of those expensive books are just crappy ones any way, they mark the price high so the publishing company and publisher can make a huge profit on it even when they dont sell a whole lot, same for the movie. If they can only sell book/movies at $5 each, there will be many smaller publishers or people can just publish the stuff themselves online. Let those associations and big firms who are trying to make huge profit on OTHER pepole's work go belly up. I am pretty sure there will be many new books, many new music and movies out there even when they only ask for small amount of money. There might be less special effect, less polishing up but there will also be more talent, more good new songs and movies everybody can enjoy without those big box office names.
Same kind of barrier exists in finance, realty industry and practically every where else. The brokerage system and MLS system are the ones causing those extra greedy people to try their best to get their money while putting the entire society at maximum risk. That's CAPITALISM, that's FREE MARKET, it never worked on its own, it will never on its own.
星期二, 十月 20, 2009
星期二, 十月 13, 2009
星期一, 十月 12, 2009
Thousands of Hotmail Users Exposed by Phishing Attack -RSS
Thousands of Hotmail Users Exposed by Phishing Attack -RSS
still cant find information why hotmail sent email to everybody in contact list. was messenger hacked?
still cant find information why hotmail sent email to everybody in contact list. was messenger hacked?
Thoughts in life
- Rush is pushing americans to support democrats? He's so extreme that only those stupid would believe in him. Interestingly that some senator/congressman repeated his words like 'american has world's best health insurance'. This probably results as insult to american who are not that stupid and make them vote for the other party.
- You might need to redesign the system when ever you add changes to it as the schema and architect is no longer optimized but you obviously wont do it as you dont have the time for it.
星期五, 十月 09, 2009
上海车主遭遇钓鱼执法续：起诉执法大队获立案_新闻中心_新浪网
上海车主遭遇钓鱼执法续：起诉执法大队获立案_新闻中心_新浪网
如果钓鱼嫖妓怎么办？女警察装作妓女和对方说，工厂辛苦工作了几年被裁员，家里房子需要供，老人需要赡养，对方一“同情”...
如果钓鱼嫖妓怎么办？女警察装作妓女和对方说，工厂辛苦工作了几年被裁员，家里房子需要供，老人需要赡养，对方一“同情”...
星期五, 十月 02, 2009
Jobs report shows rising losses, higher unemployment - Oct. 2, 2009
manipulative poll example:
Jobs report shows rising losses, higher unemployment - Oct. 2, 2009: "Quick Vote
When will you know that an economic recovery is underway?
*
When the Dow tops 10,000
*
When GDP turns positive
*
When job growth resumes
*
It's already started"
how about having one option as 'it's not going to happen any time soon'?
Jobs report shows rising losses, higher unemployment - Oct. 2, 2009: "Quick Vote
When will you know that an economic recovery is underway?
*
When the Dow tops 10,000
*
When GDP turns positive
*
When job growth resumes
*
It's already started"
how about having one option as 'it's not going to happen any time soon'?
星期一, 九月 28, 2009
星期四, 九月 24, 2009
星期三, 九月 23, 2009
SEVEN Beta Program :: Welcome to SEVEN Beta Program
SEVEN Beta Program :: Welcome to SEVEN Beta Program
winmo client that can get push gmail?
winmo client that can get push gmail?
星期二, 九月 22, 2009
星期一, 九月 21, 2009
BBC NEWS | Africa | Kenya hit by killer drought
BBC NEWS | Africa | Kenya hit by killer drought
I know there's drought but I see green on the left and back of this picture.
星期四, 九月 17, 2009
星期三, 九月 16, 2009
Libel and Slander legal definition of Libel and Slander. Libel and Slander synonyms by the Free Online Law Dictionary.
Libel and Slander legal definition of Libel and Slander. Libel and Slander synonyms by the Free Online Law Dictionary.
Libel Or Slander
Find Tips, Coupons and Deals at CouponMountain.com
www.couponmountain.com
Two torts that involve the communication of false information about a person, a group, or an entity such as a corporation. Libel is any Defamation that 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, in Monitor 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 Or Slander
Find Tips, Coupons and Deals at CouponMountain.com
www.couponmountain.com
Two torts that involve the communication of false information about a person, a group, or an entity such as a corporation. Libel is any Defamation that 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, in Monitor 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.
