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Tentative Title

An Analysis of the Supreme Court’s Decision in Lukumi Babalu Aye v. Hialeah and How the Case Fits into the Interpretation of the Practice Clause of the First Amendment Freedom of Religion Guarantee

Topic Description

Practitioners of the Yoba religion, also known as Santeria, sacrifice animals, including fowls, goats and turtles as part of their rituals, after which the sacrificed animals are consumed as food. Hialeah, Fla., officials adopted an ordinance prohibiting ritual sacrifice of animals within the city limits. The church claimed that the ordinance violated its members’ constitutional freedom of religion rights. The lower courts applied the Smith doctrine, which distinguishes between religious faith and religious conduct, to the Hialeah issue.

Purpose of Term Paper

The researcher proposes to explore and analyze literature related to issues raised before the U.S. Supreme Court in Church of the Lukumi Babalu Aye, Inc. v. Hialeah. In the conclusion of the paper, the researcher will attempt to identify rationales the U.S Supreme Court used in its ruling and implications of the outcome.

Value of the Study

The researcher will arrive at a clearer understanding of the guarantee of freedom of religion – particularly the difference between belief and an action based upon faith.

Bibliography of Tentative Sources

Articles

“Babalu Aye Is Not Pleased: Majoritarianism and the Erosion of Free Exercise,” 45 U. Miami L. Rev. 1061 LEXIS (May 1991).

Colson, Charles. “The Cross and the Crown.” Chapter in Kingdoms in Conflict. New York: William Morrow & Company, Inc., 1987, 109-21.

Lawton, Kim A. “Uncle Sam v. First Church.” Christianity Today, 7 October 1991, 25-28.

Laycock, Douglas. “Summary and Synthesis: The Crisis in Religious Liberty,” 60 Geo. Wash. L. Rev. 841 LEXIS (March 1992).

McConnell, Michael W. “Accommodation of Religion: An Update and a Response to the Critics,” 60 Geo. Wash. L. Rev. 685 LEXIS (March 1992).

Pelieur, Matthew. “Commercial Speech Applications of the Lukumi Case.” Journal of Church and State 21 (Fall 1993): 294-99 in Advertising Law Anthology 17 (1993): 701-25.

Ward, Antonio. “Santeria Case May Affect First Amendment Rights of Journalists,” American Journalism Review 19 (January 1993): 43-48.

Cases

Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993).

Good News Club et al. v. Milford Central School, 533 U.S. 98 (2001).

Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439 (1988).

Oregon et al. v. Alfred L. Smith et al., 494 U.S. 872, (1990).

i
Mass Media Law
20th Edition
Clay Calvert
University of Florida
Dan V. Kozlowski
Saint Louis University
Derigan Silver
University of Denver
ii
MASS MEDIA LAW, TWENTIETH EDITION
Published by McGraw-Hill Education, 2 Penn Plaza, New York, NY 10121. Copyright © 2018 by McGraw-Hill Education. All rights reserved. Printed in the United States of America. Previous editions © 2015, 2013, and 2011. No part of this publication may be reproduced or distributed in any form or by any means, or stored in a database or retrieval system, without the prior written consent of McGraw-Hill Education, including, but not limited to, in any network or other electronic storage or transmission, or broadcast for distance learning.
Some ancillaries, including electronic and print components, may not be available to customers outside the United States.
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iii
CONTENTS
The American Legal System
The First Amendment: The Meaning of Freedom
The First Amendment: Contemporary Problems
iv
Libel: Establishing a Case
Libel: Proof of Fault
v
Libel: Defenses and Damages
Invasion of Privacy: Appropriation and Intrusion
Invasion of Privacy: Publication of Private Information and False Light
vi
Gathering Information: Records and Meetings
10
Protection of News Sources/Contempt Power
vii
11
Free Press–Fair Trial: Trial-Level Remedies and Restrictive Orders
12
Free Press–Fair Trial: Closed Judicial Proceedings
13
Regulation of Obscene and Other Erotic Material
viii
14
Copyright and Trademark
15
Regulation of Advertising
ix
16
Telecommunications Regulation
x
PREFACE
Today, perhaps more than ever, it is vital for college students in the United States to understand the principles of media law and the First Amendment freedoms of speech, press and assembly. Shortly before this preface was drafted, the nation’s president labeled journalists at ABC, CBS, NBC, CNN and The New York Times “the enemy of the American people.” What’s more, terms such as “fake news” and “alternative facts” were taking on controversial lives of their own. And at least 15 states had bills pending in their legislatures in 2017 that threatened to reduce the ability of citizens to engage in protests, thus not only jeopardizing free speech but also “the right of the people peaceably to assemble.”
It thus is fitting that the 20th edition of this textbook sees two new co-authors who bring fresh perspectives, renewed energy and scholarly expertise to the topics spanning all 16 chapters. It simply wouldn’t be possible for any one person alone to replace outgoing author Don Pember. This edition thus brings with it both Dan Kozlowski of Saint Louis University and Derigan Silver of the University of Denver. They have extensive backgrounds in teaching and writing about a wide range of media law topics. Their new voices, coupled with the continuing guidance and authorship of Clay Calvert, hopefully make the 20th edition of Mass Media Law timely, relevant and helpful to undergraduates across the communication fields of advertising, journalism, media studies, public relations and telecommunications.
Although updating this edition began as an attempt to keep real-life examples fresh and lively, it quickly became apparent that so much had happened in media law (and continues to happen) that a more thorough rewrite was needed. First, the text changes its approach to Internet and new(er) communication law. Rather than continually devoting separate sections to address media law and the Internet, chapters now generally integrate discussions of how the law applies to the Internet throughout the book. So much of media law today involves the Web—meaning that so much of each chapter in this book now necessarily involves the Web.
In addition, the 20th edition has updated information, examples and cases in every chapter. The last few years of media law have been very active, with courts regularly facing new cases and issues. In addition to a wide number of new examples, such as the recent privacy case involving Hulk Hogan and the defamation suit against Rolling Stone magazine filed by a dean at the University of Virginia, the book features new material on the right to record police officers in public settings, on net neutrality, on the FCC’s regulation of indecency, on laws concerning information gathering with drones, a new section on Internet defamation by anonymous third-party posters, updates on recent changes to the Freedom of Information Act (FOIA) and new information about trademark law in our chapter on intellectual property, among other updates.
In light of the lack of recent obscenity prosecutions in the United States, as well as comments from some reviewers and users of the book that they don’t cover obscenity during class and to reduce pages where possible, we have significantly streamlined
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Chapter 13. The key rules and tests regarding obscenity, child pornography and the zoning of sexually oriented businesses, however, remain and have been updated where needed.
The 20th edition of Mass Media Law is now available online with Connect, McGraw-Hill Education’s integrated assignment and assessment platform. Connect also offers SmartBook for the new edition, which is the first adaptive reading experience proven to improve grades and help students study more effectively. All of the title’s Web site and ancillary content is also available through Connect, including:
A full Test Bank of multiple-choice questions that test students on central concepts and ideas in each chapter.
An Instructor’s Manual for each chapter with full chapter outlines, sample test questions and discussion topics.
Lecture Slides for instructor use in class and downloadable RAP forms.
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ACKNOWLEDGMENTS
Clay Calvert thanks both Dan Kozlowski and Derigan Silver for enthusiastically and energetically taking on the massive endeavor that it is co-authoring a textbook. He also thanks his undergraduates in the College of Journalism and Communications at the University of Florida for their feedback on the book. Finally, Clay Calvert thanks Berl Brechner for his continuing support of the Marion B. Brechner First Amendment Project and other initiatives in the College of Journalism and Communications.
Dan Kozlowski is grateful that Clay Calvert invited him to join the book as a co-author. Clay is a giant in the field of media law, and Dan appreciates the guidance Clay has provided both throughout the writing of this edition and also throughout Dan’s academic career in general. Dan also thanks Derigan Silver for his feedback and his sense of humor as they worked together on this project. And Dan thanks his wife and two daughters for being awesome and for helping to keep him level-headed.
Derigan Silver thanks Clay Calvert for inviting him to be a co-author of the book and for providing mentorship and advice for a number of years. He also thanks Dan for his feedback and inspiration throughout this project. He would also like to thank his students at the University of Denver for their interesting and engaging questions, comments and concerns. Finally, he thanks his wife, Alison, for putting up with him.
We would also like to thank those instructors who reviewed our book and gave us their valuable input. It is much appreciated. They are: Betsy Emmons, Samford University; Dr. Felisa B. Kaplan, NY Institute of Technology; and David Shipley, Samford University.
Finally, all three authors greatly appreciate the support of McGraw-Hill and the multiple individuals there who assisted with the publishing of this book.
IMPORTANT NEW, EXPANDED OR UPDATED MATERIAL
Chapter 1
New examples of equity law, including a restraining order against a South Carolina reporter and an injunction barring speakers from repeating defamatory comments
New case illustrating the void for vagueness doctrine
Discussion of a 2016 North Carolina Supreme Court decision striking down a cyberbullying statute as overbroad
Chapter 2
New examples of self-censorship, including major U.S. news outlets not publishing cartoons depicting the Prophet Muhammad in 2015 and ESPN’s firing of Curt Schilling in 2016
New discussion about Milo Yiannopoulos’ college campus visits and community censorship
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Chapter 3
Multiple new examples of high school censorship involving newspapers, T-shirts and Confederate flag imagery
New discussion of the 2015 case Bell v. Itawamba County School Board involving punishment of a student for posting a profanity-laced rap recording online
New examples of efforts to ban books in public schools and libraries
New discussion of a 2016 appellate court case striking down a state law banning “ballot selfies” because the law failed intermediate scrutiny
New content on the U.S. Supreme Court’s McCullen v. Coakley decision regarding abortion protests
New discussion of the U.S. Supreme Court’s Elonis v. United States decision regarding social media, rap music and true threats
New section on net neutrality, with a particular focus on the FCC’s 2015 Open Internet Order
Chapter 4
New discussion of Communications Decency Act Section 230 and libel by anonymous third-party posters
New section about defamation on social media sites such as Twitter and Facebook
Chapter 5
New section on “involuntary limited-purpose public figures”
New material on the Consumer Review Fairness Act affecting “gag clauses” in contracts
Chapter 6
New material on the “self-defense privilege”
New discussion of criminal libel
Chapter 7
New discussion of Lindsay Lohan’s lawsuit against Rockstar Games and Take Two Interactive over a character in “Grand Theft Auto V”
New section on intrusion by drones
New section on an appropriation case involving the videogame “Madden NFL”
Chapter 8
Discussion of The New York Times’ publication of part of Donald Trump’s 1995 income tax returns
Discussion of Hulk Hogan v. Gawker
New material on secret-recording cases
xvi
Chapter 9
Updates on media access to executions and information about execution drugs
New section on journalists arrested for covering Dakota Access Pipeline protests and the inauguration of President Donald Trump
New section on government officials using private text messages and e-mail accounts
Chapter 10
New discussion of the appellate court decision in U.S. v. Sterling
Updated discussion of Convertino v. U.S. Department of Justice, where an appellate court ruling seemed to give journalists another weapon to protect source confidentiality
New section addressing the Department of Justice’s revised guidelines for when and how a federal prosecuting attorney can subpoena a reporter
Chapter 11
New discussion of the U.S. Supreme Court’s decision in U.S. v. Skilling and when a change of venue is appropriate
New discussion about importance of news media intervening when judges close courtrooms
Chapter 12
New section on social media use by lawyers, reporters, jurors and others
Updates on state and federal rules dealing with microblogging from courtrooms
New material about the U.S. Judicial Conference’s pilot project evaluating effects of cameras in trial courtrooms
Chapter 13
New examples of convictions for distributing and possessing child pornography via the Internet and smartphones
New content on the U.S. Supreme Court’s 2017 Packingham v. North Carolina decision regarding the online speech rights of sex offenders
Chapter 14
Expanded discussion of trademark law
New content on the Trademark Dilution Revision Act of 2006
New section on the U.S. Supreme Court case Lee v. Tam dealing with disparaging trademarks
New section on the copyright case of Star Athletica v. Varsity Brands
New material on parody, satire and trademark law focusing on Cariou v. Prince
Chapter 15
New discussion of the FTC’s antitrust case against the Staples, Inc., and Office Depot merger
xvii
New discussion of the U.S. Supreme Court’s Lexmark International, Inc. v. Static Control Components decision regarding standing to file Lanham Act claims
New content on the Lanham Act case between Dannon and General Mills against Chobani involving an injunction over Chobani’s ads for Greek yogurt
Updated material on controversies involving Backpage.com, including whether the site should have immunity under the Communications Decency Act Section 230
Chapter 16
New discussion of the 2016 appellate court ruling in Prometheus Radio Project v. FCC regarding ownership restrictions
New content regarding the U.S. Supreme Court’s ruling against Aereo in ABC, Inc. v. Aereo
Updated discussion of the FCC’s regulation of broadcast indecency, including its $325,000 fine against a Virginia TV station in 2015
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1
CHAPTER

1
The American Legal System
©McGraw-Hill Education/Jill Braaten
Before studying media law, one needs a general background in law and the judicial system. In the United States, as in most societies, law is a basic part of existence, as necessary for the survival of civilization as are economic and political systems, the mass media, cultural achievement and the family.
This chapter has two purposes: to acquaint you with the law and to outline the legal system in the United States. While not designed to be a comprehensive course in law and the judicial system, it provides a sufficient introduction to understand the next 15 chapters.
The chapter opens with a discussion of the law, considering the most important sources of the law in the United States, and it moves on to the judicial system, including both the federal and state court systems. A summary of judicial review and a brief outline of how both criminal and civil lawsuits start and proceed through the courts are included in the discussion of the judicial system.
2
FIVE SOURCES OF LAW
1.
Common law
2.
Equity law
3.
Statutory law
4.
Constitutional law (federal and state)
5.
Executive orders and administrative rules
SOURCES OF THE LAW
There are many definitions of law. Some say law is any social norm or any organized method of settling disputes. Most writers insist it is more complex, that some system of sanctions and remedies is required for a genuine legal system. John Austin, a 19th-century English jurist, defined law as definite rules of human conduct with appropriate sanctions for their enforcement. He added that both the rules and the sanctions must be prescribed by duly constituted human authority.
1 Roscoe Pound, an American legal scholar, suggested that law is social engineering—the attempt to order the way people behave. For the purposes of this book, it is helpful to consider law to be a set of rules that attempt to guide human conduct and a set of formal, governmental sanctions that are applied when those rules are violated.
What is the source of American law? There are several major sources of the law in the United States: the U.S. Constitution and state constitutions; common law; the law of equity; statutory law; and the rulings of various executives, such as the president and mayors and governors, and administrative bodies and agencies. Historically, we trace American law to Great Britain. As colonizers of much of the North American continent, the British supplied Americans with an outline for both a legal system and a judicial system. In fact, because of the many similarities between British and American law, many people consider the Anglo-American legal system to be a single entity. Today, our federal Constitution is the supreme law of the land. Yet when each of these sources of law is considered separately, it is more useful to begin with the earliest source of Anglo-American law, the common law.
COMMON LAW
Common law,

* which developed in England during the 200 years after the Norman Conquest in the 11th century, is one of the great legacies of the British people to colonial America. During those two centuries, the crude mosaic of Anglo-Saxon customs was replaced by a single system of law worked out by jurists and judges. The system of law became common throughout England; it became common law. It was also called common
3
law to distinguish it from the ecclesiastical (church) law prevalent at the time. Initially, the customs of the people were used by the king’s courts as the foundation of the law, disputes were resolved according to community custom, and governmental sanction was applied to enforce the resolution. As such, common law was, and still is, considered “discovered law.”
As legal problems became more complex and as the law began to be professionally administered (the first lawyers appeared during this era, and eventually professional judges), it became clear that common law reflected not so much the custom of the land as the custom of the court—or more properly, the custom of judges. While judges continued to look to the past to discover how other courts decided a case when given similar facts (precedent is discussed in a moment), many times judges were forced to create the law themselves. Common law thus sometimes is known as judge-made law.
Common law thus sometimes is known as judge-made law.
Common law is an inductive system in which a legal rule and legal standards are arrived at after consideration of many cases involving similar facts. In contrast, in a deductive system of law, which is common in many other nations, the rules are expounded first and then the court decides the legal situation under the existing rule. The ability of common law to adapt to change is directly responsible for its longevity.
Stare decisis is the key phrase: Let the decision stand.
Fundamental to common law is the concept that judges should look to the past and follow court precedents.
* The Latin expression for the concept is this: “Stare decisis et non quieta movere” (to stand by past decisions and not disturb things at rest).
Stare decisis is the key phrase: Let the decision stand. A judge should resolve current problems in the same manner as similar problems were resolved in the past. Put differently, a judge will look to a prior case opinion to guide his or her analysis and decision in a current case. Following precedent is beneficial as it builds predictability and consistency into the law—which in turn fosters judicial legitimacy. Courts may be perceived as more legitimate in the public’s eye if they are predictable and consistent in their decision-making process.
The Role of Precedent
At first glance one would think that the law never changes in a system that continually looks to the past. Suppose that the first few rulings in a line of cases were bad decisions. Are courts saddled with bad law forever? The answer is no. While following
precedent is desired (many people say that certainty in the law is more important than justice), it is not always the proper way to proceed. To protect the integrity of common law, judges developed means of coping with bad law and new situations in which the application of old law would result in injustice.
Imagine that the newspaper in your hometown publishes a picture and story about a 12-year-old girl who gave birth to a 7-pound son in a local hospital. The mother and father do not like the publicity and sue the newspaper for invasion of privacy. The attorney for the parents finds a precedent, Barber v. Time,

2 in which a Missouri court ruled that to photograph a patient in a hospital room against her will and then to publish that picture in a newsmagazine is an
invasion of privacy.
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FOUR OPTIONS FOR HANDLING PRECEDENT
1.
Accept/Follow
2.
Modify/Update
3.
Distinguish
4.
Overrule
Does the existence of this precedent mean that the young couple will automatically win this lawsuit? Must the court follow and adopt the Barber decision? The answer to both questions is no. For one thing, there may be other cases in which courts have ruled that publishing such a picture is not an invasion of privacy. In fact, in 1956 in the case of Meetze v. AP

3 a South Carolina court made such a ruling. But for the moment assume that Barber v. Time is the only precedent. Is the court bound by this precedent? No. The court has several options concerning the 1942 decision.
First, it can accept the precedent as law and rule that the newspaper has invaded the privacy of the couple by publishing the picture and story about the birth of their child. When a court accepts a prior court ruling as precedent, it is adopting it and following it for guidance. Second, the court can modify, or change, the 1942 precedent by arguing that Barber v. Time was decided more than 75 years ago when people were more sensitive about going to a hospital, since a stay there was often considered to reflect badly on a patient. Today hospitalization is no longer a sensitive matter to most people. Therefore, a rule of law restricting the publication of a picture of a hospital patient is unrealistic, unless the picture is in bad taste or needlessly embarrasses the patient. Then the publication may be an invasion of privacy. In our imaginary case, then, the decision turns on what kind of picture and story the newspaper published: a pleasant picture that flattered the couple or one that mocked and embarrassed them? If the court rules in this manner, it modifies the 1942 precedent, making it correspond to what the judge perceives to be contemporary sensibilities and circumstances.
As a third option the court can decide that Barber v. Time provides an important precedent for a plaintiff hospitalized because of an unusual disease—as Dorothy Barber’s was—but that in the case before the court, the plaintiff was hospitalized to give birth to a baby, a different situation: Giving birth is a voluntary status; catching a disease is not. Because the two cases present different problems, they are really different cases. Hence, the Barber v. Time precedent does not apply. This practice is called distinguishing the precedent from the current case, a very common action. In brief, a court can distinguish a prior case (and therefore choose not to accept it and not to follow it) because it involves either different facts or different issues from the current case.
Finally, the court can overrule the precedent. When a court overrules precedent, it declares the prior decision wrong and thus no longer the law. Courts generally overrule prior opinions as bad law only when there are changes in:
5
1.
factual knowledge and circumstances;
2.
social mores and values; and/or
3.
judges/justices on the court.
For instance, in 2003 the U.S. Supreme Court in Lawrence v. Texas

4 overruled its 1986 opinion called Bowers v. Hardwick

5 that had upheld a Georgia anti-sodomy statute prohibiting certain sexual acts between consenting gay adults. By 2003, American society increasingly accepted homosexuality (evidenced then by both the dwindling number of states that prohibited the conduct referenced in Bowers and by at least two Supreme Court rulings subsequent to Bowers but before Lawrence that were favorable to gay rights and thus eroded Bowers’ strength). There also was growing recognition that consenting adults, regardless of sexual orientation, should possess the constitutional, personal liberty to engage in private sexual conduct of their choosing. Furthermore, six of the nine justices on the Supreme Court had changed from 1986 to 2003. Thus, 17 years after Bowers was decided, there were changes in social values, legal sentiment and the court’s composition. The Supreme Court in Lawrence therefore struck down a Texas anti-sodomy statute similar to the Georgia one it had upheld in Bowers. It thus overruled Bowers. Justice Anthony Kennedy noted that although “the doctrine of stare decisis is essential to the respect accorded to the judgments of the court and to the stability of the law,” it “is not, however, an inexorable command.” In the hypothetical case involving the 12-year-old girl who gave birth, the only courts that can overrule the Missouri Supreme Court’s opinion in Barber v. Time are the Missouri Supreme Court and the U.S. Supreme Court.
In 2010, a closely divided Supreme Court in Citizens United v. Federal Elections Commission overruled a 1990 opinion called Austin v. Michigan State Chamber of Commerce. The Court in Austin had upheld a Michigan law banning corporations from spending money from their own treasury funds in order to create their own ads in support of, or in opposition to, any candidate in elections for state office. By 2010, the composition of the Court had shifted over 20 years and the five conservative-leaning justices (Kennedy, John Roberts, Antonin Scalia, Samuel Alito and Clarence Thomas) in Citizens United voted to overrule Austin in the process of declaring unconstitutional a federal law that prohibited corporations and unions from using their general treasury funds to make independent expenditures for speech expressly advocating for the election or defeat of a candidate for public office. In reaching this conclusion, Justice Kennedy wrote for the majority about the importance of protecting political speech, regardless of who the speaker is (a corporation, a union or the common citizen), and he concluded “that stare decisis does not compel the continued acceptance of Austin. The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.”
Obviously, the preceding discussion oversimplifies the judicial process. Rarely is a court confronted with only a single precedent. Indeed, as attorneys would put it, there may be several prior cases that are “on point” or may apply as precedent. And whether or not precedent is binding on a court is often an issue. For example, decisions by the
6
Supreme Court of the United States regarding the U.S. Constitution and federal laws are binding on all federal and state courts. Decisions by the U.S. Court of Appeals on federal matters are binding only on other lower federal and state courts in that circuit or region. (See pages 27–29 for a discussion of the circuits.) The supreme court of any state is the final authority on the meaning of the constitution and laws of that state, and its rulings on these matters are binding on all state and federal courts in that state. Matters are more complicated when federal courts interpret state laws. State courts can accept or reject these interpretations in most instances. Because mass media law is so heavily affected by the First Amendment, state judges frequently look outside their borders to precedents developed by the federal courts. A state court ruling on a question involving the First Amendment guarantees of free speech and press will be substantially guided by federal court precedents on the same subject.
Lawyers and law professors often debate how important precedent really is when a court makes a decision. Some have suggested a “hunch theory” of jurisprudence: A judge decides a case based on a gut feeling of what is right and wrong and then seeks out precedents to support the decision.
Finding Common-Law Cases
Common law is not specifically written down someplace for all to see and use. It is instead contained in hundreds of thousands of decisions handed down by courts over the centuries. Many attempts have been made to summarize the law. Sir Edward Coke compiled and analyzed the precedents of common law in the early 17th century. Sir William Blackstone later expanded Coke’s work in the monumental Commentaries on the Law of England. More recently, in such works as the massive Restatement of the Law, Second, of Torts, the task was again undertaken, but on a narrower scale.
Courts began to record their decisions centuries ago. These decisions are called “opinions” in legal parlance. The modern concept of fully reporting written decisions of all courts probably began in 1785 with the publication of the first British Term Reports.
While scholars and lawyers still uncover common law using the case-by-case method, it is fairly easy today to locate the appropriate cases through a simple system of citation. The cases of a single court (such as the U.S. Supreme Court or the federal district courts) are collected in a single case reporter (such as the “United States Reports” or the “Federal Supplement”). The cases are collected chronologically and fill many volumes. Each case collected has its individual
citation, or identification number, which reflects the name of the reporter in which the case can be found, the volume of that reporter, and the page on which the case begins (Figure 1.1). For example, the citation for the decision in Adderly v. Florida (a freedom-of-speech case) is 385 U.S. 39 (1966). The letters in the middle (U.S.) indicate that the case is in the “United States Reports,” the official government reporter for cases decided by the Supreme Court of the United States. The number 385 refers to the specific volume of the “United States Reports” in which the case is found. The second number (39) gives the page on which the case appears. Finally, 1966 provides the year in which the case was decided. So, Adderly v. Florida can be found on page 39 of volume 385 of the “United States Reports.”
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FIGURE 1.1
Reading a case citation.
Computers affected the legal community in many ways. Court opinions are now available via a variety of online services. For instance, two legal databases attorneys often use and that frequently are available free to students at colleges and universities are LexisNexis and Westlaw. These databases provide access to court opinions, statutory law (see pages 9–11) and law journal articles. In most jurisdictions, lawyers may file documents electronically with the court.
If you have the correct citation, you can easily find any case you seek. Locating all citations of the cases apropos to a particular problem—such as a libel suit—is a different matter and is a technique taught in law schools. A great many legal encyclopedias, digests, compilations of common law, books and articles are used by lawyers to track down the names and citations of the appropriate cases.
TYPICAL REMEDIES IN EQUITY LAW
1.
Temporary restraining order (TRO)
2.
Preliminary injunction
3.
Permanent injunction
EQUITY LAW
Equity is another kind of judge-made law. The distinction today between common law and equity law has blurred. The cases are heard by the same judges in the same courtrooms. Differences in procedures and remedies are all that is left to distinguish these two categories of the law. Separate consideration of common law and equity leads to a better understanding of both, however. Equity was originally a supplement to the common law and developed side by side with common law.
The rules and procedures under equity are far more flexible than those under common law. Equity really begins where common law leaves off. Equity suits are never tried
8
before a jury. Rulings come in the form of
judicial decrees, not in judgments of yes or no. Decisions in equity are (and were) discretionary on the part of judges. And despite the fact that precedents are also relied upon in the law of equity, judges are free to do what they think is right and fair in a specific case.
Equity provides another advantage for troubled litigants—the restraining order. While the typical remedy in a civil lawsuit in common law is
damages (money), equity allows a judge to issue orders that can either be preventive (prohibiting a party from engaging in a potential behavior it is considering) or remedial (compelling a party to stop doing something it currently is doing). Individuals who can demonstrate that they are in peril or are about to suffer a serious irremediable wrong can usually gain a legal writ such as an injunction or a restraining order to stop someone from doing something. Generally, a court issues a temporary restraining order or preliminary injunction until it can hear arguments from both parties in the dispute and decide whether an injunction should be made permanent.
For instance, in January 2015 a South Carolina judge issued a temporary restraining order (TRO) preventing a small-town newspaper reporter in that state from publishing the contents of a diary belonging to the widow of James Brown, the famous singer known as the “Godfather of Soul.” In the midst of an ongoing legal battle over Brown’s estate, the reporter received an anonymous package containing the diary of Brown’s widow. The diary, which had been sealed by a court, contained entries that seemed to suggest that the widow might not have actually been legally married to Brown. The reporter posted some passages from the diary to Facebook, but the widow then went to court and persuaded a lower-court judge that she “may suffer irreparable harm” if the reporter was not restrained from publishing any more of the diary’s contents. Such injunctions—even TROs, which are brief in time, as the word “temporary” suggests—stopping the dissemination of truthful speech about a newsworthy matter presumptively violate the First Amendment (see Chapter 2 regarding prior restraints). The reporter’s lawyers thus appealed the order, and the South Carolina Supreme Court vacated the TRO, ruling that it “clearly violates” the First Amendment and “will not be upheld by this Court.”
On the other hand, equitable remedies in the form of injunctions are more likely to be granted in copyright cases where the plaintiff can demonstrate the defendant is selling copyrighted material owned by the plaintiff (see Chapter 14 regarding copyright). Universal Studios, which owns the movie rights to the “Fifty Shades of Grey” book series, sought an injunction in 2013 against an adult-movie company called Smash Pictures to stop the distribution of a movie called “Fifty Shades of Grey: A XXX Adaptation.” While parodies that make fun of or comment on the original work often are protected against copyright claims, this porn parody copied many lines from the book nearly verbatim and simply claimed to be a hard-core version of the book. The case ultimately settled, with Smash Pictures consenting to a permanent injunction prohibiting the distribution of its parody.
Ultimately, a party seeks an equitable remedy (a restraining order or injunction) if there is a real threat of a direct, immediate and irreparable injury for which monetary damages won’t provide sufficient compensation.
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YOU CAN’T SAY THAT AGAIN!: ENJOINING DEFAMATION
As discussed in Chapters 4, 5 and 6, when a speaker publishes something defamatory about another person—a false statement of fact that damages that person’s reputation—the traditional legal recourse in the United States is a lawsuit for defamation, with the defamed party receiving monetary damages from the defendant. But as Professor David Ardia has argued, over the past decade, the Internet has brought increased attention to the adequacy of monetary damages as the only remedy for defamation. Today, defamation cases are increasingly arising from online speech, with plaintiffs claiming speech published by bloggers or users of social media defames them. Rather than seek monetary damages to compensate themselves or to punish the defendants, some of the plaintiffs in these cases have instead sought to have the speech stopped altogether using injunctions. Alarmingly, some courts have been increasingly willing to grant injunctions that bar—or forbid—speakers from repeating their defamatory comments.
For instance, a district court in Indiana issued a permanent injunction that would have prevented an Indiana man and a former religious sister from repeating blog comments they had made in what amounted to an online smear campaign. The blog comments came in the midst of a dispute over who was entitled to the documents and artifacts of a religious sister who had experienced a series of apparitions of the Virgin Mary. The particulars of the case were messy, but, ultimately, the district court permanently enjoined the defendants from repeating several specific comments—even though the jury had not ruled that those specific comments were defamatory—as well as “any similar statements that contain the same sort of allegations or inferences, in any manner or forum.”
On appeal, the Seventh Circuit U.S. Court of Appeals struck down the injunction as unconstitutional in December 2015. In McCarthy v. Fuller, the Seventh Circuit said the injunction was a “patent violation of the First Amendment” because it was “so broad and vague” that it threatened to silence the defendants completely. Although this particular injunction was poorly crafted and thus problematic, the court left open the question of whether defamation could ever be enjoined. More cases like this will likely appear in the near future.
STATUTORY LAW
While common law sometimes is referred to as discovered or judge-made law, the third great source of laws in the United States today is created by elected legislative bodies at the local, state and federal levels and is known as statutory law.
Several important characteristics of statutory law are best understood by contrasting them with common law. First,
statutes tend to deal with problems affecting society
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or large groups of people, in contrast to common law, which usually deals with smaller, individual problems. (Some common-law rulings affect large groups of people, but this occurrence is rare.) It should also be noted in this connection the importance of not confusing common law with constitutional law. Certainly when judges interpret a constitution, they make policy that affects us all. However, it should be kept in mind that a constitution is a legislative document voted on by the people and is not discovered law or judge-made law.
Second, statutory law can anticipate problems, and common law cannot. For example, a state legislature can pass a statute that prohibits publication of the school records of a student without prior consent of the student. Under common law the problem cannot be resolved until a student’s record has been published in a newspaper or transmitted over the Internet and the student brings action against the publisher to recover damages for the injury incurred.
Third, the criminal laws in the United States are all statutory laws—common-law crimes no longer exist in this country and have not since 1812. Common-law rules are not precise enough to provide the kind of notice needed to protect a criminal defendant’s right to due process of law.
The criminal laws in the United States are all statutory laws.
Fourth, statutory law is collected in codes and law books, instead of in reports as is common law. When a bill is adopted by the legislative branch and approved by the executive branch, it becomes law and is integrated into the proper section of a municipal code, a state code or whatever. However, this does not mean that some very important statutory law cannot be found in the case reporters.
Passage of a law is rarely the final word. Courts become involved in determining what that law means. Although a properly constructed statute sometimes needs little interpretation by the courts, judges are frequently called upon to rule on the exact meaning of ambiguous phrases and words. The resulting process of judicial interpretation is called
statutory construction and is very important. Even the simplest kind of statement often needs interpretation. For example, a statute that declares “it is illegal to distribute a violent video game to minors” is fraught with ambiguities that a court must construe and resolve in order to determine if it violates the First Amendment speech rights of video game creators and players (see pages 68–74 regarding regulation of video games). What type of content, for instance, falls within the meaning of the word “violent” as it is used in this statute? How young must a person be in order to be considered a “minor” under the law? Does the term “distribute” mean to sell a video game, to rent a video game or to give it away for free? Finally, because games are played in arcades, on computers and via consoles, just what precisely is a “video” game under the statute?
Usually a legislature leaves a trail to help a judge find out what the law means. When judges rule on the meaning of a statute, they are supposed to determine what the legislature meant when it passed the law (the legislative intent), not what they think the law should mean. Minutes of committee hearings in which the law was discussed, legislative staff reports and reports of debate on the floor can all be used to determine legislative intent. Therefore, when lawyers deal with statutes, they frequently search the case reporters to find out how the courts interpreted a law in which they are interested.
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ATTACKING THE CONSTITUTIONALITY OF STATUTES: FACIAL CHALLENGES VERSUS AS-APPLIED CHALLENGES
There are two primary ways to argue that a statute violates the First Amendment right of free speech: (1) by attacking problems with its wording, terms and language (known as a facial attack); or (2) by attacking problems with its actual application to a particular factual scenario (known as an as-applied attack). A facial attack tests a law’s constitutionality based on its text (its words and language), but does not consider the facts or circumstances of a particular case. For instance, a challenge to a statute based on the ground that it is either overbroad or unduly vague in its use of language (both the overbreadth doctrine and the void for vagueness doctrine are described in the next few pages of this chapter) are examples of facial challenges. In contrast, an as-applied attack does not contend that a law is unconstitutional because of how it is written, but because of how it actually applies to a particular person or particular group of people under specific factual circumstances that allegedly deprive the person of a First Amendment right. In general, as-applied challenges are the preferred method for attacking a statute. As Justice Samuel Alito wrote in 2010 in United States v. Stevens,
6 “the ‘strong medicine’ of overbreadth invalidation need not and generally should not be administered when the statute under attack is unconstitutional as applied to the challenger before the court.” Ultimately, however, as Justice Anthony Kennedy wrote in 2010 in Citizens United v. Federal Elections Commission

7 (see pages 136–139 describing this case in the unit “The First Amendment and Election Campaigns”), “the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge.”
CONSTITUTIONAL LAW
Great Britain lacks a written
constitution. The United States, in contrast, has a written constitution, and it is an important source of our law. In fact, there are many constitutions in this country: the federal Constitution, state constitutions, city charters and so forth. All these documents accomplish the same ends. First, they provide the plan for the establishment and organization of the government. Next, they outline the duties, responsibilities and powers of the various elements of government. Finally, they usually guarantee certain basic rights to the people, such as freedom of speech and freedom to peaceably assemble.
Legislative bodies may enact statutes rather easily by a majority vote. It is far more difficult to adopt or change a constitution. State constitutions are approved or changed by a direct vote of the people. It is even more difficult to change the federal Constitution. An amendment may be proposed by a vote of two-thirds of the members of both the U.S. House of Representatives and the Senate. Alternatively, two-thirds of the state
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legislatures can call for a constitutional convention for proposing amendments. Once proposed, amendments must be approved either by three-fourths of the state legislatures or by three-fourths of the constitutional conventions called in all the states. Congress decides which method of ratification or approval is to be used. Because the people have an unusually direct voice in the approval and change of a constitution, constitutions are considered the most important source of U.S. law.
The U.S. Constitution is the supreme law of the land.
One Supreme Court justice described a constitution as a kind of yardstick against which all the other actions of government must be measured to determine whether the actions are permissible. The U.S. Constitution is the supreme law of the land. Any law or other constitution that conflicts with the U.S. Constitution is unenforceable. A state constitution plays the same role for a state: A statute passed by the Michigan legislature and signed by the governor of that state is clearly unenforceable if it conflicts with the Michigan Constitution. And so it goes for all levels of constitutions.
Constitutions tend to be short and, at the federal level and in most states, infrequently amended. Consequently, changes in the language of a constitution are uncommon. But a considerable amount of constitutional law is nevertheless developed by the courts, which are asked to determine the meaning of provisions in the documents and to decide whether other laws or government actions violate constitutional provisions. Hence, the case reporters are repositories for the constitutional law that governs the nation.
Twenty-seven amendments are appended to the U.S. Constitution. The first 10 are known as the Bill of Rights and guarantee certain basic human rights to all citizens. Included in the First Amendment to the U.S. Constitution are freedom of speech and press, rights you will understand more fully in future chapters.
The federal Constitution and the 50 state constitutions are very important when considering media law problems. All 51 of these charters contain provisions, in one form or another, that guarantee freedom of speech and freedom of the press.
The scope of protection for speech and press afforded by any given state constitution thus may be broader than that bestowed by the First Amendment.
Importantly, state constitutions can give more and greater rights to their citizens than are provided under the U.S. Constitution; they cannot, however, reduce or roll back rights given by the federal Constitution. The scope of protection for speech and press afforded by any given state constitution thus may be broader than that bestowed by the First Amendment to the U.S. Constitution. For instance, whereas obscene speech is not protected by the First Amendment (see Chapter 13), the Oregon Supreme Court held in 1987 that obscene expression is protected in that state under Article I, Section 8 of the Oregon Constitution.
8 A lawyer challenging a state statute that allegedly restricts any form of speech therefore is wise to argue before a court that the statute in question violates either or both the First Amendment and the relevant state’s constitutional provision protecting expression. Consequently, any government action that affects in any way the freedom of individuals or mass media to speak or publish or broadcast must be measured against the constitutional guarantees of freedom of expression.
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There are several reasons why a law limiting speaking or publishing might be declared unconstitutional. The law might be a direct restriction on speech or press that is protected by the First Amendment. For example, an order by a Nebraska judge that prohibited the press from publishing certain information about a pending murder trial was considered a direct restriction on freedom of the press (see Nebraska Press Association v. Stuart,

9 Chapter 11).
A criminal obscenity statute or another kind of criminal law might be declared unconstitutional because it is too vague. Under the
void for vagueness doctrine, a law will be declared unconstitutional and struck down if a person of reasonable and ordinary intelligence would not be able to tell, from looking at its terms, what speech is allowed and what speech is prohibited. Put differently, people of ordinary intelligence should not have to guess at a statute’s meaning. As the U.S. Supreme Court wrote in 2012 in a broadcast indecency case called FCC v. Fox Television Stations, Inc. (see Chapter 16 for more on both broadcast indecency and this case), “a fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.” The Court added that “this requirement of clarity in regulation . . . requires the invalidation of laws that are impermissibly vague.” Vague laws are problematic because they
don’t provide fair notice of what speech is permitted; and
can be enforced unfairly and discriminatorily because they give too much discretion (due to the vague terms) to those who enforce them (police and judges).
For instance, in September 2016 a district court judge in Florida blocked enforcement of a Florida law that required convicted sex offenders in the state to register all of their “internet identifiers.” Failing to register their “internet identifiers” amounted to a crime. The plaintiffs challenging the law said that they were confused about what counted as an “internet identifier” and that they would forgo speech on the Internet if the law took effect rather than risk being punished. In Doe v. Swearingen, Judge Robert Hinkle agreed and said the definition of “internet identifier” in the law was “hopelessly vague” and “chills speech protected by the First Amendment.” The judge said the law’s definition of the term, arguably already broader than ordinary usage of “internet identifier” to begin with, started by “saying what the term ‘includes, but is not limited to.’” That phrasing in effect gave the term “internet identifier” an “unlimited description,” the judge wrote, leaving sex offenders “guessing at what must be disclosed.”
A statute might also be declared unconstitutional because it violates what is known as the
overbreadth doctrine. A law is overbroad if it does not aim only at problems within the allowable area of legitimate government control but also sweeps within its ambit or scope other activities that constitute an exercise of protected expression. For instance, in 2010 the U.S. Supreme Court in United States v. Stevens

10 declared as unconstitutionally overbroad a federal statute that criminalized the commercial creation, sale or possession of certain depictions of animal cruelty. The statute defined a depiction of
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animal cruelty as one “in which a living animal is intentionally maimed, mutilated, tortured, wounded or killed,” provided that such conduct is illegal under a federal or state law where the creation, sale or possession of the depiction occurs. In holding the law overbroad, Chief Justice John Roberts wrote that it “create[s] a criminal prohibition of alarming breadth. To begin with, the text of the statute’s ban on a ‘depiction of animal cruelty’ nowhere requires that the depicted conduct be cruel. That text applies to ‘any . . . depiction’ in which ‘a living animal is intentionally maimed, mutilated, tortured, wounded, or killed.’ . . . [M]aimed, mutilated, [and] tortured’ convey cruelty, but ‘wounded’ or ‘killed’ do not suggest any such limitation.”
The overbreadth doctrine was used in 2016 by the North Carolina Supreme Court to declare unconstitutional a cyberbullying law that made it a crime “for any person to use a computer or computer network to . . . [p]ost or encourage others to post on the Internet private, personal, or sexual information pertaining to a minor” “[w]ith the intent to intimidate or torment a minor.” In State of North Carolina v. Bishop, the state Supreme Court said that it was “undisputed” that protecting children from online bullying was a compelling governmental interest. But the law swept up far more protected speech than was necessary to serve that interest, the court ruled. For instance, the law criminalized posting “personal” information, and the state suggested personal meant “[o]f or relating to a particular person,” a definition the court called “especially sweeping.” As the court wrote, “Such an interpretation would essentially criminalize posting any information about any specific minor if done with the requisite intent.”
HONK IF YOU LOVE FREE SPEECH AND HATE OVERBROAD LAWS
In 2011, the Supreme Court of Washington state declared unconstitutionally overbroad a Snohomish County ordinance that prohibited honking a car horn for a purpose other than public safety or originating from an officially sanctioned parade or public event. The case of Washington v. Immelt

