Libel: Defenses and Privileges
-Those sued for libel have may different defense options, as outlined in the relevant doctrines
-Journalists are able to report on certain events without fear of libel as long as their reporting is fair and accurate
- Expressing an opinion is regarded as a First Amendment right
-However, for material to qualify as protected opinion, it must satisfy the Ollman test, as outlined below
-Section 230 of the Communications Decency Act offers immunity to websites and internet service providers in libel claims, although the protection is not absolute
-Some libel defenses allow for republication, including neutral reportage and wire service defense
-Sometimes false, defamatory material is published about someone whose reputation cannot be lowered beyond its current level
Key Terms:
Retraction Statutes- In Libel law, state laws that limit the damages a plaintiff may receive if the defendant had issued a retraction of the material at issue.
Important Cases:
Ollman v Evans
Ollman was offered a job at University of Maryland. Rowland Evans and Robert Novak wrote a column in the newspaper entitled the "Marxist professor's intentions". Ollman claimed the column lead to his eventual withdrawal of the job offer, so he sued Evans for $6 million. Justice Kenneth Starr read the majority ruling favoring Evans, and created the Ollman test. The Ollman test has four parts that looks at 1.Verifiability 2.Common Meaning 3.Journalistic Context 4.Social Context
Milkovich v Lorain Journal Co.
A case that rejected the argument that a separate opinion privilege existed against libel. the Supreme Court ruled that opinions can be defamatory and that no broad constitutional shield for the expression of defamatory opinions is appropriate. It was the first time the Court addressed whether libel laws were applicable to expressions of opinion.
Relevant Doctrine:
Libel Defenses:
Truth-
A libel defendant may be able to demonstrate that there is no liability for publishing the statement at issue if it is 1. Not Defamatory, 2. It was not published or the plaintiff was not identified, or 3. does not meet the elements of a libel case
Anti-SLAPP-
A strategic lawsuit against public participation is a lawsuit whose purpose is to harass critics into silence, often to suppress those critics first amendment rights. Anti-SLAPP laws are meant to provide a remedy to SLAPP suits. Anti-SLAPP laws are intended to prevent people from using courts, and potential threats of a lawsuit, to intimidate people who are exercising their First Amendment rights.
Fair Report Privilege-
1. Information must be obtained from a record or proceeding recognized as "official"
2. The News Report must fairly and accurately reflect what is in the public record or what was said during the official proceeding
3. The source of the statement should be clearly noted in the news report
4. Not all States recognize the fair report privilege
Neutral Reportage-
The first amendment is a defense in a libel case if the following apply:
-the story is newsworthy and related to public controversy
-the accusation is made by a responsible person or group
-the charge is about a public official, public figure or public organization
-the story is accurate, containing denials or other views
-the reporting is natural
Wire Service-
The wire service defense may be applied as long as the following are present:
1. The defendant received material containing the defamatory statements from a reputable news-gathering agency
2. The defendant did not know the story was false
3. Nothing on the face of the story reasonably could have alerted the defendant that it may have been incorrect
4. The original wire service story was republished without substantial change
False Fact/Opinion-
1. Do the words have a commonly accepted meaning. Yes? FF. No? Opinion.
2. Can the Statement be proven to be true or false? Yes? More likely fact than opinion.
3. In what specific context do the words appear? Opinion Column? Opinion. A Block of news? FF.
4. In what broader context do the words appear? Is this a place where expression of opinions is common?
Ollman Test for Opinion:
1. Verifiability
2. Common Meaning
3. Journalistic Context
4. Social Context
I connect this weeks material with some of the hate speech conversations we are having in class, and in the issues happening in the real world. Often times the sort of things we talk about online are taken as False Fact when they are simply opinion, and that is why I enjoyed learning about the Ollman Test. Next time I read something online that I think may be "fake news", or just seems a little bit off, I can apply this test to understand the content better. Furthermore, I would understand why some people are sued for defamation, and lose, because it is an opinion.
Questions:
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