Gregory A. Abbott, Esq.
Elements of Libel and Slander
I. WHAT IS DEFAMATION?
Libel or Slander: Libel is written, slander is oral.
Historically, defamation consisted of slander and libel. Slander is defamation by speaking, and libel is defamation by means of writing. After the invention of the printing press, the permanence of the written word meant that libel caused far more damage than slander. Slander, however, had a big impact in pre-literate communities where the spoken word was the primary way information was exchanged.
In modern times, the legal distinction between libel and slander has been narrowed. Most modern defamation cases involve libel, and modern writers have come to use the term "defamation" to describe both libel and slander.
Defamation consists of the following:
(1) a defamatory statement;
(2) published to third parties; and
(3) which the speaker or publisher knew or should have known was false.
(2) published to third parties; and
(3) which the speaker or publisher knew or should have known was false.
Each of these element has generated controversy. We shall examine them in turn:
A. A Defamatory Communication
What is a "defamatory" statement?
1. A statement which causes harm to reputation.
A statement is defamatory if it "tends to injure the plaintiff's reputation and expose the plaintiff to public hatred, contempt, ridicule, or degradation." Phipps v. Clark Oil & Ref. Corp., 408 N.W.2d 569, 573 (Minn. 1987). When the defamatory meaning is not apparent on its face, the plaintiff has the burden of pleading and proving such extrinsic facts. Anderson v. Kammeier, 262 N.W.2d 366, 371 (Minn. 1977).
2. Defamation Per se
Some statements are so defamatory that they are considered defamation per se; and the plaintiff does not have to prove that the statements harmed his reputation. The classic examples of defamation per se are allegations of serious sexual misconduct; allegations of serious criminal misbehavior; or allegations that a person is afflicted with a loathsome disease. The historical examples of loathsome diseases are leprosy and venereal diseases.
When a plaintiff is able to prove defamation per se, damages are presumed, but the presumption is rebuttable.
3. What Constitutes Injury to Reputation?
The plaintiff must establish proof of damage to reputation in order to recover any damages for mental anguish; see Gobin v. Globe Publishing Co., 232 Kan. 1, 649 P.2d 1239, 1244 (1982); Swanson v. American Hardware Mutual Ins. Co., 359 N.W.2d 705, 707 (Minn. App. 1984) (rev. denied) ("To establish a claim in a defamation action [plaintiff] must prove that the [defendant] made false and defamatory statements about them which injured their reputation.").
Evidence of plaintiff's poor reputation is generally admissible to mitigate damages. Davis v. Hamilton, 92 N.W. 512, 515 (Minn. 1902); Finklea v. Jacksonville Daily Progress, 742 S.W.2d 512, 517 (Tex. App. 1987). If an individual's reputation cannot be further damaged, a defamation suit serves no purpose, wastes judicial resources, and hinders First Amendment interests. Id.
The "libel-proof" plaintiff. A plaintiff is "libel-proof" when his reputation has been irreparably stained by prior publications. At the point the challenged statements are published, then, plaintiff's reputation is already so damaged that a plaintiff cannot recover more than nominal damages for subsequent defamatory statements. Marcone v. Penthouse Int'l Magazine for Men, 754 F.2d 1072, 1079 (3rd Cir. 1985).
However, a court will not dismiss a defamation action merely because the plaintiff already has a bad reputation. Schiavone Construction Co. v. Time, Inc., 646 F. Supp. 1511, 1516 (D.N.J. 1986), rev'd, 847 F.2d 1069, 1072-73 (3rd Cir. 1988). Finklea, 742 S.W.2d at 516 ("[E]ven the public outcast's remaining good reputation is entitled to protection.") Rather the statement upon which the defamation claim is based should relate to the same matters upon which the prior bad reputation was founded, or to substantially similar matters.
In extreme cases, a plaintiff's general reputation may be so bad that a court will hold a plaintiff libel-proof on all matters. For example, Charles Manson or Adolph Hitler could not be damaged by defamatory statements. Langston v. Eagle Publishing Co., 719 S.W.2d 612, 623 (Tex. App. 1986).