11 involved Helen Immelt, who intentionally sounded a car horn at length in front of a neighbor’s house in the early morning hours because she was mad at the neighbor. Does honking a horn constitute speech? The Supreme Court of Washington invoked the symbolic speech doctrine (see pages 48–49) and found that “conduct such as horn honking may rise to the level of speech when the actor intends to communicate a message and the message can be understood in context.” Examples of horn honking as speech, the court wrote, include “a driver of a carpool vehicle who toots a horn to let a coworker know it is time to go, a driver who enthusiastically responds to a sign that says ‘honk if you support our troops,’ wedding guests who celebrate nuptials by sounding their horns, and a motorist who honks a horn in support of an individual picketing on a street corner.”
In striking down the ordinance, the court wrote that “a law is overbroad if it ‘sweeps within its prohibitions’ a substantial amount of constitutionally
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protected conduct.” Although emphasizing that “local governments maintain a legitimate interest in protecting residents from excessive and unwelcome noise,” the Snohomish ordinance simply went too far because it “prohibits a wide swath of expressive conduct in order to protect against a narrow category of public disturbances,” such as all of the examples noted earlier. The court suggested that a better and more narrowly written ordinance—one confined, perhaps, to horn honking intended to annoy or harass—might be constitutional.
EXECUTIVE ORDERS AND ADMINISTRATIVE RULES
The final source of American law has two streams. First are orders issued by elected officers of government, often called executive orders. Second are rules generated by the administrative agencies of government, at the federal, state and local levels.
Government executives—the U.S. president, governors, mayors, county executives, village presidents—all have more or less power to issue rules of law, sometimes referred to as executive orders or declarations. This power is normally defined by the constitution or the charter that establishes the office, and it varies widely from city to city or state to state. In some instances the individual has fairly broad powers; in others the power is sharply confined. For instance, in 2016 former President Barack Obama issued an executive order establishing the Federal Privacy Council to serve as “the principal interagency forum to improve the government privacy practices of agencies and entities acting on their behalf.” Such declarations are possible so long as they are properly within the delegated powers held by the executive. An order from an executive who exceeds his or her power can be overturned by the legislature (the mayor’s order can be changed or vacated by the city council, for example) or by a court. Such overstepping by a president would violate the separation of powers among the legislative, judicial and executive branches of government.
A more substantial part of U.S. law is generated by myriad administrative agencies that exist in the nation today, agencies that first began to develop in the latter part of the 19th century. By that time in the country’s history, Congress was being asked to resolve questions going far beyond such matters as budgets, wars, treaties and the like. Technology created new kinds of problems for Congress to resolve. Many such issues were complex and required specialized knowledge and expertise that the representatives and senators lacked and could not easily acquire, had they wanted to. Specialized federal administrative agencies were therefore created to deal with these problems.
Hundreds of such agencies now exist at both federal and state levels. Each agency undertakes to deal with a specific set of problems too technical or too large for the legislative branch to handle. Perhaps the most relevant
administrative agency for purposes of media law, along with the Federal Trade Commission (FTC; see Chapter 15), is the Federal Communications Commission (FCC), created by Congress in 1934. It regulates broadcasting and other telecommunication in the United States, a job that Congress has attempted only sporadically. Its members must be citizens of the United States and are appointed by the president. The single stipulation is that at any one time no more than three of the five individuals on the commission can be from the same political party. The Senate must confirm the appointments.
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Congress has sketched the framework for the regulation of broadcasting in the Federal Communications Act of 1934 and subsequent amendments to this statute. This legislation is used by the FCC as its basic regulatory guidelines. But the agency generates much law on its own as it interprets the congressional mandates, and uses its considerable authority to generate rules and regulations. Today, the FCC is involved with issues ranging from net neutrality (see Chapter 3) to indecency on broadcast television (see Chapter 16).
People dissatisfied with an action by an agency can attempt to have it modified by asking the legislative body that created and funds the agency—Congress, for example, when considering the FCC—to change or overturn the action. In the 1980s when the FTC made several aggressive pro-consumer rulings, Congress voided these actions because members disagreed with the extent of the rulings. More commonly the actions of an agency will be challenged in the courts. But courts have limited power to review decisions made by administrative agencies and can overturn such a ruling in only these limited circumstances:
But courts have limited power to review decisions made by administrative agencies.
1.
If the original act that established the commission or agency is unconstitutional.
2.
If the commission or agency exceeds its authority.
3.
If the commission or agency violates its own rules.
4.
If there is no evidentiary basis whatsoever to support the ruling.
The reason for these limitations is simple: These agencies were created to bring expert knowledge to bear on complex problems, and the entire purpose for their creation would be defeated if judges with no special expertise in a given area could reverse an agency ruling merely because they had a different solution to a problem.
The case reporters contain some law created by the administrative agencies, but the reports that these agencies themselves publish contain much more such law. Today, you can look up recent opinions and rulings of both the FCC and FTC at their respective Web sites, located at http://www.fcc.gov and http://www.ftc.gov.
There are other sources of American law, but the sources just discussed—common law, law of equity, statutory law, constitutional law, executive orders and rules and regulations by administrative agencies—are the most important and are of most concern in this book. First Amendment problems fall under the purview of constitutional law. Libel and invasion of privacy are matters generally dealt with by common law and equity law. Obscenity laws in this country are statutory provisions (although this fact is frequently obscured by the hundreds of court cases in which judges attempt to define the meaning of obscenity). And of course the regulation of broadcasting and advertising falls primarily under the jurisdiction of administrative agencies.
SUMMARY
There are several important sources of American law. Common law is the oldest source of our law, having developed in England more than 700 years ago. Fundamental to common law is the concept that judges should look to the past and follow earlier court rulings, called precedents. Stare decisis (let the decision stand) is a key concept. But judges have developed the means to change or adapt common law by modifying, distinguishing or
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overruling precedent case law. Common law, a type of judge-made law, is not written in a law book but is collected in volumes of case reporters that contain the decisions, known as opinions, handed down by courts. Each case is given its own legal identity through a system of numbered citations.
Equity law is the second source of American law. The rules and procedures of equity are far more flexible than those of common law and permit a judge (equity cases are never heard before a jury) to fashion a solution to unique or unusual problems. A court is permitted under equity law to restrain an individual or a corporation or even a government from taking an action by issuing a judicial decree such as an injunction. Under common law a court can attempt to compensate the injured party only for the damage that results from the action.
A great volume of law is generated by legislative bodies. This legislation, called statutory law, is the third important source of American law. All criminal laws are statutes. Statutes usually deal with problems that affect great numbers of people, and statutes can anticipate problems, whereas common law cannot. Statutes are collected in codes or statute books. Courts become involved when they are called on to interpret the meaning of the words and phrases contained in a statute, a process known as statutory construction.
Constitutions, the fourth source of law, take precedence over all other American law. The U.S. Constitution is the supreme law of the land. A state constitution actually can provide more rights to citizens of a state than the U.S. Constitution, but it cannot reduce or limit U.S. constitutional rights. Other laws, whether they spring from common law, equity, legislative bodies or administrative agencies, cannot conflict with the provisions of the Constitution. Courts interpret the meaning of the provisions of our constitutions (one federal and 50 state constitutions) and through this process often make these seemingly rigid legal prescriptions adaptable to contemporary problems.
Executives (presidents and governors) can issue orders that carry the force of law. And there are thousands of administrative agencies, boards and commissions in the nation that produce rules and regulations. This administrative law usually deals with technical and complicated matters requiring levels of expertise that members of traditional legislative bodies do not normally possess. Members of these agencies and commissions are usually appointed by presidents or by governors or mayors, and the agencies are supervised and funded by legislative bodies. Their tasks are narrowly defined, and their rulings, while they carry the force of law, can always be appealed.
THE JUDICIAL SYSTEM
This section introduces the court system in the United States. Since the judicial branch of our three-part government is the field on which most of the battles involving communications law are fought, an understanding of the judicial system is essential.
It is technically improper to talk about the American judicial system. There are 52 different judicial systems in the United States, one for the federal government and one for each of the 50 states, plus the District of Columbia. While each system is somewhat
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different from the others, the similarities among the 52 systems are much more important than the differences. Each of the systems is divided into two distinct sets of courts—trial courts and appellate courts. Each judicial system is established by a constitution, federal or state. In each system the courts act as the third branch of a triumvirate of government: a legislative branch, which makes the law; an executive branch, which enforces the law; and a judicial branch, which interprets the law.
FACTS VERSUS THE LAW
Common to all judicial systems is the distinction between trial courts and appellate courts. Each level of court has its own function: Basically,
trial courts are fact-finding courts and
appellate courts are law-reviewing courts. Trial courts are the courts of first instance, the place where nearly all cases begin. Juries sometimes sit in trial courts (a trial held before a judge and without a jury is known as a bench trial) but never in appellate courts. Trial courts are empowered to consider both the facts and the law in a case. Appellate courts normally consider only the law. The difference between facts and law is significant. The facts are what happened. The law is what should be done because of the facts.
The facts are what happened. The law is what should be done because of the facts.
The difference between facts and law can be emphasized by looking at an imaginary libel suit that might result if the River City Sentinel published a story about costs at the Sandridge Hospital, a privately owned medical facility.
Ineffective Medications Given to Ill, Injured
SANDRIDGE HOSPITAL OVERCHARGING PATIENTS ON PHARMACY COSTS
Scores of patients at the Sandridge Hospital have been given ineffective medications, a three-week investigation at the hospital has revealed. In addition, many of those patients were overcharged for the medicine they received.
The Sentinel has learned that many of the prescription drugs sold to patients at the hospital had been kept beyond the manufacturer’s recommended storage period.
Many drugs stored in the pharmacy (as late as Friday) had expiration dates as old as six months ago. Drug manufacturers have told the Sentinel that medication used beyond the expiration date, which is stamped clearly on most packages, may not have the potency or curative effects that fresher pharmaceuticals have.
Hospital representatives deny giving patients any of the expired drugs, but sources at the hospital say it is impossible for administrators to guarantee that none of the dated drugs were sold to patients.
In addition, the investigation by the Sentinel revealed that patients who were sold medications manufactured by Chaos Pharmaceuticals were charged on the basis of 2017 price lists despite the fact that the company lowered prices significantly in 2018.
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The Sandridge Hospital sues the newspaper for libel. When the case gets to court, the first thing that must be done is to establish what the facts are—what happened. The hospital and the newspaper each will present evidence, witnesses and arguments to support its version of the facts. Several issues have to be resolved. In addition to the general questions of whether the story has been published and whether the hospital has been identified in the story, the hospital will have to supply evidence that its reputation has been injured, that the story is false and that the newspaper staff has been extremely careless or negligent in the publication of the report. The newspaper will seek to defend itself by attempting to document the story or raise the defense that the report was privileged in some way. Or the newspaper may argue that even if the story is mistaken, it was the result of an innocent error; the newspaper staff was not negligent when it wrote and published the story.
All this testimony and evidence establishes the factual record—what actually took place at the hospital and in preparation of the story. When there is conflicting evidence, the jury decides whom to believe (in the absence of a jury, the judge makes the decision). Suppose the hospital is able to prove by documents that pharmacists in fact had removed the dated medicine from their shelves and stored it to return to the manufacturers. Further, the hospital can show that while it did accidentally overcharge some patients for Chaos products, it quickly refunded the excess charge to these patients. Finally, attorneys for the hospital demonstrate that the story was prepared by an untrained stringer for the newspaper who used but a single source—a pharmacist who had been fired by Sandridge for using drugs while on the job—to prepare the story and failed to relate to readers the substance of the evidence (which the reporter had when the story was published) presented by the hospital in court. In such a case, a court would likely rule that the hospital had carried its burden of proof and that no legitimate defense exists for the newspaper. Therefore, the hospital wins the suit. If the newspaper is unhappy with the verdict, it can appeal.
The appellate court does not establish a new factual record. No more testimony is taken.
In an appeal, the appellate court does not establish a new factual record. No more testimony is taken. No more witnesses are called. The factual record established by the jury or judge at the trial stands. The appellate court has the power in some kinds of cases (libel suits that involve constitutional issues, for example) to examine whether the trial court properly considered the facts in the case. But normally it is the task of the appellate court to determine whether the law has been applied properly in light of the facts established at the trial. Perhaps the appellate court might rule that even with the documentary evidence the hospital presented in court, this evidence failed to prove that the news story was false. Perhaps the judge erred in allowing certain testimony into evidence or refused to allow a certain witness to testify. Or maybe the trial court judge gave the jury the wrong set of instructions for libel. That would be a clear error of law. Nevertheless, in reaching an opinion the appellate court considers only the law; the factual record established at the trial stands.
What if new evidence is found or a previously unknown witness comes forth to testify? If the appellate court believes that the new evidence is important, it can order a new trial. However, the court itself does not hear the evidence. These facts are developed at a new trial.
There are other differences between the roles and procedures of trial and appellate courts. Juries are never used by appellate courts; a jury may be used in a trial court
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proceeding. The judge normally sits alone at a trial; appeals are heard by a panel of judges, usually three or more. Cases always begin at the trial level and then proceed to the appellate level. Although the appellate courts appear to have the last word in a legal dispute, that is not always the case. Usually cases are returned to the trial court for resolution with instructions from the appeals court to the trial judge to decide the case, keeping this or that factor in mind. This is called remanding the case to the trial court. In such a case the trial judge can often do what he or she wants.
In the discussion that follows, the federal court system and its methods of operating are considered first, and then some general observations about state court systems are given, based on the discussion of the federal system.
THE FEDERAL COURT SYSTEM
Congress has the authority to abolish every federal court in the land, save the Supreme Court of the United States. The U.S. Constitution calls for but a single federal court, the Supreme Court. Article III, Section 1 states: “The judicial power of the United States shall be vested in one Supreme Court.” The Constitution also gives Congress the right to establish inferior courts if it deems these courts to be necessary. And Congress has, of course, established a fairly complex system of courts to complement the Supreme Court.
The jurisdiction of the federal courts is also outlined in Article III of the Constitution. The jurisdiction of a court is its legal right to exercise its authority. Briefly, federal courts can hear the following cases:
1.
Cases that arise under the U.S. Constitution, U.S. law and U.S. treaties
2.
Cases that involve ambassadors and ministers, duly accredited, of foreign countries
3.
Cases that involve admiralty and maritime law
4.
Cases that involve controversies when the United States is a party to the suit
5.
Cases that involve controversies between two or more states
6.
Cases that involve controversies between a state and a citizen of another state (the 11th Amendment to the Constitution requires that a state give its permission before it can be sued)
7.
Cases that involve controversies between citizens of different states
While special federal courts have jurisdiction that goes beyond this broad outline, these are the circumstances in which a federal court may normally exercise its authority. Of the seven categories, Categories 1 (known as federal question jurisdiction) and 7 (known as diversity jurisdiction) account for most of the cases tried in federal court. For example, disputes that involve violations of the myriad federal laws and disputes that involve constitutional rights such as the First Amendment are heard in federal courts under federal question jurisdiction. Disputes between citizens of different states—a diversity of citizenship matter—are heard in federal courts provided that the amount at stake is more than $75,000. It is very common, for example, for libel suits and invasion-of-privacy suits against publishing companies to start in federal courts rather than in state courts. If a citizen of Arizona is libeled by the Los Angeles Times, the case will very
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likely be tried in a federal court in the state of Arizona rather than in a state court in either Arizona or California. Arizona law will be applied. The case will most often be heard where the legal wrong, in this case the injury to reputation by libel, occurs.
The Supreme Court
The Supreme Court of the United States is the oldest federal court, having operated since 1789. The Constitution does not establish the number of justices who sit on the high court. That task is left to Congress. Since 1869 the Supreme Court has comprised the chief justice of the United States and eight associate justices. (Note the title: not chief justice of the Supreme Court, but chief justice of the United States.) In 2017, the chief justice was John Roberts, who was nominated by former President George W. Bush and became just the 17th chief justice in the court’s history in 2005. The first Hispanic to take the oath of office as an associate justice was Sonia Sotomayor in 2009; it also marked the first time that an oath-taking ceremony at the Supreme Court was open to broadcast coverage.
Since 1869, the Supreme Court has comprised the chief justice of the United States and eight associate justices.
Shortly after taking office in 2017, President Donald Trump nominated Neil Gorsuch to the U.S. Supreme Court to fill the position vacated by the death of conservative-leaning Justice Antonin Scalia in February 2016. This put the nomination in the hands of the U.S. Senate, which must give its “advice and consent” on any Supreme Court nominee. Gorsuch had been serving as a federal judge on the 10th U.S. Circuit Court of Appeals. The Republican-controlled Senate ultimately confirmed Gorsuch’s nomination later in 2017 by a vote of 54–45 that closely divided along party lines. Gorsuch, who was only 49 years old at the time of his confirmation, could serve on the court for decades.
The Supreme Court exercises both original and appellate jurisdictions. Under its
original jurisdiction, which is established in the Constitution, the Supreme Court is the first court to hear a case and acts much like a trial court. The Supreme Court has original jurisdiction in disputes between two or more states, with these scenarios typically involving battles over land or water rights. In brief, original jurisdiction is for the resolution of claims between and among the states, not claims by private entities within states. Sometimes the justices will hold a hearing to ascertain the facts; more commonly they will appoint what is called a special master to discern the facts and make recommendations. For example, in 2016 the Supreme Court declined to exercise its original jurisdiction authority over a proposed lawsuit by the states of Nebraska and Oklahoma against their neighboring state of Colorado. Nebraska and Oklahoma alleged that a 2012 amendment to the Colorado constitution that legalized the recreational use of marijuana in the Centennial State violated federal anti-drug laws and resulted in increased drug trafficking and transportation in their own states. By refusing to exercise original jurisdiction over the dispute, the Supreme Court essentially rejected the claims of Nebraska and Oklahoma.
The primary task of the Supreme Court is as an appellate tribunal, hearing cases already decided by lower federal and state courts of last resort. The appellate jurisdiction of the Supreme Court is established by Congress, not by the Constitution. A case will come before the Supreme Court of the United States for review in one of two principal ways: on a direct appeal or by way of a writ of certiorari. The certification process is a third way for a case to get to the high court, but this process is rarely used today.
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In some instances a litigant has an apparent right, guaranteed by federal statute, to appeal a case to the Supreme Court. This is called
direct appeal. For example, if a federal appeals court declares that a state statute violates the U.S. Constitution or conflicts with a federal law, the state has a right to appeal this decision to the Supreme Court. But this is only an apparent right, because since 1928 the Supreme Court has had the right to reject such an appeal “for want of a substantial federal question.” This is another way of the court saying, “We think this is a trivial matter.” Almost 90 percent of all appeals that come to the Supreme Court via the direct appeal process are rejected.
The much more common way for a case to reach the nation’s high court is via a
writ of certiorari. No one has the right to such a writ. It is a discretionary order issued by the court when it feels that an important legal question has been raised. Litigants using both the federal court system and the various state court systems can seek a writ of certiorari. The most important requirement that must be met before the court will even consider issuing a writ is that a petitioner first exhaust all other legal remedies. Although there are a few exceptions, this generally means that if a case begins in a federal district court (the trial-level court), the
petitioner must first seek a review by a U.S. Court of Appeals before bidding for a writ of certiorari. The writ can be sought if the Court of Appeals refuses to hear the case or sustains the verdict against the petitioner. All other legal remedies have then been exhausted. In state court systems every legal appeal possible must be made within the state before seeking a review by the U.S. Supreme Court. This usually means going through a trial court, an intermediate appeals court and finally the state supreme court.
When the Supreme Court grants a writ of certiorari, it is ordering the lower court to send the records to the high court for review. Any litigant can petition the court to grant a writ, and the high court receives more than 7,500 petitions each year (a year for the Supreme Court is known as a term, with a new term starting on the first Monday in October and lasting usually through late June of the following year). Each request is considered by the entire nine-member court. If four justices think the petition has merit, the writ will be granted. This is called the
rule of four. But the court rejects the vast majority of petitions it receives. Recently only 75 to 80 cases a year are accepted. Workload is the key factor. Certain important issues must be decided each term, and the justices do not have the time to consider thoroughly most cases for which an appeal is sought.
During the Supreme Court’s 2015 term, which ran from October 2015 though June 2016, the Court considered only 63 cases that were fully briefed and argued before it. That is the lowest number in many decades, due in part to the death of Justice Antonin Scalia in February 2016 that left the Court rendering several four-to-four tied decisions. Such four-to-four rulings simply affirm the lower-court ruling below rather than break new ground. As legal scholar Erwin Chemerinsky wrote in the ABA Journal, it “was the year that the law did not change. It is hard to remember a Supreme Court term where the decisions did less to change the law.”
The Supreme Court is more likely to hear a case if there is a
split of authority (a disagreement among the lower courts) on a particular issue. In other words, if one federal appellate court concludes that Law A is not constitutional, but a different federal appellate court finds that Law A is constitutional, that would be a split of authority, and the high court might take the case so as to provide uniformity across the nation on Law A.
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One final point: The Supreme Court of the United States is not as interested in making certain that justice has been served as it is in making certain that the law is developing properly. A petitioner seeking redress through the high court may have a completely valid argument that a lower court has ignored an important precedent in ruling against him or her. But if the law on this point has been established, the Supreme Court is very likely to reject the petition and instead use this time to examine and decide a new or emerging legal issue.
LEARNING MORE ABOUT THE U.S. SUPREME COURT
To find out more about the U.S. Supreme Court, ranging from its history to biographies of the nine current justices to its docket and recent opinions, you can visit the high court’s official Web site at http://www.supremecourt.gov and peruse its many links. In addition, the Legal Information Institute at Cornell University Law School has an excellent online database at https://www.law.cornell.edu/supct/supremes.htm that features a wealth of information about the high court, its justices and its decisions.
Hearing a Case  The operation of the Supreme Court is unique in many ways, but by gaining an understanding of how the high court does its business, a reader will also gain an understanding of how most appellate courts function.
Once the Supreme Court agrees to hear a case, the heaviest burden falls upon the attorneys for the competing parties. The oral argument—the presentation made by the attorneys to the members of the court—will be scheduled. The parties (their attorneys) are expected to submit what are called
legal briefs—their written legal arguments—for the members of the court to study before the oral hearing. The party that has taken the appeal to the Supreme Court—the
appellant—must provide the high court with a complete record of the lower-court proceedings: the transcripts from the trial, the rulings by the lower courts and other relevant material.
Arguing a matter all the way to the Supreme Court takes a long time, often as long as five years (sometimes longer) from initiation of the suit until the court gives its ruling. James Hill brought suit in New York in 1953 against Time, Inc., for invasion of privacy. The U.S. Supreme Court made the final ruling in the case in 1967 (Time, Inc. v. Hill).
12 Even at that the matter would not have ended had Hill decided to go back to trial, which the Supreme Court said he must do if he wanted to collect damages. He chose not to.
After the nine justices study the briefs (or at least summaries provided by their law clerks), the
oral argument is held. Attorneys are strictly limited as to how much they may say. Each side is given a brief amount of time, usually no more than 30 minutes to an hour, to present its arguments. The attorneys often are interrupted by the justices, who ask them questions and pose hypothetical situations. One current justice, Clarence Thomas, is known for not asking questions, but most of the justices verbally
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spar in collegial fashion with attorneys to test and challenge their arguments. There are no witnesses who testify before the Supreme Court—only the attorneys who argue the case. You can listen to oral arguments in many recent Supreme Court cases online at The Oyez Project Web site at http://www.oyez.org. In important cases, “friends of the court” (
amici curiae) are allowed to present briefs and to participate for 30 minutes in the oral arguments. For example, the American Civil Liberties Union often seeks the friend status in important civil rights cases. Likewise, the Reporters Committee for Freedom of the Press (http://www.rcfp.org) may file a friend-of-the-court brief in cases affecting journalists’ rights, even though it is not a party in the cases. In a nutshell, a friend-of-the-court is not a party to the case but holds a vested interest or concern with its outcome.
Deciding a Case  After oral argument (which occurs in open court with visitors welcome), the members of the high court move behind closed doors to undertake their deliberations. No one is allowed in the discussion room except members of the court itself—no clerks, no bailiffs, no secretaries. The discussion, which often is held several days after the arguments are completed, is opened by the chief justice. Discussion time is limited, and by being the first speaker the chief justice is in a position to set the agenda, so to speak, for each case—to raise what he or she thinks are the key issues. Next to speak is the justice with the most seniority, and after him or her, the next most senior justice. The court will have many items or cases to dispose of during one conference or discussion day; consequently, brevity is valued. Each justice has just a few moments to state his or her thoughts on the matter. After discussion, a tentative vote is taken and recorded by each justice in a small, hinged, lockable docket book. In the voting procedure the junior justice votes first; the chief justice, last.
TYPES OF SUPREME COURT OPINIONS
1.
Opinion of the court (majority opinion)
2.
Concurring opinion
3.
Dissenting opinion (minority opinion)
4.
Plurality opinion
5.
Per curiam opinion (unsigned opinion)
6.
Memorandum order
Under the U.S. legal system, which is based so heavily on the concept of court participation in developing and interpreting the law, a simple yes-or-no answer to any legal question is hardly sufficient. More important than the vote, for the law if not for the
litigant, are the reasons for the decision. Therefore the Supreme Court and all courts that deal with questions of law prepare what are called
opinions, in which the reasons, or rationale, for the decision are given. One of the justices voting in the majority is asked
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to write what is called the
court’s opinion. If the chief justice is in the majority, he or she selects the author of the opinion. If not, the senior associate justice in the majority makes the assignment. Self-selection is always an option.
Opinion writing is difficult. Getting five or six or seven justices to agree to yes or no is one thing; getting them to agree on why they say yes or no is something else. The opinion must therefore be carefully constructed. After it is drafted, it is circulated among all court members, who make suggestions or even draft their own opinions. The opinion writer may incorporate as many of these ideas as possible into the opinion to retain its majority backing. Although all this is done in secret, historians have learned that rarely do court opinions reflect solely the work of the writer. They are more often a brokered conglomeration of paragraphs, pages and sentences from the opinions of several justices.
A justice who writes a concurring opinion may agree with the outcome of the decision, but does so for reasons different from those expressed in the majority opinion.
A justice in agreement with the majority who cannot be convinced to join in backing the court’s opinion has the option of writing what is called a
concurring opinion. A justice who writes a concurring opinion may agree with the outcome of the decision, but does so for reasons different from those expressed in the majority opinion. Or the concurring justice may want to emphasize a specific point not addressed in the majority opinion.
Justices who disagree with the majority can also write an opinion, either individually or as a group, called a
dissenting opinion. Dissenting opinions are very important. Sometimes, after the court has made a decision, it becomes clear that the decision was not proper. The issue thus may be litigated again by other parties who use the arguments in the dissenting opinion as the basis for a legal claim. If enough time passes, if the composition of the court changes sufficiently or if the court members change their minds, the high court can swing to the views of the original dissenters.
An opinion in which five justices cannot agree on a single majority opinion—there is no opinion of the court—but that is joined by more justices than any other opinion in the case is known as a
plurality opinion. For instance, imagine that four justices agree with a particular outcome in a case for reason A. Two other justices may also agree with that same outcome, but for reason B, while three other justices do not agree with the outcome at all. In this split of 4-2-3 among the justices, the four-justice opinion constitutes the plurality. This was precisely the result in a 2012 U.S. Supreme Court decision called United States v. Alvarez in which the Court declared unconstitutional, in violation of the First Amendment right of free speech, the Stolen Valor Act. The Stolen Valor Act made it a crime to falsely claim to have won a Congressional Medal of Honor (see pages 66–67 discussing the Stolen Valor Act in more detail). Four of the nine justices concluded that the Stolen Valor Act violated the freedom of speech because it did not pass constitutional muster under the strict scrutiny standard of review (see pages 72–73 discussing strict scrutiny), while two justices declared the law violated the freedom of speech because it did not pass the
intermediate scrutiny standard of review (see pages 114–118 discussing intermediate scrutiny). In other words, six total justices found the law was unconstitutional, but four did so for one reason and two did so for a different reason. Finally, three justices in Alvarez dissented because they found the Stolen Valor Act was perfectly acceptable and they would have upheld it.
Finally, it is possible for a justice to concur with the majority in part and to dissent in part as well. That is, the justice may agree with some of the things the majority says
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but disagree with other aspects of the ruling. Such splits thwart the orderly development of the law. They often leave lawyers and other interested parties at a loss when trying to predict how the court might respond in the next similar case that comes along.
The Supreme Court can dispose of a case in two other ways. A
per curiam (by the court) opinion can be prepared. This is an unsigned opinion drafted by one or more members of the majority and published as the court’s opinion. Per curiam opinions are not common, but neither are they rare. For instance, the U.S. Supreme Court issued a two-paragraph per curiam opinion—such brevity is another common characteristic of per curiam opinions—in a 2012 case called American Tradition Partnership, Inc. v. Bullock.
13 In Bullock, the Court reversed a decision by the Montana Supreme Court that had upheld a state statute restricting corporate expenditures supporting or opposing candidates and political parties. The per curiam opinion found the Montana law violated the court’s 2010 precedent on this issue from Citizens United v. Federal Elections Commission (see both earlier this chapter and pages 136–139 for more on Citizens United). Four justices filed a similarly short dissent. The names of the four dissenting justices (all members of the Court’s so-called liberal wing) appeared on the case, however, thus indicating that the unsigned or anonymous per curiam opinion must have been written by one of the five other justices from the Court’s so-called conservative wing. This is another important aspect of per curiam opinions—while per curiam decisions themselves are not attributed to any specific justice, concurring and dissenting opinions are signed by identified justices.
Finally, the high court can dispose of a case with a
memorandum order—that is, it just announces the vote without giving an opinion. Or the order cites an earlier Supreme Court decision as the reason for affirming or reversing a lower-court ruling. In cases with little legal importance and in cases in which the issues were really resolved earlier, the court saves a good deal of time by just announcing its decision.
One final matter in regard to voting remains for consideration: What happens in case of a tie vote? When all nine members of the court are present, a tie vote is technically impossible. However, if there is a vacancy on the court, only eight justices hear a case. Even when the court is full, a particular justice may disqualify himself or herself from hearing a case. As discussed earlier, when a vote ends in a tie, the decision of the lower court is affirmed. No opinion is written. It is as if the Supreme Court had never heard the case.
During the circulation of an opinion, justices have the opportunity to change their vote. The number and membership in the majority may shift. It is not impossible for the majority to become the minority if one of the dissenters writes a particularly powerful dissent that attracts support from members originally opposed to his or her opinion. This event is probably very rare. Nevertheless, a vote of the court is not final until it is announced on decision day, or opinion day. The authors of the various opinions—court opinions, concurrences and dissents—publicly read or summarize their views. Printed copies of these documents are handed out to the parties involved and to the press, and are quickly available online.
Courts have no real way to enforce decisions and must depend on other government agencies for enforcement of their rulings. The job normally falls to the executive
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branch. If perchance the president decides not to enforce a Supreme Court ruling, no legal force exists to compel the president to do so.
People believe in the judicial process; they have faith that what the courts do is probably right.
At the same time, there is one force that usually works to see that court decisions are carried out: It is that vague force called public opinion or what political scientists call “legitimacy.” Most people believe in the judicial process; they have faith that what the courts do is probably right. This does not mean that they always agree with court decisions, but they do agree that the proper way to settle disputes is through the judicial process. Jurists help engender this spirit or philosophy by acting in a temperate manner. The Supreme Court, for example, has developed means that permit it to avoid having to answer highly controversial questions in which an unpopular decision could weaken its perceived legitimacy. The justices might call the dispute a political question, a
nonjusticiable matter, or they may refuse to hear a case on other grounds. When the members of the court sense that the public is ready to accept a ruling, they may take on a controversial issue. School desegregation is a good example. In 1954 the Supreme Court ruled in Brown v. Board of Education

14 that segregated public schools violated the U.S. Constitution. The foundation for this ruling had been laid by a decade of less momentous desegregation decisions and executive actions. By 1954 the nation was prepared for the ruling, and it was generally accepted, even in many parts of the South. The legitimacy of a court’s decisions, then, often rests upon prudent use of the judicial power.
Other Federal Courts
The Supreme Court of the United States is the most visible, perhaps the most glamorous (if that word is appropriate), of the federal courts. But it is not the only federal court nor even the busiest. There are two lower echelons of federal courts, plus various special courts, within the federal system. These special courts, such as the U.S. Court of Military Appeals, U.S. Tax Court and so forth, were created by Congress to handle special kinds of problems.
Most federal cases begin and end in one of the 94 U.S. District Courts located across the nation, in Puerto Rico and in various U.S. territories. In 2017, the district courts were staffed with 677 authorized judgeships (in 2017, however, there were more than 100 vacancies at the district court level), a figure that Congress can vote to increase or decrease. In addition to these authorized U.S. District Court judges (known as “Article III” judges), by 2017 there were more than 530 federal magistrate judges. Federal magistrate judges are appointed for eight-year terms by a federal district court to handle some matters (initial proceedings in criminal cases, for instance) and certain cases delegated to them by the district court judges or with the consent of the parties (magistrate judges cannot, however, preside over felony criminal trials).
District courts are the trial courts of the federal court system, hearing both civil and criminal matters. Each state has at least one federal district court, with more populous states divided into two or more districts, leading to the total of 94 U.S. judicial districts. Pennsylvania, for instance, has three districts (western, middle and eastern), as does Florida (northern, middle and southern).
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At the intermediate appellate level in the federal judiciary there are 13 circuits of the U.S. Court of Appeals, with 179 authorized judgeships in 2017 (twenty of those appellate judgeships were vacant in 2017). These courts were created by the Federal Judiciary Act of 1789. Until 1948 these courts were called circuit courts of appeal, a reflection of the early years of the republic when the justices of the Supreme Court “rode the circuit” and presided at the courts-of-appeal hearings. While the title circuit courts of appeal is officially gone, the nation is still divided into 11 numbered circuits, each of which is served by one court (see Figure 1.2).
The 12th and 13th circuits are unnumbered. One is the court of appeals for the District of Columbia. This is a very busy court because it hears most of the appeals from decisions made by federal administrative agencies. The 13th is the court of appeals for the Federal Circuit, a court created by Congress in 1982 to handle special kinds of appeals. This court is specially empowered to hear appeals from patent and trademark decisions of U.S. District Courts and other federal agencies such as the Board of Patent Appeals. It also hears appeals from rulings by the U.S. Claims Court, the U.S. Court of International Trade, the U.S. International Trade Commission, the Merit Systems Protection Board and from a handful of other special kinds of rulings. Congress established this court to try to develop a uniform, reliable and predictable body of law in each of these very special fields.
FIGURE 1.2
Circuits 1 through 11 comprise the 50 states and the multiple U.S. territories.
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The 12 regional federal courts of appeal (the 11 numbered circuits, plus the District of Columbia circuit) hear appeals from the federal district courts located within them, as well as appeals from decisions of federal administrative agencies. The courts are the last stop for 95 percent of all cases in the federal system. The number of appellate judges in each circuit varies, depending upon geographic size and caseload. The 9th U.S. Circuit Court of Appeals, which sweeps up nine western states as well as the Territory of Guam and the Commonwealth of the Northern Mariana Islands, is the largest and busiest circuit. There occasionally are moves to break up the 9th Circuit, which is perceived as too large (and too liberal by some conservatives). Typically, a panel of three judges will hear a case. In unusual cases, a larger panel of judges, usually 11, will hear the appeal. When this happens, the court is said to be
sitting en banc. A litigant who loses an appeal heard by a three-judge panel can ask for a rehearing by the entire court. This request is not often granted.
The ABA Journal recently awarded the 6th U.S. Circuit Court of Appeals with the somewhat dubious distinction of becoming the most overruled appellate court in the country, edging out the 9th Circuit. During a seven-year stretch, the U.S. Supreme Court overruled slightly more than 81 percent of the 6th Circuit opinions that it considered. Put differently, about four out of every five of the 6th Circuit opinions that the Supreme Court considered were reversed. The 6th Circuit includes the states of Kentucky, Michigan, Ohio and Tennessee.
Federal Judges
All federal judges, other than magistrate judges, are appointed for life terms under Article III of the U.S. Constitution by the president, with the advice and consent of the Senate. The only way a federal judge can be removed is by
impeachment. Eleven federal judges have been impeached: Seven were found guilty by the Senate, and the other four were acquitted. Impeachment and trial is a long process and one rarely undertaken.
Political affiliation plays a distinct part in the appointment of federal judges. Democratic presidents usually appoint Democratic judges, and Republican presidents appoint Republican judges. Nevertheless, it is expected that nominees to the federal bench be competent jurists. This is especially true for appointees to the U.S. Court of Appeals and to the Supreme Court. The Senate must confirm all appointments to the federal courts, a normally perfunctory act in the case of lower-court judges. More careful scrutiny is given nominees to the appellate courts.
The appointment process now is of great public interest, as the current justices appear in many people’s eyes to be narrowly divided along ideological and political lines. Justice Anthony Kennedy today is the pivotal swing vote on the high court that parties arguing before it hope to capture. In fact, while John Roberts is the chief justice, many people nonetheless referred in 2017 to the Supreme Court as “the Kennedy Court.”
The president appoints the members of the high court with the “advice and consent” of the U.S. Senate. When the White House and the Senate are both in the hands of the same party, Republicans or Democrats, this appointment process will usually proceed smoothly. But when the White House and Senate are not controlled by the same party, bitter fights over future justices can occur, with a president sometimes struggling or even failing to gain the advice and consent of the Senate over a given appointee.
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In addition to having replaced the seat vacated by Justice Antonin Scalia’s death, President Donald Trump may well have the opportunity to nominate three more justices to the nation’s high court during his first term. That’s because in late 2017, Justice Ruth Bader Ginsburg was 84 years old, Justice Anthony Kennedy was 81, and Justice Stephen Breyer was 79. Given their ages, these justices might either retire or pass away while Trump is in office. Battles over confirmation are sure to be contentious, as Trump has the power to shape the direction of the court for decades to come.
Presidents and senators alike have discovered that the individual who is nominated is not always the one who spends the remainder of his or her lifetime on the court. Justices and judges appointed to the bench for life sometimes change. Perhaps they are affected by their colleagues. Or maybe it is because they are largely removed from the political and social pressures faced by others in public life. For whatever reasons, men and women appointed to the bench sometimes modify their philosophy. For instance, current Justice Kennedy was appointed by Republican President Ronald Reagan in 1988, but now has alienated cultural conservatives by writing decisions that legalized same-sex marriage and that declared unconstitutional a law against virtual child pornography (see Chapter 13).
THE STATE COURT SYSTEM
The constitution of each of the 50 states either establishes a court system in that state or authorizes the legislature to do so. The court system in each of the 50 states is somewhat different from the court system in all the other states. There are, however, more similarities than differences among the 50 states.
Trial courts are the base of each judicial system. At the lowest level are usually what are called courts of limited jurisdiction. Some of these courts have special functions, such as a traffic court, which is set up to hear cases involving violations of the motor-vehicle code. Some of these courts are limited to hearing cases of relative unimportance, such as trials of persons charged with misdemeanors, or minor crimes, or civil suits in which the damages sought fall below a small amount of money (a so-called small claims court). The court may be a municipal court set up to hear cases involving violations of the city code. Whatever the court, the judges in these courts have limited jurisdiction and deal with a limited category of problems.
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Above the lower-level courts normally exist trial courts of general jurisdiction similar to the federal district courts. These courts are sometimes county courts and sometimes state courts, but whichever they are, they handle nearly all criminal and civil matters. They are primarily courts of original jurisdiction; that is, they are the first courts to hear a case. However, on occasion they act as a kind of appellate court when the decisions of the courts of limited jurisdiction are challenged. When that happens, the case is retried in the trial court—the court does not simply review the law. This proceeding is called hearing a case
de novo.
A
jury is most likely to be found in the trial court of general jurisdiction. It is also the court in which most civil suits for libel and invasion of privacy are commenced (provided the state court has jurisdiction), in which prosecution for violating state obscenity laws starts and in which many other media-related matters begin.
Above this court may be one or two levels of appellate courts. Every state has a supreme court, although some states do not call it that. In New York, for example, it is called the Court of Appeals, but it is the high court in the state, the court of last resort.
* Formerly, a supreme court was the only appellate court in most states. As legal business increased and the number of appeals mounted, the need for an intermediate appellate court became evident. Therefore, in nearly all states there is an intermediate court, usually called the court of appeals. This is the court where most appeals end. In some states it is a single court with three or more judges. More often, numerous divisions within the appellate court serve various geographic regions, each division having three or more judges. Since every litigant is normally guaranteed at least one appeal, this intermediate court takes much of the pressure off the high court of the state. Rarely do individuals appeal beyond the intermediate level.
State courts of appeals tend to operate in much the same fashion as the U.S. Court of Appeals, with cases being heard by small groups of judges, usually three at a time.
Cases not involving federal questions go no further than the high court in a state, usually called the supreme court. This court—usually a seven- or nine-member body—is the final authority regarding the construction of state laws and interpretation of the state constitution. Not even the Supreme Court of the United States can tell a state supreme court what that state’s constitution means.
Not even the Supreme Court of the United States can tell a state supreme court what that state’s constitution means.
State court judges are frequently elected. Normally the process is nonpartisan, but because they are elected and must stand for re-election periodically, state court judges are generally a bit more politically active than their federal counterparts. Nearly half the states in the nation use a kind of compromise system that includes both appointment and election. The compromise is designed to minimize political influence and initially select qualified candidates but still retain an element of popular control. The plans are named after the states that pioneered them, the
California Plan and the
Missouri Plan.
JUDICIAL REVIEW
One of the most important powers of courts (and at one time one of the most controversial) is the power of
judicial review—that is, the right of any court to declare any law or official governmental action invalid because it violates a constitutional provision. We usually think of this right in terms of the U.S. Constitution. However, a state court can declare an act of its legislature to be invalid because the act conflicts with a provision of the state constitution. Theoretically, any court can exercise this power. The Circuit Court of Lapeer County, Mich., can rule that the Environmental Protection Act of 1972 is unconstitutional because it deprives citizens of their property without due process of law, something guaranteed by the Fifth Amendment to the federal Constitution. But this action isn’t likely to happen, because a higher court would quickly overturn such a ruling. In fact, it is rather unusual for any court—even the U.S. Supreme Court—to invalidate a state or federal law on grounds that it violates the Constitution. Judicial review is therefore not a power that the courts use excessively. A judicial maxim states: When a court has a choice of two or more ways in which to interpret a statute, the court should always interpret the statute in such a way that it is constitutional.
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Judicial review is extremely important when matters concerning regulations of mass media are considered. Because the First Amendment prohibits laws that abridge freedom of press and speech, each new measure passed by Congress, by state legislatures and even by city councils and township boards must be measured by the yardstick of the First Amendment. Courts have the right, in fact have the duty, to nullify laws and executive actions and administrative rulings that do not meet the standards of the First Amendment. While many lawyers and legal scholars rarely consider constitutional principles in their work and rarely seek judicial review of a statute, attorneys who represent newspapers, magazines, broadcasting stations and movie theaters constantly deal with constitutional issues, primarily those of the First Amendment. The remainder of this book will illustrate the obvious fact that judicial review, a concept at the very heart of American democracy, plays an important role in maintaining the freedom of the American press, even though the power is not explicitly included in the Constitution.
SUMMARY
There are 52 different judicial systems in the nation: one federal system, one for the District of Columbia and one for each of the 50 states. Courts within each of these systems are divided into two general classes—trial courts and appellate courts. In any lawsuit both the facts and the law must be considered. The facts or the factual record is an account of what happened to prompt the dispute. The law is what should be done to resolve the dispute. Trial courts determine the facts in the case; then the judge applies the law. Appellate courts, using the factual record established by the trial court, determine whether the law was properly applied by the lower court and whether proper judicial procedures were followed. Trial courts exercise original jurisdiction almost exclusively; that is, they are the first courts to hear a case. Trial courts have very little discretion over which cases they will and will not hear. Appellate courts exercise appellate jurisdiction almost exclusively; that is, they review the work done by the lower courts when decisions are appealed. Whereas the intermediate appellate courts (i.e., courts of appeals; the appellate division) have limited discretion in the selection of cases, the high courts (supreme courts) in the states and the nation generally have the power to select the cases they wish to review.
Federal courts include the Supreme Court of the United States, the U.S. Courts of Appeals, the U.S. District Courts and several specialized tribunals. These courts have jurisdiction in all cases that involve the U.S. Constitution, U.S. law and U.S. treaties; in disputes between citizens of different states; and in several less important instances. In each state there are trial-level courts and a court of last resort, usually called the supreme court. In about half the states there are intermediate appellate courts as well. State courts generally have jurisdiction in all disputes between citizens of their state that involve the state constitution or state law.
Judicial review is the power of a court to declare a statute, regulation or executive action to be a violation of the Constitution and thus invalid. Because the First Amendment to the U.S. Constitution guarantees the rights of freedom of speech and press, all government actions that relate to the communication of ideas and information face potential scrutiny by courts to determine their validity.
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LAWSUITS
The final topic is lawsuits. To the layperson, the United States appears to be awash in lawsuits. This notion can probably be blamed on the increased attention the press has given legal matters. Courts are fairly easy to cover, and stories about lawsuits are commonly published and broadcast.
This is not to say that we are not a highly litigious people. Backlogs in the courts are evidence of this. Going to court today is no longer a novelty but a common business or personal practice for a growing number of Americans. And too many of these lawsuits involve silly or trivial legal claims. In the end, the public pays a substantial price for all this litigation, through higher federal and state taxes to build and maintain courthouses and money to pay the salaries of those who work in the judiciary, and through higher insurance costs on everything from automobiles to protection from libel suits.
The material that follows is a simplified description of how a lawsuit proceeds. The picture is stripped of a great deal of the procedural activity that so often lengthens the lawsuit and keeps attorneys busy.
The party who commences or brings a civil lawsuit is called the
plaintiff. The party against whom the suit is brought is called the
defendant. In a libel suit the person who has been libeled is the plaintiff and is the one who starts the suit against the defendant—the newspaper, television station or blog. A civil suit is usually a dispute between two private parties. The government offers its good offices—the courts—to settle the matter. A government can bring a civil suit such as an antitrust action against someone, and an individual can bring a civil action against the government. But normally a civil suit is between private parties. (In a criminal action, the government always initiates the action.)
To start a civil suit the plaintiff first picks the proper court, one that has jurisdiction in the case. Then the plaintiff typically files a
civil complaint with the court clerk. This complaint, or
pleading, is a statement of the allegations against the defendant and the remedy that is sought, typically money damages. The complaint will also include:
1.
A statement of the relevant facts upon which the plaintiff is suing
2.
The legal theory or theories (known as causes of action) upon which the plaintiff is suing (libel, for instance, is a cause of action or legal theory)
3.
A request for a remedy or relief (typically, the plaintiff requests monetary damages in a civil lawsuit, although equitable relief also can be sought in some instances)
The plaintiff then serves the defendant with the complaint to answer these allegations. The plaintiff may later amend his or her pleadings in the case. After the complaint is filed, a hearing is scheduled by the court.
If the defendant fails to answer the allegations, he or she normally loses the suit by default. Usually, however, the defendant will respond and prepare his or her own set of pleadings, which constitute an answer to the plaintiff’s allegations. If there is little disagreement at this point about the facts—what happened—and that a wrong has been committed, the plaintiff and the defendant might settle their differences out of court. The defendant might say, “I guess I did libel you in this article, and I really don’t have a very
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good defense. You asked for $100,000 in damages; would you settle for $50,000 and keep this out of court?” The plaintiff might very well answer yes, because a court trial is costly and takes a long time, and the plaintiff can also end up losing the case. Smart lawyers try to keep their clients out of court and settle matters in somebody’s office. The overwhelming majority of cases, in fact, never go to trial.
Smart lawyers try to keep their clients out of court and settle matters in somebody’s office.
If there is disagreement, the case is likely to continue. One common response to a complaint is for the defendant to file in court and to serve the plaintiff with an
answer. An answer typically denies most of the facts and all of the allegations in the complaint; it may also assert various defenses to the plaintiff’s complaint. Another typical move for the defendant to make at this point is to file a motion to dismiss, or a
demurrer. In such a motion the defendant says this to the court: “I admit that I did everything the plaintiff says I did. On June 5, 2017, I did publish an article in which she was called a socialist. But, Your Honor, it is not libelous to call someone a socialist.” The plea made then is that even if everything the plaintiff asserts is true, the defendant did nothing that was legally wrong. The law cannot help the plaintiff. The court might grant the motion, in which case the plaintiff can appeal. Or the court might refuse to grant the motion, in which case the defendant can appeal. If the motion to dismiss is ultimately rejected by all the courts up and down the line, a trial is then held. It is fair play for the defendant at that time to dispute the plaintiff’s statement of the facts; in other words to deny, for example, that his newspaper published the article containing the alleged libel.
Before the trial is held, the judge may schedule a conference between both parties in an effort to settle the matter or to narrow the issues so that the trial can be shorter and less costly. If the effort to settle the dispute fails, the lawsuit goes forward. Either party could ask for a
summary judgment, which is a way of ending a case before trial. The party moving for summary judgment is trying to avoid the cost and time of a trial by asserting that both parties agree to the facts of the case, and, based on those facts, the outcome of the trial is obvious. With no factual issues to be sorted out at trial, this makes it possible for the judge to decide the case on the basis of the law. The judge can then rule that the law dictates that one party must win and the other must lose. If the facts are disputed, though, the case can proceed and be tried before either a jury or only a judge. Note that both sides must waive the right to a jury trial. In this event, the judge becomes both the fact finder and the lawgiver, a situation known as a bench trial. Now, suppose that the case is heard by a jury. After all the testimony is given, all the evidence is presented and all the arguments are made, the judge instructs the jury in the law. Instructions are often long and complex, despite attempts by judges to simplify them.
Judicial instructions guide the jury in determining guilt or innocence if certain facts are found to be true. The judge will say that if the jury finds that X is true and Y is true and Z is true, then it must find for the plaintiff, but if the jury finds that X is not true, but that R is true, then it must find for the defendant.
In a civil lawsuit, the burden is on the plaintiff to prove her case by a preponderance of the evidence. This simply means that it is more likely than not that the defendant should be held liable (greater than 50 percent chance that the plaintiff’s argument is true). Notice here the use of the term “liable.” A defendant who loses a civil case is found liable (the term “guilty” applies only in criminal cases).
After deliberation, the jury presents its
verdict, the action by the jury. The judge then announces the judgment of the court. This is the decision of the court. The judge
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is not always bound by the jury verdict. If he or she feels that the jury verdict is unfair or unreasonable, the judge can reverse it and rule for the other party. This rarely happens.
If either party is unhappy with the decision, an appeal can be taken. At that time the legal designations may change. The person seeking the appeal becomes the appellant, or petitioner. The other party becomes the
appellee, or
respondent. The name of the party initiating the action is usually listed first in the name of the case. For example: Smith sues Jones for libel. The case name is Smith v. Jones. Jones loses and takes an appeal. At that point in most jurisdictions Jones becomes the party initiating the action and the case becomes Jones v. Smith. This change in designations often confuses novices in their attempt to trace a case from trial to final appeal. If Jones wins the appeal and Smith decides to appeal to a higher court, the case again becomes Smith v. Jones. In more and more jurisdictions today, however, the case name remains the same throughout the appeal process. This is an effort by the judiciary to relieve some of the confusion wrought by this constant shifting of party names within the case name. In California, for example, the case of Smith v. Jones remains Smith v. Jones through the entire life of that case.
The end result of a successful civil suit is usually the awarding of money damages. Sometimes the amount of damages is guided by the law, as in a suit for infringement of copyright in which the law provides that a losing defendant pay the plaintiff the amount of money he or she might have made if the infringement had not occurred, or at least a set number of dollars. But most of the time the damages are determined by how much the plaintiff seeks, how much the plaintiff can prove he or she lost and how much the jury thinks the plaintiff deserves. It is not a very scientific means of determining the dollar amount.
A
criminal prosecution, or criminal action, is like a civil suit in many ways. The procedures are more formal, elaborate and involve the machinery of the state to a greater extent. The state brings the charges, usually through the county or state prosecutor. The defendant can be apprehended either before or after the charges are brought. In the federal system people must be
indicted by a
grand jury, a panel of 16 to 23 citizens, before they can be charged with a serious crime. But most states do not use grand juries in that fashion, and the law provides that it is sufficient that the prosecutor issue an
information, a formal accusation. After being charged, the defendant is arraigned. An
arraignment is the formal reading of the charge. It is at the arraignment that the defendant makes a formal plea of guilty or not guilty. If the plea is guilty, the judge gives the verdict of the court and passes sentence, but usually not immediately, for presentencing reports and other procedures must be undertaken. If the plea is not guilty, a trial is scheduled.
Some state judicial systems have an intermediate step called a preliminary hearing or preliminary examination. The preliminary hearing is held in a court below the trial court, such as a municipal court, and the state has the responsibility of presenting enough evidence to convince the court—only a judge—that a crime has been committed and that there is sufficient evidence to believe that the defendant might possibly be involved. Today it is also not uncommon that
pretrial hearings on a variety of matters precede the trial.
If a criminal case does go to trial, the burden is on the prosecution (the government) to prove its case beyond a reasonable doubt. This is a much higher burden of proof than the civil case standard of a preponderance of the evidence.
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In both a civil suit and a criminal case, the result of the trial is not enforced until the final appeal is exhausted. That is, a money judgment is not paid in civil suits until defendants exhaust all their appeals. The same is true in a criminal case. Imprisonment or payment of a fine is not always required until the final appeal. If the defendant is dangerous or if there is some question that the defendant might not surrender when the final appeal is completed, bail can be required. Bail is money given to the court to ensure appearance in court.
SUMMARY
There are two basic kinds of lawsuits—civil suits and criminal prosecutions or actions. A civil suit is normally a dispute between two private parties in which the government offers its courts to resolve the dispute. The person who initiates the civil suit is the plaintiff; the person at whom the suit is aimed is the defendant. A plaintiff who wins a civil suit is normally awarded money damages.
A criminal case is normally an action in which the state brings charges against a private individual, who is called the defendant. A defendant who loses a criminal case can be assessed a fine, jailed or, in extreme cases, executed. A jury can be used in both civil and criminal cases. The jury becomes the fact finder and renders a verdict in a case. But the judge issues the judgment in the case. In a civil suit, a judge can reject any jury verdict and rule in exactly the opposite fashion, finding for either plaintiff or defendant if the judge feels the jury has made a serious error in judgment. Either side can appeal the judgment of the court. In a criminal case the judge can take the case away from the jury and order a dismissal, but nothing can be done about an acquittal, even an incredible acquittal. While a guilty defendant may appeal the judgment, the state is prohibited from appealing an acquittal.
BIBLIOGRAPHY
Abraham, Henry J. The Judicial Process. 7th ed. New York: Oxford University Press, 1998.
Ardia, David S. “Freedom of Speech, Defamation, and Injunctions.” William & Mary Law Review 55 (2013): 1.
Pound, Roscoe. The Development of the Constitutional Guarantees of Liberty. New Haven, Conn.: Yale University Press, 1957.
* Terms in boldfaced type are defined in the glossary.
1
. Abraham, Judicial Process.
2
. 159 S.W. 2d 291 (1942).
* Appellate courts (see page 18) often render decisions that decide only the particular case and do not establish binding precedent. Courts refer to these as “unpublished decisions.” In some jurisdictions it is unlawful for a lawyer to cite these rulings in legal papers submitted in later cases.
3
. 95 S.E. 2d 606 (1956).
4
. 539 U.S. 558 (2003).
5
. 478 U.S. 186 (1986).
6
. 559 U.S. 460 (2010).
7
. 558 U.S. 310 (2010).
8
. Oregon v. Henry, 302 Ore. 510 (1987). Article I, Section 8 of the Oregon Constitution provides that “no law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.” A 1996 ballot measure, drafted in part in response to the Henry opinion and that would have amended Article I, Section 8 so as not to protect obscenity, narrowly failed when put before Oregon voters.
9
. 427 U.S. 539 (1976).
10
. 559 U.S. 460 (2010).
11
. 267 P.3d 305 (Wash. 2011).
12
. 385 U.S. 374 (1967).
13
. 132 S. Ct. 2490 (2012).
14
. 347 U.S. 483 (1954).
* To further confuse matters, the trial court of general jurisdiction in New York is called the Supreme Court. This is a fact with which avid “Law & Order” fans should already be familiar.
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CHAPTER

2
The First Amendment
THE MEANING OF FREEDOM
©McGraw-Hill Education/Jill Braaten
The First Amendment is the wellspring for nearly all U.S. laws on freedom of speech and press. The amendment, adopted in 1791 as part of the Bill of Rights, is only 45 words, but court decisions during the past two-plus centuries have added substantial meaning to this basic outline. This chapter explores the evolution of freedom of expression, outlines the adoption of the First Amendment, and examines the development of some elements of the fundamental meaning of free speech and press.
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HISTORICAL DEVELOPMENT
Free expression is not exclusively an American idea. It traces back to Socrates and Plato. The concept developed more fully during the past 400 years. The modern history of freedom of the press began in England during the 16th and 17th centuries as printing developed. Today the most indelible embodiment of the concept is the First Amendment to the U.S. Constitution, forged in the last half of the 18th century by individuals who built upon their memory of earlier experiences and unchanged in its wording today. To understand the meaning of freedom of the press and speech, it is necessary to understand the meaning of censorship. That’s because, when viewed from a negative position, freedom of expression can be simply defined as the absence of censorship or a freedom from government control.
FREEDOM OF THE PRESS IN ENGLAND
When William Caxton set up the first British printing press in 1476, his printing pursuits were restricted only by his imagination and ability. There were no laws governing what he could not print—he was completely free. For more than five centuries, the British and Americans have attempted to regain the freedom that Caxton enjoyed, for shortly after he started publishing, the British Crown began to regulate printing presses in England. Printing developed during a period of religious struggle in Europe, and it soon became an important tool in that struggle. Printing presses made communication with hundreds of people fairly easy and thus gave considerable power to small groups or individuals who owned or could use a press.
The British government realized that unrestricted publication and printing could dilute its power. Information is a potent tool in any society, and those who control the flow and content of information exercise considerable power. The printing press broke the Crown’s monopoly of the flow of information, and therefore control of printing was essential.
Between 1476 and 1776 the British used several means to limit or restrict the press in England.
Seditious libel laws were used to punish those who criticized the government or the Crown, and it did not matter whether the criticism was truthful or not. The press also suffered under
licensing or
prior restraint laws, which required printers to obtain prior approval from the government or the church before printing their handbills, pamphlets or newspapers. Printers were often required to deposit with the government large sums of money called
bonds. This money was forfeited if material appeared that the government felt should not have been published. And the printer was forced to post another bond before printing could be resumed. The British also granted special patents and monopolies to certain printers in exchange for their cooperation in printing only acceptable works and in helping the Crown ferret out other printers who broke the publication laws.
As ideas about democracy spread throughout Europe, it became harder and harder for the government to limit freedom of expression.
British control of the press during these 300 years was generally successful, but did not go unchallenged. As ideas about democracy spread throughout Europe, it became harder and harder for the government to limit freedom of expression. The power of the printing press in spreading ideas quickly to masses of people greatly helped foster the democratic spirit. Although British law regulated American printers as well during the colonial era, regulation of the press in North America was never as successful as it was in Great Britain.
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FREEDOM OF THE PRESS IN COLONIAL AMERICA
There were laws in the United States restricting freedom of the press for almost 30 years before the first newspaper was published. As early as 1662, statutes in Massachusetts made it a crime to publish anything without first getting prior approval from the government, 28 years before Benjamin Harris published the first—and last—edition of Publick Occurrences. The second and all subsequent issues were banned because Harris had failed to get permission to publish the first edition, which contained material construed to be critical of British policy in the colonies, as well as a report that scandalized the Massachusetts clergy because it said the French king took immoral liberties with a married woman (not his wife).
Despite this inauspicious beginning, American colonists had a much easier time getting their views into print (and staying out of jail) than did their counterparts in England. There was censorship, but American juries were reluctant to convict printers prosecuted by the colonial authorities. The colonial governments were less efficient than the government in England.
The British attempted to use licensing, taxes and sedition laws to control American printers and publishers. Licensing, which ended in England in 1695, lasted until the mid-1720s in the American colonies. Benjamin Franklin’s older brother James was jailed in 1722 for failing to get prior government approval for publishing his New England Courant. The unpopular government move failed to daunt the older Franklin, and licensing eventually ended in the colonies as well. The taxes levied against the press, most of which were genuine attempts to raise revenues, were nevertheless seen as censorship by American printers and resulted in growing hostility toward Parliament and the Crown. Most publishers refused to buy the tax stamps, and there was little retribution by the British.
The most famous case of government censorship in the American colonies was the seditious libel trial of immigrant printer John Peter Zenger.
The most famous case of government censorship in the American colonies was the seditious libel trial of immigrant printer John Peter Zenger, who found himself involved in a vicious political battle between leading colonial politicians in New York. Zenger published the New York Weekly Journal, a newspaper sponsored by Lewis Morris and James Alexander, political opponents of the unpopular colonial governor, William Cosby. Zenger was jailed in November 1734 after his newspaper published several stinging attacks on Cosby, who surmised that by jailing the printer—one of only two working in New York—he could silence his critics. There is little doubt that Zenger was guilty under 18th-century British sedition law. But his attorneys, including the renowned criminal lawyer Andrew Hamilton, were able to convince the jury that no man should be imprisoned or fined for publishing criticism of the government that was both truthful and fair. Jurors simply ignored the law and acquitted Zenger. It was an early example of what today is called
jury nullification—the power of a jury in a criminal case to ignore (and thereby to “nullify”) a law and to return a verdict (typically a not guilty verdict) according to its conscience. While certainly controversial and relatively rare, jury nullification can be seen as an essential part of the legislative process because a law that is repeatedly nullified by juries probably should be revised or discarded by the legislative body that created it.
The verdict in the Zenger case was a great political triumph but did nothing to change the law of seditious libel. In other words, the case did not set an important legal precedent. But the revolt of the American jurors did force colonial authorities to reconsider the use of sedition law as a means of controlling the press. Although a few sedition prosecutions were initiated after 1735, there is no record of a successful prosecution in the colonial courts after the Zenger case. The case received widespread publicity both in North America and in England, and the outcome played an important role in galvanizing public sentiment against this kind of government censorship.
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©Bettman/Contributor/Getty Images
The trial of John Peter Zenger in New York in 1734. The printer was defended by attorney Andrew Hamilton, and the acquittal of the printer put the British Crown on notice that American jurors were not inclined to convict those who criticized British officials.
The Zenger trial today is part of American journalism mythology, but it doesn’t represent the end of British attempts to control the press in the American colonies. Rather than haul printers and editors before jurors hostile to the state, the government instead hauled them before colonial legislatures and assemblies hostile to journalists. The charge was not sedition, but breach of parliamentary privilege or contempt of the assembly. There was no distinct separation of powers then, and the legislative body could order printers to appear, question, convict and punish them. Printers and publishers were thus still being jailed and fined for publications previously considered seditious.
Despite these potent sanctions occasionally levied against publishers and printers, the press of this era was remarkably robust. Researchers who have painstakingly read the newspapers, pamphlets and handbills produced in the last half of the 18th century are struck by the seeming lack of concern for government censorship. Historian Leonard Levy notes in his book Emergence of a Free Press the seeming paradox uncovered by scholars who seek to understand the meaning of freedom of expression during that era.
1 “To one [a scholar] whose prime concern was law and theory, a legacy of suppression [of the press] came into focus; to one who looks at newspaper judgments on public men
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and measures, the revolutionary controversy spurred an expanding legacy of liberty,” he wrote. What Levy suggests is that while the law and legal pronouncements from jurists and legislatures suggest a fairly rigid control of the press, in fact journalists and other publishers tended to ignore the law and suffered little retribution.
The belief of many people that freedom was the hallmark of society in America ignores history.
But the appearance of such freedom can be deceptive, as political scientist John Roche points out in his book Shadow and Substance,
2 for the community often exerted tremendous, and sometimes extralegal, pressure on anyone who expressed an unpopular idea. The belief of many people that freedom was the hallmark of society in America ignores history, Roche argues. In colonial America the people simply did not understand that freedom of thought and expression meant freedom for the other person also, particularly for the person with hated ideas. Roche points out that colonial America was an open society dotted with closed enclaves—villages and towns and cities—in which citizens generally shared similar beliefs about religion and government and so forth. Citizens could hold any belief they chose and could espouse that belief, but personal safety depended on the people in a community agreeing with a speaker or writer. If they didn’t, the speaker then kept quiet—an early example of self-censorship or what scholars today call a “chilling effect” on speech—or moved to another enclave where the people shared those ideas. While there was much diversity of thought in the colonies, there was often little diversity of belief within individual towns and cities, according to Roche.
The propaganda war that preceded the Revolution is a classic example of the situation. In Boston, the patriots argued vigorously for the right to print what they wanted in their newspapers, even criticism of the government. Freedom of expression was their right, a God-given right, a natural right, a right of all British subjects. Many people, however, did not favor revolution or even separation from England. Yet it was extremely difficult for them to publish such pro-British sentiments in many American cities after 1770. Printers who published such ideas in newspapers and handbills did so at their peril. In cities like Boston the printers were attacked, their shops were wrecked and their papers were destroyed. Freedom of the press was a concept with limited utility in many communities for colonists who opposed revolution once the patriots had moved the populace to their side.
Community Censorship, Then and Now
The plight of the pro-British printer in Boston in the 1770s is not a unique chapter in American history. Today such community censorship still exists—and in some instances is growing.
Community censorship does not mean censorship or punishment imposed by the government, but rather the silencing of speech by private people or business entities, often as a result of pressure exerted by political activists, public interest groups and economic stakeholders. It amounts to self-censorship, not government censorship. For example, in 2016 Pittsburgh TV station WTAE fired anchor Wendy Bell after a public outcry based on a Facebook message Bell posted that many perceived as racist against black males. Following a mass shooting near Pittsburgh, Bell posted, “You needn’t be a
42
criminal profiler to draw a mental sketch of the killers who broke so many hearts . . . they are young black men, likely in their teens or early 20s. They have multiple siblings from multiple fathers and their mothers work multiple jobs.” Groups such as the Pittsburgh Black Media Federation and publications such as Very Smart Brothas loudly protested Bell’s remarks, and WTAE later fired her. This is not government censorship because the Federal Communications Commission (the government) did not fire Bell. Rather, it is community censorship or self-censorship because a private entity (WTAE) fired Bell in the face of public protests about Bell’s remarks.
COMMUNITY CENSORSHIP AND COUNTRY MUSIC: THE DIXIE CHICKS WEREN’T THE FIRST TO RUFFLE FEATHERS
In 2003, many country music radio stations across the country decided not to play songs by the Dixie Chicks after the group’s lead singer, Natalie Maines, made derogatory remarks about then President George W. Bush during a concert in England. A documentary called “Shut Up and Sing” ultimately was made about the incident. But they weren’t the first “chicks” to experience community censorship in the world of country music. In the 1970s, a number of country music radio stations refused to play Loretta Lynn’s song “The Pill” because its subject matter (birth control) was considered too risqué and because it depicted a woman as being happy because she finally went on the pill after having babies year after year. For instance, “The Pill” contains the following lyrics: “All these years I’ve stayed at home while you had all your fun, and every year that’s gone by another baby’s come. There’s gonna be some changes made right here on Nursery Hill. You’ve set this chicken your last time ’cause now I’ve got the pill.” In fact, the song was actually recorded in 1972, but even Lynn’s record label refused to release it until 1975. Another Lynn song, “Rated X,” also was boycotted by some country stations because it portrayed the double standards that divorced women face. For example, one lyric from “Rated X” is “women all look at you like you’re bad and the men all hope you are.” In 2016, the 83-year-old Lynn was still going strong, releasing her 54th studio album, “Full Circle.”
It is very important to remember here that the First Amendment protects only against government censorship. The First Amendment thus does not apply or protect speech when a company like Facebook adopts a policy of censorship. In fact, in 2016 Facebook made it clear in its “Statement of Rights and Responsibilities” that users should “not post content that: is hate speech, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence” and that users should “not bully, intimidate, or harass any user.” Similarly, the First Amendment does not apply when Twitter censors and terminates accounts that support the terrorist organization known as ISIS.
Self-censorship occurred in 2015 when several major U.S. media organizations chose not to publish controversial cartoons depicting the Prophet Muhammad. The cartoons had appeared in Charlie Hebdo, a satirical French magazine. Many Muslims consider any image of the Prophet Muhammad to be offensive. In January 2015, gunmen
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claiming to be affiliated with Al-Qaeda stormed into Charlie Hebdos office in Paris and killed 12 people, including four prominent cartoonists. In reporting on the killings, U.S. media organizations such as The New York Times, CNN and NBC News chose to describe the cartoons at the center of the controversy rather than show them on air or publish them in print. CNN’s president said at the time, “Journalistically, every bone says we want to use and should use [the cartoons].” But, he said, “as managers, protecting and taking care of the safety of our employees around the world is more important right now.”
Sometimes self-censorship occurs for other reasons. For instance, after the December 2012 shooting at Sandy Hook Elementary School in Connecticut, Paramount Pictures delayed by about one week the release of “Jack Reacher,” a violent movie starring Tom Cruise. A statement by Paramount said the decision came “out of honor and respect for the families of the victims whose lives were senselessly taken.” The Hollywood premiere of Quentin Tarantino’s violent “Django Unchained” also was delayed after Sandy Hook. Perhaps even more famously, the movie “Gangster Squad” not only was delayed in its release following the July 2012 movie-theater shooting in Aurora, Colorado, but a scene from the movie depicting a fictional shooting inside Grauman’s Chinese Theatre in Hollywood was edited out.
In April 2016, ESPN fired Curt Schilling, the former Boston Red Sox pitcher and a prominent baseball analyst on ESPN, for an offensive social media post involving which restroom transgender people are allowed to use. On his Facebook wall, Schilling shared a meme that depicted an overweight man wearing a wig and women’s clothing but with exposed breasts. Text to the right of the man read: “LET HIM IN! to the restroom with your daughter or else you’re a narrow-minded, judgmental, unloving racist bigot who needs to die.” Schilling shared that meme and added this commentary: “A man is a man no matter what they call themselves. I don’t care what they are, who they sleep with, men’s room was designed for the penis, women’s not so much. Now you need laws telling us differently? Pathetic.” Schilling’s post immediately drew criticism. The next day, ESPN issued a statement that said it was “an inclusive company” and that Schilling’s conduct was “unacceptable.”
Sometimes a word itself becomes the subject of community censorship. For instance, use of the word “retard” in 2010 became fodder for such censorship after White House Chief of Staff Rahm Emanuel uttered it to describe the strategies of some activists during the contentious debate on health-care reform. Then Rush Limbaugh used it. That, in turn, got Sarah Palin (her son Trig has Down syndrome) into the mix to object to the word’s usage, and a Web site (http://www.r-word.org) actually was created by the Special Olympics to “eliminate the demeaning use of the r-word.” Joe Jonas of the Jonas Brothers even taped a public service announcement urging people to visit the Web site and to take a pledge to stop saying “retard.”
It is important to understand that the First Amendment does not protect against community censorship. It protects only against censorship by government officials and government entities. Students at some private universities have attempted to block the appearances of right-wing speakers with whom they disagree. For instance, a case of community censorship at the university level occurred in 2016 when conservative speaker Milo Yiannopoulos, a self-proclaimed “supervillain on the Internet,” was shut down by
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protesters at DePaul University. Yiannopoulos had been invited to speak by DePaul’s College Republicans. According to the DePaul student newspaper’s coverage of the event, “a group of protesters stormed the stage and interrupted Yiannopoulos, riling up the crowd. One of the protesters . . . ran up on stage about 15 minutes after Yiannopoulos began speaking. [The protester] stormed the stage with a whistle and yelled ‘this man’s an idiot!’ while members in the crowd yelled ‘get a job!’” That protester was then joined onstage by other students, “and the noise from the crowd and the protesters drowned out Yiannopoulos.” In a statement released after the event, DePaul’s president apologized to the College Republicans. But when the College Republicans wanted to invite Yiannopoulos back for a second speech, school officials refused, claiming in an e-mail that Yiannopoulos’ “inflammatory” speech and behavior during his first appearance contributed to a “hostile environment” on campus and that the school would not be able to “provide the security that would be required for such an event.” Other instances of community censorship at private universities occurred in 2017.
But such instances of nongovernmental community censorship also run in the opposite political direction, as when The New York Times’ Chris Hedges, “a war correspondent who sharply criticized the war in Iraq, had to cut his speech short after he was repeatedly interrupted by boos and his microphone was unplugged twice” during a commencement address at Rockford College in Illinois.
3 This and the incident at DePaul are examples of what attorneys sometimes call a
heckler’s veto—when a crowd or audience’s reaction to a speech or message is allowed to control and silence that speech or message. Courts have made it clear that the existence of a hostile audience, standing alone, has never been sufficient to sustain a denial of or punishment for the exercise of First Amendment rights. In other words, the government must come to the defense of the speaker, not the heckler.
When such censorship occurs on public university campuses, of course, it does raise First Amendment concerns and is no longer just community censorship. For instance, in 2016 the Young America’s Foundation (YAF) student chapter at California State University at Los Angeles invited conservative writer Ben Shapiro to campus, with some funding for the event provided by student government. Various people criticized the event, though, prompting the university president to postpone Shapiro’s visit “for a later date, so that we can arrange for him to appear as part of a group of speakers with differing viewpoints on diversity.” But after Shapiro vowed to show up for his scheduled visit anyway, and after YAF threatened legal action if he wasn’t allowed to speak, the president reversed his position, and Shapiro spoke on campus as planned.
Public malaise about such conditions is dangerous. No individual’s freedom is secure unless the freedom of all is ensured. This last point—that the freedom of speech must be ensured for all people, not simply those on one side of the political spectrum—is critical. As Nadine Strossen, president of the American Civil Liberties Union, told one of the authors of this textbook, “the notion of neutrality is key. You cannot have freedom of speech only for ideas that you like and people that you like.”
4 Those who would engage in community censorship because they don’t like what someone has to say would be wise to remember this principle of viewpoint neutrality embodied in the freedom of speech.
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SUMMARY
Freedom of the press, part of the great Anglo-American legal tradition, is a right won only through many hard-fought battles. The British discovered the power of the press in the early 16th century and devised numerous schemes to restrict publication. Criticism of the government, called seditious libel, was outlawed. Licensing or prior censorship was also common. In addition, the Crown for many years used an elaborate system of patents and monopolies to control printing in England.
While under British law for more than 100 years, American colonists enjoyed somewhat more freedom of expression than did their counterparts in England. Censorship laws existed before the first printing press arrived in North America, but they were enforced erratically or not at all. Licensing ended in the colonies in the 1720s. There were several trials for sedition in the colonies, but the acquittal of John Peter Zenger in 1735 by a recalcitrant jury ended that threat. Colonial legislatures and assemblies then attempted to punish dissident printers by using their contempt power. By the time the American colonists began to build their own governments in the 1770s and 1780s, they had the history of a 300-year struggle for freedom of expression on which to build.
Today, community censorship and self-censorship are common problems in the United States and are often as problematic as government censorship.
THE FIRST AMENDMENT
In 1781, even before the end of the Revolutionary War, the new nation adopted its first constitution, the Articles of Confederation. The Articles provided for a loose-knit confederation of the 13 colonies, or states, in which the central or federal government had little power. The Articles reflected the spirit of the Declaration of Independence, adopted five years earlier, which ranked the rights of individuals higher than the needs of a government to organize and operate a cohesive community. The Articles of Confederation did not contain a guarantee of freedom of expression. In fact, it had no bill of rights of any kind. The individuals who drafted this constitution did not believe such guarantees were necessary. Guarantees of freedom of expression were already part of the constitutions of most of the 13 states.
But the system of government created by the Articles of Confederation did not work very well. In the summer of 1787, 12 of the 13 states sent a total of 55 delegates to Philadelphia to revise or amend the Articles, to make fundamental changes in the structure of the government.
THE NEW CONSTITUTION
It was a remarkable group of men; perhaps no such group has gathered before or since. The members were merchants, planters and professionals. None were full-time politicians. These men were members of the economic, social and intellectual aristocracy of their states. They shared a common education centered on history, political philosophy and science. Some spent months preparing for the meeting—studying the governments of
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past nations. Whereas some members came to modify the Articles of Confederation, many others knew that a new constitution was needed. In the end that is what they produced, a new governmental charter. The charter was far different from the Articles in that it gave vast powers to a central government. The states remained supreme in some matters, but in other matters they relinquished their sovereignty to the new federal government.
No official record of the convention was kept. The delegates deliberated behind closed doors as they drafted the new charter. However, some personal records remain. We know, for example, that inclusion of a bill of rights was not discussed until the last days of the convention. The Constitution was drafted in such a way as not to infringe on state bills of rights. When the meeting was in its final week, George Mason of Virginia indicated his desire that “the plan be prefaced with a Bill of Rights. . . . It would give great quiet to the people,” he said, “and with the aid of the state declarations, a bill might be prepared in a few hours.” Few joined Mason’s call. Only one delegate, Roger Sherman of Connecticut, spoke against the suggestion. He said he favored protecting the rights of the people when it was necessary, but in this case there was no need. “The state declarations of rights are not repealed by this Constitution; and being in force are sufficient.” The states, voting as units, unanimously opposed Mason’s plan. While the Virginian later attempted to add a bill of rights in a piecemeal fashion, the Constitution emerged from the convention and was placed before the people for ratification without a bill of rights.
The new Constitution was not without opposition. The struggle for its adoption was hard fought. The failure to include a bill of rights in the document was a telling complaint raised against the new document. Even Thomas Jefferson, who was in France, lamented, in a letter to his friend James Madison, the lack of a guarantee of political rights in the charter. When the states finally voted on the new Constitution, it was approved, but only after supporters in several states had promised to petition the First Congress to add a bill of rights.
James Madison was elected from Virginia to the House of Representatives, defeating James Monroe only after promising his constituents to work in the First Congress toward adoption of a declaration of human rights. When Congress convened, Madison worked to keep his promise. He first proposed that the new legislature incorporate a bill of rights into the body of the Constitution, but the idea was later dropped. That the Congress would adopt the declaration was not a foregone conclusion. There was much opposition, but after several months, 12 amendments were finally approved by both houses and sent to the states for ratification. Madison’s original amendment dealing with freedom of expression states: “The people shall not be deprived or abridged of their right to speak, to write or to publish their sentiments and freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.” Congressional committees changed the wording several times, and the section guaranteeing freedom of expression was merged with the amendment guaranteeing freedom of religion and freedom of assembly. The final version is the one we know today:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Historical myth tells us that because the amendment occurs first in the Bill of Rights it was considered the most important right.
The concept of the “first freedom” is discussed often. Historical myth tells us that because the amendment occurs first in the Bill of Rights it was considered the most
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important right. In fact, in the Bill of Rights presented to the states for ratification, the amendment was listed third. Amendments 1 and 2 were defeated and did not become part of the Constitution.
Passage of Amendments 3 through 12 did not occur without struggle. Not until two years after being transmitted to the states for approval did a sufficient number of states adopt the amendments for them to become part of the Constitution. Connecticut, Georgia and Massachusetts did not ratify the Bill of Rights until 1941, a kind of token gesture on the 150th anniversary of its constitutional adoption. In 1791 approval by these states was not needed, since only three-fourths of the former colonies needed to agree to the measures.
DO YOU KNOW WHAT THE FIRST AMENDMENT SAYS? MANY AMERICANS HAVE NO CLUE
A 2016 survey of more than 1,000 adults nationwide conducted on behalf of the Newseum Institute found that 39 percent of Americans could not name any of the rights guaranteed by the First Amendment. Furthermore, in a bad sign for journalists, only 11 percent knew that the First Amendment protects a free press. On the other hand, 54 percent of adults surveyed knew that the First Amendment protects free speech. As for the least known First Amendment freedom, it was the right to petition the government for a redress of grievances—only 2 percent of those surveyed could name it. The complete report, titled “The 2016 State of the First Amendment,” is available at http://www.newseuminstitute.org/wp-content/uploads/2016/06/FAC_SOFA16_report.pdf.
FREEDOM OF EXPRESSION IN THE 18TH CENTURY
What did the First Amendment mean to the people who supported its ratification? Technically, the definition of freedom of the press approved by the nation when the First Amendment was ratified in 1791 is what is guaranteed today. To enlarge or narrow that definition requires another vote of the people, a constitutional amendment. This notion is referred to today as “original intent” of the Constitution; that is, if we knew the meaning intended by the framers of the First Amendment, then we would know what it means today.
Most people today consider this notion misguided. The nation has changed dramatically in 227 years. Television, radio, film and the Internet did not exist in 1791. Does this mean that the guarantees of the First Amendment should not apply to these mass media? Of course not. Our Constitution has survived more than two centuries because the Supreme Court of the United States, our final arbiter on the meaning of the Constitution, has helped adapt it to changing times.
Still, it is important that we respect the document that was adopted more than two centuries ago. If we stray too far from its original meaning, the document may become meaningless; there will be no rules of government. The Constitution will mean only what those in power say it means. Thus the judicial philosophy of historicism, despite what professor
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Rodney Smolla correctly calls “the obstinate illusiveness of original intent in the free speech area,”
5 remains an important consideration for some judges and justices. For instance, Justice Clarence Thomas on the U.S. Supreme Court often uses historicism/originalism. “The experience of the framers will never give us precise answers to modern conflicts,” Smolla writes, “but it will give us a sense of how deeply free speech was cherished, at least as an abstract value.”
6
Most everyone agrees that freedom of expression meant at least the right to be free from prior restraint or licensing.
What was the legal or judicial definition of the First Amendment in 1791? Surprisingly, that is not an easy question to answer. The records of the period carry mixed messages. There was no authoritative definition of freedom of the press and freedom of speech rendered by a body like the Supreme Court. And even the words used by people of that era may have meant something different from what they mean in the 21st century. Most everyone agrees that freedom of expression meant at least the right to be free from prior restraint or licensing. Sir William Blackstone, a British legal scholar, published a major summary of common law between 1765 and 1769. In Commentaries on the Law of England, Blackstone defined freedom of expression as “laying no previous restraints upon publication.” Today we call this no prior censorship or no prior restraint. Many scholars argue that freedom of expression surely meant more than simply no prior censorship, that it also protected people from punishment after publication or, as First Amendment scholars might put it, from subsequent punishments. In other words, the First Amendment also precluded prosecutions for seditious libel. After all, they argue, one of the reasons for the American Revolution was to rid the nation of the hated British sedition laws.
The truth is that we don’t know what freedom of the press meant to American citizens in the 1790s. The written residue of the period reveals only a partial story. It’s very likely that it meant something a little different to different people, just as it does today. Even those individuals who drafted the Bill of Rights probably held somewhat different views on the meaning of the First Amendment.
WHAT IS “SPEECH” ANYWAY?
The word “speech” in the First Amendment sometimes (but not always) encompasses and includes conduct, not simply what we might think of as pure speech, such as the written, printed or spoken word or image. Under the
symbolic speech doctrine, courts treat conduct, such as burning a flag in political protest at a rally, as speech if two elements—one focusing on the actor, the other on the audience—are satisfied:
1.
Actor: The person engaging in the conduct must intend to convey a particular or specific message with his or her conduct.
2.
Audience: There must be a great likelihood, under the surrounding circumstances in which the conduct takes place, that some people who witness it will reasonably understand the particular message that was intended by the actor.
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Under the two-part symbolic speech doctrine, burning an American flag in one’s own backyard, when no one else is around and in an effort to stay warm during a snowstorm, does not constitute speech. On the other hand, the U.S. Supreme Court has recognized that burning the flag outside of a political convention in the midst of a protest or rally may be speech. The court has held that nude dancing in a strip club is a form of symbolic speech (see Chapter 13); there’s an intent to convey an erotic, sexual message, and there is a clear likelihood (judging by the tips, if nothing else) that the message will be understood as intended. When 50-year-old John E. Brennan went through a pat-down security search at the Portland International Airport in April 2012, a Transportation Security Administration official suspected that he was carrying nitrates. For Brennan, a frequent flier who earlier had refused to go through a TSA full-body scanner, the implicit accusation that he was a terrorist was, as the Associated Press reported, the last straw. Brennan quickly stripped completely naked and, after about five minutes, was arrested and later charged with indecent exposure. But in July 2012, Multnomah County (Oregon) Circuit Court Judge David Rees dismissed the charge, finding that Brennan’s act of nudity was one of symbolic protest and therefore constituted speech protected by the First Amendment. “It is the speech itself that the state is seeking to punish, and that it cannot do,” Judge Rees declared. Indeed, Brennan said that since the TSA’s body scanners can see what one looks like naked, he was simply upping the ante by completely disrobing.
FREEDOM OF EXPRESSION TODAY
If we are not certain what the First Amendment meant in 1791, do we know what it means today? More or less. The First Amendment means today what the Supreme Court of the United States says it means.
The First Amendment means today what the Supreme Court of the United States says it means.
The Supreme Court is a collection of nine justices. Consequently, at any given time there can be nine different definitions of freedom of expression. This has never happened—at least not on important issues. What has happened is that groups of justices have subscribed to various theoretical positions regarding the meaning of the First Amendment. These ideas on the meaning of the First Amendment help justices shape their vote on a question regarding freedom of expression. These ideas have changed since 1919 when the First Amendment first came under serious scrutiny by the Supreme Court.
Legal theories are sometimes difficult to handle. Judge Learned Hand, the most important judge never to have served on the U.S. Supreme Court, referred to the propagation of legal theory as “shoveling smoke.” With such cautions in mind, here are seven important First Amendment theories or strategies to help judges develop a practical definition of freedom of expression.
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SEVEN FIRST AMENDMENT THEORIES
1.
Absolutist theory
2.
Ad hoc balancing theory
3.
Preferred position balancing theory
4.
Meiklejohnian theory
5.
Marketplace of ideas theory
6.
Access theory
7.
Self-realization theory
Absolutist Theory.  Some argue that the First Amendment presents an absolute or complete barrier to government censorship. When the First Amendment declares that “no law” shall abridge freedom of expression, the framers of the Constitution meant no law. This is the essence of
absolutist theory. The government cannot censor the press for any reason. There are no exceptions, no caveats, no qualifications.
A majority of the Supreme Court never has adopted an absolutist position.
Few have subscribed to this notion wholeheartedly. A majority of the Supreme Court never has adopted an absolutist position. In fact, as this book later illustrates, the Supreme Court has held that several types of speech fall outside the scope of First Amendment protection and thus can be abridged without violating the freedoms of speech or press. As Justice Anthony Kennedy wrote in 2002, “[t]he freedom of speech has its limits; it does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children.”
7 Other categories of speech also fall outside the ambit of First Amendment protection, including fighting words (see pages 127–130) and true threats of violence.
8
In 2010, however, the U.S. Supreme Court refused to carve out another unprotected category of speech in United States v. Stevens

9 when it held unconstitutional a federal law that criminalized the commercial creation, sale or possession of certain depictions of animal cruelty (the statute did not address the underlying conduct of cruelty to animals, but only the visual portrayals of such conduct in photographs and videos, thus making it a First Amendment speech issue). The ostensible goal of the law was to target so-called crush videos in which women slowly crush to death small animals, like hamsters and chicks, while wearing high-heeled shoes, sometimes while talking to the animals in a kind of dominatrix patter over the squeals of the animals. While recognizing that the prohibition of animal cruelty itself has a long history in American law, the prohibition of speech depicting it does not. In other words, there is a key difference between the underlying conduct of animal cruelty (which is punishable as a crime) and the speech products that depict it, which receive First Amendment protection.
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PROFANITY, CIVILITY & FREEDOM OF EXPRESSION: SWEARING IN PUBLIC PLACES
In June 2012, the town of Middleborough, Massachusetts, adopted an ordinance (a form of statutory law) allowing police to issue civil fines of $20 to people who publicly accost others with spoken profanity. Does the First Amendment guarantee of free speech protect a person’s right to swear on public property? The answer is: it depends, and this helps to illustrate the principle that free speech is not absolutely protected.
For example, if the profanity is used in a face-to-face, personally abusive manner that might provoke an immediate violent reaction by the person it targets, then it probably is not protected because it likely falls within one of the few unprotected categories of speech—fighting words (see pages 127–130 on fighting words). On the other hand, laws targeting profanity often are fraught with vagueness issues—how exactly does one define profanity (see page 13 regarding the void for vagueness doctrine)?
In 2002, for instance, an appellate court in Michigan v. Boomer struck down as unconstitutionally vague a state law which dated back to 1897 and provided that “[a]ny person who shall use any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child shall be guilty of a misdemeanor.” The appellate court observed that “it is far from obvious what the reasonable adult considers to be indecent, immoral, vulgar, or insulting.” In addition to vagueness issues, if the profanity is imbued with a political message (“Fuck healthcare reform and higher taxes”), it stands a better chance of being protected, as when the U.S. Supreme Court in 1971 protected a man’s right to wear a jacket emblazoned with the message “Fuck the Draft” during the Vietnam War in Cohen v. California.
On the other hand, using the f-bomb in a public court and directing it toward a judge is not protected by the First Amendment, as the 4th U.S. Circuit Court of Appeals held in 2012 in United States v. Peoples. In that case, Robert Peoples was held in contempt after he told a clerk while inside a courtroom, “Tell Judge Currie [to] get the fuck off all my cases. I started to tell her something there. I started to tell her ass something today.” In ruling against Peoples, the 4th Circuit observed that “courts repeatedly have found that offensive words directed at the court may form the basis for a contempt charge.” The appellate court concluded that “Peoples’ profane language in Judge Currie’s courtroom constituted intentional misbehavior that obstructed the administration of justice.”
The bottom line is that with rights come responsibilities, and while swearing in some public settings may be protected, a little self-censorship in the name of civility and respect for others in the vicinity probably is a very good thing.
Ad Hoc Balancing Theory.  Freedom of speech and press are two of a number of important human rights we value in this nation. These rights often conflict. When conflict occurs, it is the responsibility of the court to balance the freedom of expression with other values. For example, the government must maintain the military to protect the security of the nation.
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To function, the military must maintain secrecy about many of its weapons, plans and movements. Imagine that the press seeks to publish information about a secret weapons system. The right to freedom of expression must be balanced with the need for secrecy in the military.
This theory is called ad hoc balancing because the scales are erected anew in every case; the meaning of the freedom of expression is determined solely on a case-by-case basis. Freedom of the press might outweigh the need for the government to keep secret the design of its new rifle, but the need for secrecy about a new fighter plane might take precedence over freedom of expression.
Ad hoc balancing is really not a theory; it is a strategy. Developing a definition of freedom of expression on a case-by-case basis leads to uncertainty. Under ad hoc balancing we will never know what the First Amendment means except as it relates to a specific, narrow problem (e.g., the right to publish information about a new army rifle). If citizens cannot reasonably predict whether a particular kind of expression might be protected or prohibited, they will have the tendency to play it safe and keep silent. This is known as a “chilling effect” on speech. This will limit the rights of expression of all persons. Also, ad hoc balancing relies too heavily in its final determination on the personal biases of the judge or justices who decide a case. Ad hoc balancing is rarely invoked as a strategy today except by judges unfamiliar with First Amendment law.
Preferred Position Balancing Theory.  The Supreme Court has held in numerous rulings that some constitutional freedoms, principally those guaranteed by the First Amendment, are fundamental to a free society and consequently are entitled to more judicial protection than other constitutional values are.
10 Freedom of expression is essential to permit the operation of the political process and to permit citizens to protest when government infringes on their constitutionally protected prerogatives. The Fourth Amendment guarantee of freedom from illegal search and seizure surely has diminished value if citizens who suffer from such unconstitutional searches cannot protest such actions. Freedom of expression does not trump all other rights. Courts, for example, have attempted to balance the rights of free speech and press with the constitutionally guaranteed right of a fair trial. On the other hand, courts have consistently ruled that freedom of expression takes precedence over the right to personal privacy and the right to reputation, neither of which is explicitly guaranteed by the Bill of Rights.
Giving freedom of expression a preferred position presumes that government action that limits free speech and free press to protect other interests is usually unconstitutional. This presumption forces the government to bear the burden of proof in any legal action challenging the censorship. The city, county, state or federal government must prove to the court that its censorship is, in fact, justified and is not a violation of the First Amendment. Were it not for this presumption, the persons whose expression was limited would be forced to convince a court that they had a constitutional right to speak or publish. This difference sounds minor, but in a lawsuit this presumption means a great deal.
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While this theory retains some of the negative features of ad hoc balancing, by tilting the scales in favor of freedom of expression, it adds somewhat more certainty to our definition of freedom of expression. By basing this balancing strategy on a philosophical foundation (the maintenance of all rights is dependent on free exercise of speech and press), it becomes easier to build a case in favor of the broad interpretation of freedom of expression under the First Amendment.
Meiklejohnian Theory.  Philosopher and educator Alexander Meiklejohn presented a rather complex set of ideas about freedom of expression in the late 1940s.
11 Meiklejohn argued that freedom of expression is a means to an end. That end is successful self-government or, as Meiklejohn put it, “the voting of wise decisions.” Freedom of speech and press are protected in the Constitution so that our system of democracy can function, and that is the only reason they are protected. Expression that relates to the self-governing process must be protected absolutely by the First Amendment. There can be no government interference with such expression. Expression that does not relate to the self-governing process is not protected absolutely by the First Amendment. The value or worth of such speech must be balanced by the courts against other rights and values. Meiklejohnian theory thus represents a hierarchical approach to First Amendment theory, with political speech placed at the top of this hierarchy.
Expression that relates to the self-governing process must be protected absolutely by the First Amendment.
Critics of this theory argue that it is not always clear whether expression pertains to self-government (public speech) or to other interests (private speech). Although not providing the specific definition sought by critics, Meiklejohn argued that a broad range of speech is essential to successful self-government. He included speech related to education (history, political science, geography, etc.), science, literature and many other topics. This theory has been embraced by some members of the Supreme Court of the United States, most notably former Justice William Brennan. American libel law was radically changed when Brennan led the Supreme Court to give First Amendment protection to people who have defamed government officials or others who attempt to lead public policy, a purely Meiklejohnian approach to the problem.
Marketplace of Ideas Theory.  The marketplace of ideas theory embodies what First Amendment scholar Daniel Farber calls “the truth-seeking rationale for free expression.”
12 Although the theory can be traced back to the work of John Milton and John Stuart Mill, it was U.S. Supreme Court Justice Oliver Wendell Holmes Jr. who introduced the marketplace rationale for protecting speech to First Amendment case law in 1919. In his dissent in Abrams v. United States,

13 Holmes famously wrote:
But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.
14
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Today, the economics-based marketplace metaphor “consistently dominates the Supreme Court’s discussion of freedom of speech.”
15 For instance, Justice Stephen Breyer wrote in a 2015 case called Reed v. Town of Gilbert that “whenever government disfavors one kind of speech, it places that speech at a disadvantage, potentially interfering with the free marketplace of ideas.”
16
The marketplace theory, however, is often criticized by scholars. Common condemnations are that much shoddy speech, such as hate speech (see pages 127–135), circulates in the marketplace of ideas despite its lack of value and that access to the marketplace is not equal for everyone. In particular, those having the most economic resources (today, large conglomerates such as Comcast, News Corp. and Gannett) are able to own and to control the mass media and, in turn, to dominate the marketplace of ideas. Nonetheless, professor Martin Redish observes that “over the years, it has not been uncommon for scholars or jurists to analogize the right of free expression to a marketplace in which contrasting ideas compete for acceptance among a consuming public.”
17 The premise of this idealistically free and fair competition of ideas is that truth will be discovered or, at the very least, conceptions of the truth will be tested and challenged.
18
The premise of this idealistically free and fair competition of ideas is that truth will be discovered.
Access Theory.  A.J. Liebling wrote that freedom of the press belongs to the man who owns one. What he meant was that a constitutional guarantee of freedom of expression had little meaning if a citizen did not have the economic means to exercise this right. Owners of magazines, newspapers and broadcasting stations could take advantage of the promises of the First Amendment, whereas the average person lacked this ability. Put differently, access to the metaphorical marketplace of ideas is not equal for all, but is skewed in favor of those with the most economic resources. What Liebling wrote is true today, although the evolution of the Internet has at least given millions more Americans the opportunity to share their ideas as bloggers and tweeters with a wider audience than was accessible in the past. Still, the audience for the vast majority of Web sites is small compared with the number of people reached by a television network, national magazine or even a metropolitan newspaper.
In the mid-1960s some legal scholars, most notably professor Jerome Barron, former dean of the National Law Center at George Washington University, argued that the promise of the First Amendment was unfulfilled for most Americans because they lacked the means to exercise their right to freedom of the press.
19 To make the guarantees of the First Amendment meaningful, newspapers, magazines and broadcasting stations should open their pages and studios to the ideas and opinions of their readers and listeners and viewers. If the press will not do this voluntarily, the obligation falls upon the government to force such access to the press. The access theory thus can be seen as a remedy to correct some of the flaws of the marketplace of ideas theory described earlier.
The access theory thus can be seen as a remedy to correct some of the flaws of the marketplace of ideas theory.
The Supreme Court unanimously rejected the access theory in 1974 in Miami Herald v. Tornillo.

20 Chief Justice Warren Burger, writing for the court, said that the choice of material
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to go into a newspaper and the decisions made as to content and treatment of public issues and public officials are decisions that must be made by the editors. The First Amendment does not give the government the right to force a newspaper to publish the views or ideas of a citizen. The Tornillo case sounded the death for this access theory for print media.
At the same time that federal courts were rejecting the access theory as it applied to the printed press, many courts were embracing these notions to justify the regulation of American radio and television. In 1969 the Supreme Court ruled in Red Lion Broadcasting v. FCC
21 that “[i]t is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences, which is crucial here.” The apparent contradiction in accepting the access theory for broadcast media but rejecting its application to the printed press was based on what many broadcasters regarded as an ill-conceived notion of differences in the two media forms. There could be an unlimited number of voices in the printed press, it was argued, but technological limits in the electromagnetic broadcast spectrum controlled the number of radio and television stations that could broadcast, and the government was required to protect the public interest in the case of the latter. The flaw in this assumption, the broadcasters argued, was that it failed to take into account 20th-century (and now 21st-century) economic limits that sharply curtailed the number of printing presses.
Self-Realization/Self-Fulfillment Theory.  While the primary goal of Meiklejohnian theory is successful self-government and the main objective of the marketplace theory is discovery of the truth, it may be that speech is important to an individual regardless of its impact on politics or its benefit to society at large. For instance, transcribing one’s thoughts in a private diary or a personal journal can be beneficial to the writer, even though no one else ever will (at least the writer hopes!) read them. Speech, in other words, can be inherently valuable to a person regardless of its effect on others—it can be an end in itself. An individual who wears a shirt with the name of his or her favorite political candidate on it may not change anyone else’s vote or influence discovery of the truth, yet the shirt-wearer is realizing and expressing his or her own identity through speech.
Speech is important to an individual regardless of its impact on politics or its benefit to society at large.
SUMMARY
The nation’s first constitution, the Articles of Confederation, did not contain a guarantee of freedom of speech and press, but nearly all state constitutions provided for a guarantee of such rights. Citizens insisted that a written declaration of rights be included in the Constitution of 1787, and a guarantee of freedom of expression was a part of the Bill of Rights that was added to the national charter in 1791.
There is a debate over the meaning of the First Amendment when it was drafted and approved in the late 18th century. Some people argue that it was intended to block both prior censorship and prosecution for seditious libel. Others argue that it was intended to prohibit only prior censorship. We will never know what the guarantee of free expression meant to the people who drafted it, but it is a good bet they had a variety of interpretations of the First Amendment.
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The meaning of the First Amendment today is largely determined by the Supreme Court of the United States. Jurists use legal theories to guide them in determining the meaning of the constitutional guarantee that “Congress shall make no law abridging freedom of speech or of the press.” Seven such theories are (1) absolutist theory, (2) ad hoc balancing theory, (3) preferred position balancing theory, (4) Meiklejohnian theory, (5) marketplace of ideas theory, (6) access theory and (7) self-realization theory.
THE MEANING OF FREEDOM
The struggle since 1791 to define the meaning of freedom of expression has involved a variety of issues. Two topics are at the heart of this struggle: the power of the state to limit criticism or published attacks on the government and the power of the government to forbid the publication of ideas or information it believes to be harmful. Each of these classic battles is considered in the remainder of this chapter.
SEDITIOUS LIBEL AND THE RIGHT TO CRITICIZE THE GOVERNMENT
The essence of a democracy is participation by citizens in the process of government. This participation involves selecting leaders through the electoral process. Popular participation also includes examination of government and public officials to determine their fitness for serving the people. The 2016 presidential campaign, for instance, included often caustic criticism of candidates ranging from eventual winner Donald Trump to Bernie Sanders. Discussion, criticism and suggestion all play a part in the orderly transition of governments and elected leaders. The right to speak and print, then, is inherent in a nation governed by popularly elected rulers.
The right to criticize and oppose the government is central to our political philosophy in the United States. The Supreme Court has ruled, for example, that the First Amendment protects both the right to burn the American flag as a form of political protest
22 and the right to wear a jacket with the words “Fuck the Draft” in a public courthouse during the Vietnam War.
23 But even today it is not always possible to criticize the government or to advocate political change without suffering government reprisals.
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GIVING THE MIDDLE FINGER GESTURE TO COPS: PROTECTED POLITICAL SPEECH?
Is there a First Amendment right to give the middle finger gesture to police? The answer is yes (but the authors don’t recommend you test the law!). In November 2012, the town of Orem City, Utah, agreed that Seth Dame should not have been detained and should not have been cited for disorderly conduct after he “flipped the bird” at a police officer in a passing car back in June 2010. Acting on Dame’s behalf, the ACLU of Utah obtained $2,500 in damages for Dame and $2,500 in attorneys’ fees to cover its own work on his behalf. As John Mejia, legal director of the ACLU of Utah, explained in a press release announcing the settlement, “various courts have concluded that using your middle finger to express discontent or frustration is expressive conduct protected by the First Amendment.” The gesture itself constitutes speech under the symbolic speech doctrine described earlier in this chapter. The case also illustrates that speech that merely offends people generally is protected by the First Amendment. On the other hand, giving the middle-finger gesture to a person who is not a law enforcement officer in the process of a face-to-face and heated dispute might fall outside the scope of First Amendment protection under the
fighting words doctrine described later in Chapter 3.
BLASPHEMY AND COUNTERSPEECH: HOW AMERICAN VALUES DON’T TRANSLATE WORLDWIDE
In September 2016, police in Pakistan arrested a 16-year-old Christian teenager on blasphemy charges after he “liked” a picture deemed “inappropriate” on Facebook of the Kaaba in Mecca, which is one of the holiest sites in Islam. The Associated Press reported that a senior police official said he made the arrest after being alerted of the Facebook post by a Muslim man who found the picture insulting and sacrilegious. Under Pakistan’s blasphemy laws, insulting Islam can result in a death sentence. The AP reported that in 2015 in Pakistan, a Christian couple was beaten to death and their bodies were burned for allegedly desecrating the Quran.
In the United States, the First Amendment clearly prevents the government from punishing blasphemous speech—even if some people find the speech offensive or disagreeable. As the U.S. Supreme Court wrote in 1989 in Texas v. Johnson when protecting the right to burn an American flag as a form of political speech, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Another fundamental First Amendment value is that the remedy for speech that offends us or with which we disagree is not censorship, violence
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or murder, but rather to add more speech to the marketplace of ideas to counteract or contradict the disagreeable speech. This is known as the doctrine of
counterspeech. It is captured by the following statement from Justice Louis Brandeis in 1927 in Whitney v. California: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.”
Other countries with little or no history of protection for free speech engrained in either their cultures or constitutions don’t easily understand such American values. In many countries, any form of political or religious dissent simply is not tolerated. A 38-nation Pew Research Center survey conducted in 2015 found that Americans were among the most supportive of free speech and the right to use the Internet without government censorship. The survey also showed that Americans are much more tolerant of offensive speech than people in other nations.
In 2006, the federal government launched the first treason case since World War II, targeting California-born Adam Gadahn. The case was based largely on five propaganda videos for Al Qaeda calling for the death of Americans in which Gadahn allegedly appeared and/or translated the words (i.e., he did the voiceovers) of Osama bin Laden’s terrorist network. In one video Gadahn called on U.S. citizens to “escape from the unbelieving army and join the winning side,” while in another he referred to the events of Sept. 11, 2001, as “the blessed raids on New York and Washington.” In 2015, Gadahn was killed by a U.S. drone strike in Pakistan and thus a trial for treason never took place. The case would have pitted the First Amendment right of speech against the U.S. Constitution’s seldom-used treason provision (Art. III, Sect. 3), which states that “treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” As this chapter later describes in its discussion of Brandenburg v. Ohio, the abstract advocacy of violence is protected by the First Amendment while the direct incitement of imminent lawless action that is likely to occur is not protected (see page 66).
ALIEN AND SEDITION ACTS
The United States wasn’t even 10 years old when its resolve in protecting free expression was first tested. Intense rivalry between President John Adams’ Federalist party and Thomas Jefferson’s Republican or Jeffersonian party, coupled with the fear that the growing violence in the French Revolution might spread to this country, led to the adoption by the Federalist-dominated Congress of a series of highly repressive measures known as the
Alien and Sedition Acts of 1798.