B. The Statement was published to third persons
Defamatory statements must be communicated to a third party. You cannot defame someone by speaking to them alone, or by muttering to yourself. This element of defamation is virtually always satisfied when claims are made against newspapers and broadcast media.
C. The defendant knew or should have known that the communication was false
Defamation allows recovery for unfair damage to reputation. As a consequence, if true statements are made about a person which damage their reputation, they cannot maintain a lawsuit.
This is a relatively recent development. One origin of libel and slander laws was a criminal cause of action by the English Crown used to silence its critics; hence, it was the truth of the alleged libel which provoked the lawsuit. However, as the right of free speech developed and gained support, the use of defamation to suppress true statements was rejected. Virtually all states today apparently require that the alleged defamatory statement be false before a defamation action may proceed.
For example, the Minnesota Supreme Court has held:
We hold that a private individual may recover actual damages for a defamatory publication upon proof that the defendant knew or in the exercise of reasonable care should have known that the defamatory statement was false. The conduct of defamation defendants will be judged on whether the conduct was that of a reasonable person under the circumstances.
Jadwin v. Minneapolis Star & Tribune Co., 367 N.W.2d 476, 491 (Minn. 1985). Other cases follow this reasoning. See LeDoux v. Northwest Publications, Inc., 521 N.W.2d 59, 67 (Minn. App. 1994) ("In order for a statement to be defamatory . . . it must be false."); Janklow v. Newsweek, Inc., 759 F.2d 644, 648 (8th Cir. 1985), cert. den., 479 U.S. 883 (1987) ("Libel, by definition, consists of publication of a false and unprivileged fact.").
However, the U.S. Supreme Court has expressly reserved the question of whether the U.S. Constitution requires purely private defamation plaintiffs to prove falsity in all cases. See Philadelphia Newspapers, Inc. v. Hepps, 476 U.S. 767, 779 n.4 (1986). In other words, there may be no constitutional barrier if a particular state wishes to allow defamation actions even for true statements.
How false is false? The test is whether the alleged defamatory statement as a whole is true or false. Minor inaccuracies are not subject to defamation claims if the overall substance of the statement is true. "The plaintiff cannot succeed in meeting the burden of proving falsity by showing that only that the statement is not literally true in every detail. If the statement is true in substance, inaccuracies of expression or detail are immaterial." Jadwin, supra, 390 N.W.2d at 441.
No Defamation by Implication. Failure to report all the facts may lead to a defamatory conclusion by the reader. But unless the overall substance of the statement can be proven false, no defamation claim will arise. "[T]he cause of action known as defamation by implication . . . is not recognized in Minnesota." Kortz v. Midwest Communications, Inc., 20 Media Law Rep. (BNA) 1860, 1865 (Ramsey County Dist. Ct. 1992). A public official may not maintain a defamation by implication claim. Diesen v. Hessberg, 455 N.W.2d 446, 451 (Minn. 1990).
D. Negligence Is Standard Of Liability
In Minnesota, the defendant is liable if it "knew or should have known in the exercise of reasonable care" that the defamatory statement was false. Jadwin, supra. This is the standard formulation for liability based on negligence, that is, liability arising from failure to take due care.
This is a low standard of liability. However, First Amendment considerations substantially limit the application of this standard.
II. Defenses to Defamation
A. Truth
Truth is a complete defense to a defamation claim. This is simply the flip side of the requirement that plaintiff prove the falsity of the alleged defamatory statement.
B. The First Amendment
1. Public Officials/Public Figures: Actual Malice must be proven.
The First Amendment requires that a defamation plaintiff prove actual malice or reckless disregard of the truth when the plaintiff is a public official or public figure. New York Times v. Sullivan, 376 U.S. 254 (1964). This is a much higher burden of proof for a public figure plaintiff. Instead of showing objectively that a "reasonable person" knew or should have known the defamatory statement was false, a public figure plaintiff must prove the intent of the defendant was malicious, or that they acted with reckless disregard for the truth. This allows the defendant to prove its good faith intent and efforts as a defense.