24 The sedition law forbade false, scandalous and malicious publications against the U.S. government, Congress and the president. The new law also punished persons who sought to stir up sedition or urged resistance to federal laws. Punishment was a fine of as much as $2,000 and a jail term of up to two years. This latter statute was aimed at the Jeffersonian political newspapers, many of which were relentless in attacks on President Adams and his government.
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CRITICAL DATES IN THE HISTORY OF SEDITION LAW IN THE UNITED STATES
1735
Acquittal of John Peter Zenger
1791
Adoption of First Amendment
1798
Alien and Sedition Acts of 1798
1917
Espionage Act
1918
Sedition Act
1919
Clear and present danger test enunciated
1927
Brandeis sedition test in Whitney v. California
1940
Smith Act adopted
1951
Smith Act ruled constitutional
1957
Scope of Smith Act greatly narrowed
1969
Brandenburg v. Ohio substantially curbs sedition prosecutions
There were 15 prosecutions under this law. Among those prosecuted were editors of eight Jeffersonian newspapers, including some of the leading papers in the nation. Imagine the federal government bringing sedition charges today against the editors of The New York Times, Washington Post and Chicago Tribune. Also prosecuted was a Republican member of Congress. The so-called seditious libel that was the basis for the criminal charges was usually petty and hardly threatened our admittedly youthful government. But Federalist judges heard most of the cases and convictions were common.
Far from inhibiting dissent, the laws succeeded only in provoking dissension among many of President Adams’ supporters. Many argue that Adams lost his bid for re-election in 1800 largely because of public dissatisfaction with his attempt to muzzle his critics. The constitutionality of the laws was never tested before the full Supreme Court, but three members of the court heard Sedition Act cases while they were on the circuit. The constitutionality of the provisions was sustained by these justices. The Sedition Act expired in 1801, and newly elected President Thomas Jefferson pardoned all people convicted under it, while Congress eventually repaid most of the fines. This was the nation’s first peacetime sedition law, and it left such a bad taste that another peacetime sedition law was not passed until 1940.
Most historians of freedom of expression in the United States focus on two eras in the 19th century during which censorship was not uncommon: the abolitionist period and the Civil War. A wide range of government actions, especially in the South, were aimed at shutting down the abolitionist press in the years between 1830 and 1860. And
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both the U.S. government and the Confederate States government censored the press during the Civil War. But in his book Free Speech in Its Forgotten Years author David M. Rabban argues that there were also extensive censorship efforts in the latter half of the 19th century against radical labor unionists, anarchists, birth control advocates and other so-called freethinkers. And there was little meaningful public debate about such activities. “In the decades before World War I,” Rabban wrote, “Americans generally needed to experience repression of views they shared before formulating a theory of free speech that extended to ideas they opposed.”
25
The issue of political dissent did not enter the national debate again until the end of the 1800s, when hundreds of thousands of Americans began to understand that democracy and capitalism were not going to bring them the prosperity promised as an American birthright. Thousands were attracted to radical political movements such as socialism and anarchism, movements that were considered by most in the mainstream to be foreign to the United States. Revolution arose as a specter in the minds of millions of Americans. Hundreds of laws were passed by states and cities across the nation to try to limit this kind of political dissent. War broke out in Europe in 1914; the United States joined the conflict three years later. This pushed the nation over the edge, and anything that remained of our national tolerance toward political dissent and criticism of the government and economic system vanished. At both the state and the federal level, government struck out at those who sought to criticize or suggest radical change.
SEDITION IN WORLD WAR I
Suppression of freedom of expression reached a higher level during World War I than at any other time in our history.
26 Government prosecutions during the Vietnam War, for example, were minor compared with government action between 1918 and 1920. Vigilante groups were active as well, persecuting when the government failed to prosecute.
Suppression of freedom of expression reached a higher level during World War I than at any other time in our history.
Two federal laws were passed to deal with persons who opposed the war and U.S. participation in it. In 1917 the
Espionage Act was approved by Congress and signed by President Woodrow Wilson. The measure dealt primarily with espionage problems, but some parts were aimed expressly at dissent and opposition to the war. The law provided that it was a crime to willfully convey a false report with the intent to interfere with the war effort. It was a crime to cause or attempt to cause insubordination, disloyalty, mutiny or refusal of duty in the armed forces. It also was a crime to willfully obstruct the recruiting or enlistment service of the United States. Punishment was a fine of not more than $10,000 or a jail term of not more than 20 years. The law also provided that material violating the law could not be mailed.
In 1918 the
Sedition Act, an amendment to the Espionage Act, was passed, making it a crime to attempt to obstruct the recruiting service. It was criminal to utter or print or write or publish disloyal or profane language that was intended to cause contempt of, or scorn for, the federal government, the Constitution, the flag or the uniform of the armed forces. Penalties for violation of the law were imprisonment for as long as 20 years or a
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fine of $10,000 or both. Approximately 2,000 people were prosecuted under these espionage and sedition laws, and nearly 900 were convicted.
In addition the U.S. Post Office Department censored thousands of newspapers, books and pamphlets. Some publications lost their right to the government-subsidized second-class mailing rates and were forced to use the costly first-class rates or find other means of distribution. Entire issues of magazines were held up and never delivered, on the grounds that they violated the law (or what the postmaster general believed to be the law). Finally, the states were not content with allowing the federal government to deal with dissenters, and most adopted sedition statutes, laws against
criminal syndicalism, laws that prohibited the display of a red flag or a black flag, and so forth.
Political repression in the United States did not end with the termination of fighting in Europe. The government was still suspicious of the millions of European immigrants in the nation and frightened by the organized political efforts of socialist and communist groups. As the Depression hit the nation, first in the farm belt in the 1920s, and then in the rest of the nation by the next decade, labor unrest mushroomed. Hundreds of so-called agitators were arrested and charged under state and federal laws. Demonstrations were broken up; aliens were detained and threatened with deportation.
But what about the First Amendment? What happened to freedom of expression? The constitutional guarantees of freedom of speech and press were of limited value during this era. The legal meaning of freedom of expression had developed little in the preceding 125 years. There had been few cases and almost no important rulings before 1920. The words of the First Amendment—“Congress shall make no law”—are not nearly as important as the meaning attached to them. And that meaning was only then beginning to develop through court rulings that resulted from the thousands of prosecutions for sedition and other such crimes between 1917 and the mid-1930s.
Nearly 95 years after it became law, the Sedition Act of 1917 was back in the news in 2011 when the federal government considered whether to prosecute Julian Assange, the founder of Wikileaks, for disclosing hundreds of thousands of leaked, classified government documents on the Internet. For instance, Senator Dianne Feinstein (D.–Cal.) called for his prosecution, claiming Assange intentionally harmed the United States by releasing information related to the national defense that could be used against the country. If such a prosecution were to proceed, it would put the aging Sedition Act to a high-technology test that never could have been imagined when it was adopted. By August 2017, Assange had not been indicted in the United States, though in April 2017 news organizations reported that the Department of Justice was still considering charges against him.
THE SMITH ACT
Congress adopted the nation’s second peacetime sedition law in 1940 when it ratified the
Smith Act, a measure making it a crime to advocate the violent overthrow of the government, to conspire to advocate the violent overthrow of the government, to organize a group that advocated the violent overthrow of the government, or to be a member of a group that advocated the violent overthrow of the government.
27 The law was aimed directly at the Communist Party of the United States. While a small group of Trotskyites
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(members of the Socialist Workers Party) were prosecuted and convicted under the Smith Act in 1943, no Communist was indicted under the law until 1948 when many of the nation’s top Communist Party leaders were charged with advocating the violent overthrow of the government. All were convicted after a nine-month trial and their appeals were denied. In a 7-2 ruling in 1951, the Supreme Court of the United States rejected the defendants’ arguments that the Smith Act violated the First Amendment.
28
Government prosecutions persisted during the early 1950s. But then, in a surprising reversal of its earlier position, the Supreme Court in 1957 overturned the convictions of West Coast Communist Party leaders.
29 Justice John Marshall Harlan wrote for the 5-2 majority that government evidence showed that the defendants had advocated the violent overthrow of the government but only as an abstract doctrine, and this was not sufficient to sustain a conviction. Instead there must be evidence that proved the defendants advocated actual action aimed at the forcible overthrow of the government. This added burden of proof levied against the government prosecutors made it extremely difficult to use the Smith Act against the Communists, and prosecutions dwindled. The number of prosecutions diminished for other reasons as well, however. The times had changed. The Cold War was not as intense. Americans looked at the Soviet Union and the Communists with a bit less fear. In fact, political scientist John Roche has remarked with only a slight wink that it was the dues paid to the party by FBI undercover agents that kept the organization economically solvent in the mid-to-late 1950s.
With the practical demise of the Smith Act, sedition has not been a serious threat against dissent for nearly 50 years. No sedition cases were filed against Vietnam War protesters, and the last time the Supreme Court heard an appeal in a sedition case was in 1969 when it overturned the conviction of a Ku Klux Klan leader (Brandenburg v. Ohio).
30 The federal government has filed sedition charges several times in recent years against alleged white supremacists, neo-Nazis and others on the fringe of the right wing. Whereas juries have been willing to convict such individuals of bombing, bank robbery and even racketeering, the defendants have been acquitted of sedition. The federal government had greater success in the 1990s using a Civil War–era sedition statute to prosecute Muslim militants who bombed the World Trade Center in New York City in 1993. Sheikh Omar Abdel Rahman and nine of his followers were found guilty of violating a 140-year-old law that makes it a crime to “conspire to overthrow, or put down, or to destroy by force the Government of the United States.” Although the government could not prove that Abdel Rahman actually participated in the bombing, federal prosecutors argued that his exhortations to his followers amounted to directing a violent conspiracy. The sheikh’s attorneys argued that his pronouncements were protected by the First Amendment. In August 1999 the 2nd U.S. Circuit Court of Appeals disagreed, noting that the Bill of Rights does not protect an individual who uses a public speech to commit crimes. Abdel Rahman’s speeches were not simply the expression of ideas; “in some instances they constituted the crime of conspiracy to wage war against the United States,” the court ruled. “Words of this nature,” the three-judge panel wrote, “ones that instruct, solicit, or persuade others to commit crimes
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of violence—violate the law and may be properly prosecuted regardless of whether they are uttered in private, or in a public place.”
31 In the wake of the terror attacks on Sept. 11, 2001, federal prosecutors in New York said they were looking into the possibility that the attacks included a seditious conspiracy to levy war against the United States. This accusation means that individuals suspected of playing a part in the attacks could be charged under the same seditious conspiracy statute that was used against the previously convicted Trade Center bombers. No such charges were filed. Also, the USA Patriot Act, which was passed as a part of the anti-terrorism bill adopted in 2001, defines terrorism as any “attempt to intimidate or coerce a civilian population” or change “the policy of the government by intimidation or coercion.” Some civil libertarians argue that this definition could include some kinds of political dissent and that it closely resembles what traditionally has been called sedition.
Another controversial section of the Patriot Act that pits free speech against the war on terror makes it a crime to provide “expert advice or assistance” to terrorists. In 2004, a federal jury acquitted a Saudi-born computer doctoral student at the University of Moscow, Sami Omar Al-Hussayen, of charges under this provision that he spread terrorism by “designing websites and posting messages on the Internet to recruit and raise funds for terrorist missions in Chechnya and Israel. His attorneys argued that he was being prosecuted for expressing views protected by the First Amendment.”
32 Georgetown University law professor David Cole remarked after the verdict that it was a “case where the government sought to criminalize pure speech and was resoundingly defeated.”
The Espionage Act of 1917 (see page 60) was resuscitated in 2006 when a federal judge allowed charges to proceed under it against two former lobbyists for the American Israel Public Affairs Committee—known by the acronym AIPAC—who allegedly obtained classified U.S. defense information and then communicated it to both Israeli officials and journalists.
33 The defendants in United States v. Rosen, neither of whom was either a government employee or a spy, contested the constitutionality of the Espionage Act on, among other things, free speech grounds. Judge T.S. Ellis III noted that their “First Amendment challenge exposes the inherent tension between the government transparency so essential to a democratic society and the government’s equally compelling need to protect from disclosure information that could be used by those who wish this nation harm.” Although the judge rejected the government’s argument “for a categorical rule that Espionage Act prosecutions are immune from First Amendment scrutiny,” he nonetheless stressed the government was seeking to punish the disclosure of information that could threaten national security. Ellis concluded “the Constitution permits the government to prosecute . . . [a person] for the disclosure of information relating to the national defense when that person knew that the information is the type which could be used to threaten the nation’s security, and that person acted in bad faith, i.e., with reason to believe the disclosure could harm the United States or aid a foreign government.” Although upholding the Espionage Act and allowing the case to continue, Ellis suggested Congress revisit the aging act’s provisions to ensure they reflect “contemporary views about the appropriate balance between our nation’s security and our citizens’ ability to engage in public debate about the United States’ conduct.” In May 2009 federal
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prosecutors gave up and asked the judge to dismiss the case, citing the inevitable disclosure of classified information that would occur at trial.
DEFINING THE LIMITS OF FREEDOM OF EXPRESSION
The first time the Supreme Court of the United States seriously considered whether a prosecution for sedition violated the First Amendment was in 1919. The Philadelphia Socialist Party authorized Charles Schenck, the general secretary of the organization, to publish 15,000 leaflets protesting against U.S. involvement in World War I. The pamphlet described the war as a cold-blooded and ruthless adventure propagated in the interest of the chosen few of Wall Street and urged young men to resist the draft. Schenck and other party members were arrested, tried and convicted for violating the Espionage Act (see page 60). The case was appealed to the Supreme Court, with the Socialists asserting that they had been denied their First Amendment rights of freedom of speech and press. Justice Oliver Wendell Holmes penned the court’s opinion and rejected the First Amendment argument. In ordinary times, he said, such pamphlets might have been harmless and protected by the First Amendment. “But the character of every act depends upon the circumstances in which it is done. . . . The question in every case is whether the words used, are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”
34
“The question in every case is whether the words used . . . create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
How can prosecutions for sedition be reconciled with freedom of expression? According to the Holmes test, Congress has the right to outlaw certain kinds of conduct that might be harmful to the nation. In some instances, words, through speeches or pamphlets, can push people to undertake acts that violate the laws passed by Congress. In such cases publishers or speakers can be punished without infringing on their First Amendment freedoms. How close must the connection be between the advocacy of the speaker or publisher and the forbidden conduct? Holmes said that the words must create a “clear” (unmistakable? certain?) and “present” (immediate? close?) danger.
In rejecting Schenck’s appeal, the high court ruled that these 15,000 seemingly innocuous pamphlets posed a real threat to the legitimate right of Congress to successfully conduct the war. To many American liberals, this notion seemed farfetched, and Holmes was publicly criticized for the ruling. But the magic words “clear and present danger” stuck like glue on American sedition law. Holmes changed his mind about his test in less than six months and broke with the majority of the high court to outline a somewhat more liberal definition of freedom of expression in a ruling on the Sedition Act in the fall of 1919.
35 But the majority of the court continued to use the Holmes test to reject First Amendment appeals.
Justice Louis Brandeis attempted to fashion a more useful application of the clear and present danger test in 1927, but his definition of “clear and present danger” was confined to a concurring opinion in the case of Whitney v. California.

36 The state of California prosecuted Anita Whitney, a 64-year-old philanthropist. She was charged with violating
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the state’s Criminal Syndicalism Act after she attended a meeting of the Communist Labor Party. She was not an active member in the party and during the convention had worked against proposals made by others that the party dedicate itself to gaining power through revolution and general strikes in which workers would seize power by violent means. But the state contended that the Communist Labor Party was formed to teach criminal syndicalism, and as a member to the party she participated in the crime. After her conviction she appealed to the Supreme Court.
Justice Edward Sanford wrote the court’s opinion and ruled that California had not violated Whitney’s First Amendment rights. The jurist said it was inappropriate to even apply the clear and present danger test. He noted that in Schenck and other cases, the statutes under which prosecution occurred forbade specific actions, such as interference with the draft. The clear and present danger test was then used to judge whether the words used by the defendant presented a clear and present danger that the forbidden action might occur. In this case, Sanford noted, the California law forbade specific words—the advocacy of violence to bring about political change. The Holmes test was therefore inapplicable. In addition, the law was neither unreasonable nor unwarranted.
Justice Brandeis concurred, but only because the constitutional issue of freedom of expression had not been raised sufficiently at the trial to make it an issue in the appeal. (If a legal issue is not raised during a trial, it is often impossible for an appellate court to later consider the matter.) Brandeis disagreed sharply with the majority regarding the limits of free expression. In doing so, he added flesh and bones to Holmes’ clear and present danger test. Looking to Schenck, the justice noted that the court had agreed there must be a clear and imminent danger of a substantive evil that the state has the right to prevent before an interference with speech is allowed. He described what he believed to be the requisite danger:
To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. . . . In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.
37
Brandeis concluded that if there is time to expose through discussion the falsehoods and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence. Put differently, Brandeis believed that counterspeech is the ideal, self-help remedy (i.e., adding more speech to the marketplace of ideas in order to counterargue), not censorship.
The next major ruling in which the high court attempted to reconcile sedition law and the First Amendment came in 1951 in the case of Dennis v. U.S.

38 Eleven Communist Party members had been convicted of advocating the violent overthrow of the government, a violation of the Smith Act. Chief Justice Vinson, who wrote the opinion for the court, used a variation of the clear and present danger test enunciated by Holmes in the Schenck case.
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He called it a clear and probable danger test. “In each case [courts] must ask whether the gravity of the ‘evil’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger,” Vinson wrote, quoting a lower-court opinion written by Judge Learned Hand. The test went only slightly beyond the original Holmes test, and the court ruled that the defendants’ First Amendment rights had not been violated.
It has been about 50 years since the Supreme Court heard the case of Brandenburg v. Ohio and made its last and probably best attempt to resolve the apparent contradiction between sedition law and freedom of expression. A leader of the Ku Klux Klan was prosecuted and convicted of violating an Ohio sedition law for stating: “We’re not a revengent [revengeful] organization, but if our President, our Congress, our Supreme Court, continues to suppress the white Caucasian race, it’s possible there might have to be some revengeance [revenge] taken.” In reversing the conviction, the high court said the law must distinguish between the abstract advocacy of ideas and the incitement to unlawful conduct. “The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions.”
39
“The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions.”
This test, which represents the current version of Justice Holmes’ old clear and present danger standard, can be broken down into four components. First, the word “directed” represents an intent requirement on the part of the speaker: Did the speaker actually intend for his or her words to incite lawless action? Second, the word “imminent” indicates that the time between the speech in question and the lawless action must be very close or proximate. Third, the conduct itself must be “lawless action,” requiring that there be a criminal statute forbidding or punishing the underlying action that is allegedly advocated. Finally, the word “likely” represents a probability requirement—that the lawless action must be substantially likely to occur and not merely a speculative result of the speech. All four of these elements must be proven before the speech can be considered outside the scope of First Amendment protection.
A LIMITED FIRST AMENDMENT RIGHT TO LIE: MEDALS OF HONOR AND
UNITED STATES
V.
ALVAREZ
In a June 2012 plurality opinion (see page 25 regarding plurality opinions), the U.S. Supreme Court declared unconstitutional in United States v. Alvarez

40 part of a federal law called the Stolen Valor Act, which made it a crime to lie about having won a Congressional Medal of Honor.
The act was so poorly drafted and overbroad (see pages 13–14 regarding the overbreadth doctrine) that it made it a crime to falsely claim to have earned such a medal, regardless of whether anyone was actually injured by the lie and irrespective of whether the lie was made for the purpose of material gain. The act, in other words, applied to false statements made at any time, in any place and to any person, even if made merely in whispered conversations in one’s home.
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In announcing the judgment of the Court, Justice Anthony Kennedy wrote for the plurality that while some categories of speech, such as fighting words (see pages 127–130) and obscenity (see Chapter 13), fall completely outside the scope of First Amendment protection, there is no such “general exception to the First Amendment for false statements” because, as the Court has observed in areas such as defamation (see Chapters 4, 5 and 6) “some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation.” Rejecting the Obama administration’s defense of the law, Kennedy opined that “the Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection. Our prior decisions have not confronted a measure, like the Stolen Valor Act, that targets falsity and nothing more.”
The last part of that quotation—“falsity and nothing more”—is very important. Some lies are not protected by the First Amendment. For instance, perjury under oath, fraud, defamation and lies integral to committing criminal conduct are not safeguarded by the First Amendment. In all of those instances, a tangible injury is caused by the lie and the laws are drafted much more narrowly than the provision of the Stolen Valor Act at issue in Alvarez. In defamation law, for instance, the false statements must be the kind that harm the reputation of an individual (see Chapter 4) or deter others from associating or dealing with that individual. Likewise, perjury applies to lies made under oath and then only when the lies are material (i.e., important). False statements made as the result of honest mistakes or inadvertence, however, do not constitute perjury.
The bottom line? There is no general exception to First Amendment protection for all false statements and lies in general. Some kinds of lies are not protected by the First Amendment and thus can still be punished, especially when they are intended to procure a material benefit. For instance, in August 2012—just two months after the Alvarez decision—the U.S. Court of Appeals for the 4th Circuit upheld a Virginia statute that prohibits individuals from falsely assuming or pretending to be a law enforcement officer. Among other things, the 4th Circuit in United States v. Chappell noted that “no Justice [in Alvarez] thought it advisable to drape a broad cloak of constitutional protection over actionable fraud, identity theft, or the impersonation of law enforcement officers.” In Chappell, the defendant had lied to an officer for the material purpose of avoiding a speeding ticket.
Furthermore, as Chapters 4, 5 and 6 make abundantly clear, false statements that harm a person’s reputation can result in massive civil liability under defamation law. In addition, in response to the Court’s Alvarez ruling, the Pentagon announced in July 2012 that it would create a searchable and publicly accessible database of military valor awards and medals that anyone could use to verify who really has won such awards and medals. Such a database amounts to a great example of counterspeech to unmask a lie. Rather than censoring the lie, we add more speech to the marketplace of ideas—in this case, a database of medal winners—to counteract the lie.
Subsequent to Alvarez, Congress passed and former President Obama signed into law the Stolen Valor Act of 2013. The new law imposes criminal sanctions only if one lies about winning a medal with the “intent to obtain money, property, or other tangible benefit.” It thus is more narrowly tailored than the law at issue in Alvarez.
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The legal theory behind the law of sedition was outlined previously; if someone publishes something that incites another person to do something illegal, the publisher of the incitement can be punished. While charges of sedition are rarely filed today, it is not uncommon for private persons to sue the mass media on the grounds that something that was published or recorded or exhibited incited a third person to commit an illegal act. These cases are similar to sedition prosecutions in many ways, and the constitutional shield developed by the courts that protects the mass media against convictions for sedition is applied in these cases as well.
Real-Life Violence: Blaming Movies, Video Games and Books
In 2016, a 16-year-old boy named Eldon Samuel III of Coeur D’Alene, Idaho, was found guilty of killing his father and younger brother. Part of Samuel’s defense was that he claimed to have been influenced by “The Walking Dead” video game series and zombie movies. Should the makers of “The Walking Dead” be held civilly liable for the deaths of Samuel’s father and brother?
WHAT WERE THEY THINKING? WHEN RADIO CONTESTS GO WRONG
Sometimes members of the media simply do stupid things that scream out for liability and for which the First Amendment provides no defense. For instance, a jury in Sacramento in 2009 awarded more than $16 million to the family of Jennifer Lea Strange after she died of water intoxication while participating in a local radio station’s contest, “Hold Your Wee for a Wii.” The contest required drinking massive amounts of water without going to the bathroom during a three-hour period in order to win a Wii video game. The jury held the local owners of the station, KDND, liable for wrongful death under basic negligence principles by creating a foreseeable risk of harm that caused Strange’s death. It wasn’t the first time a radio contest urging listeners to take part in risky behavior resulted in liability. In Weirum v. RKO General, Inc.,
41 the Supreme Court of California ruled in 1975 in favor of the plaintiffs in another wrongful death case, this one involving a contest that urged drivers near Los Angeles to be the first to locate the station’s disc jockey, who was driving on a freeway. Two listeners were chasing the DJ at nearly 80 miles per hour when one collided with and killed the driver of another car. In ruling against the station, the court reasoned that “the risk of a high speed automobile chase is the risk of death or serious injury. Obviously, neither the entertainment afforded by the contest nor its commercial rewards can justify the creation of such a grave risk.”
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©New Line Cinema/Getty Images
Mark Wahlberg, James Madio, Leonardo DiCaprio and Patrick McGaw, in a scene from “The Basketball Diaries,” which was the focus of a lawsuit in 2002.
Courts are frequently asked to rule in wrongful death, negligence and product liability lawsuits whether a media artifact like a film or video game played some part in inciting the actual perpetrator of the crime to commit illegal acts. To determine liability in such cases, courts often use the Brandenburg test for incitement to violence just outlined in this chapter. For example, in 2002 the 6th U.S. Court of Appeals ruled that the producers of the film “The Basketball Diaries,” the makers of several video games and some Internet content providers were not liable in a lawsuit brought by the parents of students who were killed and wounded when teenager Michael Carneal went on a shooting rampage in the lobby of Heath High School in Paducah, Ky. The plaintiffs argued, among other things, that Carneal had watched the film, which depicts a student daydreaming about killing a teacher and several classmates. “We find it is simply too far a leap from shooting characters on a video screen (an activity undertaken by millions) to shooting people in a classroom (an activity undertaken by a handful, at most) for Carneal’s activities to have been reasonably foreseeable to the manufacturers of the media Carneal played and viewed,” the court ruled. The material in this case falls far short of the standard required by Brandenburg, the judges added.
42 Why did they reach this conclusion? First and foremost, the movie was not “directed” to cause violence. As the appellate court wrote
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in James v. Meow Media, “while the defendants in this case may not have exercised exquisite care regarding the persuasive power of the violent material that they disseminated, they certainly did not ‘intend’ to produce violent actions by the consumers, as is required by the Brandenburg test.” In addition, the appellate court reasoned that “it is a long leap from the proposition that Carneal’s actions were foreseeable to the Brandenburg requirement that the violent content was ‘likely’ to cause Carneal to behave this way.”
SHOULD SNAPCHAT BE HELD LIABLE FOR TRAFFIC ACCIDENTS?
An 18-year-old driving with three friends crashed into a vehicle driven by a Georgia man, leaving him with severe injuries. The man spent five weeks in an intensive-care unit, where he was treated for traumatic brain injury.
In April 2016, the man filed suit against the driver, accusing her of recklessly using Snapchat while driving over 100 miles per hour and slamming into his vehicle. The lawsuit alleged that the driver was using a Snapchat lens that clocked the speed of vehicles, which encouraged her to push her car to higher speeds. The man also sued Snapchat, accusing the company of negligence.
While a lawsuit against the driver might have merit, the lawsuit against Snapchat was dismissed in early 2017. Under basic negligence principles, Snapchat was not the direct or proximate cause of the injuries sustained by the plaintiff. The real cause was the 18-year-old driver.
It is very difficult for a plaintiff ever to prove the intent (“directed”) prong of the Brandenburg test against the media. The media simply don’t intend for violence to occur as a result of viewing, playing or reading their products. Rather, the typical intent is to entertain and to make a profit! But of course, there are exceptions to the rule.
In 1996 the families of Mildred and Trevor Horn and Janice Saunders filed a wrongful death suit against Paladin Enterprises and its president, Peter Lund. The company published a book titled Hit Man: A Technical Manual for Independent Contractors. Lawrence Horn hired James Perry to kill his ex-wife, their 8-year-old quadriplegic son and the son’s nurse to gain access to the proceeds of a medical malpractice settlement. Both Perry and Horn were arrested and convicted of the murders; Perry was sentenced to death, Horn to life in prison. The plaintiffs contended that Perry used the Paladin publication as an instruction manual for the killings. A U.S. District Court in Maryland ruled in August 1996 that the book was protected by the First Amendment.  “However loathsome one characterizes the publication, ‘Hit Man’ simply does not fall within the parameters of any recognized exceptions to the First Amendment principles of freedom of speech.” The book failed to cross the line
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between permissible advocacy and impermissible incitation to crime or violence, Judge Williams wrote.
43
Fifteen months later the 4th U.S. Circuit Court of Appeals reversed the lower-court ruling. The defendant had agreed to a stipulation in the case that stated Paladin provided its assistance to Perry with both the knowledge and the intent that the book would immediately be used by criminals and would-be criminals in the solicitation, planning and commission of murder and murder for hire. The court said the book was not an example of abstract advocacy but a form of aiding and abetting a crime. The book “methodically and comprehensively prepares and steels its audience to specific criminal conduct through exhaustively detailed instructions on planning, commission and concealment of criminal conduct,” the panel ruled. There is no First Amendment protection for such a publication. The court noted that this case was unique and should not be read as expanding the potential liability of publishers and broadcasters when third parties copy or mimic a crime or other act contained in a news report or a film or a television program.
44 An appeal to the U.S. Supreme Court was denied, and the case was returned to the U.S. District Court for trial. In May 1999 Paladin Press settled the case out of court. In spite of this case, the stringent requirements of the Brandenburg test make it difficult, bordering on impossible, for a plaintiff to win a lawsuit that alleges a play or book or song or movie was responsible for causing someone’s illegal acts. The case law is highly one-sided in this regard.
“TO CATCH A PREDATOR”: MEDIA LIABILITY FOR SUICIDE AND EMOTIONAL DISTRESS?
In 2006, Louis William Conradt Jr. took his own life, just as police were about to arrest him at home for allegedly soliciting sex from a minor on the Internet. In fact, there was no minor but rather a decoy that was part of a sting orchestrated by the TV show “NBC Dateline,” along with a group called Perverted Justice, as part of the show’s sensationalistic “To Catch a Predator” series. But when Conradt never went to the “sting” house to meet the supposed minor, NBC took its cameras and crew to Conradt’s residence, along with a SWAT team and local police in Murphy, Texas, who had an arrest warrant. Apparently unable to face the humiliation and public spectacle, Conradt killed himself. His sister, Patricia Conradt, sued for more than $100 million, alleging that “NBC Dateline” was responsible for her brother’s death. In 2008, in Conradt v. NBC Universal, 536 F. Supp. 2d 380 (S.D. N.Y. 2008), Judge Denny Chin refused to dismiss the lawsuit, reasoning that if the allegations in Patricia Conradt’s amended complaint were true, “a reasonable jury could find that NBC crossed the line from responsible
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journalism to irresponsible and reckless intrusion into law enforcement” and that “NBC created a substantial risk of suicide or other harm.” He added that the complaint stated facts sufficient to render plausible the claims the suicide was foreseeable and that “NBC acted with deliberate indifference and in a manner that would shock one’s conscience.” Rather than going to trial, NBC settled the case for an undisclosed sum. The dispute suggests that journalists should take caution when they stage news and, in the process, cross the line separating news reporting from news making.
“To Catch a Predator” was back in court in 2011 when a judge denied NBC’s motion to dismiss a lawsuit for intentional infliction of emotional distress (see Chapter 5 regarding intentional infliction of emotional distress). The lawsuit was filed by a man who claimed his arrest in a “sting house” was staged to create drama, sensationalism and humiliation. Writing in Tiwari v. NBC Universal, Inc.,
45 U.S. District Judge Edward Chen found that “a reasonable jury could find that it wasn’t necessary for police to arrest Tiwari in a sensational way, or film him being restrained in handcuffs during his detention and interview with police.” In Tiwari, NBC worked hand-in-hand with police in Petaluma, California, providing them with purported chatroom logs and other recordings it had received from Perverted Justice. Judge Chen wrote that if NBC “direct[ed] the police to arrest Mr. Tiwari in a dramatic fashion with guns raised when there was no basis for such an approach, that act alone might be found outrageous.” He added that “the bottom line is that the alleged sensationalization of the news could be deemed outrageous—beyond the common bounds of decency—by a reasonable jury, particularly if this was done for no legitimate law enforcement purpose.”
Because of the success of “Grand Theft Auto,” “Mortal Kombat” and “Resident Evil,” video games depicting violent images and storylines are under scrutiny today by lawmakers who believe the games cause real-life violence and/or psychologically harm kids who play them. School shootings often are blamed on games (“Doom” was blamed, in part, for the tragedy at Columbine in 1999). Several states (California, Illinois, Louisiana, Michigan, Minnesota, Oklahoma and Washington) and municipalities (St. Louis County, Mo., and Indianapolis, Ind.) adopted statutes to limit minors’ access to violent video games by either prohibiting their sale or rental to minors or by fining kids who buy them. All of these laws, however, were enjoined as unconstitutional by federal courts, thus stopping their enforcement. Here’s why.
First, because video games have stories and plots, they are considered speech products and receive First Amendment protection. Thus, in order to justify regulation of them based upon their content (here, violent content), the strict scrutiny standard of judicial review must be satisfied. In particular, a state or municipality must prove both that it has a compelling interest (an interest of the highest order) that justifies the games’ regulation,
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and that the regulation restricts no more speech than absolutely necessary to serve that allegedly compelling interest (the law is narrowly tailored). By early 2011, all courts that had considered the issue found the social science evidence offered by the states and municipalities named previously to be lacking and insufficient to prove that playing violent video games either causes minors to commit violence or harms them psychologically. In other words, social science evidence failed to demonstrate a compelling interest. Second, laws targeting video games often are declared unconstitutional because they fail to clearly define “violence.” As noted earlier (see page 13), a statute will be declared unconstitutional under the void for vagueness doctrine if people of reasonable and ordinary intelligence cannot discern, from looking at its terms, what speech is allowed and what speech is prohibited. Some states have used vague terms like “inappropriate violence” and “ultra-violent video games” in their laws.
Perhaps the final nail in the coffin of video game statutes was pounded in by the United States Supreme Court in 2011. That’s when a seven-justice majority of the Court in Brown v. Entertainment Merchants Association struck down a California statute that prohibited the sale or rental of “violent video games” to minors and required their packages to carry an “18” warning label.
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Although the majority opinion authored by Justice Antonin Scalia broke little new ground, it reinforced the tall wall of lower-court precedent that was erected during the previous decade against similar statutes across the country. It also buttressed a key point in all of First Amendment law about protecting offensive speech, when Scalia wrote that “disgust is not a valid basis for restricting expression.”
In Brown, the majority of the Supreme Court deemed California’s effort to create a new category of unprotected expression (namely, violent content aimed at minors) “unprecedented and mistaken.” In the process, Justice Scalia refused to extend the Court’s variable obscenity (see Chapter 13) jurisprudence of Ginsberg v. New York beyond the confines of sexually explicit speech.
Applying the strict scrutiny standard noted above, Scalia determined that the social science offered by California was insufficient to prove a compelling interest necessary to support the statute.
Pointing out the critical difference between causation and correlation, Scalia observed that the studies offered by California “show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children’s feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game.”
Scalia also focused on the underinclusive nature of the statute in terms of serving California’s interest in protecting minors from the supposed deleterious effects of violent media content. “California has (wisely) declined to restrict Saturday morning cartoons, the sale of games rated for young children, or the distribution of pictures of guns. The consequence is that its regulation is wildly underinclusive when judged against its asserted justification, which in our view is alone enough to defeat it,” Scalia wrote.
Furthermore, Scalia lauded the video game industry’s voluntary ratings system, noting that it “does much to ensure that minors cannot purchase seriously violent games
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on their own, and that parents who care about the matter can readily evaluate the games their children bring home.”
Despite the Supreme Court’s ruling in Brown, violent video games are likely to continue to draw the attention of lawmakers for years to come. A 2015 report by the American Psychological Association added fuel to the fire, finding that “research demonstrates a consistent relation between violent video game use and increases in aggressive behavior, aggressive cognitions and aggressive affect, and decreases in prosocial behavior, empathy and sensitivity to aggression.” Yet, the report also pointed out that “no single risk factor consistently leads a person to act aggressively or violently.”
A widely publicized case involving the application of the Brandenburg test involved Web postings by anti-abortion activists that branded doctors who performed abortions as “baby butchers.” The postings were prepared by the American Coalition of Life Activists. They included dossiers—so-called Nuremberg files (a reference to the war crimes trials held after the Second World War)—on abortion rights supporters, including doctors, clinic employees, politicians and judges. The group said the files could be used to conduct Nuremberg-like war crime trials in “perfectly legal courts once the tide of this nation’s opinion turns against the wanton slaughter of God’s children.” On the site the names of murdered abortion supporters were struck through and the names of those wounded were grayed out. A Planned Parenthood affiliate in Oregon sued, claiming that the material constituted threats against the persons named. A jury agreed and awarded more than $100 million in actual and punitive damages. A panel of the 9th U.S. Court of Appeals overturned this verdict in 2001. The court said the postings may have made it more likely that third parties would commit violent acts against the physicians, but they did not constitute a direct threat from the anti-abortion activists against the doctors.
47 The plaintiffs petitioned for a rehearing by the court and 14 months later, in a 6-5 vote, the court changed its ruling, declaring that there was no First Amendment protection for the Web postings. “While advocating violence is protected,” wrote Judge Pamela Ann Rymer, “threatening a person with violence is not.” She noted that three abortion providers had been murdered after similar “wanted posters” had circulated regarding them. By the time the posters at issue were published, the poster format had acquired currency as a death threat for abortion providers, she added. The postings connote something they do not literally say, Judge Rymer wrote, yet both the actor and the recipient get the message.
48 The Supreme Court denied a petition to review the case.
The
Gitlow
Ruling and the Incorporation Doctrine
The First Amendment provides that “Congress” shall make no law abridging the freedoms of speech and press. Read literally, this language (“Congress”) indicates the amendment prohibits actions by only the U.S. Congress; the First Amendment’s terms say nothing about actions by state or local governments. Thus it would seem the First Amendment
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does not prevent or prohibit state or local government officials or entities from abridging or restricting people’s speech and press rights.
That indeed was the case until a 1925 U.S. Supreme Court opinion called Gitlow v. New York

49 in which, for the first time, the nation’s high court held that the term “Congress” in the First Amendment was not so narrowly limited in scope to the U.S. Congress or actions by the federal government. The case involved the prosecution, under a New York state criminal anarchy law, of a socialist named Benjamin Gitlow for printing a document called The Left Wing Manifesto. Initially it appeared the First Amendment was irrelevant because it was a New York state law under which Gitlow was prosecuted, not an act of Congress.
But the U.S. Supreme Court concluded differently, writing that “we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” What the high court did in Gitlow, in brief, was to link the First Amendment with the 14th Amendment and, in particular, with the due process clause of the 14th Amendment, which provides that “no state” shall “deprive any person of life, liberty, or property, without due process of law [emphasis added].” Notice that the 14th Amendment dictates what states cannot do; it restricts the power of states. The Gitlow court then, essentially, read into (incorporated into) the 14th Amendment’s term “liberty” the freedoms of speech and press explicitly found in the First Amendment.
The importance of the ruling in Gitlow is that the high court acknowledged that the Bill of Rights places limitations on the actions of states and local governments as well as on the federal government. Gitlow states that freedom of speech is protected by the 14th Amendment. This is known as the incorporation doctrine: The free speech and free press clauses of the First Amendment have been “incorporated” through the 14th Amendment due process clause as fundamental liberties to apply to state and local government entities and officials, not just to “Congress.” Today, most rights in the Bill of Rights are protected via the 14th Amendment from interference by states and cities as well as the federal government. The importance of the Gitlow case cannot be underestimated. It marked the beginning of attainment of a full measure of civil liberties for the citizens of the nation.
SUMMARY
Within eight years of the passage of the First Amendment, the nation adopted its first (and most wide-ranging) sedition laws, the Alien and Sedition Acts of 1798. Many leading political editors and politicians were prosecuted under the laws, which made it a crime to criticize both the president and the national government. While the Supreme Court never heard arguments regarding the constitutionality of the laws, several justices presided at sedition act trials and refused to sustain a constitutional objection to the laws. The public hated the measures. John Adams was voted out of office in 1800 and was replaced by his political opponent and target of the sedition laws, Thomas Jefferson. The
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laws left such a bad taste that the federal government did not pass another sedition law until World War I, 117 years later.
Sedition prosecutions in the period from 1915 to 1925 were the most vicious in the nation’s history as war protesters, socialists, anarchists and other political dissidents became the target of government repression. It was during this era that the Supreme Court began to interpret the meaning of the First Amendment. In a series of rulings stemming from the World War I cases, the high court fashioned what is known as the clear and present danger test to measure state and federal laws and protests and other expressions against the First Amendment. In 1925 the court ruled that the guarantees of freedom of speech apply to actions taken by all governments—that freedom of speech under the First Amendment protects individuals from censorship by all levels of government, not just from actions by the federal government. This pronouncement in Gitlow v. New York opened the door to a much broader protection of freedom of expression in the nation.
The Supreme Court made its last important attempt to reconcile the First Amendment and the law of sedition in 1969 when it ruled in Brandenburg v. Ohio that advocacy of unlawful conduct is protected by the Constitution unless it is directed toward inciting or producing imminent lawless action and is likely to incite or produce such action.
PRIOR RESTRAINT
The great compiler of the British law, William Blackstone, defined freedom of the press in the 1760s as freedom from “previous restraint,” or prior restraint. Most agree the guarantees of free speech and press enshrined in the First Amendment were intended to bar the government from exercising prior restraint. Despite the weight of such authority, media in the United States today still face instances of prepublication censorship.
Prior restraint comes in many different forms.
Prior restraint comes in many different forms. Most obvious are instances in which the government insists on giving prior approval before something may be published or broadcast, or simply bans the publication or broadcast of specific kinds of material. There are examples of these varieties in this chapter and the next. Similar kinds of prior restraint occur when the courts forbid the publication of certain kinds of material before a trial (see Chapters 11 and 12) or when a court issues an order forbidding the publication of material that might constitute an invasion of privacy (Chapters 7 and 8).
As discussed in Chapter 1, in terms of nongovernmental efforts to restrain allegedly libelous statements (see Chapters 4, 5 and 6 regarding libel), the traditional principle in U.S. law is that courts will not issue an injunction stopping the publication of an allegedly libelous statement before it occurs. Thus, if you believe a newspaper next week is going to print something false about you that will harm your reputation, you will not be able to obtain a prior restraint from a court stopping in advance its publication. The preferred remedy in American libel law, instead, is to allow the allegedly libelous statement to be published and then to sue for monetary damages. In other words, a subsequent
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punishment of speech is the traditional remedy. Once a statement has been judicially determined after a trial to be false and libelous, however, then some courts have allowed an injunction prohibiting the defendant in the case from repeating the same statement that has been held to be libelous.
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Prior restraints affecting information uploaded to the Internet are generally ineffective because once information is posted on one Web site, it can be copied on multiple mirror sites and cached forever. Nonetheless, some courts still issue prior restraints affecting information posted on the Internet.
For instance, a Florida trial court judge in December 2015 ordered the Palm Beach Post to remove from its Web site transcripts of taped jailhouse phone conversations involving a notorious jailhouse snitch named Frederick Cobia, who was secretly working for the State Attorney’s Office in getting the dirt on other inmates. The transcripts had been posted on the newspaper’s Web site for nearly two months when the judge ordered them removed, citing Cobia’s “right to privacy.” By that time, however, a prior restraint against the Palm Beach Post would be ineffective because other Web sites already had the information. That is an important point: Courts generally will not grant prior restraints if they will not be effective in preventing the alleged harm or injury (in this case, an alleged harm to Cobia’s privacy).
In January 2016, a Florida appellate court in Palm Beach Newspapers v. State of Florida

51 threw out the trial court judge’s order. How did the appellate court reach this conclusion? Initially, it cited the general rule that “a prior restraint on publication, or censorship of information that has already been published, is presumptively unconstitutional under the First Amendment.” It then reasoned that: (1) the Post had lawfully obtained the transcripts from the public defender’s office; (2) “Florida law is well-settled that a jail inmate has no reasonable expectation of privacy in his telephone conversations,” and (3) “the trial court’s order was ineffectual. By the time the court entered its order, the full transcripts of Cobia’s conversations had been available on the Post’s website and in the open court file for over a month.” The appellate court thus concluded “that the Post’s publication of the transcripts is protected by the First Amendment.”
Prior restraints also occur when a federal, state or local ordinance requires individuals or groups to first obtain a permit before engaging in protected speech like holding a rally, picket or march. As described later in Chapter 3, however, such ordinances are permissible in some cases if they meet the requirements of a content-neutral time, place and manner restriction.
But there are subtler forms of prior restraint as well. For example, many states have laws aimed at discouraging convicted criminals from profiting from their crimes by making money from books or films that detail their exploits (see pages 123–125). These are called Son of Sam laws because the first state statute enacted was aimed at stopping a notorious New York serial murderer, David Berkowitz, nicknamed the Son of Sam, from earning money by selling an account of his rampage. Such laws are permissible, but broadly worded statutes have been ruled to be a prior restraint because they may stop the convicted felon from expressing his or her views on a variety of subjects. And some courts have considered laws that limit how or how much a political candidate can
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spend during an election campaign to be prior censorship as well (see pages 136–139). The discussion in this chapter focuses on the most blatant kind of prior restraint, direct government restrictions on expression.
Before studying some key prior restraint cases involving the government, some rules are important to understand:
1.
Prior restraints on speech by the government are presumptively unconstitutional. The burden falls on the government to prove in court that a prior restraint is justified.
2.
The government’s burden is high, with courts often requiring it to prove there is a compelling interest or an interest of the highest order justifying the restraint.
3.
The scope of any prior restraint (how broadly the restraint is drafted and how much speech is restrained) must be very narrow, so as not to stop publication of any more speech than actually is necessary to effectively serve the government’s allegedly compelling interests.
4.
Speech that falls outside the scope of First Amendment protection (obscenity, child pornography and false advertising, for instance) can be restrained by the government, but only after a judicial proceeding in which a court has determined that the speech indeed is not protected. Thus, if a particular issue of a sexually explicit magazine like Hustler has been found by a court to be obscene (see Chapter 13), then all future sales of the exact same issue may be restrained in the area within that court’s jurisdiction.
PRIOR RESTRAINTS ON GOVERNMENT EMPLOYEES: SIGNING AWAY ONE’S FIRST AMENDMENT RIGHTS
Can the Central Intelligence Agency stop its former spies from publishing classified information in books about their undercover work? Yes. In Plame Wilson v. Central Intelligence Agency

52, the 2nd U.S. Circuit Court of Appeals ruled in 2009 that the CIA could stop Valerie Plame Wilson, a former covert operative, from publishing certain information relating to her service with the agency prior to 2002. Plame Wilson signed a secrecy agreement when she joined the CIA pledging not to disclose in any manner classified information obtained during the course of her employment. She also signed a pledge requiring her to submit for prepublication review by the CIA all information and materials, including works of fiction, that contained any mention of intelligence data or activities, as well as classified information. The 2nd Circuit began its analysis of the case by noting that when a government employee voluntarily assumes a duty of confidentiality, governmental restrictions on disclosure are not subject to the same stringent standards that would apply to restrictions on unwilling members of the general public. The decision against Plame Wilson follows the U.S. Supreme Court’s
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1980 precedent in Snepp v. United States in which it rejected a First Amendment challenge to the CIA’s enforcement of its secrecy agreement with former employee Frank Snepp, who had published a book about CIA activities in South Vietnam without submitting his manuscript for prepublication CIA review. A requirement of prepublication review is, of course, a prior restraint on speech because the government gets to review and approve the speech before it can be published.
It is more than just CIA agents, of course, who are subject to nondisclosure agreements as government employees. This was evident in 2012 when several members of the secretive Navy SEAL Team 6 were punished for disclosing classified information regarding the raid that killed Osama Bin Laden. Jeh Johnson, general counsel of the Defense Department, explained in a letter to former Navy SEAL Matt Bissonnette, who wrote a book called No Easy Day about the raid, that the nondisclosure agreement he signed “remains in force even after you left the active duty Navy.” The letter added that “in the judgment of the Department of Defense, you are in material breach and violation of the nondisclosure agreements you signed. Further public dissemination of your book will aggravate your breach and violation of your agreements.” In August 2016, Bissonnette agreed to pay back the proceeds he earned from the book’s publication—nearly $6.7 million—as part of a deal to end the government’s investigation into his use of unapproved materials in the book and during several speaking engagements.
NEAR
v.
MINNESOTA
The Supreme Court did not directly consider the constitutionality of prior restraint until more than a decade after it had decided its first major sedition case. In 1931, in Near v. Minnesota,