2. Matter of Public Concern: Actual Malice must be proven.
In cases where the media defendant is treating an issue of public concern, the First Amendment also requires proof of actual malice or reckless disregard of the truth, even if the plaintiff is not a public figure. Gertz v. Robert Welch, 418 U.S. 323, 349-50 (1974). See also Hepps, 475 U.S. at 775 (In non-public concern, non-public plaintiff defamation case, First Amendment does not bar application of mere negligence standard for defamation); Dun & Bradstreet v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985) (Powell, J., concurring).
3. Matter of Public Concern: Plaintiff Must Prove Statement is False.
Proof of falsity required when media defendant addresses topic of public concern; regardless of public/private status of plaintiff. Hepps, 475 U.S. at 775-76.
4. Actual Malice must be Shown by "Convincing Clarity."
Where the plaintiff is a public official, he must prove actual malice or reckless disregard of the truth with "clear and convincing proof". New York Times v. Sullivan, 376 U.S. 254, 286 (1964); Gertz, 418 U.S. at 342; Hepps, 475 U.S. at 773.
5. Falsity May Have to Shown by "Convincing Clarity."
Public figure plaintiffs may have to prove falsity by "clear and convincing evidence" as protected under New York Times v. Sullivan. Sharon v. Time, Inc., 599 F. Supp. 538, 558 (S.D.N.Y. 1984); Firestone v. Time Inc., 460 F.2d 712, 722 (5th Cir. 1972), cert. den., 409 U.S. 875 (Bell, J., specially concurring).
6. Who is a Public Official or Public Figure?
Public Official. Governmental policy-makers are public officials, while public employees generally are not public officials. The Minnesota Supreme Court has laid out a test to determine who is, and is not, a public official:
(1) whether plaintiff performs governmental duties directly related to the public interest;
(2) whether plaintiff holds a position to influence significantly the resolution of public issues; and
(3) whether the plaintiff has, or appears to the public to have, substantial responsibility for or control over the conduct of government affairs.
(2) whether plaintiff holds a position to influence significantly the resolution of public issues; and
(3) whether the plaintiff has, or appears to the public to have, substantial responsibility for or control over the conduct of government affairs.
Britton v. Koep, 470 N.W.2d 518, 522 (Minn. 1991). In Britton, the Minnesota Supreme Court held that a public roads department supervisor was not a public official, and did not have to prove actual malice.
Public Figure. A "public figure" is a person who is publicly prominent, so much so that discussion or commentary about that person amounts to a "public concern." However, such persons are not necessarily public figures for any purpose: status as a public figure may only extend to the particular area in which they are publicly prominent. Examples: Michael Jordan or Donald Trump. The extent of a person's status as a public figure will be subject to extensive litigation in each case.
The U.S. Supreme has established some guidelines on who constitutes a public figure:
(1) Involuntary Public Figure: become public figure through no purposeful action of their own, including those who have become especially prominent in the affairs of society;
(2) Always Public Figures: those who occupy position of such persuasive power and influence that they are deemed public figures for all purposes;
(3) Public Figures on Specific Issues: "those who have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved."
(2) Always Public Figures: those who occupy position of such persuasive power and influence that they are deemed public figures for all purposes;
(3) Public Figures on Specific Issues: "those who have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved."
Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).
7. Right to Petition for Grievance Creates Privilege against Defamation
Statements made to the government and its representatives, in the course of petitioning the government for redress of grievances, are absolutely protected from defamation claims under the Noerr-Pennington doctrine. See Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) and United Mine Workers of America v. Pennington, 381 U.S. 657 (1965). "[T]his deference to the right to petition [applies] not only in antitrust cases but in other cases involving civil liability." Gorman Towers, Inc., v. Bogoslavsky, 626 F.2d 607, 614-15 (8th Cir. 1980).
C. Qualified Privileges.
A defamatory statement is protected by a qualified privilege if "made upon a proper occasion, from a proper motive, and . . . based upon reasonable or probable cause." Brooks v. Doherty, Rumble & Butler, 481 N.W.2d 120, 124-25 (Minn. App. 1992) (citing Stuempges v. Park, Davis & Co., 297 N.W.2d 252, 257 (Minn. 1980). Examples: an employer's response to unemployment claims, workers' compensation claims, or a response to a request for verification of employment.