53 the high court struck an important blow for freedom of expression.
City and county officials in Minneapolis, Minn., brought a legal action against Jay M. Near and Howard Guilford, publishers of the Saturday Press, a small weekly newspaper. Near and Guilford were self-proclaimed reformers whose ostensible purpose was to clean up city and county government in Minneapolis. In their attacks on corruption in city government, they used language that was far from temperate and defamed some of the town’s leading government officials. Near and Guilford charged that Jewish gangsters were in control of gambling, bootlegging and racketeering in the city and that city government and its law enforcement agencies did not perform their duties energetically. They repeated these charges over and over in a highly inflammatory manner.
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Minnesota had a statute that empowered a court to declare any obscene, lewd, lascivious, malicious, scandalous or defamatory publication a public nuisance. When such a publication was deemed a public nuisance, the court issued an injunction against future publication or distribution. Violation of the injunction resulted in punishment for contempt of court.
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In 1927 county attorney Floyd Olson initiated an action against the Saturday Press. A district court declared the newspaper a public nuisance and “perpetually enjoined” publication of the Saturday Press. The only way either Near or Guilford would be able to publish the newspaper again was to convince the court that their newspaper would remain free of objectionable material. In 1928 the Minnesota Supreme Court upheld the constitutionality of the law, declaring that under its broad police power the state can regulate public nuisances, including defamatory and scandalous newspapers.
The case then went to the U.S. Supreme Court, which reversed the ruling by the state Supreme Court. The nuisance statute was declared unconstitutional. Chief Justice Charles Evans Hughes wrote the opinion for the court in the 5-4 ruling, saying that the statute in question was not designed to redress wrongs to individuals attacked by the newspaper. Instead, the statute was directed at suppressing the Saturday Press once and for all. The object of the law, Hughes wrote, was not punishment but censorship—not only of a single issue, but also of all future issues—which is not consistent with the traditional concept of freedom of the press. That is, the statute constituted prior restraint, and prior restraint is clearly a violation of the First Amendment.
The object of the law, Hughes wrote, was not punishment but censorship—not only of a single issue, but also of all future issues—which is not consistent with the traditional concept of freedom of the press.
One maxim in the law holds that when a judge writes an opinion for a court, he or she should stick to the problem at hand and not wander off and talk about matters that do not really concern the specific issue before the court. Such remarks are considered
dicta, or words that do not really apply to the case. These words, these dicta, are never considered an important part of the ruling in the case. Chief Justice Hughes’ opinion in Near v. Minnesota contains a good deal of dicta.
In this case Hughes wrote that the prior restraint of the Saturday Press was unconstitutional, but in some circumstances, he added, prior restraint might be permissible. In what kinds of circumstances? The government can constitutionally stop publication of obscenity, material that incites people to acts of violence, and certain kinds of materials during wartime. (It is entirely probable that the chief justice was forced to make these qualifying statements in order to hold his slim five-person majority in the ruling.) Hughes admitted, on the other hand, that defining freedom of the press as only the freedom from prior restraint is equally wrong, for in many cases punishment after publication (i.e., subsequent punishment) imposes effective censorship upon the freedom of expression.
Near v. Minnesota stands for the proposition that under American law prior censorship is permitted only in very unusual circumstances; it is the exception, not the rule. Courts have reinforced this interpretation many times since 1931. Despite this considerable litigation, there remains an incomplete understanding of the kinds of circumstances in which prior restraint might be acceptable under the First Amendment, as the following cases illustrate.
PENTAGON PAPERS CASE
Another important, well-known Supreme Court ruling on prior restraints came in 1971 and addressed the federal government’s ability to stop publication of stolen, classified information that it contended jeopardized national security during the war in Vietnam. This is the famous Pentagon Papers decision.
55 The case began in the summer of 1971
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when The New York Times, followed by the Washington Post and a handful of other newspapers, began publishing a series of articles based on pilfered copies of a top-secret 47-volume government study officially titled “History of the United States Decision-Making Process on Vietnam Policy.” The day after the initial article on the so-called Pentagon Papers appeared, Attorney General John Mitchell asked The New York Times to stop publication of the material. When the Times’ publisher refused, the government went to court to get an injunction to force the newspaper to stop the series. A temporary restraining order was granted as the case wound its way to the Supreme Court. The government also sought to impose a similar injunction on the Washington Post after it began to publish reports based on the same material.
At first the government argued that the publication of this material violated federal espionage statutes. When that assertion did not satisfy the lower federal courts, the government argued that the president had inherent power under his constitutional mandate to conduct foreign affairs to protect the national security, which includes the right to classify documents secret and top secret. Publication of this material by the newspapers was unauthorized disclosure of such material and should be stopped. This argument did not satisfy the courts either, and by the time the case came before the Supreme Court, the government argument was that publication of these papers might result in irreparable harm to the nation and its ability to conduct foreign affairs. The Times and the Post made two arguments. First, they said that the classification system is a sham, that people in the government declassify documents almost at will when they want to sway public opinion or influence a reporter’s story. Second, the press argued that an injunction against the continued publication of this material violated the First Amendment. Interestingly, the newspapers did not argue that under all circumstances prior restraint is in conflict with the First Amendment. Defense attorney Alexander Bickel argued that under some circumstances prior restraint is acceptable—for example, when the publication of a document has a direct link with a grave event that is immediate and visible. Apparently, both newspapers decided a victory in that immediate case was far more important than to establish a definitive, long-lasting constitutional principle. They therefore concentrated on winning the case, acknowledging that in future cases prior restraint might be permissible.
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On June 30 the high court ruled 6-3 in favor of The New York Times and the Washington Post and refused to block the publication of the Pentagon Papers. But the ruling was hardly the kind that strengthened the First Amendment. In a very short per curiam opinion, the majority said that in a case involving the prior restraint of a publication, the government bears a heavy burden to justify such a restraint. In this case the government failed to show the court why such a restraint should be imposed on the two newspapers. In other words, the government failed to justify its request for the permanent restraining order.
The decision in the case rested on the preferred position First Amendment theory or doctrine (see pages 52–53). The ban on publication was presumed to be an unconstitutional infringement on the First Amendment. The government had to prove that the ban was needed to protect the nation in some manner. If such evidence could be adduced, the court would strike the balance in favor of the government and uphold the
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ban on the publication of the articles. But in this case the government simply failed to show why its request for an injunction was vital to the national interest. Consequently, the high court denied the government’s request for a ban on the publication of the Pentagon Papers on the grounds that such a prohibition was a violation of the First Amendment. The court did not say that in all similar cases an injunction would violate the First Amendment. It merely said that the government had not shown why the injunction was needed, why it was not a violation of the freedom of the press.
What many people initially called the case of the century ended in a First Amendment fizzle.
What many people initially called the case of the century ended in a First Amendment fizzle. The press won the day; the Pentagon Papers were published. But a majority of the court had not ruled that such prior restraint was unconstitutional—only that the government had failed to meet the heavy burden of showing such restraint was necessary in this case.
PROGRESSIVE MAGAZINE CASE
In a rare case in which national security concerns were found by a federal court to merit a prior restraint, a federal judge in 1979 in United States v. Progressive

57 issued a preliminary injunction stopping publication of a magazine article that specified “with particularity the three key concepts necessary to construct a hydrogen weapon.” The judge determined the article included information “not found in the public realm” and that its publication “would likely cause a direct, immediate and irreparable injury to this nation.”
The decision, however, is of little precedential value, as it was the opinion of only one federal district court judge, not an appellate court. Before the decision worked its way up the appellate court ladder, a newspaper in Wisconsin published the same information, thus rendering moot the case against the publishers of the Progressive magazine. We will never know if the prior restraint would have been sustained by an appellate court.
UNITED STATES v. BELL
Prior restraint speech cases need not always involve national security interests (the Pentagon Papers case and United States v. Progressive) or vociferous attacks against public officials (Near v. Minnesota). Indeed, in some instances the government may seek a prior restraint against an individual in order to stop the dissemination of false or fraudulent speech that subverts federal laws. That happened in 2005 when a federal appellate court in United States v. Bell

58 upheld a permanent injunction barring Thurston Paul Bell from promoting and selling unlawful tax advice. Bell, as the court put it, was a “professional tax protester who ran a business and a Web site selling bogus strategies to clients endeavoring to avoid paying taxes.” Bell’s Web site, the court wrote, “invited visitors to violate the tax code, and sold them materials instructing them how to do so.” The federal government sought and won a district court injunction stopping Bell from engaging in false, deceptive or misleading commercial speech relating to any “abusive tax shelter, plan or arrangement that incites taxpayers to attempt to violate
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the internal revenue laws or unlawfully evade the assessment or collection of their federal tax liabilities or unlawfully claim improper tax refunds.”
The 3rd U.S. Circuit Court of Appeals in Bell began its analysis by noting that “permanent injunctions like the one here are ‘classic examples of prior restraints’ on speech.” The appellate court then cited the Pentagon Papers case described earlier in this chapter for the proposition that “prior restraints are generally presumed unconstitutional.” But the appellate court then wrote, citing Near v. Minnesota, that prior restraints “may be permissible depending on the type of speech at issue.”
In this case, the appellate court determined that the general principle of First Amendment law that prior restraints bear a heavy presumption against their constitutional validity “does not apply to restrictions on unprotected speech, including false or unlawful commercial speech” (see Chapter 15 regarding commercial speech). The court thus affirmed the injunction restraining Bell’s false commercial speech. The outcome suggests that when speech falls completely outside the scope of the First Amendment protection of speech, a government-requested restraint against its dissemination may be permissible.
SUMMARY
While virtually all American legal scholars agree that the adoption of the First Amendment in 1791 was designed to abolish prior restraint in this nation, prior restraint still exists. A reason it still exists is the 1931 Supreme Court ruling in Near v. Minnesota in which Chief Justice Charles Evans Hughes ruled that although prior restraint is unacceptable in most instances, there are times when it must be tolerated if the republic is to survive. Protecting the security of the nation is one of those instances cited by Hughes. In the past quarter century in two important cases, the press has been stopped from publishing material the courts believed to be too sensitive. Although the Supreme Court finally permitted The New York Times and the Washington Post to publish the so-called Pentagon Papers, the newspapers were blocked for two weeks from printing this material. And in the end the high court merely ruled that the government had failed to make its case, not that the newspapers had a First Amendment right under any circumstance to publish this history of the Vietnam War. Eight years later the Progressive magazine was enjoined from publishing an article about thermonuclear weapons. Only the publication of the same material by a small newspaper in Wisconsin thwarted the government’s efforts to permanently stop publication of this article in the Progressive.
BIBLIOGRAPHY
Alexander, James. A Brief Narrative on the Case and Trial of John Peter Zenger. Edited by Stanley N. Katz. Cambridge: Harvard University Press, 1963.
Baker, C. Edwin. Human Liberty and Freedom of Speech. New York: Oxford University Press, 1989.
Barron, Jerome. “Access to the Press—A New First Amendment Right.” Harvard Law Review 80 (1967): 1641.
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Chemerinsky, Erwin. Constitutional Law: Principles and Policies. 2nd ed. New York: Aspen, 2002.
Farber, Daniel A. The First Amendment. 2nd ed. New York: Foundation Press, 2003.
Friendly, Fred. Minnesota Rag. New York: Random House, 1981.
Levy, Leonard. Emergence of a Free Press. New York: Oxford University Press, 1985.
Meiklejohn, Alexander. Free Speech and Its Relation to Self-Government. New York: Harper & Brothers, 1948.
Pember, Don R. “The Pentagon Papers: More Questions Than Answers.” Journalism Quarterly 48 (1971): 403.
———. “The Smith Act as a Restraint on the Press.” Journalism Monographs 10 (1969): 1.
Peterson, H.C., and Gilbert Fite. Opponents of War, 1917–1918. Seattle: University of Washington Press, 1957.
Rabban, David M. Free Speech in Its Forgotten Years. Cambridge, United Kingdom: Cambridge University Press, 1997.
Redish, Martin H., and Kirk J. Kaludis. “The Right of Expressive Access in First Amendment Theory.” Northwestern University Law Review 93 (1999): 1083.
Richards, Robert D., and Clay Calvert. “Nadine Strossen and Freedom of Expression.” George Mason University Civil Rights Law Journal 13 (2003): 185.
Roche, John P. Shadow and Substance. New York: Macmillan, 1964.
Schmitt, Richard B. “Acquittal in Internet Terrorism Case Is a Defeat for Patriot Act.” Los Angeles Times, 11 June 2004, A20.
Smith, James M. Freedom’s Fetters. Ithaca, N.Y.: Cornell University Press, 1956.
Smolla, Rodney. Free Speech in an Open Society. New York: Knopf, 1992.
Wike, Richard. “Americans More Tolerant of Offensive Speech Than Others in the World.” Pew Research Center, 12 October 2016, http://www.pewresearch.org/fact-tank/2016/10/12/americans-more-tolerant-of-offensive-speech-than-others-in-the-world/.
Young, Cathy. “The Tyranny of Hecklers.” The Boston Globe, 2 June 2003, A13.
1
. Levy, Emergence of a Free Press.
2
. Roche, Shadow and Substance.
3
. Young, “The Tyranny of Hecklers.”
4
. Richards and Calvert, “Nadine Strossen and Freedom of Expression,” 202.
5
. Smolla, Free Speech in an Open Society, 28.
6
. Ibid., 39.
7
. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245–46 (2002).
8
. Watts v. U.S., 394 U.S. 705, 708 (1969).
9
. 559 U.S. 460 (2010).
10
. See U.S. v. Carolene Products, 304 U.S. 144 (1938); and Palko v. Connecticut, 302 U.S. 319 (1937). See also Abrams v. U.S., 250 U.S. 616 (1919).
11
. Meiklejohn, Free Speech.
12
. Farber, The First Amendment, 4.
13
. 250 U.S. 616 (1919).
14
. 250 U.S. 616, 630 (Holmes, J., dissenting).
15
. Baker, Human Liberty, 7.
16
. 135 S. Ct. 2218, 2234 (2015) (Breyer, J., concurring in the judgment).
17
. Redish and Kaludis, “The Right of Expressive Access,” 1083.
18
. Chemerinsky, Constitutional Law, 753.
19
. Barron, “Access to the Press.”
20
. 418 U.S. 241 (1974).
21
. 395 U.S. 367 (1969).
22
. Texas v. Johnson, 491 U.S. 397 (1989). Flag mutilation statutes remain controversial today. Citing the 1989 ruling in Johnson as precedent, the Attorney General of Nebraska in 2010 issued a memorandum giving his opinion that a Cornhusker state statute was unconstitutional. His opinion that the law violated the First Amendment allowed a federal judge to issue a permanent injunction banning its enforcement in a case brought by members of the Westboro Baptist Church. The now-enjoined Nebraska law provided that “a person commits the offense of mutilating a flag if such person intentionally casts contempt or ridicule upon a flag by mutilating, defacing, defiling, burning, or trampling upon such flag.” Nebraska Rev. Stat. § 28-928 (2010).
23
. Cohen v. California, 403 U.S. 15 (1971).
24
. Smith, Freedom’s Fetters.
25
. Rabban, Free Speech.
26
. See Peterson and Fite, Opponents of War.
27
. Pember, “The Smith Act,” 1.
28
. Dennis v. U.S., 341 U.S. 494 (1951).
29
. Yates v. U.S., 354 U.S. 298 (1957).
30
. 395 U.S. 444 (1969).
31
. U.S. v. Rahman, 189 F. 3d 88 (1999).
32
. Schmitt, “Acquittal in Internet Terrorism Case.”
33
. U.S. v. Rosen, 445 F. Supp. 2d 602 (E.D. Va. 2006).
34
. Schenck v. U.S., 249 U.S. 47 (1919).
35
. Abrams v. U.S., 250 U.S. 616 (1919).
36
. 274 U.S. 357 (1927).
37
. Whitney v. California, 274 U.S. 357 (1927).
38
. 341 U.S. 494 (1951).
39
. 395 U.S. 444 (1969) (emphasis added).
40
. 132 S. Ct. 2537 (2012).
41
. 539 P.2d 36 (Cal. 1975).
42
. James v. Meow Media Inc., 300 F. 3d 683 (6th Cir. 2002).
43
. Rice v. Paladin Enterprises Inc., 940 F. Supp. 836 (1996).
44
. Rice v. Paladin Enterprises Inc., 128 F. 3d 233 (1997).
45
. 2011 U.S. Dist. LEXIS 123362 (N.D. Cal. Oct. 25, 2011).
46
. 564 U.S. 786 (2011).
47
. Planned Parenthood at Columbia/Willamette, Inc. v. American Coalition of Life Activists, 244 F. 3d 1007 (2001).
48
. Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists, 290 F. 3d 1058 (2002).
49
. 268 U.S. 652 (1925).
50
. Balboa Island Village Inn, Inc. v. Lemen, 40 Cal. 4th 1141 (2007).
51
. 183 So. 3d 480 (Fla. Dist. Ct. App. 2016).
52
. 586 F.3d 171 (2d Cir. 2009).
53
. 283 U.S. 697 (1931).
54
. Friendly, Minnesota Rag.
55
. New York Times v. U.S., 403 U.S. 713 (1971).
56
. Pember, “The Pentagon Papers,” 403.
57
. 486 F. Supp. 5 (W.D. Wisc. 1979).
58
. 414 F. 3d 474 (3d Cir. 2005).
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CHAPTER

3
The First Amendment
CONTEMPORARY PROBLEMS
©McGraw-Hill Education/Jill Braaten
This chapter examines a wide range of contemporary topics affecting the freedom of expression, starting with the First Amendment rights of public school and university students. As you’ll discover, students at public high schools do possess some First Amendment rights, but those rights are not the same as the rights of adults. You also will learn about topics including book banning, hate speech and freedom of expression on the Internet, among other issues. Ultimately, you will find out that each of these areas has its own set of unique issues, rules and court rulings.
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THE FIRST AMENDMENT IN SCHOOLS
Censorship of school newspapers is a serious First Amendment issue in America today. For instance, in 2015 the principal at Fauquier High School in Warrenton, Va., told a student reporter that she couldn’t publish an article in the student newspaper about students “dabbing,” which involves smoking concentrated marijuana. Sensing that dabbing was gaining popularity in her school, the student reporter told The Washington Post that she wanted to write a story about it because “I was just interested in exactly what it was and exactly what the effects of it were. I wanted my peers to know what they were doing.” But her principal forbade her from publishing the piece, telling her he was concerned that students reading the article would “be exposed to a new and dangerous drug without adult guidance.” The student appealed the principal’s decision to the school superintendent, but he backed the principal because he, too, worried the article “unintentionally promotes and encourages illegal and unhealthy activity.” But the saga didn’t end there. After the editor of an online news outlet in Fauquier saw an editorial the student reporter had written in the student newspaper describing the censorship, he decided to publish her original story online. The online editor said the article about dabbing was “a good story that deserved publication” and that he didn’t perceive it as being dangerous. The student’s story thus ultimately reached a much wider audience than it would have in the student newspaper—it had more than 11,000 unique visitors on the online news outlet, Fauquier Now, within the first 10 days of its publication.
Students at Harrisonville High School in Harrisonville, Mo., also clashed with their principal in 2015. The student newspaper wanted to report on the recent resignation of the district’s superintendent, but the principal at the school told the newspaper staff that he would need to review any article about the resignation first before he would let the newspaper publish it. The principal’s demand to review the article before publication is a good example of a prior restraint on speech, which was discussed in Chapter 2. The principal told the Kansas City Star newspaper that the students could face punishment if they published an article without his permission. “I wouldn’t expel them, but there would be consequences,” Principal Andy Campbell said. “The paper here at school is mine to control.”
And in 2016, a censorship battle at Steinmetz College Prep, a public school in Chicago, resulted in a threat from the school principal to eliminate the school newspaper entirely. Student reporters for the school’s paper, the Steinmetz Star (which is the alma mater of Playboy editor-in-chief Hugh Hefner), said they spent weeks working on an article about a change in the school bell schedule that pushed the school start time back an hour. Their reporting included data from a survey students conducted about the change. The newspaper’s adviser said the principal had never withheld an article in the past—but he did this time. The principal, Stephen Ngo, decided to postpone the article’s publication until a later edition so that students could “address some things that were missing,” according to the Student Press Law Center. Ngo met with the newspaper staff to explain his decision, but a student reporter who was there said the meeting was “useless” and that, in her view, Ngo never provided a clear reason why he was censoring the article. Frustrated with the meeting and with
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Ngo’s decision, that student decided instead to publish the story on her personal blog. That prompted Ngo to email school counselors and tell them the journalism program would be eliminated—though Ngo later walked back the email and said the program would continue. The bell schedule article did eventually run in the January–February edition of the paper.
Not only does school censorship deprive students and others of information they should rightfully see, but when practiced in the schools, censorship can take on the aura of being good policy, the right thing for the government to do. School, after all, is where students are taught the difference between right and wrong, and where they learn about the freedoms Americans enjoy under their Constitution.
CENSORSHIP OF EXPRESSION IN PUBLIC HIGH SCHOOLS
For centuries, students were presumed to have few constitutional rights. They were regarded as second-class people and were told it was better to be seen and not heard. Parents were, and still are, given wide latitude in controlling the behavior of their offspring, and when these young people moved into schools or other public institutions, the government had the right to exercise a kind of parental control over them: in loco parentis, in the place of a parent. During the social upheaval of the 1960s and 1970s, students began to assert their constitutional rights, and in several important decisions the federal courts acknowledged these claims. In 1969, in the case of Tinker v. Des Moines Independent Community School District, the Supreme Court ruled that students in the public schools do not shed at the schoolhouse gate their constitutional rights to freedom of speech or expression.
During the social upheaval of the 1960s and 1970s, students began to assert their constitutional rights, and in several important decisions the federal courts acknowledged these claims.
On December 16, 1966, Christopher Eckhardt, 16, and Mary Beth Tinker, 13, went to school wearing homemade black armbands, replete with peace signs, to protest the war in Vietnam. Mary Beth’s brother John, 15, wore a similar armband the following day. All three were suspended from school after they refused requests by school officials to remove the armbands. School administrators feared that wearing the armbands might provoke violence among the students, most of whom supported the war in Vietnam. The students appealed to the courts to overturn their suspensions. Three years later, the Supreme Court held that students have a First Amendment right to express their opinions on even controversial subjects like the war in Vietnam if they do so “without materially and substantially interfering with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others.”
1 In ruling in favor of the Tinker children and Eckhardt, the Supreme Court added that an “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression” in public schools. The Court concluded that, in this case, the “record does not demonstrate any facts which might reasonably have led school authorities [in Des Moines] to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred.”
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©McGraw-Hill Education/photographer, Mark Dierker
This is the T-shirt Bretton Barber wore to school that sparked a federal lawsuit.
The Tinker standard applies not only to students in public high schools, but also all the way down to students in public elementary schools. As the 3rd U.S. Circuit Court of Appeals wrote in a 2013 opinion involving a fifth-grader called K.A. v. Pocono Mountain School District, “the Tinker test has the requisite flexibility to accommodate the age-related developmental, educational, and disciplinary concerns of elementary school students.”
The Tinker standard played a key role in the 2003 federal district court opinion in Barber v. Dearborn Public Schools.

2 The case arose from a dispute in Dearborn, Mich. That city boasts, the court noted, “the largest concentration of Arabs anywhere in the world outside of the Middle East” and “approximately 31.4% of Dearborn High’s students are Arab.” Many of these residents reportedly fled Iraq to escape the regime of the now deceased former dictator, Saddam Hussein. It was in this environment on Feb. 17, 2003—just before the launch of the U.S. military offensive in Iraq—that Bretton Barber, then a high school junior, wore a T-shirt labeling President George W. Bush an “International Terrorist” in order “to express his feelings about President Bush’s foreign policies and the imminent war in Iraq.” Barber went through the first three class periods of the day without having anyone mention the shirt. It was during the lunch period, however, that one student (and one student only) complained to an assistant principal about Barber’s political fashion statement. That student was upset because he had a relative in the military being sent to Iraq and at least one of his family members served in each of the country’s prior wars. Barber soon was
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asked to remove the T-shirt—he was wearing a different shirt underneath it—or turn it inside out. Refusing to take either option, Barber called his father and went home from school that day. Shortly thereafter, he filed a federal lawsuit against the school district.
Judge Patrick J. Duggan faced the issue of whether the school violated Barber’s First Amendment right to free speech and political expression when it prohibited him from wearing the anti-Bush T-shirt. He first held that Barber’s case was controlled by the U.S. Supreme Court’s 1969 opinion in Tinker that upheld the right of students to wear black armbands to school to protest the Vietnam War. Duggan thus decided that Barber’s case was not guided by the high court’s more recent decisions in either the sexually offensive, captive-audience expression case of Bethel School District v. Fraser

3 (see page 97–98) or the school-sponsored newspaper case of Hazelwood School District v. Kuhlmeier

4 (see pages 92–96). Barber’s situation, in brief, was much more factually similar to Tinker than it was to either Bethel or Hazelwood, thus allowing the judge to distinguish the latter two cases.
Applying the Tinker precedent, Judge Duggan reasoned that the school officials’ “decision to ban Barber’s shirt only can withstand constitutional scrutiny if they show that the T-shirt caused a substantial disruption of or material interference with school activities or created more than an unsubstantiated fear or apprehension of such a disruption or interference.” The judge found that only one student and one teacher had expressed negative opinions about the shirt and that there was “no evidence that the T-shirt created any disturbance or disruption in Barber’s morning classes, in the hallway between classes or between Barber’s third hour class and his lunch period, or during the first twenty-five minutes of the lunch period.”
As for the school officials’ argument that the continued wearing of the shirt might cause trouble in the future, given the ethnic composition of the student body and the imminence of war, Judge Duggan found that “even if the majority or a large number of Dearborn High’s Arab students are Iraqi, nothing in the present record suggests that these students were or would be offended by Barber’s shirt which conveys a view about President Bush. More importantly, there is nothing in the record before this Court to indicate that those students, or any students at Dearborn High, might respond to the T-shirt in a way that would disrupt or interfere with the school environment.” He added that “it is improper and most likely detrimental to our society for government officials, particularly school officials, to assume that members of a particular ethnic group will have monolithic views on a subject and will be unable to control those views.”
Comparing the situation in Barber’s case with the Vietnam War protest scenario at issue in the Tinker case, Judge Duggan wrote: “[C]learly the tension between students who support and those who oppose President Bush’s decision to invade Iraq is no greater than the tension that existed during the United States’ involvement in Vietnam between
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supporters of the war and war-protesters.” The judge added that “students benefit when school officials provide an environment where they can openly express their diverging viewpoints and when they learn to tolerate the opinions of others.” Judge Duggan thus ruled in favor of Bretton Barber.
PUNISHING STUDENTS FOR DISPLAYING THEIR “SEXUALITY” ON T-SHIRTS: VIEWPOINT-BASED DISCRIMINATION AGAINST SPEECH?
A high school student in Manteca, Calif., sued school administrators after she was sent home from school for refusing to change out of a T-shirt that said, “Nobody knows I’m a lesbian.” Most people at the school actually did know the student’s sexual orientation; the student, Taylor Victor, had come out the year before and wore the shirt ironically, saying in a blog post that it “made me laugh because pretty much everyone knows I’m a lesbian.” But a teacher who noticed Victor wearing the shirt sent her to speak with the school’s vice principal, who told her to change her shirt “on the grounds that she was not allowed to display her ‘sexuality’ on clothing.” He later said the shirt violated the school’s dress code because it was “disruptive.” Another administrator at the school apparently also told her the shirt was “promoting sex” and an “open invitation to sex.”
The student sued, and in February 2016, she reached a settlement with the school district. Under the terms of the settlement, the district agreed to let Victor wear her shirt to school. The district also agreed to change its dress code to clarify that students “will not be prohibited from wearing clothing, jewelry or personal items that express self-identification with, or support for, individuals or groups on the basis of … disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion or sexual orientation.” The settlement also stipulated that the district was required to retain a consultant to provide training about student free speech rights to all district administrators. Linnea Nelson, the American Civil Liberties Union lawyer who represented Victor in her suit, told the Los Angeles Times, “Students don’t leave their rights to free speech at the schoolhouse gates. At the end of the day, the law on this is very clear, that public schools can’t censor the personal beliefs of students just because they think it might be controversial.”
In a rather remarkable T-shirt censorship case, a federal judge in 2011 upheld under the Tinker standard a California school’s decision to prohibit the wearing by students of T-shirts bearing the American flag on May 5. May 5 is the date of a Mexican holiday known as Cinco de Mayo. The judge in Dariano v. Morgan Hill Unified School District

5 determined
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that wearing American flag shirts on that specific day might lead to a substantial disruption of the educational atmosphere. He cited “a context of ongoing racial tension and gang violence within the school” and noted that the ban was implemented “after a near-violent altercation had erupted during the prior Cinco de Mayo over the display of an American flag.” Based upon this history of racial trouble at Live Oak High School, the judge concluded that “school officials [could] reasonably forecast that Plaintiffs’ clothing could cause a substantial disruption with school activities.”
The Dariano decision tracks a long line of cases in which courts allow schools to prohibit students from wearing confederate flag symbols if there is a recent history of racial tension and trouble within a school. In 2012, the Dariano students who found their American-flag adorned clothing censored appealed to the 9th U.S. Circuit Court of Appeals. They argued in their brief that “without exception, the celebration of the American flag should be protected no less than its desecration. Indeed, it is a poor lesson in American civics to ban the American flag as a polarizing racist pariah when competing symbols of nationhood are at issue.” In 2014, the 9th Circuit affirmed the 2011 ruling in favor of the school district, concluding that school officials could “reasonably forecast substantial disruption or violence.” The U.S. Supreme Court declined to hear the case in 2015.
The legacy of Tinker has largely failed to live up to the Court’s bold language in the case. Although Tinker’s material-and-substantial interference or disruption standard remains good law and has never been overruled, many lower courts attempt to factually distinguish Tinker in student-speech cases to avoid applying its precedent. It is a major problem for students’ speech rights that has grown worse after the tragedy at Columbine High School in Littleton, Colo., in 1999. Judges remain extremely sensitive to the legacy of Columbine and other school shootings and, in turn, give great deference to school administrators and principals and are loathe to question their judgment about when speech might reasonably lead to a substantial and material disruption of the educational process or interference with the rights of other students.
The killing of 20 elementary school students in December 2012 in Newtown, Connecticut, spawned another crackdown on student speech referencing violence. For instance, a high school senior named Courtni Webb was suspended from her charter school in the San Francisco Unified School District shortly after the Newtown tragedy for writing a poem about it. The poem included the lines “I understand the killings in Connecticut. I know why he pulled the trigger” and “Why are we oppressed by a dysfunctional community of haters and blamers?” In an interview with a reporter from KGO-TV, Webb said the poem was “just talking about society and how I understand why things like that incident happened.” She said writing poetry was therapeutic for her. California Education Code Section 48907 makes it clear that “pupils of the public schools, including charter schools, shall have the right to exercise freedom of speech and of the press” (emphasis added).
While Tinker applies today in cases involving student speech that occur on school grounds and that are neither school sponsored nor sexually lewd, vulgar or profane, or advocate illegal drug use, a very different legal standard applies when the speech is sponsored by the school, such as a school newspaper that is part of the curriculum. The
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standard in this latter situation was created by the Supreme Court in 1988 in Hazelwood School District v. Kuhlmeier,

6 and it is discussed next.
BANNING CONFEDERATE FLAG CLOTHING AT SCHOOL: THE
TINKER
ANALYSIS APPLIES
In September 2015, more than 20 students were suspended from Christiansburg High School in southwestern Virginia for peacefully wearing clothing emblazoned with the Confederate battle flag. Is such censorship permissible? It all depends on whether there has been a recent history of racial violence or racial trouble at the school. If there has been a history of racial trouble at the school, then the censorship is likely permissible. That’s because school officials would have reasonable grounds to predict and forecast that the wearing of such clothing will cause a substantial and material disruption of the educational environment, under Tinker. On the other hand, if there is no recent history of racial trouble at the school in question, then such banning of Confederate battle flag clothing is likely unconstitutional. In the Christiansburg High School case, The Washington Post reported that Confederate flag symbols had been banned at the school for more than a dozen years, dating back to 2002 after a series of racially motivated fights between students. Was that too far in the past to reasonably predict trouble in 2015 when the students were suspended from Christiansburg High School? What do you think?
The
Hazelwood
Case
In 1983 the principal at Hazelwood East High School near St. Louis censored the school newspaper by completely removing two pages that contained articles about teen pregnancy and the impact of parents’ divorce on children. The articles on pregnancy included personal interviews with three Hazelwood students (whose names were not used) about how they were affected by their unwanted pregnancies. There was also information about birth control in the story. The story on divorce quoted students—again not identified—about the problems they had suffered when their mothers and fathers had split up. The censorship of the articles was defended on the grounds of privacy and editorial balance. School officials said they were concerned that the identity of the three girls who agreed to anonymously discuss their pregnancies might nevertheless become known. School officials said they acted to protect the privacy of students and parents in the story on divorce as well. In addition, the principal said the latter story was unbalanced, giving the views of only the students. In 1988 the Supreme Court ruled that the censorship was permissible under the First Amendment.
7
It is important to note that this ruling involved censorship of a high school newspaper that was published as a part of the school curriculum. The court strongly suggested
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the ruling would not necessarily apply to a high school paper published as an extracurricular activity where any student might contribute stories. Justice Byron White, author of the court’s opinion, noted specifically in a footnote that the court did not at that time have to decide whether its ruling might also be applied to school-sponsored college and university newspapers.
Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored publications as long as their actions are reasonably related to “legitimate pedagogical concerns.”
The Supreme Court refused to apply the Tinker standard by distinguishing the Hazelwood case from the earlier ruling. The Tinker ruling, Justice White said in the 5-3 decision, deals with the right of educators to silence a student’s personal expression that happens to occur on school property. Hazelwood concerns the authority of educators over school-sponsored publications. “Educators are entitled to exercise greater control over this second form of student expression to assure that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of individual speakers are not erroneously attributed to the school,” he wrote. Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored publications as long as their actions are reasonably related to “legitimate pedagogical concerns.” This means school officials could censor out material they found “ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences.” Justice White stressed at one point in the ruling that the education of the nation’s youth is primarily the responsibility of parents, teachers and state and local school officials, not federal judges. Only when the decision to censor has “no valid educational purpose” is the First Amendment directly and sharply involved.
SATIRE, SWASTIKAS AND HIGH SCHOOL PLAYS: A GLARING OMISSION IN 2016 FROM “THE PRODUCERS”
Mel Brooks’ Tony Award-winning musical “The Producers” satirizes Nazis and features a play-within-a-play called “Springtime for Hitler.” Part of the set for that scene typically includes several huge banners featuring swastikas. But when Tappan Zee High School in New York produced the play in 2016, the large swastika-emblazoned banners went missing. That’s because the school district’s superintendent ordered them removed, apparently failing to understand the humorous context in which they were used. “There is no context in a public high school where a swastika is appropriate,” the superintendent told a WCBS television reporter. He did, however, allow much smaller swastikas on the armbands of several of the student thespians.
Is such censorship permissible? Because “The Producers” was put on as a school-sponsored play and was directed by a faculty member, the rule from Hazelwood would apply to determine if the censorship violated the First Amendment. Applying Hazelwood, a court would need to ask, “Was the censorship reasonably related to legitimate pedagogical concerns?” No lawsuit in this instance was filed, however, but the political correctness and interference with artistic freedom is nonetheless disturbing.
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It is not only stories about sexual behavior or violence that can provoke school administrators to censor student publications. School officials frequently seek to block the publication of stories that will make school administrators or teachers appear to be foolish or incompetent or lacking judgment.
There are only a few rare instances in which courts have held that school administrators have gone too far and violated the rights of student-journalists under Hazelwood’s expansive “legitimate pedagogical concerns” standard. One such case of a First Amendment violation involved the censorship of an article in the Utica High School Arrow in Utica, Mich. The student-authored article in question reported on a lawsuit filed against the Utica Community Schools (UCS) by two local residents, Joanne and Rey Frances, who lived next door to the UCS bus depot. The Frances’ lawsuit claimed injuries and illnesses allegedly caused by breathing in the diesel fumes emitted by the UCS’s idling buses each school day. A local newspaper had already covered the story about the lawsuit before student Katherine “Katy” Dean researched and wrote an article about the situation for her school newspaper, the Arrow. The Arrow is an officially sponsored publication of the UCS and, as part of the high school’s curriculum for which students receive credit and grades, operates under the direction of a faculty adviser. The faculty adviser, however, does not regulate the subjects covered by students, but instead merely provides advice on which stories to run. She also reviews, criticizes and checks the grammar contained in articles. The Arrows staff of student journalists controls the content of the monthly paper, is responsible for major editorial decisions without significant administrative intervention and typically does not submit its content to school administrators for prepublication review.
The article written by Dean was balanced and accurate, and it correctly reported that school district officials declined to comment on the lawsuit. One day before the article was scheduled to go to press, however, UCS administrators ordered that it be removed from the Arrow, citing so-called journalistic defects and “inaccuracies” (for instance, the UCS administration did not like the fact that Dean’s article accurately attributed scientific data to a story in USA Today—apparently it was not a credible source in the minds of the school officials—and the fact that a draft of the story used pseudonyms for the Frances’ real names). The American Civil Liberties Union filed a lawsuit on behalf of Dean, claiming the censorship violated Dean’s First Amendment rights under Hazelwood.
8
In 2004 U.S. District Court Judge Arthur Tarnow applied the Hazelwood legitimate-pedagogical-concerns standard and ruled in favor of Dean and against the school. The judge called the school’s censorship and suppression of the article “unconstitutional,” adding that the school’s “explanation that the article was deleted for legitimate educational purposes such as bias and factual inaccuracy is wholly lacking in credibility in light of the evidence in the record.”
9 Judge Tarnow distinguished the Arrow article about the lawsuit from the censored content in the Hazelwood case that dealt with teen pregnancy and divorce. He observed that Katy Dean’s article about the bus-fumes lawsuit did not raise any privacy concerns since a local paper had already addressed the lawsuit, and it did not contain any sexual “frank talk” and thus could not reasonably be perceived as being unsuitable for immature audiences. Beyond such critical distinctions, Judge
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Tarnow found the article to be fair and balanced, noting that Dean’s story “sets forth the conflicting viewpoints on the health effects of diesel fumes, and concludes that the link between diesel fumes and cancer is not fully established.” Finally Tarnow noted that the story contained no serious grammatical errors and that “Dean’s article properly and accurately attributes its quotations to their sources. The article qualifies any statement made by its sources. The article does not present the author’s own conclusions on unknown facts.” Judge Tarnow thus concluded that “Katy Dean had a right to publish an article concerning the Frances’ side of the lawsuit so long as it accurately reported the Frances’ side of the lawsuit.”
In addition to holding that the school’s actions against Dean violated the Hazelwood standard, Judge Tarnow ruled that the censorship of her article violated the more general but important First Amendment rule against
viewpoint-based discrimination. In support of this holding, Judge Tarnow noted that the UCS attorney “conceded that Dean’s article would not have been removed from the Arrow if it had explicitly taken the district’s side with respect to the Frances’ lawsuit against UCS.” This is the essence of viewpoint-based discrimination: The government (in this case, the school district) restricts and restrains one side of a debate but not the other. For instance, in 2012 a federal judge in ACLU v. Conti held that the state of North Carolina’s “offering of a Choose Life license plate in the absence of a pro-choice plate constitutes viewpoint discrimination in violation of the First Amendment.” More simply put, the government should remain neutral in the marketplace of ideas (see pages 53–54 regarding the marketplace of ideas) and not favor one side of a debate over the other. By acknowledging that the school would have allowed Katy Dean to print an article that favored the UCS’s position in the lawsuit filed against it by the Franceses, the UCS attorney essentially admitted the viewpoint-based discrimination that drove it to censor Dean’s story.
The case of Dean v. Utica Community Schools should stand as a stark reminder to overzealous and censorious high school administrators that there are limits, even under the Hazelwood legitimate-pedagogical-concern standard, to censorship of the student press.
High school journalism remains vigorous in many schools. And the legislatures in a handful of states, including California, Colorado, Arkansas, Illinois, Iowa, Maryland, Massachusetts, Nevada, North Dakota, Oregon, Rhode Island, Vermont and Kansas, have passed statutes granting student-journalists in those states a fuller measure of freedom of expression than was granted by the Supreme Court in Hazelwood. For instance, Oregon’s anti-Hazelwood statute, enacted in 2007, provides that student-journalists “have the right to exercise freedom of speech and of the press in school-sponsored media, whether or not the media are supported financially by the school or by use of school facilities or are produced in conjunction with a high school class” and that “student journalists are responsible for determining the news, opinion and feature content of school-sponsored media,” subject only to the substantial-and-material disruption limitations articulated by the U.S. Supreme Court in Tinker (rather than to the Hazelwood standard) and general rules of libel and privacy laws.
10
The question, “In what ways can a high school newspaper be censored?” cannot be answered until two other questions are. First, is the newspaper published at a public or private high school? Constitutional protections have substantially less meaning at private
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schools. The First Amendment is not considered an impediment at private high schools or private colleges and universities. A newspaper at a private school can be censored in just about any way imaginable. There is, however, one minor exception to this general rule. In particular, California has a statute known as the “Leonard Law” that applies First Amendment standards to private, secular high schools and to secondary schools; these private schools, in other words, are forbidden from violating students’ First Amendment rights.
11 Although California is the only state to have such a law extending First Amendment rights to private school students, there is nothing to prevent legislative bodies in other states from drafting and approving similar legislation in the future.
The next question to ask when focusing on public schools is, “What kind of newspaper is it?” Three kinds of publications are possible:
A school-sponsored newspaper, generally defined as a paper that uses the school’s name and resources, has a faculty adviser and serves as a tool to teach knowledge or skills. Typically this kind of newspaper is produced as part of a journalism class.
An unsupervised or student-controlled newspaper produced on the school’s campus as an extracurricular activity.
A student newspaper produced and distributed off campus.
The Hazelwood ruling spoke only to the first kind of newspaper. This type of paper can be most heavily censored. Most authorities agree that school officials have less power to censor the second kind of publication, and no power to censor the third kind of newspaper, unless students attempt to distribute it on campus. School administrators can ban the on-campus distribution of material produced elsewhere, and this authority provides them with a kind of informal censorship power if students seek to circulate the material on school property.
STUDENT SPEECH RIGHTS ON THE WEB: THE ISSUE THE SUPREME COURT MUST ADDRESS
When students use their home computers, outside school and on their own time, to post Internet content that ridicules their teachers, administrators or classmates, can schools punish them without violating the First Amendment right of free speech? As of late 2017, the U.S. Supreme Court had not ruled on this issue, and lower courts were split on whether schools should have jurisdiction over such off-campus-created student expression. Only one thing appears fairly clear today: If a student who creates the off-campus, Internet-posted speech later downloads it or accesses it at school and shows it to other students while on campus, then the
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school has jurisdiction and the Tinker standard typically applies. But some courts have held that schools can punish student-authors even if they never download the speech in school.
For instance, the 5th U.S. Circuit Court of Appeals ruled in 2015 that school officials did not violate the First Amendment speech rights of student Taylor Bell when they punished him for posting on Facebook and YouTube a profanity-laced rap recording. The rap, which Bell created while off campus and without using any school resources, accused two coaches at Itawamba Agricultural High School in Mississippi of sexually harassing several girls at the school. Rapping under the name T-Bizzle, Bell rapped, among other things, that one coach “took some girls in the locker room in PE / cut off the lights / you motherfucking freak / fucking with the youngins / because your pimpin game weak.” The rap added, with violent overtones, that “you fucking with the wrong one / going to get a pistol down your mouth / Boww.” Bell said he created the rap to call attention to the alleged sexual harassment.
In ruling for the school and against Bell, however, the 5th Circuit in Bell v. Itawamba County School Board

12 found that the rule from Tinker applied to the case because Bell intentionally directed the rap at the school community. Applying Tinker, the 5th Circuit concluded that “a substantial disruption reasonably could have been forecast” by school officials because the “rap pertained directly to events occurring at school, identified the two teachers by name, and was understood by one to threaten his safety and by neutral, third parties as threatening.”
In late 2015, Taylor Bell filed a petition for a writ of certiorari asking the U.S. Supreme Court to hear his case. The Supreme Court, however, denied the petition in 2016, thus failing to clarify whether, in fact, school officials should have jurisdiction over student speech created off campus and during non-school hours.
The bottom line, as of late 2017, is that an increasing number of courts (although not all) are concluding that: 1) a public school does have jurisdiction to punish its students for their off-campus created speech posted online if the speech is directed at or otherwise targets other students or school officials; and 2) Tinker’s substantial-and-material disruption standard supplies the correct test for determining if punishment in any given case is justified.
The
Bethel
Case
In addition to the tests created in the Tinker and Hazelwood rulings, the U.S. Supreme Court prior to 2007 had considered the speech rights of public high school students in one other case. In particular, the court held in 1986 in Bethel School District v. Fraser

13 that officials at Bethel High School in Pierce County, Wash., did not violate the free-speech rights of student Matthew Fraser when they suspended him for making a sexually suggestive speech nominating a classmate for student government at an assembly packed
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with 600 students. Although he did not use profanity, the sexual innuendos were clear to some students in the audience who “hooted and yelled” (other students, conversely, were “bewildered and embarrassed”) when Fraser said:
Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts—he drives hard, pushing and pushing until finally—he succeeds. Jeff is a man who will go to the very end—even the climax, for each and every one of you.
In rejecting Fraser’s First Amendment argument, the majority of the Supreme Court refused to apply the Tinker substantial-and-material-disruption standard, noting what it called a “marked distinction between the political ‘message’ of the armbands in Tinker and the sexual content” of Fraser’s talk, as well as the fact that the speech in Tinker was “passive expression” (it was an armband) while Fraser’s speech was actively spoken to a captive audience of students gathered for the assembly. Having thus distinguished Tinker, the court in Fraser held that schools can punish students who use “offensively lewd and indecent speech” that is “unrelated to any political viewpoint” because
such expression “would undermine the school’s basic educational mission”;
“it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse”; and
society has an interest “in teaching students the boundaries of socially appropriate behavior.”
In addition to these rationales for allowing the school’s punishment of Matthew Fraser, the majority reasoned that “by glorifying male sexuality, and in its verbal content, the speech was acutely insulting to teenage girl students.”
The bottom line is that, prior to 2007, there was a trilogy of Supreme Court cases (Tinker, Hazelwood and Bethel), each with its own rules and guidelines, that public schools may use to squelch the speech rights of students. They are summarized in the following box.
THREE KEY SCHOOL-SPEECH CASES PRIOR TO 2007
1.
Tinker: School officials may regulate speech that they reasonably believe will materially and substantially disrupt or interfere with classwork, educational activities and/or discipline.
2.
Hazelwood: Schools may regulate speech that is school sponsored and/or that is part of the school curriculum, so long as the censorship is reasonably related to legitimate pedagogical (i.e., teaching and learning) concerns.
3.
Bethel: Schools may regulate sexually offensive speech that is lewd, vulgar or indecent (they also can regulate obscene speech since it is without any First Amendment protection [see Chapter 13]; Fraser’s language about speech that “would undermine the school’s basic educational mission” also is used successfully by some schools to ban images and ads for drugs, tobacco and alcohol).
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In reality, many student-speech cases do not fit squarely into any of the three Supreme Court precedents described in the box. For instance, a case may be a hybrid of political content and drug-related imagery (a T-shirt showing a pot leaf and the accompanying message, “Vote Yes on Proposition 42: Legalize Marijuana”). Lower courts in these situations are forced to try to find the precedent that comes the closest, factually speaking, to the issue at hand.
“IBOOBIES! (KEEP A BREAST)”: MAKING A FEDERAL CASE OVER BRACELETS
In 2013, several federal courts considered if public schools could lawfully ban students from wearing breast cancer awareness bracelets bearing the slogan “I ♥ Boobies! (Keep A Breast).” Some schools asserted authority to ban the bracelets under the Supreme Court’s precedent in Bethel School District v. Fraser, arguing that the word “boobies” is sexually lewd and vulgar. They added that the phrase “I ♥ Boobies!” is an impermissible double entendre about sexual attraction to breasts.
Students, however, countered that the entire message is far more political, providing an effective, yet fun, way of raising awareness of breast cancer. In other words, they argued that “boobies” is not lewd or vulgar when used in conjunction with the other words on the bracelets. They thus claimed the First Amendment protected wearing the bracelets to school.
The 3rd U.S. Circuit Court of Appeals concluded in August 2013 in B.H. v. Easton Area School District that students had a First Amendment right to wear the bracelets, finding that “the bracelets here are not plainly lewd” under Fraser and adding that the school district “failed to show that the bracelets threatened to substantially disrupt the school under Tinker.” In 2014, the U.S. Supreme Court rejected the school’s petition for a writ of certiorari, thus leaving the students’ victory and the 3rd Circuit’s ruling intact. Should the age of the students—middle schoolers rather than high schoolers—make a difference in how the court decides the case? What do you think about the ban on such bracelets in public schools?
The
Morse
Case
In 2007, the U.S. Supreme Court heard a student-speech case called Morse v. Frederick. In this dispute, known as the “Bong Hits 4 Jesus” case, the 9th U.S. Circuit Court of Appeals ruled in 2006 that the First Amendment protected a student’s right to unfurl, while standing on a sidewalk across the street from his high school as an Olympic torch relay passed by, a banner emblazoned with that drug-related catchphrase.
14 The students at Juneau-Douglas High School in Alaska had permission to be on the sidewalk during the relay and were under teacher supervision. While student Joseph Frederick claimed the “Bong Hits 4 Jesus” language was meaningless, funny and done in order to get on television, Principal Deborah Morse did not find it amusing and considered it a pro-drug message in conflict with the school’s “basic educational mission to promote a healthy, drug-free life style.” Frederick’s banner was taken down and he was suspended for 10 days.
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In ruling for Frederick, the 9th Circuit applied the Tinker standard. Noting there was no substantial and material disruption of educational activities caused by Frederick’s banner, the 9th Circuit focused on the fact that the school conceded the banner “was censored only because it conflicted with the school’s ‘mission’ of discouraging drug use.”
The school petitioned the U.S. Supreme Court to hear the case and to reverse the 9th Circuit’s opinion. The school was represented by Ken Starr, the former independent counsel who investigated Bill Clinton’s affair with Monica Lewinsky. Starr asked the nation’s high court to consider the following question:
Whether the First Amendment allows public schools to prohibit students from displaying messages promoting the use of illegal substances at school-sponsored, faculty-supervised events.
The Supreme Court ruled in 2007, holding that the First Amendment rights of Joseph Frederick were not violated. Writing for a five-member majority of the court, Chief Justice John Roberts explained that “schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use. We conclude that the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending the student responsible for it.” Roberts rejected the idea that the banner constituted political speech, writing that “this is plainly not a case about political debate over the criminalization of drug use or possession.”
15 The long-term impact of this decision in Morse remains to be seen, but the ruling itself was very narrow and limited. It is important to note that the court in Morse did not overrule Tinker, Hazelwood or Bethel; those decisions remain intact. The Morse opinion is limited in scope to nonpolitical speech that advocates or celebrates the use of illegal drugs.
Unfortunately for advocates of student-speech rights, some courts are stretching the Supreme Court’s ruling in Morse far beyond its narrow facts about nonpolitical speech advocating illegal drug use. Just six months after Morse, the 5th U.S. Circuit Court of Appeals interpreted Morse to stand for a broad, pro-censorship principle—that “speech advocating a harm that is demonstrably grave and that derives that gravity from the ‘special danger’ to the physical safety of students arising from the school environment is unprotected.”
16 The 5th Circuit held in Ponce v. Socorro Independent School District that a “Morse analysis is appropriate”—rather than the traditional and more rigorous substantial-and-material disruption standard from the high court’s ruling in Tinker—when the student speech at issue “threatens a Columbine-style attack on a school.” As the 5th Circuit wrote in holding that Morse can be used to squelch and punish not just speech that advocates illegal drug use, but also student speech that threatens mass violence:
If school administrators are permitted to prohibit student speech that advocates illegal drug use because “illegal drug use presents a grave and in many ways unique threat to the physical safety of students” . . . then it defies logical extrapolation to hold school administrators to a stricter standard with respect to speech that gravely and uniquely threatens violence, including massive deaths, to the school population as a whole.
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CENSORSHIP OF COLLEGE NEWSPAPERS
The Supreme Court in Hazelwood did not decide whether its “reasonably related to legitimate pedagogical concerns” test applied to college newspapers. In fact, it wrote, “We need not now decide whether the same degree of deference is appropriate with respect to school-sponsored expressive activities at the college and university level.” Since then, two federal appellate court decisions have addressed censorship by university officials of student-run publications:
Kincaid v. Gibson