The question of whether qualified privilege applies is a question of law decided by the court. Keenan v. Computer Assoc. Int'l, Inc., 13 F.3d 1266, 1270 (8th Cir. 1994); the factual basis for any "reasonable and proper grounds" for the statement is a jury question. Id.
The plaintiff may typically only overcome a qualified privilege by showing actual malice. It is the plaintiff's burden to show that the defendant did not have "reasonable and proper grounds" for the allegedly defamatory statement.
D. Opinion Defense.
The First Amendment protects statements of opinion, as distinct from statements of fact, against claims of defamation. However, the test is not the author's mere characterization of the statement as "opinion." Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). A statement is an opinion when:
(1) the statement addresses matters of public concern;
(2) the statement expressed in a manner that is not provably true or false; and
(3) the statement cannot be reasonably interpreted as intended to convey actual facts about a person.
(2) the statement expressed in a manner that is not provably true or false; and
(3) the statement cannot be reasonably interpreted as intended to convey actual facts about a person.
Id. at 17.
In addition, the U.S. Supreme Court articulated some standards to assist in determining whether a statement is intended to convey an actual fact about a person, or not:
(1) is the language loose, figurative, or hyperbolic, which would negate the impression that the speaker was seriously maintaining the truth of the underlying facts?
(2) Does the general tenor of the article negate the impression that the speaker was seriously maintaining the truth of the underlying fact? and
(3) is the connotation sufficiently factual to be susceptible of being proved true or false.
(2) Does the general tenor of the article negate the impression that the speaker was seriously maintaining the truth of the underlying fact? and
(3) is the connotation sufficiently factual to be susceptible of being proved true or false.
Id. at 21.
Milkovich cut back on First Amendment protection for opinions as a matter of federal law. But federal law only sets a constitutional floor below which state law cannot go. Nothing prevents states from providing more protection to opinions than the First Amendment requires.
Minnesota courts apply the four-factor test used by the U.S. Court of Appeals in Janklow v. Newsweek, Inc., 759 F.2d 644, 648 (8th Cir. 1985), cert. den., 479 U.S. 883 (1987) to determine whether statements are opinion or not (Janklow was decided prior to Milkovich). Hunt v. Univ. of Minnesota, 465 N.W.2d 88, 94 (Minn. App. 1991). Janklow involved a suit by the sitting Governor of South Dakota against Newsweek magazine, for repeating allegations regarding his possible sexual relations with a 14-year old Indian girl while he was a lawyer on a reservation. Newsweek successfully defended the claim on the grounds that the alleged defamatory statement had been expressed as the opinion of the author. The Janklow test to determine if a statement is an opinion is as follows:
(1) How precise and specific is the statement?
(2) Is the statement verifiable?
(3) What is the literary and social context of the statement
(4) What is the public context of the statement?
(2) Is the statement verifiable?
(3) What is the literary and social context of the statement
(4) What is the public context of the statement?
If a statement is determined to be an opinion, then it cannot be the subject of a defamation suit. The reason is that opinions are not capable of being proven true or false, and the plaintiff cannot therefore prove one of the elements of a defamation claim. "[S]tatements regarding matters of public concern which are not sufficiently factual to be capable of being proven true or false, and statements which cannot be reasonably interpreted as stating actual facts are absolutely protected." Hunt, supra, 465 N.W.2d at 94.
E. Consent as a Defense.
"[T]he consent of another to the publication of defamatory matter concerning him is a complete defense to his actions for defamation." RESTATEMENT (SECOND) OF TORTS �� 583. See also LaBaron v. Board of Public Defense, 499 N.W.2d 39, 42 (Minn. App. 1993).
While consent is an absolute defense to defamation, it arises rarely in practice.
F. Legal Obligation to Publish is an Absolute Defense to Defamation.
If a defendant was legally required to publish the allegedly defamatory statement, they cannot be held liable for defamation. See LaBaron, 499 N.W.2d at 42. Responses to court subpoenas, formal requests for information from government agencies, and the like fall into this category.