17
Hosty v. Carter

18
The first case suggests that the federal courts are reluctant to expand the censorial powers of college administrators via Hazelwood. In 2001 the 6th U.S. Court of Appeals ruled that when administrators at Kentucky State University refused to permit the distribution of the school’s yearbook because they didn’t approve of its content and the color of its cover, they violated the First Amendment rights of the students at the school. But the 10-3 ruling was based largely on the fact that the creation of the yearbook was not a classroom activity in which students are assigned a grade. The yearbook was a designated public forum (see pages 118–119) created by the university to exist in an atmosphere of free and responsible discussion and intellectual exploration, the court said. What the school officials did was clearly censorship. “There is little if any difference between hiding from public view the words and pictures students use to portray their college experience, and forcing students to publish a state-sponsored script. In either case, the government alters student expression by obliterating it,” Judge R. Guy Cole wrote. But in reality, the court had merely distinguished the production of the yearbook from the classroom-generated newspaper in Hazelwood.
A more disturbing, disappointing and important federal appellate court decision affecting the college press was handed down in 2005 in Hosty v. Carter. The Hosty case centered on demands by university administrators in 2000 for prior review and approval—a classic prior restraint on speech, in other words—of the Innovator, the student-run newspaper at Governors State University, located south of Chicago. The Innovator had previously published articles under the byline of student Margaret Hosty that were critical of a school official, sparking the confrontation.
A major issue in the resulting lawsuit was whether the legitimate-pedagogical-concerns standard articulated by the U.S. Supreme Court in the Hazelwood case for controlling the censorship of school-sponsored, high school newspapers that are part of the curriculum is also applicable to college newspapers.
In Hosty, the student-journalist plaintiffs argued that Hazelwood’s legitimate-pedagogical-concerns standard was never made applicable to the college press, and they contended that university administrators cannot ever insist that student newspapers be submitted for review and approval. But by a 7-4 vote, the U.S. 7th Circuit Court of Appeals rejected these contentions and rebuffed the idea that there is a bright-line difference
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between high school and college newspapers. The 7th Circuit wrote that the Supreme Court’s footnote in Hazelwood “does not even hint at the possibility of an on/off switch: high school papers reviewable, college papers not reviewable.” It added that “whether some review is possible depends on the answer to the public-forum question, which does not (automatically) vary with the speakers’ age.” The key in Hosty, then, was whether the student newspaper constituted a public forum. Whether a particular physical venue or location constitutes a public forum for purposes of First Amendment speech protection is discussed later in this chapter (see pages 118–123). Writing for the seven-judge majority in Hosty, Judge Frank Easterbrook articulated a rule that “speech at a non-public forum, and underwritten at public expense, may be open to reasonable regulation even at the college level.”
Thus, for the majority of the 7th Circuit, “Hazelwood’s first question therefore remains our principal question as well: was the reporter a speaker in a public forum (no censorship allowed?) or did the University either create a non-public forum or publish the paper itself (a closed forum where content may be supervised)?” This meant that the appellate court had to examine the status of the particular student newspaper at issue in Hosty, namely the Innovator, to determine whether or not it was a public forum. The court noted that if the Innovator “operated in a public forum, the University could not vet its contents.” The appellate court, unfortunately, held that it was not possible on the record in front of it to determine what kind of forum Governors State University had established with the Innovator. The court did, however, provide some guidance on this for the future, noting among other things that
while “being part of the curriculum may be a sufficient condition of a non-public forum, it is not a necessary condition. Extracurricular activities may be outside any public forum . . . without also falling outside all university governance [emphasis added].” In other words, just because a college newspaper is an extracurricular activity and not part of the curriculum does not mean that it necessarily escapes all university control or regulation; and
“a school may declare the pages of the student newspaper open for expression and thus disable itself from engaging in viewpoint or content discrimination while the terms on which the forum operates remain unaltered.”
Another important factor in the public forum determination of a university newspaper is whether the university underwrote and subsidized the newspaper without any strings attached or, conversely, whether it “hedge[d] the funding with controls that left the University itself as the newspaper’s publisher.”
What does all of this mean for college newspapers? First, it’s important to remember that the decision is binding in only the three states that comprise the 7th Circuit Court of Appeals—Illinois, Indiana and Wisconsin (see page 28 for a map of the federal appellate court circuits). Second, many college newspapers, such as the Alligator at the University of Florida, are independent of the universities that their student-journalists attend and are not directly funded by the university. In an official press release on the Hosty decision, Mark Goodman, former executive director of the Student Press Law Center that had filed a friend-of-the-court brief in the case, stated:
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As a practical matter, most college student newspapers are going to be considered designated public forums and entitled to the strongest First Amendment protection because that’s the way they’ve been operating for decades. But this decision gives college administrators ammunition to argue that many traditionally independent student activities are subject to school censorship.
In 2006, California became the first state to pass so-called anti-Hosty legislation after the U.S. Supreme Court refused earlier that year to hear the Hosty case. California’s law prohibits state public university officials from making and enforcing rules “subjecting any student to disciplinary sanction solely on the basis of conduct that is speech or other communication that, when engaged in outside a campus of those institutions, is protected from governmental restriction by the First Amendment.”
19 In brief, the law prohibits prior restraints and censorship by university administrators (officials, for instance, in the University of California and California State University systems) of public college and university newspapers. This, in turn, means that the Hazelwood rule cannot apply to the public collegiate press in California; instead, college newspapers in the Golden State must be treated like real-world professional newspapers such as the Los Angeles Times and the San Francisco Chronicle.
Some courts, unfortunately, still apply Hazelwood’s “reasonably related to legitimate pedagogical concerns” standard in university settings. For instance, in 2012 the 6th U.S. Circuit Court of Appeals in Ward v. Polite

20 considered whether Eastern Michigan University had violated the First Amendment rights of graduate student Julea Ward. Ward claimed she was expelled from the university’s counseling program because some professors objected to her expression of her religious viewpoints and beliefs. In holding that Hazelwood supplied the proper standard to determine if Ward’s free-speech rights were violated, the 6th Circuit acknowledged that Hazelwood stemmed from a high school case, but it then added that Hazelwood “works for students who have graduated from high school. The key word is student. Hazelwood respects the latitude educational institutions—at any level—must have to further legitimate curricular objectives. All educators must be able ‘to assure that participants learn whatever lessons the activity is designed to teach.’” The appellate court added that “[n]othing in Hazelwood suggests a stop-go distinction between student speech at the high school and university levels, and we decline to create one.” The Ward decision is binding only in the 6th Circuit, which includes the states of Kentucky, Michigan, Ohio and Tennessee.
Problems for College Journalists
What kinds of censorship problems affect the college press? Getting access to information is one problem. Student-journalists often have difficulty gaining access to reports on faculty performance, student government meetings and school disciplinary hearings. It is not uncommon for a college to reject the criminal prosecution of a student apprehended for a minor crime, and instead punish the student through a disciplinary proceeding. The criminal trial would be open to the public and the press; disciplinary hearings are routinely closed. Hence, no bad publicity for the school. Campus administrators have even
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attempted to bar all reporters from access to university police reports, citing the Family Educational Rights and Privacy Act (FERPA; see Chapter 9), which limits the public access to most student records. School officials have argued—unsuccessfully—that crime reports that name students as victims, perpetrators or even witnesses are educational records and hence inaccessible under this law. If the press can’t see the official police reports, stories about the incident generally won’t be written. The courts have rejected this interpretation of the law.
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For instance, in 2016 the attorney general of Kentucky criticized the University of Kentucky for refusing to hand over documents both to UK’s student-run newspaper and then to the attorney general himself. The newspaper, the Kentucky Kernel, submitted an open-records request to the university for records related to graduate students’ sexual harassment accusations against a faculty member at the school. The university denied the request. When the newspaper appealed the university’s denial to the attorney general, he requested copies of the documents in order to substantiate the university’s decision. But, citing FERPA, the university denied his request too and “unlawfully withheld the requested documents,” the attorney general wrote in a motion he filed seeking a court order to force the university to turn over the documents to his office. UK then sued the newspaper in an attempt to overturn the attorney general’s ruling. In early 2017, a state court in Kentucky ruled in favor of the school. The newspaper, with the support of the attorney general, vowed to appeal the decision.
In another example, in 2016 a Florida trial court ruled against the University of Central Florida in its battle to keep documents out of the hands of a student news outlet. The Knight News had requested from the university unredacted student government association budget records, including payments made to student government officers that came from student activity fees. The judge in the case rejected the university’s argument that those records could be withheld as “education records” under FERPA. “If a student or parent requested that student’s records as intended by FERPA, it is almost certain that that student or parent would not receive a copy of the requested Budget forms and Database records merely because the subject student’s name appeared somewhere in those documents,” Judge John Jordan wrote in his opinion. A Florida appeals court upheld Judge Jordan’s ruling in June 2017.
Under a federal law called the Clery Act (named for a Lehigh University student raped and killed in her dorm in 1986), all colleges and universities that participate in federal student-aid programs are required to give timely warnings of campus crimes that represent a threat to the safety of students and/or employees and to make public their campus security policies. The law also mandates that colleges and universities collect data and statistics on a number of specific crimes and then report that information to the campus community on an annual basis. These data obviously can help student-journalists in reporting on problems on their campuses. One major problem with the law is that it does not define what constitutes a timely warning. In light of shooting tragedies in recent years at Virginia Tech and Northern Illinois University, such warnings are of obvious
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importance. Due in part to these terrible events, the Clery Act was amended in 2008 to require campus authorities “to immediately notify the campus community upon the confirmation of a significant emergency or dangerous situation involving an immediate threat to the health or safety of students or staff occurring on the campus.”
A FAILURE TO TIMELY WARN OF DANGER: THE VIRGINIA TECH MASSACRE
Seung-Hui Cho, a student at Virginia Tech University in Blacksburg, Va., shot and killed two students in a dormitory at 7:15 in the morning on April 16, 2007. Campus police quickly discovered the shooting at 7:24 a.m. Cho, however, remained on the loose, and he continued his on-campus rampage, ultimately killing 32 students before taking his own life. Virginia Tech officials took more than two hours before they finally sent an e-mail at 9:26 a.m. warning students, faculty and staff about the shootings.
More than three years later, the U.S. Department of Education concluded that Virginia Tech failed to adequately warn students that day and violated the Clery Act. The report, released in December 2010, found that “the warnings that were issued by the University were not prepared or disseminated in a manner to give clear and timely notice of the threat to the health and safety of campus community members” and, to make matters even worse, that “Virginia Tech did not follow its own policy for the issuance of timely warnings as published in its annual campus security reports.”
In April 2014, after a protracted battle with the U.S. Department of Education and seven years after the campus shooting, Virginia Tech paid a fine of $32,500, thus closing the case against it. The $32,500 total included $27,500 for failing to timely warn and $5,000 for incorrectly stating warning policies.
In 2013, the Department of Education fined Yale University $165,000 under the Clery Act for, among other things, failing to report four forcible sex offenses, dating back to 2001 and 2002, in its annual campus crime statistics. An April 2013 letter to Yale President Richard Levin from the DOE stated that although Yale corrected its reports in 2004 after being notified of the problem, “the correction of violations does not diminish the seriousness of not correctly reporting these incidents at the time they occurred.” While Yale is a private institution, it nonetheless participates in federal student-aid programs and thus is subject to the Clery Act.
In 2011, the U.S. Department of Education opened a massive investigation into Penn State’s compliance with the Clery Act in light of the sexual abuse scandal at Pennsylvania State University focusing on accusations against former assistant football coach and convicted child molester Jerry Sandusky. The investigation looked at the university’s compliance from 1998 to 2011 because the allegations of abuse covered that 14-year span. In November 2016, Penn State agreed to pay a record $2.4 million fine for failing
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to comply with the Clery Act. According to the U.S. Department of Education, the fine covered 11 serious findings of Clery Act noncompliance related to the university’s handling of Sandusky’s crimes as well as the university’s long-standing failure to comply with federal requirements on campus safety and substance abuse. Interestingly, only $27,500 of the fine directly stemmed from the Sandusky matter. Failure to properly classify reported incidents and disclose crime statistics from 2008-2011 resulted in the bulk of the fine ($2,167,500).
In June 2012, Education Secretary Duncan ordered Tarleton State University, a public institution of higher education in Texas, to pay $110,000 for failing to report three forcible sex offenses and a robbery. Each of the four violations individually cost the university $27,500. Duncan furthermore asked an administrative law judge to determine the amount of a possible additional fine for 70 nonviolent crimes that also went unreported. Ultimately, Tarleton State University agreed to pay a total fine of $123,500 in July 2012 to settle the matter with the Department of Education.
In October 2012, the Department of Education increased the maximum fine for a single instance of a violation of the Clery Act to $35,000 (up from the $27,500 established in 2002) to adjust for inflation.
How Much Crime Occurs on Your Campus?
Student journalists (as well as anyone else) can locate data about crime on their campus by visiting a Web site hosted by the Office of Postsecondary Education of the U.S. Department of Education. The Web site, known as the Campus Security Data Analysis Cutting Tool, is a clearinghouse for data collected under the Clery Act. You can find it at http://ope.ed.gov/security.
The theft of all the issues of a single edition of a newspaper by those who disagree with the material published in the paper is a problem on some campuses. Campus police usually claim they are powerless to pursue the thieves, since, because the student newspapers are free, no law has been broken.
And therein lies the problem of quite literally stealing “free” speech: How can one steal something if it is free? In fact, only three states—California, Colorado and Maryland—have statutes specifically aimed to penalize the theft of free newspapers. California’s law provides that a person can be fined $250 on a first offense for taking more than 25 copies of a free or complimentary newspaper if done so with the intent to “deprive others of the opportunity to read or enjoy the newspaper.”
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Because only three states have statutes targeting the theft of free newspapers, incidents of newspaper theft on college campuses are rampant today. The SPLC tracks and describes the incidents from a link on its Web site at http://www.splc.org/page/newspaper-theft-resources and provides a helpful “Newspaper Theft Checklist” of strategies and advice for college newspaper journalists at http://www.splc.org/page/newspaper-theft-checklist.
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For instance, the SPLC reported that hundreds of copies of student newspapers were stolen at universities in Florida, Massachusetts and Oregon after a string of thefts took place in March 2016. In one example, Florida Atlantic University’s student newspaper, the University Press, had reported on a sexual assault that allegedly occurred at a party near campus the previous year. The article explored the party’s connections to Greek life on campus. The paper’s editor-in-chief reported that within hours of the paper’s distribution, nearly 300 issues of the paper had been trashed, and by the next morning, nearly 700 issues had been taken out of bins and thrown away. When a photographer on staff witnessed two women throwing away an issue, he snapped their picture. One of the women grabbed his arm and told him that her “sorority sisters would beat him up” if he didn’t delete the photo. The editor-in-chief, Emily Bloch, told the SPLC that she considered the thefts a form of censorship, but that the actions wouldn’t deter the paper from reporting on contentious issues in the future. “If anything, what happened will make us pursue controversial stories more fiercely,” she said.
One month earlier, in February 2016, more than 4,000 copies of the student newspaper went missing at Coastal Carolina University. The Feb. 24 issue of the paper had incorrectly reported that a fraternity chapter on campus was under investigation for sexual assault and hazing. The paper later issued a correction clarifying that the university had suspended the chapter due to complaints of hazing but that the university did not investigate the fraternity for sexual assault. After the Feb. 24 issue was published, though, the paper’s editor-in-chief told the SPLC that the staff noticed that papers had been cleaned out from newspaper stands at various buildings on campus. The editor-in-chief estimated the cost of the missing papers to be between $3,000 and $4,500. The university’s department of public safety identified one man involved in taking the newspapers and was pursuing two others.
Finally, attempts to censor college newspapers indirectly, by reducing or even ending their funding, have generally failed. In 1983 the 8th U.S. Court of Appeals handed down an important ruling that still represents the state of the law,
23 more than 30 years later. The case began in the late 1970s when the University of Minnesota Daily published a year-end edition containing content that, according to one university faculty member, offended Third World students, blacks, Jews, feminists, gays, lesbians and Christians.
24 In the wake of complaints from students and off-campus readers, the university regents embarked on a plan to cut the funding for the newspaper. The plan was to allow students to decide whether or not to contribute $2 each semester to fund the newspaper. The $2 fee had automatically gone to the newspaper in the past. Two university review committees advised the regents the plan was a bad idea, but it was adopted nevertheless. Before the vote many of the regents publicly stated they favored the plan because students should not be forced to support a newspaper that was “sacrilegious and vulgar.”
A lawsuit followed the decision, and the appellate court ruled the move by the regents violated the First Amendment. A reduction in or even the elimination of fees is certainly permissible, the court said, so long as it is not done for the wrong reasons. But there was ample evidence in this case, the court said, that the reduction was
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enacted to punish the newspaper. As such it was an attempt at censorship. The court cited the negative comments about the newspaper by the regents during consideration of the plan, as well as the fact that the change was not made at other University of Minnesota campuses (which are governed by the same board of regents), only the Twin Cities campus, home of the offending newspaper, as evidence of the punitive nature of the new policy. “Reducing the revenues available to the newspaper is therefore forbidden by the First Amendment,” the court concluded.
In June 2016, a satirical student newspaper at the University of California, San Diego, sued the school, claiming the student council there violated the paper’s First Amendment rights by eliminating funding for student print media on campus. According to the Student Press Law Center, the newspaper, called The Koala, is “known for its offensive and vulgar mockery of issues like ethnicity, religion, rape, and people with illnesses and disabilities.” In November 2015, the paper published an article that used several racial slurs and mocked students’ desire for safe spaces on campus. Two days later, administrators issued a statement condemning the paper, and that same day the student council voted to cut funding for all student print media outlets on campus. The paper sued, represented by the ACLU, arguing that the defunding was motivated by disagreement with the paper’s content. The legal director of the ACLU of San Diego said in a statement, “However offensive and outrageous The Koala may be, its authors are writing about topical issues of public concern. No matter how offended I may be, it is still much worse to give government the power to decide what speech to censor. Once granted, that power will inevitably stifle protest and dissent.” But in March 2017, a district court judge in California dismissed the lawsuit, ruling that the student council did not violate the First Amendment since all print media outlets were defunded, not just The Koala. The ACLU of San Diego said The Koala planned to appeal the decision.
Alcohol Advertisements and the College Press
In 1996, Pennsylvania adopted a law known as Act 199. The law prohibited the paid dissemination of alcoholic beverage advertising in college newspapers.
25 After Act 199 became law, the Pennsylvania Liquor Control Board issued an advisory notice clarifying how the law applied to universities and the collegiate press. The notice stated:
Advertisements which indicate the availability and/or price of alcoholic beverages may not be contained in publications published by, for and in behalf of any educational institutions. Universities are considered educational institutions under this section. Thus, an advertisement in a college newspaper or a college football program announcing beverages would not be permissible.
What does this statement mean? Under this law, an advertisement paid for by a local bar in State College, Pa., and placed in the student newspaper at the Pennsylvania State University, the Daily Collegian, that described the availability and/or price of beer at the bar during happy hours would not be permissible. The student newspaper at the University of Pittsburgh, the Pitt News, decided to challenge the law on First Amendment grounds because the Pitt News, like the Daily Collegian, had received a substantial
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portion of its advertising revenue from alcoholic beverage ads prior to the enactment of Act 199. But in 1998 alone, the Pitt News lost $17,000 in advertising revenue because of the law.
Pennsylvania, in contrast, argued that the law was necessary to curb both underage drinking (although many college students and all faculty are of at least the legal drinking age of 21) and binge drinking/alcohol abuse. The theory on the latter interest apparently was that if students didn’t know where the cheap beer was being served because they couldn’t find advertisements for it in college newspapers, then they wouldn’t drink as much.
In 2004, however, the U.S. Court of Appeals for the 3rd Circuit held in Pitt News v. Pappert that Act 199 violated the First Amendment rights of the Pitt News and, by implication, other college newspapers in Pennsylvania.
26 The appellate court ruled that the law was “an impermissible restriction on commercial speech” (see Chapter 15 and the Central Hudson test for commercial speech) and that it was presumptively unconstitutional because it targeted a too narrow segment of the media—newspapers affiliated with colleges and universities—and thus conflicted with U.S. Supreme Court precedent on taxation of the press. The appellate court observed that Pennsylvania “has not pointed to any evidence that eliminating ads in this narrow sector [of the media] will do any good. Even if Pitt students do not see alcoholic beverage ads in the Pitt News, they will still be exposed to a torrent of beer ads on television and the radio, and they will still see alcoholic beverage ads in other publications, including the other free weekly Pittsburgh papers that are displayed on campus together with the Pitt News.” The appellate court added that “in contending that underage and abusive drinking will fall if alcoholic beverage ads are eliminated from just those media affiliated with educational institutions, the Commonwealth relies on nothing more than ‘speculation’ and ‘conjecture.’” The court suggested that rather than restricting the First Amendment speech and press rights of college newspapers, the “most direct way to combat underage and abusive drinking by college students is the enforcement of the alcoholic beverage control laws on college campuses.”
Nearly a decade later, the 4th U.S. Circuit Court of Appeals in 2013 declared unconstitutional a very similar Virginia statute in Educational Media Co. v. Insley.
27 The Virginia statute barred college newspapers in the Old Dominion State from running alcohol advertisements. The Virginia Alcoholic Beverage Control Board claimed the law was necessary “to combat underage and abusive college drinking.”
Just as the 3rd Circuit did in Pennsylvania in the Pitt News case described above, the 4th Circuit in Insley concluded that Virginia’s statute imposed an unconstitutional burden on truthful commercial speech under the Central Hudson test (again, see Chapter 15 and the Central Hudson test for commercial speech). Specifically, the 4th Circuit determined the statute was not narrowly tailored under the last part of the Central Hudson test because the statute “prohibits large numbers of adults who are 21 years of age or older from receiving truthful information about a product that they are legally allowed to consume.” In other words, there was not a “reasonable
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fit” between the twin goals of combating underage and abusive drinking, on the one hand, and the sweep or reach of the statute, on the other. In brief, while the goal of combating underage drinking was substantial and important (and thus satisfied this aspect of the Central Hudson test), the statute kept many readers of lawful drinking age in the dark about truthful information (and thus failed the “reasonable fit” requirement of Central Hudson).
BOOK BANNING
In 2013, the Thomas Jefferson Center for the Protection of Free Expression gave a “Muzzle Award” for censorship to the Annville-Cleona School Board in Pennsylvania. Why? Because the board, as the Jefferson Center explained, removed an award-winning children’s picture storybook called The Dirty Cowboy from its elementary school library after one student’s parents complained. The parents apparently objected to colorful illustrations depicting a cowboy’s efforts to reclaim his clothes after they were taken away by a dog as the cowboy bathed in a river. Although the cowboy is depicted without his clothes, the book shows no nudity, as the illustrations cleverly obscure his genitalia with items such as a boot and a flock of birds.
In 2016, a teacher in Lebanon, Ky., fought to keep John Green’s Looking for Alaska, a coming-of-age work of fiction, in the curriculum of her high school senior-level English class. Although Green’s best-selling novel has won literary awards, the American Library Association (ALA) reported that it led the ALA’s list of most frequently challenged books in 2015 and was on the list again in 2016. The book has been banned from assigned classroom reading lists in several schools, with charges that it is sexually explicit, contains offensive language and is unsuitable for high school audiences. In Lebanon, the teacher sent home a permission slip, giving parents the option, if they wanted, to keep their child from reading the book; those students would be assigned an alternative book instead. One parent chose that option, but that parent evidently also thought that other students shouldn’t be reading Green’s novel too, so she filed a complaint, alleging that Looking for Alaska would tempt students “to experiment with pornography, sex, drugs, alcohol and profanity.” The teacher, buoyed by support from groups such as the National Coalition Against Censorship’s Kids’ Right to Read Project, American Booksellers for Free Expression, the Association of American Publishers and the National Council of Teachers of English, challenged the complaint, and a school review committee ultimately voted that she could keep the book in her curriculum.
In 2015, The Curious Incident of the Dog in the Night-Time, Mark Haddon’s award-winning book about a 15-year-old autistic child who investigates the death of a neighbor’s dog, was pulled as a summer reading assignment at Lincoln High School in Tallahassee, Fla. The principal had received complaints about the book’s language, which includes profanity and “taking God’s name in vain.” For instance, one parent who complained told the Tallahassee Democrat, “I am not interested in having books banned. But to have that language and to take the name of Christ in vain—I don’t go for that,” she said. “As a Christian, and as a female, I was offended … I know it’s not realistic to pretend bad words don’t exist, but it is my responsibility as a parent to make sure that my daughter knows what is right or wrong.”
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As noted, the American Library Association keeps tabs on what it calls the “most challenged” books in the United States. The ALA defines a challenged book as one against which a formal, written complaint has been filed with a library or school requesting it be removed due to content or appropriateness. Among the 10 most challenged books in the United States in 2016—in addition to Looking for Alaska—were modern titles such as This One Summer, I Am Jazz and George. Overall, the ALA’s Office for Intellectual Freedom received 323 reports of attempts to remove or restrict materials from school curricula and library bookshelves in 2016.
When it comes to removing books from public school libraries, the only U.S. Supreme Court opinion on point is an aging 1982 case called Board of Education v. Pico.
28 Unfortunately, there was no majority opinion in Pico (there were seven separate opinions) as the Court addressed the issue of whether a school board could constitutionally remove from a public school library books by the likes of Kurt Vonnegut and Langston Hughes that it characterized as “Anti-American, Anti-Christian, Anti-Sem[i]tic, and just plain filthy.” There was, however, a plurality opinion (see page 25) holding that “local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to ‘prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’ ” The plurality opinion noted that school boards
rightly possess significant discretion to determine the content of their school libraries. But that discretion may not be exercised in a narrowly partisan or political manner. If a Democratic school board, motivated by party affiliation, ordered the removal of all books written by or in favor of Republicans, few would doubt that the order violated the constitutional rights of the students denied access to those books. . . . Our Constitution does not permit the official suppression of ideas. Thus whether [the school board’s] removal of books from their school libraries denied [students’] their First Amendment rights depends upon the motivation behind [the school board’s] actions.
In contrast to unconstitutional justifications for removing books from school libraries based upon dislike of the ideas and political viewpoints in them, the plurality wrote that it would be okay to remove books if done so “based solely upon the ‘educational suitability’ of the books in question” or if the books were “pervasively vulgar.” The court thus suggested that motivation of a school board in removing a book is key in determining whether its removal violates the First Amendment rights of minors to access the ideas in the book.
The guidelines from Pico were applied in 2006 by a federal court in Florida in ACLU of Florida v. Miami-Dade County School Board.
29 The dispute centered not on pervasive vulgarity, but on the removal from school libraries of particular books, targeting children from 4 to 8 years old, about Cuba and life in that island nation. The school removed the books after a parent complained they were “untruthful” and portrayed “a life in Cuba that does not exist.” As U.S. District Court Judge Alan S. Gold wrote, the “heart of the argument is that the Cuba books omit the harsh truth about totalitarian life in Communist Cuba.”
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In ruling against the school board and in ordering it to immediately replace the Cuba books, the judge wrote that “[s]ignificant weight must be given to the board’s failure to consider, much less adopt, the recommendations of the two previous committees, and that of the school superintendent, to leave the Cuba books on the library shelves because they were educationally suitable.” Recall that in Pico the Supreme Court wrote that school boards could legitimately remove books from libraries if they did so based upon concerns about “educational suitability.” This case, however, was different, as Judge Gold reasoned:
The majority of the Miami-Dade County School Board members intended by their removal of the books to deny schoolchildren access to ideas or points-of-view with which the school officials disagreed, and that this intent was the decisive factor in their removal decision. In so acting, the School Board abused its discretion in a manner that violated the transcendent imperatives of the First Amendment.
In 2009, however, the 11th U.S. Circuit Court of Appeals reversed Judge Gold’s opinion with a split 2-1 decision and, in so doing, it allowed the school board to remove the contested book, Vamos a Cuba, from its libraries.
30 The two-judge majority initially noted there was no majority opinion in the Supreme Court’s Pico ruling, and thus it observed that “the question of what standard applies to school library book removal decisions is unresolved” and “we have no need to resolve it here.” But in ruling in favor of the school board, the 11th Circuit majority adopted the school board’s position that its motive for removing the book was not based on any improper political reasons or the book’s political viewpoint, but rather was due to legitimate pedagogical concerns (akin to Hazelwood, page 92) about factual inaccuracies and critical omissions. The majority wrote that “whatever else it prohibits, the First Amendment does not forbid a school board from removing a book because it contains factual inaccuracies, whether they be of commission or omission. There is no constitutional right to have books containing misstatements of objective facts shelved in a school library.” This was the situation with Vamos a Cuba. The majority found:
The book did not tell the truth. It made life in Cuba under Castro appear more favorable than every expert who testified for either side at the hearing knows it to be, more favorable than the State Department knows it to be, more favorable than the district court knows it to be, and more favorable than we know it to be. Once you find, as we have, that the book presents a false picture of life in Cuba, one that misleadingly fails to mention the deprivations and hardships the people there endure, the argument that the [school] board acted for ideological reasons collapses on itself.
There was a strenuous dissent by Judge Charles R. Wilson, who wrote that “the school board’s claim that Vamos a Cuba is grossly inaccurate is simply a pretense for viewpoint suppression, rather than the genuine reason for its removal. The record supports the district court’s determination that the book was not removed for a legitimate pedagogical reason.” The Supreme Court declined to hear the case, thus leaving the 11th Circuit’s pro-censorship opinion intact.
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SUMMARY
Four U.S. Supreme Court decisions—Tinker, Hazelwood, Bethel and Morse—provide the legal tests for determining the free-speech rights of students in public schools. Each of the four cases features its own rule and applies to a particular situation. School officials have abused Hazelwood’s “reasonably related to legitimate pedagogical concerns” standard when it comes to censoring student newspapers produced as part of the school curriculum. A new problem not addressed in these four cases is school censorship of speech created by students off campus, on their own computers and posted on the Internet. The impact of the court’s 2007 ruling in Morse remains to be seen, but the scope of the Morse ruling is very narrow.
Two federal appellate court cases—Kincaid and Hosty—address censorship of college newspapers. Another problem college papers face today is theft by disgruntled students. Alcohol ads pose an additional issue for some college newspapers, as some states have attempted to regulate them.
Book banning and removal from public school libraries is a problem today.
TIME, PLACE AND MANNER RESTRICTIONS
Most attempts by the government to use prior censorship are based on the content of the material it seeks to censor. But the government can also base its attempts at prior censorship on other factors—specifically, the time, the place or the manner of the communication. There would certainly be few content-based objections to an individual presenting a speech on how to grow mushrooms. But the government (as well as citizens) would surely object if the speaker wanted to give the speech while standing in the middle of Main Street, or on a sidewalk at 2 a.m. in a residential neighborhood. These are called
time, place and manner restrictions or rules.
But the government can also base its attempts at prior censorship on other factors—specifically, the time, the place or the manner of the communication.
FUNERAL PROTESTS AND TIME, PLACE AND MANNER REGULATIONS: TARGETING THE WESTBORO BAPTIST CHURCH?
The topic of time, place and manner regulations is of particular importance today in measuring the constitutionality of the increasing number of funeral protest laws adopted across the country at the federal, state and local levels. For instance, former President Obama in 2012 signed a bill amending two federal statutes (18 U.S.C. § 1388 and 38 U.S.C. § 2413) to now prohibit protests and demonstrations within 300 feet of any funeral, memorial service or ceremony held for a member or former member of the Armed Forces. The prohibition begins two hours before such a funeral or service and concludes two hours afterward. In other words, the law restricts both the time (a two-hour buffer zone) and place (a 300-foot buffer zone) of speech near funerals.
By 2017, more than 40 states had adopted funeral-picketing statutes. Like the federal statutes described above, these laws typically involve both time and
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distance buffer zones. Several of these statutes have been challenged—sometimes successfully—as unconstitutional violations of the First Amendment right of free speech. Key questions in these state-law cases are whether: 1) the statutes are content based or content neutral; 2) the time periods, such as prohibiting protests starting two hours before a funeral and lasting until two hours after a funeral, are too extensive; and 3) whether the physical reach of buffer zones, such as keeping people 300 or 500 feet away from a funeral, is a reasonable distance. For example, Florida Statute Section 871.015, which took effect in 2014 and still exists today, provides that “a person may not knowingly engage in protest activities or knowingly cause protest activities to occur within 500 feet of the property line of a residence, cemetery, funeral home, house of worship, or other location during or within 1 hour before or 1 hour after the conducting of a funeral or burial at that place.” It is a first-degree misdemeanor to violate this Florida law.
Measures such as this often are adopted because of the tactics of the members of the Westboro Baptist Church, who protest near funerals of U.S. soldiers killed in battle in order to convey their belief that the soldiers’ deaths represent God’s punishment for American tolerance of homosexuality. That said, however, it is possible to craft the language in such a funeral protest ordinance in a content-neutral way that applies to all picketing and protesting, regardless of the messages being conveyed.
Such rules generate no serious First Amendment problems so long as they meet a set of criteria the courts have developed. This set of criteria is sometimes referred to as the intermediate scrutiny standard of judicial review.
1.
The rule must be neutral as to content, or what the courts call content neutral, both on its face and in the manner in which it is applied. A rule that is content neutral is applied the same way to all communications, regardless of what is said or printed. In other words, a law cannot permit the distribution of flyers promoting the construction of a new stadium, but restrict persons from handing out material in favor of tearing down a viaduct. A viable time, place and manner rule must be content neutral. In 2000 the Supreme Court ruled that a Colorado law that made it unlawful for any person within 100 feet of the entrance to a health care facility to approach within 8 feet of another person to pass out a handbill or a leaflet, display a sign or engage in “oral protest, education or counseling” was content neutral. The statute prohibited unwanted approaches to all medical facilities in the state, regardless of the message the speaker was attempting to communicate, the court said.
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The 9th U.S. Court of Appeals ruled that a Las Vegas ordinance that banned the distribution of commercial leaflets along Las Vegas Boulevard, commonly known as Las Vegas Strip, was not content neutral because it didn’t apply to persons handing out other kinds of leaflets as well.
32 An ordinance
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like this that is not content neutral is considered a content-based law and is subject to the much more rigorous strict scrutiny standard of judicial review that requires the government to prove a compelling interest—not simply a substantial interest—and that the statute restricts no more speech than is absolutely necessary to serve the allegedly compelling interest (see pages 72–73).
Sometimes a restriction will appear to be content neutral but is not because it gives far too much discretion to the officials who are assigned to administer it. For instance, in September 2015 a federal judge in California forced the city of San Francisco to approve a parade permit application filed by two political activists for “body freedom”—a cause that includes advocating for rights to public nudity. The activists wanted to hold a public march on San Francisco city streets to protest the enactment and enforcement of a municipal ordinance regulating public nudity. Believing their march came within the definition of a “parade” under another municipal ordinance, the activists applied for a parade permit. But the police chief denied the application, explaining that because the activists expected 100 or fewer participants, their march could only be carried out on city sidewalks, not streets. The activists sued. In ruling against the city in Davis v. City and County of San Francisco, Judge Richard Seeborg wrote, “[T]he City is arguing, in effect, that the ordinance delegates to the Chief of Police discretion to conclude that a particular proposed expressive march is too small to be entitled to use of the streets, and thus can instead be relegated to the sidewalks. The City is unable, however, to point to any provisions in the text of the ordinance expressly assigning such discretion to the Chief or providing standards under which it is to be exercised.” Judge Seeborg said the lack of any guideposts in the law that would constrain an official from approving only speech he or she liked could not be “overlooked.”
Just because a statute restricts the noise or sound level of speech does not necessarily mean that it is content neutral. It is only a content-neutral statute if all noises—all messages, all sounds, regardless of topic or subject matter—are treated equally. For instance, in 2012 the Supreme Court of Florida held in Florida v. Catalano

33 that a state statute that prohibited playing car stereos at a sound level “plainly audible at a distance of 25 feet or more” away was a content-based law. Why? Because the Florida statute carved out an exemption from this rule for “motor vehicles used for business or political purposes, which in the normal course of conducting such business use soundmaking devices.” As the Supreme Court of Florida wrote in explaining how this exemption made the law content based rather than content neutral, “business and political vehicles may amplify commercial or political speech at any volume, whereas an individual traversing the highways for pleasure would be issued a citation for listening to any type of sound, whether it is religious advocacy or music, too loudly. Thus, this statute is content based because it does not apply equally to music, political speech and advertising.” As a content-based law, the Florida statute was subject to the much more rigorous
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strict scrutiny standard of review (see pages 72–73 regarding strict scrutiny) and ultimately was declared unconstitutional.
2.
The law must not constitute a complete ban on a kind of communication. There must be ample alternative means of accomplishing this communication. In the 1980s several states sought to ban the polling of voters outside voting booths. The polling was conducted by the news media for several reasons, including an attempt to find out what kinds of people (age, political affiliation, occupation, etc.) voted for which candidates. Many of these statutes were struck down at least in part, the courts ruled, because the press could not ask these questions at any other place or in any other manner and expect to get the same data. The ban on exit polling, then, constituted a complete ban on the kinds of questions reporters sought to ask.
GUIDELINES FOR TIME, PLACE AND MANNER RESTRICTIONS
1.
Rules must be content neutral.
2.
Rules must not constitute a complete ban on communication.
3.
Rules must be justified by a substantial state interest.
4.
Rules must be narrowly tailored.
3.
The state must articulate a substantial interest to justify this restraint on speech. A ban against using loudspeakers to communicate a political message after 10 p.m. could surely be justified on the grounds that most people are trying to sleep at that time. A ban against passing out literature and soliciting money in the passageways between an airport terminal and the boarding ramps could also be justified by the state, which wants to keep these busy areas clear for passengers hurrying to board airplanes.
34 But attempts by the government to ban distribution of handbills on city streets because many people throw them away and cause a litter problem are typically rejected.
35 The state interest in keeping the streets clean can be accomplished by an anti-litter law. At times communities have attempted to raise aesthetic reasons to justify limiting or banning newspaper boxes. Some courts refuse to allow these concerns alone to justify limits on First Amendment freedoms, usually noting that many other common objects on the streets (telephone poles, trash cans, fire hydrants, street signs) are also eyesores.
36 Other courts have ruled that aesthetic considerations can be included in a community’s justification for limits.
37 If the community can demonstrate a strong rationale for its aesthetic
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concerns, even a total ban on the placement of racks in a specific area might be acceptable. In 1996 the 1st U.S. Court of Appeals permitted the city of Boston to completely ban news racks from the public streets of a historic district of the city, where the architectural commission was trying to restore the area to what it looked like hundreds of years earlier.
38
In addition to asserting a substantial interest, the state is required to bring evidence to court to prove its case. Southwest Texas State University in San Marcos attempted to restrict the distribution of a small community newspaper on its campus. It told the 5th U.S. Circuit Court of Appeals that it sought such restrictions in order to preserve the academic environment and the security of the campus, protect privacy on campus, control traffic, preserve the appearance of the campus, prevent fraud and deception and eliminate unnecessary expenses. These were all laudable goals, but the court said the university presented no evidence to support the notion that restricting the sale of these newspapers to a few vending machines or direct delivery to subscribers on campus would accomplish these goals. “[T]he burden is on the defendants [university] to show affirmatively that their restriction is narrowly tailored to protect the identified interests. Defendants failed to carry this burden,” the court ruled.
39
4.
The law must be narrowly tailored so that it furthers the state interest that justifies it, but does not restrain more expression than is actually required to further this interest. “A regulation is narrowly tailored when it does not burden substantially more speech than is necessary to further the government’s legitimate interests.”
40 Officials in the city of Sylvania, Ga., believed they had a litter problem. The Penny-Saver, a weekly free newspaper, was thrown on the lawn or driveway of each residence in the city. Often residents just left the paper where it fell. These unclaimed papers were unsightly and sometimes wound up on the street or in the gutter. The city adopted an ordinance that made it illegal to distribute free, printed material in yards, on driveways or on porches. The publisher of the Penny-Saver sued, claiming the new law was a violation of the First Amendment. The Georgia Supreme Court agreed, rejecting the city’s argument that this was a proper time, place and manner rule. The ordinance was certainly content neutral, but it was not narrowly tailored. The law blocked the distribution of the Penny-Saver but also barred political candidates from leaving literature on doorsteps, stopped many religious solicitors who hand out material and blocked scores of others from passing out pamphlets door-to-door. In addition, the court ruled, the problem could be solved in other ways that do not offend the First Amendment. The city could require either the Penny-Saver publisher or the city residents to retrieve the unclaimed papers or could punish the publisher for papers that end up in the ditch or on the street.
41
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The 2016 appellate court decision in Rideout v. Gardner provides another example of a law that failed intermediate scrutiny because it was not narrowly tailored. A New Hampshire law barred citizens in that state from taking “ballot selfies”—where voters take pictures of their marked ballots and then share those pictures on social media. The state maintained the law prevented new technology from facilitating future vote buying and voter coercion. Three plaintiffs challenged the law, including Andrew Langlois. Frustrated by the Republican candidates running for U.S. Senate in New Hampshire, Langlois instead wrote in the name of his recently deceased dog, “Akira,” and took a photograph of his ballot. When he returned home, he posted the ballot selfie on Facebook and wrote: “Because all of the candidates SUCK, I did a write-in of Akira.” An investigator from the New Hampshire Attorney General’s Office called him and informed him he was under investigation for violating the law against ballot selfies.
The 1st U.S. Circuit Court of Appeals struck down the law as unconstitutional. The court said it did not need to decide definitively whether the law in question was content based or content neutral because, even assuming it was content neutral, the law failed intermediate scrutiny for not being narrowly tailored. The court said that “at least two different reasons” showed that New Hampshire did not adequately tailor its solution (the law barring ballot selfies) to the potential problem (vote buying and voter coercion) that it perceived. “First, the prohibition on ballot selfies reaches and curtails the speech rights of all voters, not just those motivated to cast a particular vote for illegal reasons.” The state was “trying to prevent a much smaller hypothetical pool of voters who, New Hampshire fears, may try to sell their votes.” But the First Circuit said no vote-selling market had emerged. Second, the court said, New Hampshire “has not demonstrated that other state and federal laws prohibiting vote corruption are not already adequate to the justifications it has identified.” In other words, the state has other remedies to outlaw actual coercion or vote buying. Ballot selfies have taken on “a special communicative value,” the court said, allowing voters to express support for a candidate. The First Circuit thus concluded, “New Hampshire may not impose such a broad restriction on speech by banning ballot selfies in order to combat an unsubstantiated and hypothetical danger.”
A law can be declared invalid if it fails to pass any of these four criteria. The manner in which courts apply the intermediate scrutiny test—how rigorously they employ it, how much deference they grant to asserted legislative interests and even whether they choose to use a different test—often depends on the nature of the specific location where the law in question applies.
FORUM ANALYSIS
Courts have identified four kinds of forums:
Traditional Public Forum: Traditional public forums are public places that have by long tradition been devoted to assembly and speeches, places like street corners, public parks, public sidewalks or a plaza in front of city hall. The highest level of First Amendment protection is given to expression occurring in traditional public forums.
Designated Public Forum: Designated public forums are places created by the government to be used for expressive activities, among other things. A city-owned
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auditorium, a fairgrounds, a community meeting hall and even a student newspaper intended to be open for use by all students are examples of designated public forums. It is clear today that “the government must have an affirmative intent to create a public forum in order for a designated public forum to arise.”
42 Intent may be determined by three factors:
1.
Explicit expressions of intent
2.
Actual policy and history of practice in using the property
3.
Natural compatibility of the property with the expressive activity
For instance, in 2006 a federal appellate court in Bowman v. White

43 held that three specific areas on the University of Arkansas at Fayetteville campus were designated public forums: the Union Mall (an outdoor area in the center of campus near the library composed of grassy mounds surrounded by sidewalks and walkways, benches and potted trees and plants); the Peace Fountain (a metallic tower structure, also located in the center of the campus, with a fountain at the base); and an area outside a major campus dining hall. In concluding these areas were designated public forums, the court reasoned that
[the] tradition of free expression within specific parts of universities, the University’s practice of permitting speech at these locations, and the University’s past practice of permitting both University Entities and Non-University Entities to speak at these locations on campus demonstrate that the University deliberately fosters an environment that permits speech.
Although a government entity is not required either to create or to maintain indefinitely a designated public forum (i.e., a designated public forum can be closed if the government wishes to do so), once it creates a designated public forum and chooses to keep it open, it “is bound by the same rules that govern traditional forums.”
44 This means that a time, place and manner regulation in both a traditional public forum and a designated public forum must survive and pass the four-part intermediate scrutiny standard just described,
45 whereas a content-based restriction must pass the more stringent strict scrutiny standard of review (see pages 72–73) and thus is more likely to be held invalid and unconstitutional.
Public Property That Is Not a Public Forum: Some kinds of public property not considered to be public forums are obvious—prisons and military bases, for example. The Supreme Court has stated that a nonpublic forum consists of “[p]ublic property which is not by tradition or designation a forum for public communication.”
46 Law professors
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Russell Weaver and Donald Lively observe that courts have identified a number of places as nonpublic forums including:
Postal service mailboxes
Utility poles
Airport terminals
Political candidate debates on public television
47
In addition to these examples, a court in 2010 held that Hawaii’s unencumbered beaches (beaches not set aside for any specific purpose and not otherwise leased or permitted) are nonpublic forums for purposes of the First Amendment. The court wrote that “nothing in the record demonstrates or indicates that all Hawaii unencumbered State beaches have traditionally been places for the free exchange of ideas generally.”
48
In (and on) such places and venues, the government has much greater power to regulate and restrict speech, and thus “regulation of speech in a nonpublic forum is subject to less demanding judicial scrutiny.”
49 Regulations on speech activities in nonpublic forums will be upheld and allowed as long as they are reasonable and viewpoint neutral (see page 95 discussing viewpoint-based discrimination and page 44 discussing viewpoint neutrality). The latter requirement entails “not just that a government refrain from explicit viewpoint discrimination, but also that it provide adequate safeguards to protect against the improper exclusion of viewpoints.”
50
Unconstitutional viewpoint-based discrimination in a nonpublic forum is illustrated by a 2010 case called Nieto v. Flatau

51 in which officials at Camp Lejeune Marine Corps Base prohibited Jesse Nieto from displaying a bumper sticker with the message “ISLAM = TERRORISM” on his car that he drove to work on the base. Nieto’s youngest son had been killed when the USS Cole was bombed by Islamic terrorists. Camp Lejeune had a policy prohibiting the display of “extremist, indecent, sexist or racist” messages on motor vehicles on the base. Observing that military bases are not public forums for First Amendment purposes and that the government is entitled to great deference in restricting speech on them, U.S. District Judge Malcolm Howard restated the rule that the government may enact restrictions on speech in nonpublic forums, provided those restrictions are reasonable and not viewpoint-based. The problem for Camp Lejeune was that it freely allowed the display of bumper stickers with pro-Islam messages including “Islam is Love” and “Islam is Peace” but it prohibited Nieto’s anti-Islam message of “ISLAM = TERRORISM” on his car. That is viewpoint-based discrimination because the military discriminated against Nieto’s speech based upon his particular viewpoint on Islam. The judge also noted that the mere fact that some people may be highly offended by Nieto’s bumper sticker is not a sufficient reason for banning it.
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In 2016 a federal appellate court in NAACP v. City of Philadelphia

52 held that a ban on noncommercial ads at the city’s international airport was unconstitutional because it was not a reasonable restriction of speech in a nonpublic forum. The city had long accepted paid advertisements that were posted in display cases and on screens throughout the airport. But when the National Association for the Advancement of Colored People (NAACP) submitted an ad that read, “Welcome to America, home to 5% of the world’s people & 25% of the world’s prisoners. Let’s build a better America together,” the city rejected it based on what it said was an informal practice of only accepting ads that proposed a commercial transaction. After the NAACP sued, the city adopted a written policy that crystallized the informal practice. The policy barred ads that do not “propose a commercial transaction,” though it made an exception for ads that promote subjects such as Philadelphia tourism, city initiatives, air service and use of the airport. The city said the policy helped further its goals of maximizing revenue and avoiding controversy. In August 2016, the 3rd U.S. Circuit Court of Appeals ruled the policy was unreasonable and violated the First Amendment. The court said the city offered no evidence to support the contention that the policy helped it maximize revenue. Moreover, the court found that the city also failed to justify the avoidance-of-controversy rationale. The court noted that, elsewhere in the airport, travelers were exposed to TV broadcasting shows and commercials containing a wide variety of noncommercial content. The court wrote, “For instance, the NAACP submitted pictures of the Airport’s televisions that show content related to a gubernatorial election in Virginia, the war on drugs, the Confederate flag, and a piece of anti-discrimination legislation.” The court thus concluded that the airport exposes travelers “to an onslaught of non-commercial content outside of its advertising space without any suggestion that doing so is inconsistent with the environment it seeks to foster.”
Private Property: Owners of private property, which includes everything from a backyard patio to a giant shopping mall, are free to regulate who uses their property for expressive activity. There are no First Amendment guarantees of freedom of expression on private property.
The problem of dealing with distribution of materials at privately owned shopping centers has been a troubling one. In 1968, in Amalgamated Food Employees Local 590 v. Logan Valley Plaza,

53 the Supreme Court ruled that the shopping center was the functional equivalent of a town’s business district and permitted informational picketing by persons who had a grievance against one of the stores in the shopping center. Four years later in Lloyd Corp. v. Tanner,

54 the court ruled that a shopping center can prohibit the distribution of handbills on its property when the action is unrelated to the shopping center operation. Protesters against nuclear power, for example, could not use the shopping center as a forum. People protesting against the policies of one of the stores in the center, however, could use the center to distribute materials.
In 1976 the Supreme Court recognized the distinctions it had drawn between the rules in the Logan Valley case and the rules in the Lloyd Corp. case for what they were—restrictions
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based on content. The distribution of messages of one kind was permitted, while the distribution of messages about something else was banned. In Hudgens v. NLRB,