G. Privileges Created by Statute may bar Defamation Claims.
Statements made pursuant to privileges created by state or federal statute are protected by a qualified privilege. For examples, Minnesota statute �� 181.933 requires an employer to provide the reasons for discharge to an employee who has been fired, within five working days after a written request. See also the Minnesota Anti-SLAPP statute, Minn. Stat. �� 554.01 et seq., which creates a privilege in statements made in the course of public participation in governmental affairs.
III. Practical Methods of Reducing Liability for Defamation
A. Due Diligence
1. Investigate the Facts.
Even basic investigations can go a long way towards reducing defamation liability. Publishing material as "fact" without doing any investigation by itself might amount to reckless disregard for the truth. To avoid liability, you don't have to establish the truth of the statement for all time; rather, you should do enough to satisfy yourself that the facts alleged are probably true in your reasonable judgment.
2. Establish Neutral Criteria for Publication.
How do you decide when to publish a story? Establish some guidelines for publication, before you're faced with a controversial situation. Again, the absence of any guidelines for publication might be used as evidence of "reckless disregard for the truth."
The guidelines you use must be reasonable and should reflect the appropriate professional standards of journalism.
3. Follow the Criteria You Establish.
Failure to follow the criteria you establish might be viewed as recklessness. If you do depart from your guidelines, make sure you have a good reason to do so.
4. Don't Knowingly Use Unreliable Sources.
Use common sense. Be aware when people have obvious axes to grind. If an unreliable or uncertain source presents you with a good story, take special care to verify or corroborate the story before publication.
5. Retain Records of Your Investigation.
In order to defeat a claim of recklessness, it is extremely helpful to document the facts and procedures of the investigation. The main way of doing that is to preserve the notes, records, and other material related to an investigation. Establish a general policy of records retention. Keep the records until the statute of limitations on defamation runs out. In Minnesota this is two years from the date of publication. Minn. Stat. �� 541.07.
B. Confirm the Identity of the Subject of Your Article.
Many defamation problems may be headed off by calling the subject of the article for confirmation or denial. If the subject chooses to talk to you, you will get their side of the story. Getting this information may cause you to modify the article you are about to run. Certainly you can claim a good faith effort to determine the truth if you contact the subject. If the subject refuses to speak with you, at the very minimum you've made a good faith effort.
Attempting to contact the subject helps avoid any identification problems about the subject. Many names are quite common, and contacting the subject will confirm that you're dealing with the right person. At a minimum, you might try to get the subject to confirm the exact spelling of their name, which also acts as a check on identity.
Be skeptical of public records. Many public records also reflect the confusion of common names, and the only real guarantee of accuracy in public records is the skill of the typist who entered the data in the computer.
C. Use Quoted Material Whenever Possible.
Often more controversial material should be presented in the form of a quotation. The person being quoted takes the risk of a defamation claim. You should not use a quote if you believe that that quote is false, and you can't knowingly or recklessly print false information simply by putting the words in someone's mouth.
Cite the person giving you the quotation. Often the identity of a person making a statement is more newsworthy than the quote itself.
D. Avoid Conclusory Language.
Report facts, not conclusions. If there is any conclusions to be drawn from the facts, the reader will draw them. For example, suppose a public official has committed several acts which tend to show that they might be dishonest. DO NOT REPORT that the public official is "dishonest" without qualification. Even though that might be a reasonable conclusion based on the facts, it is not a fact itself.
Do not take sides in evaluating disputed facts. You can compare and contrast differing versions of events with each other in a news story, but do not state unequivocally that one side or the other is lying, or that one side or the other is factually incorrect. That is an opinion, and should be qualified as such. As an opinion, it should not appear in a news story where a reader may confuse it with a factual report.
Instead of "Mrs. Smith is lying because the videotape at the scene shows the officer was courteous" you might say: "Mrs. Smith's account is contradicted by the videotape from the officer's car. The videotape appears to show that the officer acted courteously. Mrs. Smith denied assaulting the officer even after she was confronted with the videotape and hospital records showing medical treatment of slap marks on the officer's right cheek."
E. Counteract Any Bias
Be aware of the newspaper's political opponents. In dealing with news about such persons, take special care to demonstrate good faith regard for the truth of the statements you print. Often actual malice can be proven by showing one side has a grudge against the other.