55 the high court ruled that if, in fact, the shopping center is the functional equivalent of a municipal street, then restrictions based on content cannot stand. But rather than open the shopping center to the distribution of all kinds of material, Logan Valley was overruled, and the court announced that “only when . . . property has taken all the attributes of a town” can property be treated as public. Distribution of materials at private shopping centers can be prohibited.
Just because the First Amendment does not include within its protection of freedom of expression the right to circulate material at a privately owned shopping center does not mean that such distribution might not be protected by legislation or by a state constitution. That is exactly what happened in California. In 1974 in the city of Campbell, Calif., a group of high school students took a card table, some leaflets and unsigned petition forms to the popular Pruneyard Shopping Center. The students were angered by a recent anti-Israel U.N. resolution and sought to hand out literature and collect signatures for a petition to send to the president and Congress. The shopping center did not allow anyone to hand out literature, speak or gather petition signatures, and the students were quickly chased off the property by a security guard. The students filed suit in court, and in 1979 the California Supreme Court ruled that the rights of freedom of speech and petitioning are protected under the California Constitution, even in private shopping centers, as long as they are “reasonably exercised.”
56 The shopping center owners appealed the ruling to the U.S. Supreme Court, arguing that the high court’s ruling in Lloyd Corp. v. Tanner prohibited the states from going further in the protection of personal liberties than the federal government. But six of the nine justices disagreed, ruling that a state is free to adopt in its own constitution individual liberties more expansive than those conferred by the federal Constitution.
57
A state is free to adopt in its own constitution individual liberties more expansive than those conferred by the federal Constitution.
Although the California Supreme Court held in the Pruneyard Shopping Center dispute that the speech clause of the California Constitution protected expression in a privately owned shopping center (subject to the owner’s reasonable time, place and manner restrictions), subsequent decisions by lower-level appellate courts in California have distinguished between large, Pruneyard-type shopping centers (Pruneyard itself consisted of 21 acres, with 65 shops, 10 restaurants and a cinema) and large, individual retail stores, even though those stores are located within a larger retail development. These cases have held that the entrance areas and aprons of such large retail stores are not public forums. For instance, a California appellate court ruled in 2010 that the entrance to Foods Co., a large warehouse grocery store located in Sacramento in a retail development, was not a public forum.
58 The store has only one customer entrance, consisting of a sidewalk or apron extending out about 15 feet to a driving lane that separates the apron from the parking lot. The entrance area is about 31 feet wide. The appellate court added that the entrance way neither was designed to be nor was presented to the public as a
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public meeting place. It noted that because the area was a private forum, its owner could “selectively permit speech or prohibit speech.”
Courts in many states (Washington, Colorado, New Jersey, Oregon, New York and others) have interpreted their state constitutions as providing broader free-speech and press rights than those provided by the First Amendment to the U.S. Constitution. This trend becomes particularly noticeable when the federal courts narrow the meaning of the First Amendment.
SUMMARY
The prior restraint of expression is permissible under what are known as time, place and manner regulations. That is, the government can impose reasonable regulations about when, where and how individuals or groups may communicate with other people. In order to be constitutional, time, place and manner restraints must meet certain criteria:
1.
The regulation must be content neutral; that is, application of the rule should not depend on the content of the communication.
2.
The regulation must serve a substantial governmental interest, and the government must justify the rule by explicitly demonstrating this interest.
3.
There cannot be total prohibition of the communication. The speakers or publishers must have reasonable alternative means of presenting their ideas or information to the public.
4.
The rules cannot be broader than they need to be to serve the governmental interest. For example, the government cannot stop the distribution of literature on all public streets if it only seeks to stop the problem of congestion on public streets that carry heavy traffic.
OTHER PRIOR RESTRAINTS
Major issues regarding prior restraint have been outlined in the previous pages. Yet each year other instances of prior restraint are challenged in the courts, and frequently the Supreme Court is called on to resolve the issue. Here is a brief outline of some of these issues.
SON OF SAM LAWS
Americans have always been interested in crime and criminals. But in recent decades our desire to know more about this sordid side of contemporary life has spawned books and television programs about killers, rapists, robbers, hijackers and their victims. Indeed, it is often jokingly said of those accused of high-profile crimes that when they are captured they are more eager to contact an agent than a defense attorney. Efforts have been made by government to stop felons from receiving money that might be earned by selling stories about their crimes. Many civil libertarians say this is a prior censorship. The laws in question, which have been adopted in one form or another by about 40 states and the
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federal government, are called “Son of Sam” laws after a serial killer in New York who was dubbed that name by the press. Before the Son of Sam (David Berkowitz) was caught, reports circulated that the press was offering to pay for the rights to his story. The New York legislature responded to those reports by passing a law that permits the state to seize and hold for five years all the money earned by an individual from the sale of his or her story of crime. The money is supposed to be used to compensate the victims of the crimes caused by the felon. The criminal/author collects what is left in the fund after five years.
Two separate challenges to the New York law were mounted in the late 1980s and early 1990s. Simon & Schuster contested the law when it was applied against the best-selling book “Wiseguys” (the basis for the film “GoodFellas”). Career mobster Henry Hill was paid for cooperating with the book’s author, Nicholas Pileggi. Macmillan Publishing Co. also challenged the validity of the law when New York sought to seize the proceeds of Jean Harris’s autobiography, “Stranger in Two Worlds,” because some of the material in the work was based on her trial for the murder of her lover, diet doctor Herman Tarnower.
The statute was upheld in both federal and state courts. The 2nd U.S. Circuit Court of Appeals ruled in Simon & Schuster v. Fischetti

59 that the purpose of the law was not to suppress speech but to ensure that a criminal did not profit from the exploitation of his or her crime, and that the victims of the crime are compensated for their suffering. A compelling state interest is served, and the fact that this imposes an incidental burden on the press is not sufficient to rule the law a violation of freedom of expression.
But in late 1991 the U.S. Supreme Court disagreed and in an 8-0 decision ruled that the Son of Sam law was a content-based regulation that violated the First Amendment.
60 “The statute plainly imposes a financial disincentive only on a particular form of content,” wrote Justice Sandra Day O’Connor. In order for such a law to pass constitutional muster, the state must show that it is necessary to serve a compelling state interest and that the law is narrowly constructed to achieve that end. The members of the high court agreed that the state has a compelling interest in ensuring that criminals do not profit from their crimes, but this law goes far beyond that goal; it is not narrowly drawn. The statute applies to works on any subject provided they express the author’s thoughts or recollections about his or her crime, however tangentially or incidentally, Justice O’Connor noted. The statute could just as easily be applied to “The Autobiography of Malcolm X” or Thoreau’s “Civil Disobedience” or the “Confessions of St. Augustine,” she added. While Justice O’Connor specifically noted that this ruling was not necessarily aimed at similar laws in other states because they might be different, the decision has forced substantial changes in most of the existing laws. In Massachusetts, however, the Supreme Judicial Court of that commonwealth approved a probationary scheme that had clear earmarks of a Son of Sam law. Katherine Power, a 1970s radical who participated in a bank robbery in which a police officer was killed, pleaded guilty to her crimes and a trial court ordered the defendant to serve 20 years’ probation. Attached to the probation sentence was a provision that Power could not in any way profit from the sale of her
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story to the news media during those 20 years. Power appealed the provision, citing the First Amendment and the Supreme Court ruling in Simon & Schuster. The Massachusetts high court rejected this appeal, arguing that a specific condition of probation (which frequently restricts a probationer’s fundamental rights) is not the same as a Son of Sam law, which is a statute of general applicability.
61 So, are Son of Sam laws constitutional? They certainly can be, but most of the current laws are not narrowly tailored in such a way as to pass muster. Because the laws are content-based statutes, the state has to first demonstrate that a compelling state interest is at stake and then prove that the law does not bar more speech than is necessary to further that interest.
Although courts are likely to find that two different compelling interests justify these laws (compensating victims of crimes and preventing criminal profiteering), they also are likely to declare the laws not narrowly tailored because most Son of Sam laws regulate more speech than is necessary to serve these twin interests. For instance, in 2004, the Supreme Court of Nevada in Seres v. Lerner struck down that state’s law that allowed felony victims to recover from the felon any monetary proceeds the felon might generate from published materials substantially related to the offense.
62 The high court of Nevada held the law unconstitutional because it “allows recovery of proceeds from works that include expression both related and unrelated to the crime, imposing a disincentive to engage in public discourse and non-exploitative discussion of it.” A nonexploitative discussion might include such things as the writer (the felon) warning about the consequences of crime, describing life behind bars and urging others not to commit the same acts.
PRIOR RESTRAINT AND PROTESTS
Two 1994 decisions by the Supreme Court focus on the prior restraint of those seeking to demonstrate or protest. In June the Supreme Court unanimously ruled that cities may not bar residents from posting signs on their own property. Margaret Gilleo had challenged the Ladue, Mo., ordinance by posting an 8-by-11-inch sign in a window of her house protesting the Persian Gulf War. The lower courts ruled that the ban on residential signs was flawed because the city did not ban signs on commercial property; the law favored one kind of speech over another. But the Supreme Court struck down the ordinance in a broader fashion, ruling that the posting of signs on residential property is “a venerable means of communication that is both unique and important. A special respect for individual liberty in the home has long been part of our culture and law,” wrote Justice John Paul Stevens. “Most Americans would be understandably dismayed, given that tradition, to learn that it was illegal to display from their window an 8-by-11-inch sign expressing their political views,” he added.
63
Yard signs carrying political messages still cause trouble today. For instance, in November 2010 the town of Valley Center, Kan., was ordered by a judge to pay $8,000 to Jarrod West. Why? The town had stopped him from posting a sign in his yard complaining about drainage problems in his neighborhood. The sign said, “Dear Valley Center, I did not buy Lake Front Property! Fix this problem. This is what I pay taxes
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for.” Valley Center responded by charging West with criminal defamation, and it took the intervention of a local American Civil Liberties Union on West’s behalf for him to prevail. It was a classic case of government censorship of a political message with which it disagreed.
In another 1994 ruling involving the right to protest, the high court upheld a Florida state court injunction that established a 36-foot buffer zone between an abortion clinic in Melbourne, Fla., and anti-abortion protesters.
64 The buffer zone, or ban on picketing, was designed to keep protesters away from the entrance to the clinic, the parking lot and the public right-of-way. Chief Justice Rehnquist, who wrote the 6-3 ruling, said the ban “burdens no more speech than is necessary to accomplish the governmental interest at stake.” The court did strike down, however, a 300-foot buffer zone within which protesters could not make uninvited approaches to patients and employees, as well as a buffer zone the same size around the houses of clinic doctors and staff members. The chief justice said a smaller zone or restriction on the size and duration of demonstrations would be constitutional.
*
DEFENDING SPEECH OUTSIDE OF ABORTION CLINICS
In the 2014 ruling in McCullen v. Coakley, the Supreme Court struck down a Massachusetts law that made it a crime to stand on a public road or sidewalk within 35 feet of a reproductive health care facility. The petitioners in the case were individuals who attempt to engage women approaching abortion clinics in “sidewalk counseling,” which involves offering information about alternatives to abortion and help pursuing those options. The petitioners claimed that the 35-foot buffer zone hindered their counseling efforts.
All nine justices on the Court found the law violated the First Amendment—though the justices disagreed (largely along political lines) about whether the law was content neutral or content based. Chief Justice Roberts sided with the Court’s four liberal justices to strike down the law as a content-neutral restriction that failed intermediate scrutiny because it wasn’t narrowly tailored. Roberts’ majority opinion noted that the buffer zones “impose serious burdens on petitioner’s speech” by carving out “a significant portion of the adjacent public sidewalks, pushing petitioners well back from the clinics’ entrances and driveways.” Moreover, the Court found the law burdened “substantially more speech than necessary.” The Court said the state’s interests—ensuring public safety outside abortion clinics, preventing harassment and intimidation of patients and clinic staff and combating deliberate obstruction of clinic entrances—could be addressed with
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a variety of other approaches the state had not yet tried that wouldn’t categorically ban individuals “from areas historically open for speech and debate.” The Court’s conservative justices (other than Roberts) agreed the law was unconstitutional, but they argued it was a content-based law, aimed at restricting the speech of abortion protesters, and should have been reviewed under strict scrutiny.
In 1995 the Supreme Court struck down an Ohio law (and for all intents and purposes laws in almost every other state in the nation) that prohibited the distribution of anonymous election campaign literature. Margaret McIntyre had circulated leaflets opposing an upcoming school levy, but failed to include her name and address on the campaign literature as required by law. She was fined $100. The state argued the statute was needed to identify those responsible for fraud, false advertising and libel, but seven members of the high court said the law was an unconstitutional limitation on political expression. “Under our constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent,” wrote Justice John Paul Stevens for the majority. “Anonymity is a shield from the tyranny of the majority.” Stevens said anonymity might in fact shield fraudulent conduct, but our society “accords greater weight to the value of free speech than to the dangers of its misuse.”
65
SUMMARY
A wide variety of legal issues relate to prior restraint. In recent years the Supreme Court of the United States has voided a statute aimed at denying criminals the right to earn profits from books or films about their crimes and voided a city ordinance that barred residents from putting signs on their front lawns or in their windows. At the same time, the high court has permitted limited restrictions aimed at those seeking to protest abortion at a clinic in Florida but struck down a broader law that restricted abortion protesters in Massachusetts.
HATE SPEECH/FIGHTING WORDS
Hate speech—words written or spoken that attack individuals or groups because of their race, ethnic background, religion, gender or sexual orientation—is a controversial but not altogether uncommon aspect of contemporary American life. Few people openly acknowledge a value in such speech, but there is a considerable debate over what to do about it. How do you balance the need to protect the sensibilities of members of the community with the right to speak and publish freely, a right guaranteed by the First Amendment?
The Supreme Court endeavored to balance these issues more than 70 years ago when it ruled that those who print such invective in newspapers or broadcast them on the radio or paint them on walls or fences are generally protected by the Constitution, but those who utter the same words in a face-to-face confrontation do not enjoy similar
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protection. The case involved a man named Chaplinsky, who was a member of the Jehovah’s Witness religious sect. Face-to-face proselytization or confrontation is a part of the religious practice of the members of this sect. Chaplinsky attracted a hostile crowd as he attempted to distribute religious pamphlets in Rochester, N.H. When a city marshal intervened, Chaplinsky called the officer a “God-damned racketeer” and a “damned fascist.” The Jehovah’s Witness was tried and convicted of violating a state law that forbids offensive or derisive speech or name-calling in public. The Supreme Court affirmed the conviction by a 9-0 vote. In his opinion for the court Justice Frank Murphy outlined what has become known as the fighting words doctrine:
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problems. These include . . . fighting words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to the truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.
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“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problems.”
Fighting words may be prohibited, then, so long as the statutes are carefully drawn and do not permit the application of the law to protected speech. Also, the fighting words must be used in a personal, face-to-face encounter—a true verbal assault. The Supreme Court emphasized this latter point in 1972 when it ruled that laws prohibiting fighting words be limited to words “that have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.”
67 It is important to note that the high court has given states permission to restrict so-called fighting words because their utterance could result in a breach of the peace, a fight, a riot; not because they insult or offend or harm the person at whom they are aimed. Finally, there is not an official list of words that are always classified by courts as “fighting words.” Whether any given word amounts to a “fighting word” depends on the context of how it is used and to whom it is addressed.
PROTECTING THE SPEECH OF THE WESTBORO BAPTIST CHURCH: THE SUPREME COURT’S 2011 RULING
In 2011, the U.S. Supreme Court issued a ruling in Snyder v. Phelps

68 that protected what many people would consider hate speech. Members of the Westboro Baptist Church (WBC) believe that God hates the United States for its tolerance of homosexuality and, in turn, punishes the country by killing American soldiers. WBC members expressed these views near the funeral for Marine Lance Corporal Matthew Snyder, who was killed in Iraq in the line of duty, by carrying signs with anti-gay and anti-military messages such as “Thank God for Dead Soldiers,”
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“Semper Fi Fags” and “God Hates Fags.” The WBC protestors stood on public property about 1,000 feet away from the funeral where they had been told to stand by local police.
Albert Snyder, the father of Matthew Snyder, sued the members of the church for intentional infliction of emotional distress (see Chapter 5) and intrusion into seclusion (see Chapter 7). The WBC, however, argued that the First Amendment protected its right to engage in such speech. An eight-justice majority of the U.S. Supreme Court agreed with the WBC, basing its decision on several grounds.
First, the Court held that the speech in question, although offensive, dealt with matters of public concern, including “the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy.” Second, the Court reasoned that “the church members had the right to be where they were,” as “the picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence.” Finally, the Court concluded by observing that “speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even speech on public issues to ensure that we do not stifle public debate.”
The lone dissenter was Justice Samuel Alito. He wrote that “our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case. . . . Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace.”
See pages 113–114 for another controversy involving the WBC.
Does swearing at members of a government committee to express frustration with their actions (or lack thereof) constitute fighting words? The 10th U.S. Circuit Court of Appeals addressed this question in 2011 in Klen v. City of Loveland.
69 Plaintiffs Edward and Stephen Klen were building contractors upset at what they perceived to be unreasonable, deliberate delays over the issuing of permits by officials in the city of Loveland, Colo. On multiple occasions, the Klens used profane language and insults out of frustration when discussing the permit delays with city officials. They said such things as “when the hell are you going to get your shit together in this department?”; “[w]here is our damn permit?”; and “what kind of idiot are you, if you can’t even run your own goddamned department?”
In concluding that this language did not constitute fighting words, the 10th Circuit reasoned that “although the Klens used less-than-polite epithets in delivering their message, and occasionally even employed insulting terms to describe city officials,
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there is no indication that their words were accompanied by provocative gestures or threats. Nor did their use of vulgar or offensive language necessarily make their outbursts fighting words.” The appellate court added that the Klens were not trying to provoke a fight but were trying to “express ideas—chiefly that City building department officials were incompetent and were taking too long in processing plaintiffs’ application for a building permit.” The decision illustrates the key point that offensive speech is not necessarily the same thing as fighting words.
On the other hand, a 2012 decision by an appellate court in Kansas v. Meadors

70 illustrates that swearing sometimes can amount to fighting words, particularly when an unfriendly tension already exists between the individuals involved. In Meadors, those individuals were a divorced couple who shared custody of their children. While the woman was dropping off the kids at her ex-husband’s house, the ex-husband “began to berate her by yelling, ‘I hate you, you F’ing cunt. I hate you bitch. I’m going to get you.’ He was approaching the vehicle, yelling, pointing and displaying his middle finger.” The woman “testified it was very traumatic for her and the children,” and she called the police. Her ex-husband continued to yell profanities after the officer arrived and told him not to do so. The ex-husband was arrested on disorderly conduct charges but claimed his speech was protected by the First Amendment. Under these circumstances, however, the court ruled his language constituted unprotected fighting words. Importantly, the court noted that a threat of violence is not required for speech to constitute fighting words. Instead, “a threat is merely another factor to be considered by the courts when determining whether the words spoken were fighting words.”
Another key point here is that legislators must be very precise when they try to carve out statutory exceptions for categories of speech they believe should not be protected by the First Amendment. Very few types of speech, in fact, fall completely outside the scope of First Amendment protection, according to the U.S. Supreme Court; unprotected categories include (1) child pornography involving real minors, as well as obscenity (see Chapter 13); (2) fighting words under Chaplinsky, described here; (3) incitement to violence under Brandenburg v. Ohio (see Chapter 2); (4) certain types of libelous statements (see Chapters 4, 5 and 6); and (5) advertising that is false, misleading or about an unlawful product or service (see Chapter 15).
Very few types of speech . . . fall completely outside the scope of First Amendment protection.
INTERNET-POSTED THREATS AGAINST THE PRESIDENT: A COLLEGE STUDENT LEARNS THE HARD WAY
“If anyone going to UM [University of Miami] to see Obama today, get ur phones out and record. Cause at any moment im gonna put a bullet through his head and u don’t wanna miss that? Youtube!”
That was the message Joaquin Serrapio, a student at Miami-Dade College, posted on his Facebook page in 2012. It proved highly problematic when the Secret
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Service discovered it. Serrapio was sentenced later that year to four months of home confinement, three years of probation and ordered to perform 250 hours of community service for posting both it and another message threatening then-President Barack Obama. A federal statute (18 U.S.C. § 871) makes it a crime to communicate “any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States.” During sentencing, U.S. District Judge Marcia Cooke offered this simple yet sage piece of advice: “I want to make clear that people have the right to criticize our government, but the critique should not threaten peoples’ lives.”
Hate speech is one thing, but what about symbolic acts that attempt to communicate the same kinds of messages, burning a cross on someone’s lawn, for example? The Supreme Court faced this question in 1992 when it struck down a St. Paul, Minn., ordinance that forbade the display of a burning cross or a Nazi swastika or any writing or picture that “arouses the anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” Minnesota courts had approved the law, saying the phrase “arouses anger, alarm or resentment in others” was another way of saying “fighting words.” But the statute violated the First Amendment, the high court said, because it was content based—that is, it only applied to fighting words that insult or provoke violence on the basis of race, color, creed or gender. What about fighting words used to express hostility toward someone because of their political affiliation, or their membership in a union or the place where they were born? Justice Antonin Scalia asked. The city has chosen to punish the use of certain kinds of fighting words, but not others, he said. The majority of the court agreed that cross burning was a reprehensible act, but contended there were other laws that could be used to stop such terroristic threats that did not implicate the First Amendment, such as trespass or criminal damage to property. Eleven years later the high court revisited the issue in a case involving Virginia’s law against cross burning and ruled that a state could proscribe cross burning without infringing on First Amendment freedoms, so long as the state made it a crime to burn a cross with the purpose to intimidate the victim. The intimidation factor is the key, Justice Sandra Day O’Connor wrote. The state would have to prove that the cross burner intended to intimidate the victim; the threat could not be inferred simply because a cross was burned on the victim’s lawn.
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The opinion in this second cross-burning case highlights another category of speech (a category distinct from both fighting words in Chaplinsky and incitement to violence in Brandenburg) that is not protected by the First Amendment—true threats of violence. As defined by Justice O’Connor in the Virginia cross-burning case, true threats are “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” She added that “intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group
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of persons with the intent of placing the victim in fear of bodily harm or death.” On the other hand, “political hyperbole” is not a true threat.
SOCIAL MEDIA AND TRUE THREATS
What counts as a true threat of violence in an Internet age filled with social media such as Twitter, YouTube and Facebook?
In 2015, the Supreme Court addressed that question in the case of Elonis v. United States. Anthony Elonis was sentenced to 44 months in jail for Facebook postings that he said were merely rap lyrics, inspired in part by rapper Eminem. One such post, written about his estranged wife who had obtained a protection from abuse (PFA) order against him, read:
Fold up your PFA and put it in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order
That was improperly granted in the first place
Me thinks the judge needs an education on true threat jurisprudence.
In another example of his violent-themed posts, this one about a female FBI agent who had interviewed Elonis about prior postings, Elonis wrote:
You know your shit’s ridiculous
when you have the FBI knockin’ at yo’ door
Little Agent Lady stood so close
Took all the strength I had not to turn the bitch ghost
Pull my knife, flick my wrist, and slit her throat
Leave her bleedin’ from her jugular in the arms of her partner.
For those posts, and others, Elonis was prosecuted under a federal statute—18 U.S.C. § 875(c)—that makes it a crime to transmit in interstate commerce “any communication containing any threat . . . to injure” another person. The 3rd U.S. Circuit Court of Appeals upheld his conviction, ruling that Elonis’ subjective intent—whether or not he actually intended to threaten anyone—did not matter. What mattered instead, the 3rd Circuit ruled, was that Elonis intended to communicate a message for others to see and that a reasonable person could interpret his speech as threatening.
Elonis appealed, arguing that the First Amendment protected his posts and that the intent of the speaker (in this case him) should matter in deciding if speech amounts to a true threat. In June 2015, the Supreme Court reversed the 3rd Circuit’s ruling and remanded the case, but without resolving the key First Amendment issue. In its opinion, the Court instead only addressed the statutory grounds for Elonis’ conviction. Premising his conviction under 18 U.S.C. § 875(c) solely on how his posts would be viewed by a reasonable person, the Court ruled, was inconsistent with the conventional requirement under criminal law that a
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criminal needs to have “awareness of some wrongdoing.” So on statutory grounds (i.e., the application of the specific law under which Elonis was convicted), the Court reversed and remanded the case. We still don’t know today then whether the First Amendment requires consideration of the subjective intent of the speaker in a true threats analysis. The Court’s opinion in Elonis is an example of the judicial principle of constitutional avoidance in action. Constitutional avoidance holds that if the Court can resolve a case on statutory grounds without ever reaching the constitutional issue, then it should do so. The Roberts Court often employs that principle.
The Elonis case has continued. On remand from the Supreme Court, in October 2016, the 3rd U.S. Circuit Court of Appeals ruled that, even had a jury considered Elonis’ intent, no jury would have doubted that Elonis knew his lyrics would intimidate his targets.
Sometimes there is a right way to market one’s book, and sometimes there is a wrong way. This is a case involving the latter. To drum up publicity for his self-published book Anthrax: Shock and Awe Terror, Marc McMain Keyser mailed about 120 envelopes to news outlets, elected officials and businesses like Starbucks and McDonalds. The envelopes included materials touting the book. So far so good. What was the problem?
Keyser also included in each envelope a white sugar packet “with the sugar markings covered by a label stating ‘Anthrax’ in large letters, ‘Sample’ in smaller letters and an orange and black biohazard symbol.” Keyser was convicted on two counts of mailing threatening communications and three “hoax” counts for communicating false or misleading information regarding the presence of a biological weapon. Keyser, however, argued that the First Amendment protected his speech.
In 2012, the 9th U.S. Circuit Court of Appeals rejected Keyser’s free-speech argument in United States v. Keyser. As for the threats counts, the appellate court observed that “a reasonable person would understand that a recipient would perceive a packet of powder with the word ‘Anthrax’ and a biohazard symbol printed on it as a threat. A reasonable person would also understand that the word ‘sample’ would not alleviate that concern—if read and processed at all, the word would likely indicate a small amount of the actual substance.” As for the hoax counts, the court held the First Amendment did not protect Keyser because “false and misleading information indicating an act of terrorism is not a simple lie. Instead, it tends to incite a tangible negative response. Here, law enforcement and emergency workers responded to the mailings as potential acts of terror, arriving with hazardous materials units, evacuating buildings, sending the samples off to a laboratory for tests and devoting resources to investigating the source of the mailings.”
Today, many states are adopting anti-cyberbullying statutes, using language from the true threats doctrine to sweep up this growing problem. Whether such laws are constitutional will be sorted out by courts throughout the rest of this decade (see page 14 for an example of a cyberbullying law that was struck down). But the reality is that adoption of such laws is not likely to deter a teenager from bullying another teenager in cyberspace.
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The efforts to control hate speech in the past three decades have focused particularly on public schools and universities. More than 300 colleges promulgated speech codes in the 1980s and early 1990s, but after several court rulings against such policies, most school policies were either abandoned or simply unenforced.
72 The courts tended to follow the principles from Chaplinsky and Gooding that limit prosecution of such hate speech to face-to-face encounters that could result in physical injury or provoke violent acts.
A policy drafted by the school board in State College, Pa., was declared unconstitutional by a federal appeals court because it was vague and overbroad and would punish students for “simple acts of teasing and name calling.” A lawsuit against the policy was filed on behalf of two students who said they feared they would be punished if they expressed their religious belief that homosexuality is a sin. The district defined harassment as verbal or physical conduct based on race, sex, national origin, sexual orientation or other personal characteristics that has the effect of creating an intimidating or hostile environment. Examples of such harassment included jokes, name-calling, graffiti and innuendo as well as making fun of a student’s clothing, social skills or surname. The appeals court agreed that preventing actual discrimination in school was a legitimate, even compelling, government interest. But the school district’s policy was simply overbroad, prohibiting a substantial amount of speech that would not constitute actionable harassment under either federal or state law.
73 The government cannot prohibit invectives or epithets that simply injure someone’s feelings or are merely rude or discourteous. The Pennsylvania ruling mirrors other similar decisions throughout the nation that pose a real dilemma for school administrators and legislators who are seeking to reduce the verbal aggressiveness common on many school yards.
The government cannot prohibit invectives or epithets that simply injure someone’s feelings or are merely rude or discourteous.
At the college level, the difference between unprotected harassment and protected expression that merely offends was clarified by the Office of Civil Rights (OCR) of the U.S. Department of Education in a July 28, 2003, memorandum. That memorandum provides that harassment
must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive. Under OCR’s standard, the conduct must also be considered sufficiently serious to deny or limit a student’s ability to participate in or benefit from the educational program. Thus, OCR’s standards require the conduct be evaluated from the perspective of a reasonable person in the alleged victim’s position, considering all the circumstances, including the alleged victim’s age.
This statement is important because many public universities today have policies that, although they are no longer called or referred to as speech codes, nonetheless restrict students’ expressive rights. A Philadelphia-based organization called the Foundation for Individual Rights in Education (FIRE) aggressively challenges such policies while it simultaneously defends college students’ rights of free speech. FIRE keeps tabs on these policies online in its Speech Codes Database at https://www.thefire.org/spotlight/ and encourages students to come forward with instances of campus censorship.
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University speech codes are still litigated today and, almost inevitably, are declared unconstitutional. For example, in 2010 a federal district court in Texas ruled that restrictions on symbolic speech at Tarrant County College were unconstitutional. Members of the group Students for Concealed Carry on Campus wanted to stage an “empty-holster protest,” where they would wear empty holsters during their normal campus activities to symbolize that they were unarmed and potentially defenseless in the case of a school shooting. School officials said the empty holsters would not be allowed. In Smith v. Tarrant County College District, Judge Terry Means ruled that the school’s reliance on a policy barring “disruptive activities” to justify its ban on the protest violated the First Amendment because school officials “failed to show that the disruptive-activities provision of the student handbook furthers the important interests on which they rely to justify it.”
74 The court also ruled that the school’s prohibition on “cosponsorship,” which prohibited students from engaging in speech activities on campus when that speech or event was associated with an off-campus person or organization, was unconstitutional. That “sweeping” ban, Judge Means wrote, “broadly prohibits any speech by students that involves an off-campus organization in almost any conceivable way.”
In 2008, the 3rd U.S. Circuit Court of Appeals held that Temple University’s sexual harassment policy (notice it was not called a speech code) was unconstitutionally overbroad in the scope of the speech it restricted (see pages 13–14 regarding the overbreadth doctrine).
75 In ruling against Temple, the appellate court in DeJohn v. Temple University observed that “overbroad harassment policies can suppress or even chill core protected speech, and are susceptible to selective application amounting to content-based or viewpoint discrimination.” In language incredibly favorable to the First Amendment freedom of speech, the court wrote that “discussion by adult students in a college classroom should not be restricted.” Importantly, the court distinguished between high schools and colleges when it comes to restricting speech, writing “that Temple’s administrators are granted less leeway in regulating student speech than are public elementary or high school administrators.” Temple’s policy was flawed, in part, because it punished individuals for the intent of their speech, even if the speech caused no harm.
FIRE has identified another disturbing trend on college campuses: charging student groups who bring controversial speakers to campus exorbitant “security fees” for police protection. For instance, FIRE reported that three times in 2016 DePaul University imposed fees on student organizations engaging in “controversial” expression. In September 2016, the student group the DePaul Socialists was forced to pay hundreds of dollars for security guards to be present at their informational student meeting, even though the group did not want security guards there. According to a FIRE article titled “DePaul Continues to Impose ‘Speech Tax’ on Student Expression,” DePaul administrators said the event was “potentially controversial” and told the students that if they did not agree to pay for the security guards, then they would not be able to hold the event. In response, FIRE wrote a letter to university officials, encouraging the university to “live up to its promises of free speech and cease charging student organizations for security based on the content of their expression.”
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SUMMARY
Hate speech is not a new problem in America, but courts now are being called on to determine just how far the state may go in limiting what people say and write about other people when their language is abusive or includes racial, ethnic or religious invective. In the early 1940s the Supreme Court ruled that so-called fighting words could be prohibited, but these words have come to mean face-to-face invective or insults that are likely to result in a violent response on the part of the victim. The high court voided a St. Paul, Minn., ordinance that punished such abusive speech because, the court said, the law did not ban all fighting words, merely some kinds of fighting words (i.e., racial or religious invective) that the community believed were improper. The decision in this case has sharply limited attempts by state universities and colleges and public schools to use speech codes to discourage hate speech or other politically incorrect comments or publications.
THE FIRST AMENDMENT AND ELECTION CAMPAIGNS
The First Amendment is clearly implicated in any election campaign. Candidates give speeches, publish advertising, hand out leaflets and undertake a variety of other activities that clearly fall within the ambit of constitutional protection. But since the mid-1970s the First Amendment and political campaigns have intersected in another way as well. Attempts by Congress and other legislative bodies to regulate the flow of money in political campaigns have been consistently challenged as infringing on the right of freedom of expression.
Campaign reform laws tend to fall into one of two categories: those that limit how much candidates and their supporters can spend on the election, and those that limit how much money people can contribute to candidates and political parties. The courts have tended to find more serious First Amendment problems with the laws that limit spending than the laws that limit contributions, although this is not always the case.
A Supreme Court opinion on point is a 2006 decision, Randall v. Sorrell.
76 At issue was a Vermont campaign-finance statute limiting both the amounts that candidates for state office could spend on their campaigns (expenditure limitations) and the amounts that individuals, organizations and political parties could contribute to those campaigns (contribution limitations). For instance, a candidate for governor could spend no more than $300,000 during a two-year general election cycle, while a candidate for lieutenant governor could spend an even lower maximum of $100,000 (under the statute, the figures could be adjusted upward slightly for inflation). Vermont also had the most strict campaign contribution limits in the nation, including a $400 cap that any single individual could contribute to the campaign of a candidate for statewide office (governor, lieutenant governor, etc.) during a two-year general election cycle and a $200 cap for contributions to state legislators.
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In 2006, the nation’s high court declared both the expenditure and contribution limits in Vermont “inconsistent with the First Amendment.” It noted that “well-established precedent makes clear that the expenditure limits violate the First Amendment.” The precedent referred to was the 1976 decision in Buckley v. Valeo

77 in which the court first adopted, in the context of the Federal Election Campaign Act of 1971, the dichotomy between expenditure limits and contribution limits. In Buckley, the court upheld a $1,000 per election limit on individual contributions and reasoned that contribution limits are permissible in order to prevent “corruption and the appearance of corruption.”
78 The court in Buckley, however, held that this same interest was not sufficient to justify limits on expenditures by candidates and, instead, reasoned that expenditure caps are not permissible because they “necessarily reduce the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.”
As for Vermont’s contribution limits, a majority of the justices found they were “well below the limits this court upheld in Buckley,” noting that “in terms of real dollars (i.e., adjusting for inflation), [Vermont’s limit] on individual contributions to a campaign for governor is slightly more than one-twentieth of the limit on contributions to campaigns for federal office before the Court in Buckley.” The court concluded in Randall that Vermont’s contribution limits were simply “too restrictive,” threatened “to inhibit effective advocacy by those who seek election, particularly challengers,” and imposed burdens on the First Amendment right of expression that were “disproportionately severe” to advancing the goals of preventing actual corruption and the appearance of corruption. The court, however, did not identify a precise dollar amount limitation that would be permissible on contributions.
The bottom line from Supreme Court decisions stretching from Buckley through Randall is that expenditure limits imposed on candidates violate free-expression rights of candidates for public office, while contribution limits imposed on donors are permissible unless, as was the case in Randall, they become so restrictive and limiting that they prevent more expression than is needed to serve the interests of preventing corruption and its appearance. The decision in Randall was seen by some as “a defeat for liberal reformers who wanted to lessen the impact of money in politics.”
79 Both cases, however, involved splintered decisions among the justices, suggesting that the still-valid dichotomy between expenditure limits (not permissible) and contributions (permissible if not too low) is tenuous and may change if the court’s composition shifts significantly. In fact, only three justices in Randall firmly endorsed the continued use of the Buckley dichotomy.
Other recent issues affecting the intersection of money, speech and politics involve challenges to the Bipartisan Campaign Reform Act (BCRA) of 2002 that, among other things, makes it a federal crime for any corporation to broadcast, shortly before an election, any ads that name a federal candidate for elected office and that target the electorate.
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In 2008, the Supreme Court in Davis v. Federal Election Commission struck down as unconstitutional a portion of the BCRA called the Millionaire’s Amendment.
80 The provision stated that if a candidate for the U.S. House of Representatives spent more than $350,000 of his or her own personal funds running for office, then that candidate’s opponent was exempt from the normal, strict limits on contributions that can be received from individual donors (the 2008 contribution cap on a donor to a candidate for Congress was $2,300 during a two-year election cycle) and could instead receive three times the normal amount. The self-financing candidate (the one spending more than $350,000), however, was still subject to the normal limits on donor contributions. In brief, if a wealthy candidate spent too much of his or her own money (more than $350,000), then his or her opponent was cut a break from the normal contribution limits while the wealthy candidate was not. In declaring that the Millionaire’s Amendment impermissibly burdened the First Amendment right of a wealthy, self-financing candidate “to spend his own money for campaign speech” by imposing asymmetrical contribution limits, Justice Samuel Alito wrote for the five-justice majority that “we have never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other.” The majority rejected the idea that leveling the playing field for candidates of different wealth justified the provision.
In 2010, the Supreme Court declared unconstitutional in Citizens United v. Federal Elections Commission

81 a federal law that prohibited corporations (both for-profit and nonprofit advocacy corporations) and unions from using their general treasury funds to pay for ads expressly advocating for the election or defeat of a candidate or for similar electioneering communications made within 30 days of a primary or 60 days of a general election. In reaching the conclusion that this statute violated the free-speech rights of corporations, a five-justice majority concluded that the First Amendment “generally prohibits the suppression of political speech based on the speaker’s identity.” The decision, which centered on a documentary that was sponsored by a nonprofit corporation and that was highly critical of Hillary Clinton, reinforced the twin principles that: (1) corporations have First Amendment speech rights; and (2) political speech—even that paid for by corporations—is at the core of the First Amendment. Writing for the majority, Justice Anthony Kennedy reasoned that “speech restrictions based on the identity of the speaker are all too often simply a means to control content.” The Court left in place, however, rules imposed upon corporations that spend such money that require them to disclose and report it. The decision in Citizens United overruled the precedent from the 1990 ruling in Austin v. Michigan State Chamber of Commerce

82 that had held that political speech may be banned based on the speaker’s corporate identity (see pages 3–6 regarding stare decisis and overruling precedent).
The aftermath of Citizens United saw a rise in so-called Super PACs (political action committees), such as the conservative-leaning Restore Our Future and the liberal-slanting
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Priorities USA Action, raising and spending vast sums of money on advertisements during the 2012 election-year cycle. Priorities USA Action, for instance, stated on its Web site in June 2012, “We are committed to the reelection of President Obama and setting the record straight when there are misleading attacks against him and other progressive leaders,” while Restore Our Future called Mitt Romney “the Republican candidate that can put our country back on the right path and the only one who can defeat Barack Obama.”
The Supreme Court, however, narrowly rejected an opportunity in 2012 to reconsider its controversial Citizens United opinion when it issued a per curiam opinion in American Tradition Partnership, Inc. v. Bullock.
83 The case involved a century-old Montana statute prohibiting corporations from spending money “in connection with a candidate or a political committee that supports or opposes a candidate or a political party.” The Supreme Court of Montana had upheld the law in 2011—one year after Citizens United was decided—because it concluded that independent expenditures by corporations had, in fact, caused actual corruption or given the appearance of corruption in the Big Sky state. The five conservative-leaning justices on the U.S. Supreme Court, however, found that Citizens United involved “a similar federal law” and that Montana, in an effort to defend its law, had failed to meaningfully distinguish it from that in Citizens United. In doing so, the majority overruled the Supreme Court of Montana and struck down the state law for violating the ruling in Citizens United. The four liberal-leaning justices at the time—Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan—dissented. Justice Breyer wrote for the dissenters that “Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so.”
SUMMARY
Efforts to reform the expensive American electoral process seem to be gaining momentum in the early part of the 21st century, but under the Constitution there is only so much that the law can do. The Supreme Court has ruled that while it is permissible to place a limit on how much money one person or business can donate to a campaign, it may be a violation of the First Amendment to place a limit on how much a candidate may spend. Because the presentation of campaign messages via the mass media is so much a part of the current electoral process and because sending such messages costs money, campaign spending is tied closely to freedom of speech and press and is protected by the First Amendment, the court has ruled.
THE FIRST AMENDMENT AND THE INFORMATION SUPERHIGHWAY
The First Amendment was drafted and approved in the late 18th century, a time when newspapers, magazines, books and handbills comprised the press that was intended to be protected by the constitutional provision. As each new mass medium
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has emerged—radio, motion pictures, over-the-air television, cable television and so forth—the courts have had to define the scope of First Amendment protection appropriate to that medium. And so it is with the Internet, computer-mediated communication. The next 13 chapters of this book contain references to laws regarding libel, invasion of privacy, access to information, obscenity, copyright and advertising, and they contain references to how these laws are being applied to computer-mediated communication. These emerging rules have in no small part been dictated by decisions by the federal courts that speak to the general question of the application of the First Amendment to the Internet. The next few pages focus on this general question.
How the government regulates a message communicated by any medium is generally determined by the content of that particular message. A plea to burn down city hall and kill the mayor is sedition; a call to vote the mayor out of office is not. Calling Mary Smith a thief is libelous; calling Mary Smith a good student is not. The law is applied, then, based on what the message says. But in some instances the regulation of a message is based on more than the content of the message; it is also influenced by the kind of medium through which the message is transmitted. As some have stated, there is a medium-specific First Amendment jurisprudence in the United States, meaning that the scope and amount of protection that speech receives will be influenced by the nature of the medium on which it is conveyed.
At least four categories of traditional communications media were in common use when the Internet first burst onto the scene, and even today each is regulated somewhat differently by the law. The printed press—newspapers, magazines, books and pamphlets—enjoys the greatest freedom of all mass media from government regulation. The over-the-air broadcast media—television and radio—enjoy the least amount of freedom from government censorship. Cable television is somewhere between these two, enjoying more freedom than broadcasting but somewhat less than print. Few limits are placed on the messages transmitted via the telephone, and those that are must be very narrowly drawn.
84 There are some ifs, ands or buts in this simple outline, but it is an accurate summary of the hierarchy of mass media when measured by First Amendment freedom.
Why is the printed press allotted the most protection by the First Amendment? There are no physical limits on the number of newspapers and magazines or handbills that can be published. (Economic limits are another matter, but one not considered by the courts in this context.) Since the founding of the Republic in 1789, the printed press has traditionally been free. The receiver must generally take an active role in purchasing a book or a magazine or newspaper. Young people must have the economic wherewithal to buy a newspaper or magazine, and then have the literacy skills to read it.
It is just as obvious why broadcast media have fared the poorest in First Amendment protection. There is an actual physical limit on the number of radio and television channels that exist. All but a very few are in use. Since not everyone who wants such a channel can have one, it is up to the government to select who gets these scarce broadcast frequencies and to make certain those who use the frequencies serve the interests of all listeners and viewers. Because of spectrum scarcity and other reasons, broadcasting has been regulated nearly since its inception. It has no tradition of freedom. All the receiver must
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do to listen to the radio or watch television is to flick a switch. Even children who don’t know how to read can do this; radio and television are easily accessible to children.
Cable television and telephones fit somewhere in between. There is potentially an unlimited capacity for messages to be transmitted by each medium. Both have been historically regulated, but not to the extent that broadcasting has been regulated. Although a receiver can watch a cable television channel as easily as he or she can watch an over-the-air channel, the receiver must take a far more active role by subscribing to a cable system. Although this action may seem like a trivial distinction, the courts have made much of it. Judges have presumed that the people who subscribe to cable television should know what they will receive. Federal law mandates that cable television companies provide safeguards (called cable locks) for parents who want to shield their children from violent or erotic programming.
* Such screening technology is only now coming into use for over-the-air television. The use of a telephone also requires a more active role by the receiver than simply switching on a radio or television set.
GOOGLE AND CENSORSHIP REQUESTS ACROSS THE GLOBE
In 2010, Google launched a Web site devoted to documenting the number of requests it received from government entities across the globe for the removal of content or the disclosure of user data. Removal requests seek the removal of content from Google search results or from another Google product, including YouTube, while data requests seek information about Google user accounts or products. According to the site, Google received more than 8,000 requests to remove content from government agencies around the world in 2015. The Web site is located at http://www.google.com/governmentrequests.
Where do computer-mediated communication systems fit into this hierarchy? In 1997 the Supreme Court ruled that communication via the Internet deserves the highest level of First Amendment protection, protection comparable to that given to print newspapers, magazines and books.
85 The high court made this decision as it ruled that the central provisions of the 1996 Communications Decency Act that restricted the transmission of indecent material over the Internet violated the U.S. Constitution. Recognizing that each medium of communication may present its own constitutional problems, Justice John Paul Stevens wrote that the members of the high court could find no basis in past decisions for “qualifying the level of First Amendment scrutiny that should be applied to this medium [the Internet].”
The court rejected the notion prevalent among those in Congress who voted for the Communications Decency Act that communication via the Internet should be treated in
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the same manner as communication via over-the-air radio and television. The court said that the scarcity of frequencies that had long justified the regulation of broadcasting did not apply in the case of the Internet, which, it said, can hardly be considered a “scarce” expressive commodity.
The importance of this ruling cannot be overestimated. Not only did the court strike down a restrictive federal law that was certain to retard the growth of computer-mediated communication, it ruled that any other governmental agency that seeks to regulate communication via the information superhighway must treat this medium in the same manner it would treat a print newspaper or book.
NET NEUTRALITY
The potential of the Internet as “vast democratic fora” and a “new marketplace of ideas”—terms used by Justice Stevens to describe it back in 1997 in Reno v. ACLU—is seriously jeopardized by the possibility that the companies controlling broadband access to the Internet will block, degrade and otherwise discriminate against some types of Internet content, services and applications. Put differently, the danger exists that those who provide on-ramps to the Internet will harm the open and nondiscriminatory nature of the medium. Interest groups such as Public Knowledge
86 thus advocate the concept of net neutrality, a relatively abstract term suggesting that Internet service providers should treat all traffic and content similarly and that they should not charge more money for or block access to faster services. More simply put, as the San Francisco Chronicle described it, net neutrality is “the idea that traffic on the Internet should flow as democratically as possible.”
87
Net neutrality raises important First Amendment issues for all Internet users, including the right to receive speech (including a diversity of ideas) and the right to access information. The statutes and regulations adopted by Congress and the Federal Communications Commission (FCC) today will largely determine whether net neutrality remains a reality or whether the Internet will someday be treated more like cable, where the cable system provider charges different rates for different content and services. As media merge (possibly changing the nature of the medium-specific First Amendment jurisprudence adopted by the Supreme Court) and as cable operators and phone companies compete for control over the on-ramps to the Internet, the First Amendment rights of all citizens are placed in the balance.
The issue of net neutrality heated up in 2008 after allegations that Comcast, a major opponent of government action mandating network neutrality, was restricting and interfering with Internet access to the flow of content, such as video clips, songs and software files, on a file-sharing service called BitTorrent.
88 Such a discriminatory practice by a service provider like Comcast, which provides broadband Internet access over cable lines,
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that targets the use of a particular peer-to-peer application is precisely what advocates of net neutrality fear.
The fight over net neutrality has raged on. In March 2015, the FCC released an Open Internet Order meant, it said, to “enact strong, sustainable rules … to protect the open Internet and ensure that Americans reap the economic, social, and civic benefits of an open Internet today and into the future.” In the order, the FCC reclassified broadband Internet service as a telecommunications service, subject to common carrier regulation under Title II of the Communications Act of 1934. In effect, the FCC classified the Internet as a public utility, with the goal of ensuring an open Internet for all content.
The FCC’s order banned three specific practices that it said invariably harm the principle of an open Internet: blocking, throttling and paid prioritization.
1.
No blocking. The FCC said consumers who subscribe to broadband Internet service “must get what they have paid for—access to all (lawful) destinations on the Internet.” Therefore, the FCC’s order mandated that Internet service providers “shall not block lawful content, applications, services, or non-harmful devices.”
2.
No throttling. The FCC’s order also included a ban on throttling, or degrading, access to the Internet. Such throttling would involve a broadband Internet service provider slowing down access to a site, service or application. If throttling were allowed, the FCC said, such “gamesmanship” could effectively avoid the no-blocking rule by rendering an application effectively unusable.
3.
No paid prioritization. The FCC said paid prioritization occurs “when a broadband provider accepts payment (monetary or otherwise) to manage its network in a way that benefits particular content applications, services, or devices.” Those sorts of agreements would create a “fast lane” on the Internet where some content is privileged (and accessible more quickly) than others. The FCC’s order banned the practice.
These rules applied to both fixed and mobile broadband Internet service. The FCC’s order also required enhanced transparency, so that “consumers are fully informed about the Internet access they are purchasing” and so that sites, such as Amazon, “have the information they need to understand whether their services will work as advertised.” The order required that broadband Internet service providers must disclose promotional rates, all fees and surcharges, and all data caps or data allowances. The order also required specific notification to consumers if a “network practice” is likely to significantly affect their Internet use.
The FCC passed the order along party lines, with the three Democratic commissioners on the FCC voting for the order and the two Republican commissioners voting against it (and issuing strongly worded dissents). The order frustrated broadband Internet service providers (ISPs), who have fought against rules that mandate net neutrality. The ISPs argue, among other things, that they should be able to charge a service such as Netflix—which one report found accounts for more than a third of all downstream Internet bandwidth during peak periods—higher preferred-access fees.
Three separate groups of petitioners, consisting primarily of broadband providers and their associations, challenged the order. But in June 2016 the U.S. Circuit Court of
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Appeals for the District of Columbia ruled in favor of the FCC. In United States Telecom Association v. FCC,
89 the D.C. Circuit upheld, by a 2-1 vote, the FCC’s net neutrality rules as well as its classification of broadband Internet access as a public utility. An appeal of the decision is likely. Moreover, under the Trump administration, the majority of the FCC commissioners are now Republicans (under Obama, three of the five were Democrats), and the Republican commissioners have indicated that they hope to roll back the net neutrality efforts launched when the Democrats had a majority on the FCC. In May 2017, the FCC—now chaired by Ajit Pai, a Republican who was appointed FCC chairman by President Trump—voted to start the process of reversing the 2015 order’s classification of the Internet as a telecommunications service. That May 2017 vote initiated a period where the public could comment on the proposed reversal. So the issue is far from settled.
BIBLIOGRAPHY
Abate, Tom, and Verne Kopytoff. “Are Internet Toll Roads Ahead?” San Francisco Chronicle, 7 February 2006, C1.
Associated Press. “FCC Poised to Punish Comcast for Traffic Blocking.” 26 July 2008.
———. “U.S. Judge Says Utica Schools Illegally Censored Prep Paper.” 13 October 2004.
Gillmor, Donald. “The Fragile ‘First.’” Hamline Law Review 8 (1985): 277.
Kang, Cecilia. “FCC Head Says Action Possible on Web Limits.” Washington Post, 26 February 2008, D1.
Savage, David G. “Kennedy Moves Front and Center on Court.” Los Angeles Times, 2 July 2006.
Weaver, Russell L., and Donald E. Lively. Understanding the First Amendment. Newark, N.J.: LexisNexis.
1
. Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
2
. 286 F. Supp. 2d 847 (E.D. Mich. 2003).
3
. 478 U.S. 675 (1986).
4
. 484 U.S. 260 (1988).
5
. 822 F. Supp. 2d 1037 (N.D. Cal. 2011), affirmed, 767 F. 3d 764 (9th Cir. 2014), cert. den., 135 S. Ct. 1700 (2015).
6
. 484 U.S. 260 (1988).
7
. Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
8
. Dean v. Utica Community Schools, 345 F. Supp. 2d 799 (E.D. Mich. 2004).
9
. Associated Press, “Utica Schools.”
10
. Oregon Revised Statutes § 336.477 (2009).
11
. California Education Code § 48950 (providing in relevant part that “school districts operating one or more high schools and private secondary schools shall not make or enforce any rule subjecting any high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment to the United States Constitution”).
12
. 799 F. 3d 379 (5th Cir. 2015), cert. den., 194 L. Ed. 2d 240 (2016).
13
. 478 U.S. 675 (1986).
14
. Frederick v. Morse, 439 F. 3d 1114 (9th Cir. 2006).
15
. Morse v. Frederick, 551 U.S. 393 (2007).
16
. Ponce v. Socorro Independent School District, 508 F. 3d 765, 770 (5th Cir. 2007).
17
. 236 F. 3d 342 (6th Cir. 2001).
18
. 412 F. 3d 731 (7th Cir. 2005), cert. den., 126 S. Ct. 1330 (2006).
19
. California Education Code § 66301. Illinois adopted a similar law in 2007.
20
. 667 F.3d 727 (6th Cir. 2012).
21
. See Student Press Law Center v. Alexander, 778 F. Supp. 1227 (1991); and Ohio ex rel The Miami Student v. Miami University, 79 Ohio St. 3d 168 (1997).
22
. California Penal Code § 490.7 (2009).
23
. Stanley v. McGrath, 719 F. 2d 279 (1983).
24
. Gillmor, “The Fragile First.”
25
. 47 Pennsylvania Statutes Annotated § 4-498 (2004).
26
. Pitt News v. Pappert, 379 F. 3d 96 (3d Cir. 2004).
27
. 731 F. 3d 291 (4th Cir. 2013).
28
. 457 U.S. 853 (1982).
29
. 439 F. Supp. 2d 1242 (S.D. Fla. 2006).
30
. ACLU of Florida v. Miami-Dade County School Board, 557 F. 3d 1177 (11th Cir. 2009), cert. den., 558 U.S. 1023.
31
. Hill v. Colorado, 530 U.S. 703 (2000).
32
. S.O.C. v. Clark County, Nevada, 152 F. 3d 1136 (1998).
33
. 104 So. 3d 1069 (Fla. 2012).
34
. See, for example, International Society for Krishna Consciousness v. Wolke, 453 F. Supp. 869 (1978).
35
. Schneider v. New Jersey, 308 U.S. 147 (1939); and Miller v. Laramie, 880 P. 2d 594 (1994).
36
. See Providence Journal v. Newport, 665 F. Supp. 107 (1987); and Multimedia Publishing Co. of South Carolina, Inc. v. Greenville-Spartanburg Airport District, 991 F. 2d 154 (1993).
37
. See Gold Coast Publications, Inc. v. Corrigan, 42 F. 3d 1336 (1995); and Honolulu Weekly Inc. v. Harris, 298 F. 3d 1037 (2002).
38
. Globe Newspaper Company v. Beacon Hill Architectural Commission, 100 F. 3d 175 (1996).
39
. Hays County Guardian v. Supple, 969 F. 2d 111 (1992).
40
. Ward v. Rock Against Racism, 491 U.S. 781 (1989).
41
. Statesboro Publishing Company v. City of Sylvania, 516 S.E. 2d 296 (1999); see also Houston Chronicle v. Houston, 630 S.W. 2d 444 (1982); and Denver Publishing Co. v. Aurora, 896 P. 2d 306 (1995).
42
. Ridley v. Massachusetts Bay Transportation Authority, 390 F. 3d 65 (1st Cir. 2004).
43
. 444 F. 3d 967 (8th Cir. 2006). See also Hays County Guardian v. Supple, 969 F. 2d 111, 117 (5th Cir. 1992), which found certain outdoor areas at Southwest Texas State University to be a designated public forum, designated for the speech of students.
44
. Weaver and Lively, Understanding the First Amendment, 118.
45
. See Wells v. City and County of Denver, 257 F. 3d 1132, 1147 (10th Cir. 2001), which wrote that “a content-neutral restriction in a traditional or designated public forum is subject to review as a regulation on the time, place, and manner of speech.”
46
. Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 46 (1983).
47
. Weaver and Lively, Understanding the First Amendment, 120.
48
. Kaahumanu v. Hawaii, 685 F. Supp. 2d 1140 (D. Haw. 2010).
49
. Faith Center Church Evangelistic Ministries v. Glover, 462 F. 3d 1194, 1203 (9th Cir. 2006).
50
. Child Evangelism Fellowship of Maryland v. Montgomery County Public Schools, 457 F. 3d 376, 384 (4th Cir. 2006).
51
. 715 F. Supp. 2d 650 (E.D. N.C. 2010).
52
. 834 F. 3d 435 (3rd Cir. 2016).
53
. 391 U.S. 308 (1968).
54
. 407 U.S. 551 (1972).
55
. 424 U.S. 507 (1976).
56
. Robins v. Pruneyard Shopping Center, 592 P. 2d 341 (Cal. 1979).
57
. Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980).
58
. Ralphs Grocery Co. v. United Food & Commercial Workers Union Local 8, 186 Cal. App. 4th 1078 (2010).
59
. 916 F. 2d 777 (1990).
60
. Simon & Schuster, Inc. v. New York Crime Victims Board, 502 U.S. 105 (1991); see also Bouchard v. Price, 694 A. 2d 670 (1998) and Keenan v. Superior Court, 40 P. 3d 718 (2002) in which courts in Rhode Island and California struck down similar laws.
61
. Massachusetts v. Power, 420 Mass. 410 (1995).
62
. 102 P. 3d 91 (Nev. 2004).
63
. City of Ladue v. Gilleo, 512 U.S. 43 (1994).
* In 2003 the Supreme Court refused to permit two abortion clinics and the National Organization for Women to use the federal Racketeer Influenced and Corrupt Organizations Act (RICO) when they sued anti-abortion activists who disrupted and blockaded abortion clinics in Chicago in the 1990s. The high court said the protests did not constitute extortion, a crime that might make the RICO law applicable. Scheidler v. National Organization for Women, 537 U.S. 393 (2003). The court implied that it was inappropriate to use the federal racketeering law as a weapon against political protests.
64
. Madsen v. Women’s Health Center, 512 U.S. 753 (1994).
65
. McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).
66
. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
67
. Gooding v. Wilson, 405 U.S. 518 (1972).
68
. 562 U.S. 443 (2011).
69
. 661 F.3d 498 (10th Cir. 2011).
70
. 268 P.3d 12 (Kan. 2012).
71
. Virginia v. Black, 538 U.S. 343 (2003).
72
. See, for example, John Doe v. University of Michigan, 721 F. Supp. 852 (1989); and UWM Post v. Board of Regents of the University of Wisconsin, 774 F. Supp. 1163 (1991).
73
. Saxe v. State College Area School District, 240 F. 3d 200 (2001).
74
. 694 F. Supp. 2d 610 (N.D. Tex. 2010).
75
. DeJohn v. Temple University, 537 F. 3d 301 (3d Cir. 2008).
76
. 548 U.S. 230 (2006).
77
. 424 U.S. 1 (1976).
78
. Subsequent to Buckley, the court also upheld a $1,075 limit on contributions to candidates for Missouri state auditor in Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000).
79
. Savage, “Kennedy Moves Front and Center.”
80
. 554 U.S. 724 (2008).
81
. 558 U.S. 310 (2010). The documentary, “Hillary: The Movie,” was released during the 2008 Democratic presidential primaries in which Hillary Clinton was competing against Barack Obama and John Edwards.
82
. 494 U.S. 652 (1990).
83
. 132 S. Ct. 2490 (2012).
84
. Sable Communications v. FCC, 492 U.S. 115 (1989).
* But in U.S. v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000), the Supreme Court suggested that cable television enjoys the full protection of the First Amendment. This notion has yet to be fleshed out by the court.
85
. Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).
86
. The organization describes itself as a Washington, D.C.–based “advocacy group working to defend your rights in the emerging digital culture.” See http://www.publicknowledge.org.
87
. Abate and Kopytoff, “Are Internet Toll Roads Ahead?”
88
. Kang, “FCC Head Says Action Possible on Web Limits”; Associated Press, “FCC Poised to Punish Comcast for Traffic Blocking.”
89
. 825 F.3d 674 (D.C. Cir. 2016).
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CHAPTER

4
Libel
ESTABLISHING A CASE
©McGraw-Hill Education/Jill Braaten
The law of libel is centuries old. Its roots in this country spring directly from the British common law. Throughout most of this nation’s history the states were left to fashion their own libel laws. But since the mid-1960s, the U.S. Supreme Court has “federalized” basic elements of defamation law, obligating the states to keep their rules and regulations within boundaries defined by the First Amendment. This development has transformed what was a fairly simple aspect of American law into a legal thicket. In this first of three chapters about defamation, some basic dimensions of this common tort action are characterized and the requirements that have been placed on the plaintiff to establish a cause of action for libel are outlined.
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THE LIBEL LANDSCAPE
Defamation, or libel, is a
tort, or a civil wrong. It is the most common legal problem faced by people who work in the mass media, and often the most troublesome. Allegations of libel are the basis of about two-thirds of all lawsuits filed against mass media defendants in any given year. In simple terms,
libel is the publication or broadcast of any false statement of fact that injures somone’s reputation.
Anyone who speaks, publishes (including material on the Internet) or broadcasts anything can become the target of a defamation action. Libel can lurk in a news story or editorial, a press release, a company newsletter, advertising copy, letters to the editor, a tweet, a Facebook post or even oral statements made publicly.
1 The mainstream mass media face the vast majority of libel suits, and that is why most of the cases cited in the three subsequent chapters tend to involve lawsuits against newspapers, radio and television stations, magazines and books and the growing number of information-oriented sites on the Internet. Traditional principles of libel law apply uniformly in all libel cases, regardless of the medium used to communicate the allegedly defamatory words or pictures. But media in what we might call the public or mainstream press, such as newspapers, magazines, broadcast stations and online sites, enjoy some First Amendment protections that may not accrue to those who publish defamation in a company newsletter or press release, a personal blog or a posting on Facebook or Twitter.
DAMAGE CLAIMS
Plaintiffs often seek large amounts of money in libel cases against media defendants. For example, in 2015 a dean of students at the University of Virginia named Nicole Eramo sued Rolling Stone magazine for $7.5 million in compensatory damages over a now debunked 2014 story called “A Rape on Campus.” Eramo contended the article, which Rolling Stone later retracted, portrayed her as the “chief villain” in not supporting or helping a woman named “Jackie,” who claimed she was gang raped at a University of Virginia fraternity. A jury eventually awarded Eramo $3 million after a two-week trial. Also in 2016, a North Carolina jury awarded Beth Desmond, an agent with the North Carolina Bureau of Investigation, $1.5 million in compensatory damages and $7.5 million in punitive damages in a defamation suit against The News & Observer and reporter Mandy Locke. The award was so large it exceeded the state’s legal cap limit on punitive damages. That year also saw Mike McQueary, the former Penn State assistant football coach and whistleblower in the Jerry Sandusky case, awarded $7.3 million by a jury in his defamation suit against the university. And sometimes plaintiffs want even more money. In 2016, for example, a Nashville district attorney named Glenn Funk sued
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©AP Photo/Steve Helber
Nicole Eramo, a former dean at the University of Virginia, won a $3 million judgment in a defamation suit against Rolling Stone magazine and the author of the story, “A Rape on Campus.” Rather than appeal the case, Rolling Stone reached a confidential settlement with Eramo in April 2017.
Scripps Media, the owner of WTVF-NewsChannel 5, for $200 million over an investigative story that suggested Funk tried to blackmail a defendant and attempted to solicit a bribe. Not to be outdone, in late 2016, Burke Ramsey, the brother of JonBenet Ramsey, sued CBS, a production company and a host of contributors for the whopping sum of $750 million. Ramsey alleged that the “gist” of the September 2016 program “The Case of: JonBenet Ramsey” was that he killed his sister in 1996. In 2008, JonBenet’s family, including Burke, were officially cleared of wrongdoing in the case by the Boulder, Colorado, district attorney.
As the next few pages indicate, such cases often cost media defendants huge sums of money to defend in terms of legal fees and litigation costs. Additionally, litigation frequently stretches on for years. And while many libel cases ultimately are thrown out, dismissed or settled before trial, if a case does reach a jury, plaintiffs often win enormous damage awards (see the gray-shaded text box on page 149 entitled “Taking the Media to Trial”). Even when those awards later are reduced or tossed out on appeal, as they often are, that does not reduce the time and expense of fighting the cases.
TIME AND MONEY
All lawsuits take time to resolve. Some libel suits take many years. The Knight-Ridder Company settled a libel suit in 1996 brought by a former Philadelphia prosecuting attorney. The case began 23 years earlier. Consumers Union, the publisher of Consumer Reports, settled a libel suit in 2004 that had been brought by the Suzuki Motor Corporation. The case began in 1996.
2 Although these cases aren’t necessarily typical, protracted litigation is always a threat in a defamation action because of the complex nature of libel law. And while the case goes on, the defense lawyers remain on the job, racking up billable hours. Additionally, successfully defending a newspaper or broadcasting network in a libel suit requires the work of talented attorneys. Defending a libel suit is far more
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complicated than writing a will or seeking damages for an automobile accident. Fees of $500 per hour for attorneys are not unusual.
TIME AND THE LAW
The likelihood of defamatory material being published or broadcast today is extraordinarily high, given the volume of words and pictures transmitted and posted online by the media. The editing process in the mainstream press has been diluted due to budget cutbacks. The time traditional media have to make decisions regarding the liability inherent in publishing a story has been compressed. Where 20 years ago multiple editors might have looked at a story, there is simply not time for that to occur today given the rush to get the story not only in tomorrow’s edition or on tonight’s newscast, but immediately online.
Libel law is among the most tangled areas of American law. It is filled with many poorly defined amorphous concepts. Although libel is based on traditional common law, it is infused with statutory and constitutional elements. The vast majority of American judges will never hear a libel case, no matter how many years they sit on the bench. And most lawyers have never considered the topic since two or three days of lectures in a torts class in law school. Jurors—laypeople who have little or no experience with any aspect of the law—are usually even more in the dark. Mistakes are often made at trials; wrong decisions are handed down. Errors can be corrected on appeal—and usually are. But this takes time and costs money for the defendant newspaper or broadcasting station.
Lawyers who represent the press usually follow a similar strategy: First, try to have the case dismissed before it goes to trial. Failing that, offer to settle the case. Most of the time this can save money. (The cost of settling a case can often be much lower than the legal costs involved in a trial.) A settlement before a trial also makes sense because, according to Media Law Resource Center (MLRC) research, the odds are better than 50-50 that the press will lose the case if it goes before a jury. Why? Well, some libel plaintiffs have actually been wronged and deserve to win their case. But there are other reasons as well.
As noted, the law is complex and errors are sometimes made by jurors and judges.
Important libel defenses are anchored in the First Amendment, an abstract concept to many people. A juror can often see damage to a person’s reputation much more clearly than the theoretical value inherent in freedom of the press.
The mass media today are not held in high regard by a great many people in the nation. A lot of people don’t like the press. A libel trial can provide an opportunity for a juror to express his or her frustrations with the press by awarding damages to a plaintiff. Attorney Thomas D. Yannucci, who represents libel plaintiffs, called the jury box the mass media’s Achilles’ heel. “If you take it to the jury, the ordinary citizen begins [the trial] thinking the media is unfair.”
3
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TAKING THE MEDIA TO TRIAL: FACTS, FIGURES AND TRENDS
The Media Law Resource Center in April 2016 issued a report describing the results of trials against media defendants for libel, privacy and related claims from 1980 through 2015. Here are key findings.
From 1980 through 2015, media defendants won only 251 of 606 trial verdicts (slightly more than 40 percent). However, after trial (on appeal and during post-trial motions), media defendants won 56 percent of tried cases, with plaintiffs recovering nothing. In fact, only about 19 percent of damage awards to plaintiffs fully stood up after trial. As the MLRC report concluded, plaintiff “damage awards dropped 86.2% from the amount awarded at trial to the amount awarded after post-trial motions and appeals, not counting amounts that may have been obtained in settlements.”
From 1980 through 2015, the average trial damage award to plaintiffs was a whopping $2.82 million, while the median award was $310,000. After post-trial motions and appeals filed by media defendants, however, the size of the average award fell to just under $700,000 while the median dropped to $115,000.
The number of cases reaching trial against media defendants has steadily declined. In 2015, in fact, there was only one trial against a media defendant. It was a libel case called Mitre v. HBO stemming from a 2008 segment of “Real Sports with Bryant Gumbel” about the use of child labor in the manufacture of soccer balls. Mitre, a soccer ball manufacturer, lost the case before a jury in New York.
The bottom line seems clear: While plaintiffs may do well against media defendants when a case actually reaches trial, the amounts juries award often either are completely thrown out or are significantly reduced on appeal or post-trial motions. But regardless of the ultimate outcome, it costs media organizations vast sums of money and time to defend and litigate these cases.
THE LAWSUIT AS A WEAPON
In the typical libel suit the injured party, or the plaintiff, initiates the lawsuit to (1) repair any damage to reputation and (2) collect money damages to compensate for the harm to reputation. To reach either of these ends, the plaintiff must either win a settlement or a court case. In the last last 35 years, however, a different kind of libel action has emerged. In these cases the plaintiff is far more interested in blocking the defendant from publishing further harmful comments than winning damages.
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Legal authorities call these kinds of libel suits Strategic Lawsuits Against Public Participation, or SLAPP suits.
4
Imagine these situations:
Ted Spiker is upset about the quality of work performed at his house by a local carpet company, Carpet Masters. Spiker thus posts a negative review on Yelp! that says “Carpet Masters? Worst. Service. Ever.” Carpet Masters sues Spiker for libel, claiming his review is false and hurts its business.
Community activist Sarah Newman sends a letter to the editor in which she says she opposes the city’s proposal to rezone a large land parcel to permit construction of a 350-unit apartment complex. She writes that “Stang Development Company has in the past failed in its other development to live up to promises that it will include a substantial number of low-income units in the building.” Stang sues for libel.
Comments made in a consumer affairs segment of a television news broadcast suggest that the dealer of small mobile homes is misinforming its customers who buy the homes. The dealer tells the buyers they will be permitted to install these small trailers on the property that contains their existing homes. County zoning rules prohibit such installation. The mobile home dealer sues the station for libel.
In all three cases, the lawsuits were initiated to block the defendants from making further critical comments about the plaintiff. It is not important for the plaintiff to win these cases; most don’t expect to. But by forcing their critics to mount a costly defense, they hope to silence these critics. It is one thing for individuals to speak their mind; another to hire lawyers to mount a libel defense.
The legal system has devised a means to thwart such lawsuits by passing laws that permit a court to expedite a judicial review of the plaintiff’s allegations. Rather than sending the dispute to trial, so-called anti-SLAPP statutes, or what are sometimes called Citizen Participation Acts, permit the defendant to ask a judge to dismiss the complaint immediately. While the statutes vary in details, all require the judge to undertake a two-step examination of the complaint.
First, the defendant must convince the court the challenged activity arose from a constitutionally protected activity, one that focused on a matter of public interest; that the defendant was using his or her basic First Amendment rights. If the court agrees with the defendant, then the plaintiff must convince the court that he, she or it has brought forth a legally sufficient claim. That is, there is sufficient evidence that the plaintiff will likely win any libel suit that occurs. At this point the court will consider whether the plaintiff can establish facts to meet its burden of proof, and whether there are defenses that would likely defeat the libel suit. If the activity is constitutionally protected, and the plaintiff fails to bring forth sufficient evidence to sustain a suit, the judge will dismiss the complaint immediately.
About 30 states now have anti-SLAPP statutes. In 2016, a subcommittee of the House Judiciary Committee held hearings on a federal anti-SLAPP statute, the SPEAK FREE Act. As of 2017, however, there was no federal anti-SLAPP statute. As of 2017, only California, Washington, Texas, the District of Columbia, Illinois, Indiana and Louisiana
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had expansive statutes that cover statements made outside a governmental setting. The strongest statutes are those that protect speech that occurs in any forum and address matters that range from government to economic concerns. California courts have included comments made in the press within the protection of the anti-SLAPP laws, and the state court of appeals ruled in late 2011 that even a feature film, the movie “Bruno,” a purported documentary with Sacha Baron Cohen that raised public issues, was protected by the state’s statute. This ruling went far beyond the scope of most state laws.
5
Going to court in a libel action is rarely a happy experience for any of the participants.
RESOLVING THE PROBLEM
Going to court in a libel action is rarely a happy experience for any of the participants. Plaintiffs are rarely gratified. Lawyers’ fees can take as much as 50 percent of their winnings. The typical case takes several years to litigate, years during which their lives are disrupted. Two-thirds of the plaintiffs questioned by researchers in the massive Iowa Libel Research Project said they were dissatisfied with their litigation experience.
6 The press isn’t happy either. Defense costs and damage awards cut into revenues. Reporters and editors are immobilized for long periods of time. Publicity about the lawsuit only reinforces the negative attitudes many people have about the news media.
An important question to ask is this: Are there better ways to resolve legitimate disputes between a mass medium and an injured party? Is going to court, or even threatening to go to court, the only solution? Newspapers, broadcasting stations, magazines and others often have been reluctant to publish or broadcast corrections, retractions or apologies. Few people like to admit they were wrong, especially in a public forum. But three-fourths of the plaintiffs interviewed for the Iowa Libel Research Project just discussed said they would not have filed a lawsuit if the news medium had published or broadcast a correction or retraction. The publication of such corrections has become more common in the past two decades. Undoubtedly this has helped defuse many disputes that might otherwise have ended up in court.
Laws have been adopted in about 30 states that reward the press for publishing a correction or retraction. These retraction statutes typically cap or limit the types of damages a plaintiff can recover if a defendant makes a timely retraction or correction. These laws are discussed in greater depth on pages 243–244.
SUMMARY
Libel is the most common and often the most troublesome problem faced by people who work in the mass media. It usually takes a great deal of money to successfully defend a libel suit. Damage claims are sometimes outrageous, and occasionally damage awards are extremely high and have little to do with the harm caused by the defamation. The law is very complicated, and mistakes made by judges and juries have to be rectified by lengthy and costly appeals. Some plaintiffs attempt to use the law to harass or punish defendants rather than simply repair a damaged reputation, but many states have attempted to block these so-called SLAPP suits with legislation.
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LAW OF DEFAMATION
The law of defamation can be traced back several centuries. Initially, the law was an attempt by government to establish a forum for persons involved in a dispute brought about by an insult or by what we today call a defamatory remark. One man called another a robber and a villain. The injured party sought to avenge his damaged reputation. A fight or duel of some kind was often the only means of gaining vengeance before the development of libel law. It was obvious that fights and duels were not satisfactory ways to settle such disputes, so government offered to help solve these problems. Slowly the law of defamation evolved.
Parts of the law of libel do not concern those who work in mass communications. For example, elements of libel deal with allegations contained in private communications, a letter from one person to another, a job recommendation from a former employer to a prospective employer or private communications between ordinary individuals. This chapter focuses on public communications—material that is published or broadcast via the mass media, using that term in its broadest sense to include advertising, company magazines, trade association newsletters, press releases, the Internet, material posted on social media and so on. Similarly, because newspapers, broadcasting stations, magazines and the like tend to focus on material considered to be of public concern, courts often treat them differently from nonmedia defendants. Unless otherwise stated, it can be presumed the discussion in this text focuses on the rights and responsibilities of media defendants.
Additionally, it must be remembered that libel law is essentially state law. It is possible to describe the dimensions of the law in broad terms that transcend state boundaries, and that is what this text attempts to do. But important variations exist in the law from state to state, as will be demonstrated in Chapter 5 in the discussion of fault requirements. It is important for students to focus on the specific elements of the law in their states after gaining an understanding of the general boundaries of the law.
The law of defamation includes both libel (written defamation) and
slander (oral defamation). One hundred and fifty years ago these two kinds of defamation were treated differently by the courts. Written defamation was considered a more serious offense because it lasted longer, was more widely circulated and was planned or more purposeful (as opposed to a spoken comment made in the heat of anger). Therefore the law treated libel more harshly. The coming of radio, television, film and other forms of electronic media in which spoken communication could be recorded and retained, circulated as widely or more widely than a newspaper or handbill, and was often written down in a script before it was spoken, forced changes in the law. While the law in some states still distinguishes between libel and slander, in most states the two are treated alike. A more meaningful distinction today is between published communication, which includes printed matter, radio, television, film, the Internet and so on, and purely spoken, interpersonal conversation. All published communication is treated today as libel.
ELEMENTS OF LIBEL
Defamation is any communication that holds a person up to contempt, hatred, ridicule or scorn.
Defamation can be defined as a false statement of fact about the plaintiff that is communicated by the defendant to a third party (one person other than the defendant and the plaintiff must receive the allegedly defamatory statement) and that harms
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the plaintiff’s reputation. The plaintiff in a defamation suit can be either a person or a business.
Reputational harm to the plaintiff is the key injury with which defamation law is concerned. A reputation is reflected in how others treat or act toward a person or a business. Reputational harm therefore is different from the internal emotional distress a person might feel after reading something false and negative about himself, although many states today allow for recovery of both reputational harm and emotional distress in defamation cases.
A person’s reputation is harmed when a false, factual assertion causes the person to be hated, scorned, ridiculed, shunned or avoided, or injures the person in his occupation or profession. A business’s reputation, in turn, is harmed when customers patronize it less after a false factual assertion about it is made.
For example, a high school teacher who is falsely accused by a parent in front of the principal of having sex with a student has a potentially great defamation lawsuit against the parent. Why? Because there is a false factual assertion (that the teacher is having sex with a student) about the teacher (the plaintiff) that was communicated to a third party (the principal) by the defendant (the parent) that injures the teacher in his occupation. The teacher’s defamation suit would be for slander if the parent spoke those words to the principal. It would be for libel if the parent conveyed them in writing, such as a letter, to the principal. Most states treat communications via the Internet as libel.
Similarly, a restaurant that is falsely accused in a newspaper review of having rats in its kitchen (a false factual assertion) has an excellent potential defamation lawsuit against the newspaper and the person who wrote the review because the restaurant’s revenue likely decreased after the review was published (i.e., communicated to third-party readers). There will be more to come in Chapter 6 about the key, but sometimes slippery, distinction between factual assertions (there are rats in the kitchen) and statements of opinion (the restaurant has horrible service), which are generally protected.
What if a person has such a low or terrible reputation to start with before a defamatory message is communicated by the defendant? Some states recognize a very limited class of individuals known as libel-proof plaintiffs. These are people who, essentially, cannot be harmed by any false statements because they have no good reputation to start with and thus cannot maintain an action for defamation. Their reputations are so poor to begin with that statements about them do not harm their reputation. Courts, however, typically limit libel-proof plaintiffs only to people who have been convicted of very serious criminal offenses, such as felonies like murder and rape. Simply being unlikeable or a jerk does not make a person a libel-proof plaintiff.
Whether a statement conveys a defamatory meaning—a meaning, in other words, that would harm a person’s reputation—ultimately depends on how a community responds to it. The general rule in the United States is that a statement conveys a defamatory meaning if it would harm a person’s reputation in the eyes of “a substantial and respectable minority” of the community. Courts often apply some variation of this benchmark, such as a “considerable and respectable segment in the community” formulation.
Any living person can bring a civil action for libel. In the United States, deceased individuals can’t sue for libel. Common law bars suits by the relatives of someone who has died on behalf of the deceased. Note, however, that if a living person is defamed, brings suit and then dies before the matter is settled by the court, it is possible in some
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states that have what are called
survival statutes for relatives to continue to pursue the lawsuit.
7 A business corporation can sue for libel. So can a nonprofit corporation, if it can show that it has lost public support and contributions because of the defamation. Cities, counties, agencies of government and governments in general cannot bring a civil libel suit. This question was decided years ago and is settled law.
8
One important key to understanding any lawsuit is to understand the concept of the burden of proof. Which party must prove what? While this point sounds trivial to many laypeople, it is a very significant element in a lawsuit. Remember, under our adversarial legal system, the court only evaluates and analyzes the material brought before it by the adversaries. Judges and juries don’t go out and look for evidence themselves. So the matter of who must bring the evidence before the court is critical. If a plaintiff, for example, is required to prove a specific element in a case and fails to bring sufficient evidence before the court to convince the judge or jury, the plaintiff loses the case.
In a libel case, the plaintiff bears the initial burden of proof. He or she must establish five separate elements of the case in order to have any chance of winning.
TO WIN A LIBEL SUIT A PLAINTIFF MUST PROVE:
1.
The libel was published.
2.
Words were of and concerning the plaintiff.
3.
Material is defamatory.
4.
Material is false.
5.
Defendant was at fault.
Each of the five elements in this box is outlined in detail shortly. Items 4 and 5 are sometimes only required if the plaintiff is suing a mass media defendant. These elements are fairly recent additions to the law of libel, and despite significant amounts of litigation, all the courts have not yet fully resolved the question of how far they should be extended.
9 Fault is discussed in Chapter 5.
PUBLICATION
Before the law recognizes a statement or comment as a civil libel, the statement must be published. Under the law,
publication means that one person, in addition to the source of the libel and the person who is defamed, sees or hears the defamatory material. Just one person is all it takes. But isn’t this a contradiction to what was written on page 153 that a significant number of persons must believe that the plaintiff’s reputation has been harmed before he or she can collect damages? Here it is stated that only a single person must see or hear the libel for publication to take place. Two different concepts are being discussed.
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The first is publication. The plaintiff has to show that at least one other person saw the libelous material or the court will not allow the lawsuit to proceed. No publication, no lawsuit. Assume the plaintiff can show all five elements needed—publication, identification, defamation, falsity and fault—and the publisher of the libel fails to raise a workable defense. The plaintiff wins the case. Then comes the assessment of damages. At this point, the plaintiff must show that the false statement that was published lowered his or her reputation among a significant number of the right-thinking people in the community. If the plaintiff cannot show this, the victory is a moral one at best. No damages will be awarded. It is even possible that the court might rule that the words are not defamatory if they don’t lower the plaintiff’s reputation in the eyes of a significant number of persons.
The question of publication is largely academic when the mass media are sued. If something is in a newspaper or on television or transmitted over the Internet, the court will presume that a third party has seen or heard the matter.
10
Republication of a libel can also result in a successful libel suit. Under the common law of libel, a person who repeats a libel is also responsible for the damage caused by the libelous statement. For example, in 2010, lawyers for The Anniston Star newspaper tried to argue that the newspaper could not be sued for accurately reporting rumors that were being spread in town. The Alabama Court of Civil Appeals ruled the rumor was simply gossip and the newspaper never examined whether it was truthful or not. Repeating a libelous statement accurately is subject to the same liability as one who published it originally.
11 However, this doctrine is limited by several factors.
First, the republication rule is typically limited to situations where the publisher controls the content. Media companies are responsible for the republication of libelous statements because employees are responsible for writing and editing the content of the communication. So-called common carriers such as telephone companies, libraries, bookstores, newsstands and others who provide content but do not edit it are not typically liable for the defamatory content they distribute. Network-affiliated television stations are not responsible for defamatory content in the programming they transmit for the networks either. Like bookstores, they do not edit this material and are thus regarded as vendors.
Second, in the United States every distribution of a libelous statement does not constitute a separate publication. Under the “single publication rule,” a libel plaintiff may only sue once. The single publication rule also applies to text and videos on the Internet. Plaintiffs may sue in one jurisdiction even if a defamatory statement published on the Internet was accessible in every state. In addition, content being continuously available on a Web site does not constitute a “republication” each time it is viewed by a third party.
Third, as discussed below, under federal statutory law, operators of Web sites, blogs, online bulletin boards and discussion groups are not considered publishers and are thus not liable for statements posted on their sites by third parties. This is true even if the Web site’s operator attempts to edit or screen material for defamatory content. In addition, courts have held that providing a hyperlink to a publication is not a republication. For example, in Kentucky, a federal court was asked whether it was a republication when a Web site referenced or provided a link to a defamatory article. The site did not include the articles or the defamatory charges contained in the article, but told users where they
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could find the article on the Internet. The court ruled that providing a link to defamatory content was not a “republication.” The court noted, a hyperlink is “simply a new means for accessing . . . an article” and not a new publication.
12
Some people mistakenly believe that attributing a libel to a third party will shield them from a lawsuit, but this is one of the great myths of American journalism.
You are also liable for repeating a defamatory statement that comes from a source. This includes journalists who accurately quote a source or media organizations that publish or broadcast defamatory advertisements. Some people mistakenly believe that attributing a libel to a third party will shield them from a lawsuit, but this is one of the great myths of American journalism. For example, most good reporters know that it is libelous to label someone a murderer. But a remarkably high percentage of professionals erroneously believe you can label someone a murderer, as long as you attribute the statement to a third party. “Jones killed his wife” is obviously defamatory. So is “Jones killed his wife, according to neighbor Ned Block.” The media organization has simply republished Block’s original libel of Jones. (Because the reporter apparently quoted a source for the allegation of murder, the plaintiff might find it more difficult to prove the required fault element. While that could doom Mr. Jones’ libel in the long run, it doesn’t change the fact that the allegation—attributed or not—is the republication of a libel.) Because of the republication rule, nearly everyone in the chain of production of a news story is technically liable in a lawsuit.
Libel on the Internet
The great bulk of the law of libel that is outlined in this chapter and Chapters 5 and 6 applies to defamation that is transmitted via the Internet. Courts regard communication on the Web the same way they regard material published in newspapers, magazines or books. Two issues have arisen, however, that have forced the courts and Congress to consider the relationship between libel and the Internet. The first has to do with the status of online service providers (OSPs) in the transmission of a libel; the second has to do with jurisdiction.
There are many contexts in which a libel might be published on the Internet. A defamatory message might be sent to every person who logs on to an OSP’s computers. Libelous material might be contained in a database that is viewed or downloaded by a user. Defamatory content also may appear in postings and comments made by readers in a Web site’s comments section.
If the OSP is the author or creator of the libelous message, it will be regarded as the publisher of the material in a libel suit and be treated as a newspaper publisher is treated. It is liable for the defamatory publication and can be sued for libel.
More commonly, however, the OSP merely transmits what another party has posted on the system as an e-mail or a message on a bulletin board or on a Web site. In this case the system operator will be regarded as a vendor or distributor rather than a publisher. Section 230 of the Communications Decency Act, enacted in 1996 in an attempt to encourage “interactive computer services” to restrict the flow of objectionable content, provides a “safe harbor” for OSPs from liability for material posted by third parties. Section 230 states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
13 The law
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was passed to ensure that by editing material on the Internet, an OSP could not be held liable under the republication rule. In 1995, a New York court held that Prodigy, an OSP that was editing out offensive language and using a moderator to enforce content provisions, was liable for its user’s posts.
14 To encourage interactive computer services to make efforts to control indecency on the Internet, Congress provided OSPs with immunity from libel suits. After all, if policing content had made Prodigy libel for defamatory content posted by a third party, few providers would want to exercise editorial control over content.
Section 230 defines “an interactive computer service” as “an information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.”
15 An OSP is protected from defamatory statements made by other information content providers, or “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.”
16
Although Section 230 attempts to distinguish between OSPs and content providers, the law has been applied broadly to a wide number of Web sites. Section 230 has been applied to interactive Web sites, forums, listservs and blogs. Here are some examples:
The 9th U.S. Court of Appeals ruled that the immunity applied even if the OSP operator selected and lightly edited the defamatory comment.
17
Section 230 immunized Internet-book vendor Amazon.com from liability when it was sued by an author for including readers’ comments on its Web site that were critical of the author’s work.
18
A Web site operator who refused to remove allegedly defamatory matter from its site, even after the author of the material asked that it be removed, was immune from liability. The plaintiff argued that by refusing to remove the material, the Web site operator had adopted the content of the message as its own. The federal court disagreed.
19
A TV station that permitted its Web site visitors to post comments following an article about the arrest of a former news anchor on felony drug charges did not contribute to the contents of the comments. Hence, it was a distributor, not a publisher.
20 Thus it is clear that online newspapers, magazines and other Internet content providers are immune from liability for content created and posted by others.
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What if a Web site operator encourages a third party to submit content that is tortuous or unlawful? Not a lot of court decisions have dealt with this question. In 2008 the 9th U.S. Court of Appeals ruled that if a site operator encourages illegal content, or designs a Web site that requires users to post illegal content, it would lose its CDA immunity.
21 In 2013, numerous commentators questioned the future of Section 230 when a federal jury awarded $338,000 to a former Cincinnati Bengals cheerleader for postings made by a third party to thedirty.com. In 2012, the trial judge in the case ruled that thedirty.com was not protected by Section 230, a decision that was initially upheld on appeal.
22 The judge ruled there was evidence the site encouraged the development of the offensive content. However, in 2014, the 6th Circuit Court of Appeals ruled thedirty.com was protected under Section 230 because the Web site did not materially contribute to the statements posted on the site about the former cheerleader.
23
The bottom line is simply this: An online service provider is immune from a defamation suit for transmitting defamatory matter created by a third party, unless the Web site operator has in some way participated in the creation of the illegal content, or has designed the Web site in such a way that requires users who wish to post material to input illegal content.
Another issue that arises with Internet content is related to jurisdiction. Libel laws in the United States often make it very difficult for public figures and public officials to win in this country. But the libel laws of many other countries make it much easier for these individuals to prevail in libel suits. In response to what some have called “libel tourism”—traveling to a foreign venue to file a defamation action that would not succeed in this country—U.S. governments have attacked the problem. At least two states, New York and Illinois, have enacted legislation that prohibits courts in those jurisdictions from enforcing overseas judgments. A British court could still rule against a U.S. defendant, but the plaintiff would not be able to use American courts to enforce the ruling. In 2010 Congress passed legislation that prohibits the domestic enforcement of foreign libel judgments against U.S. persons where the judgments are inconsistent with First Amendment protections built into American law. The so-called SPEECH Act (Securing the Protection of Our Enduring and Established Constitutional Heritage Act) was signed by President Barack Obama in 2010. In brief, plaintiffs may win large verdicts in libel cases overseas, but the SPEECH Act makes it impossible to recover or collect the money in the United States if the laws of the other country are not as protective of speech as they are in the United States.
Can parties in a lawsuit force an OSP or Web site operator to reveal the names of people who post anonymous messages on the Web? Because Web sites are protected from lawsuits related to posts by third parties under Section 230, an interesting problem arises when these Web sites are asked to reveal the identity of anonymous third-party posters. In 2009, for instance, fashion model and former Vogue cover girl Liskula Cohen filed a motion against Google and Blogger.com to compel them in a defamation suit to reveal the identity of the person who anonymously posted comments on a blog calling her a “skank,” a “ho” and “other defamatory statements concerning her appearance, hygiene
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and sexual conduct.”
24 Judge Joan A. Madden ruled in favor of Cohen and held that Google and/or its Blogger.com subsidiary had to reveal to the former model the identity of the anonymous blogger (via the IP and e-mail address) who posted the defamatory comments about her at http://skanksnyc.blogspot.com. Cohen then discovered the blogger was a female acquaintance she knew from parties and restaurants.
The problem gained widespread media attention in 2008 when a now-defunct Web site called JuicyCampus.com, which boasted the motto “Always Anonymous . . . Always Juicy” and later “C’mon. Give Us the Juice,” became known for allowing college students to anonymously post gossip about fellow students that was sometimes offensive, homophobic and/or defamatory.
25 Or imagine that someone creates a fake Facebook profile about you that says defamatory things and you want to unmask its creator. Can you find out who created the fake profile and posted defamatory content about you?
The answer is yes, sometimes, if certain steps are met. State courts across the country are grappling with the issue of anonymous postings and when to allow those harmed by them to force the OSP or host in question to disclose the poster’s identity. In particular, they are attempting to accommodate competing interests, namely, the judicially recognized First Amendment right to engage in anonymous speech (see Chapter 3 regarding prior restraints and protests) versus compensating those harmed by anonymous Internet speech that is defamatory or otherwise unlawful, such as the disclosure of proprietary information like trade secrets. The First Amendment right to engage in anonymous speech is not absolute; it may be overcome in some situations. Determining when, however, is tricky. As a California appellate court wrote in 2008 in a case involving allegedly defamatory postings on a Yahoo! message board and in which the plaintiff sought the identity of the poster of those comments, “the proper focus . . . should be on providing an injured party a means of redress without compromising the legitimate right of the Internet user to communicate freely with others.”
26
A New Jersey appellate court ruled that a subpoena to ascertain the identity of anonymous Internet posters in a libel case should not be issued unless the plaintiff could first make a prima facie case for libel.
27 The court outlined a four-part test it said lower courts should follow that is known as the Dendrite test:
The plaintiff must first make an effort to notify the anonymous poster that he or she is the subject of an application for disclosure.
The plaintiff must identify and set forth the allegedly defamatory statements.
The plaintiff must provide sufficient evidence to support each element of the cause of action, including the harm that has allegedly been incurred.
The court must then balance the defendant’s right to anonymous speech under the First Amendment (see Chapter 3) against the strength of the plaintiff’s case and the necessity of disclosure to allow the plaintiff to proceed properly.
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In the New Jersey case the unidentified posters were named as defendants in the lawsuit. A federal court in Washington state fashioned a somewhat similar rule in a suit in which the anonymous posters were not a party in the lawsuit. It said the subpoena would not be issued unless the information sought went to a core claim made by the plaintiff or the defense, the information was directly or materially relevant to the case and the party seeking the identities had demonstrated that the information was unavailable from other sources.
28
UNMAKING ANONYMOUS POSTERS OF DEFAMATORY CONTENT
“A whole Boat load of money is missing and Tina won’t let anyone see the books. Doesn’t she make her living as a bookkeeper? Did you just see where Idaho is high on the list for embezzlement? Not that any of that is related or anything.”
Those were some of the damning and possibly defamatory comments posted in 2012 on a blog by a person who identified herself only as “almostinnocentbystander.” The “Tina” mentioned in the comments was Tina Jacobson, chair of the Kootenai County Republican Central Committee, and she filed a defamation lawsuit against the unknown poster as a so-called Doe Defendant. When a plaintiff sues an anonymous defendant, the term “Doe” is used in a case name as a placeholder for the name of the actual defendant when the name is later discovered.
29
The blog where the statements about Jacobson were posted was called Huckleberries Online. It was (and still is) operated by the Spokesman-Review, a newspaper serving the area surrounding Spokane, Washington, including nearby Kootenai County, Idaho, where Tina Jacobson lived.
The key legal issue facing the court was whether Tina Jacobson could obtain a court order requiring the Spokesman-Review to disclose the identity of “almostinnocentbystander” so that Jacobson could proceed with her lawsuit. The answer was yes, and the Spokesman-Review revealed that the poster was a woman named Linda Cook.
How did District Judge John Patrick Luster reach his decision to force the Spokesman-Review to unmask Cook and reveal her identity? He initially observed that while the First Amendment protects anonymous speech, such protections are not absolute. Judge Luster applied a modified version of the so-called Dendrite and Cahill standards. Based on these tests, Luster found Jacobson had a solid defamation action against the poster that would survive summary judgment. In addition, when balancing the poster’s First Amendment right of free speech against Jacobson’s interest in being compensated for reputational harm, Judge Luster concluded that the “necessity of almostinnocentbystander’s identity to the plaintiff’s case outweighs the defendant’s right to anonymous free speech in this case.” He thus ordered the owners of the Spokesman-Review to give to Jacobson “any document establishing the identity, email address, and IP addresses of ‘almostinnocentbystander,’ as identified on the Huckleberries Online blog.” This is an increasingly common “unmasking” scenario across the United States today, and it proves that people’s expectations of online anonymity are often wrong.
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In a 2005 opinion called Doe v. Cahill based on statements posted on a blog, the Supreme Court of Delaware held that “the summary judgment standard is the appropriate test by which to strike the balance between a defamation plaintiff’s right to protect his reputation and a defendant’s right to exercise free speech anonymously.”
30 What does this mean? The court called it a “modified” two-part version of the Dendrite test. In particular, the plaintiff must 1) make reasonable efforts to notify the defendant (the anonymous poster) that he or she is the subject of a subpoena or application for an order of disclosure; and 2) provide sufficient evidence to support and sustain each and every element of the plaintiff’s cause of action versus the defendant (in this case, defamation) against a motion for summary judgment.
While different courts have used different versions of these two tests, today, the bottom line is fairly clear: 1) the right to online anonymity is not absolute and courts do have the power to force Web site operators and interactive computer services to reveal the IP and e-mail addresses of otherwise anonymous posters; and 2) most courts apply some version or variation of either the Dendrite or Cahill test to determine if such “unmasking” of anonymous posters is justified in a given case.
IDENTIFICATION
The second element in a libel suit is
identification: The injured party must show the court that the allegedly defamatory statement is “of and concerning him, her, or it.” Failing to do this, the plaintiff will lose the suit. A tax preparer named Timothy Hanks sued a television station that had broadcast a story about unscrupulous tax preparers. The story recounted the story of a taxpayer who said that a business called Reliable Tax had made an error on his return that cost him money. Hanks was not mentioned or alluded to in the story. A U.S. District Court ruled in 2012 that while a corporation can receive damages if it is defamed, no employee or stockholder of the business is so entitled. Not even the president of the company, which Hanks was. Since he was not mentioned in the story, the court ruled the negative remarks were not “of and concerning” him.
31 The plaintiff must be identified. Not every reader or viewer needs to know to whom the libel refers. But certainly more than one or two people must be able to recognize the plaintiff as the subject of the derogatory remark. Libel authorities disagree on how many people must be able to identify the subject of the remark. But remember, to win damages the plaintiff must prove that his or her reputation has been lowered in the eyes of a significant minority of the members of the community. If only a handful of people can recognize the plaintiff, it is doubtful that he or she can prove sufficient harm to win damages.
Identification can occur in several ways. A plaintiff may be explicitly named. Or the defendant can use a similar name that suggests the plaintiff’s actual name. The producers of the television show “Hard Copy” were sued for using the name Sweepstakes Clearing House when they aired a story on sweepstakes scams. Sweepstakes Clearing House is a made-up name, but there is a company called Sweepstakes Clearinghouse and its owners sued. The Texas Court of Appeals reversed the summary judgment
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granted the defendant and ruled that a publication is “of and concerning” the plaintiff if persons who knew or were acquainted with the plaintiff believed that the libelous material referred to the plaintiff.
32 The individual can be described, for example, as the host of the quiz show “Jeopardy” or the city’s superintendent of public works. A picture or a drawing, even without a caption, can be sufficient if the likeness is recognizable. Even descriptive circumstances can sometimes point the finger at someone. In 1991 a young woman, after attending a party, was abducted as she was standing outside a house near the University of Pennsylvania campus. She said she was raped by her abductor. A local television station reported the attack, including comments by a police officer who cast some doubts on the victim’s story. The young woman claimed these comments defamed her. The station did not use the victim’s name, but described her as a female Bryn Mawr student (Bryn Mawr is a small college near the University of Pennsylvania that enrolls less than 1,500 undergraduates) who had been raped on a certain day, that she lived in a dorm at Bryn Mawr, that she drove a Nissan, and that she had attended a party at the University of Pennsylvania shortly before her abduction. The station claimed that broadcasting these facts did not constitute identification. But a U.S. District Court disagreed, noting the small school environment at Bryn Mawr. “In this type of environment, it would not be surprising if some people could identify the plaintiff from the information supplied in the broadcast.”
33 In fact, the plaintiff presented affidavits from students attesting to the fact that the story of her rape had spread rapidly across campus after the broadcast.
If a libelous statement does not make an explicit identification, then the plaintiff must somehow prove that the defamatory words refer to him or her. In some cases, plaintiffs have successfully sued for libel based on fictional characters.
The Illinois Supreme Court held the publishers of Seventeen magazine liable for publishing a short story labeled fiction that described as a slut a girl identified only as “Bryson.” The author of the story, Lucy Logsdon, a native of southern Illinois, wrote a first-person narrative that recounts a conflict she said she had with a high school classmate. The classmate in the short story bore a slight physical resemblance to the plaintiff, Kimberly Bryson, who had attended high school with Logsdon. The court said that third persons familiar with both the plaintiff and the defendant would understand that the story was referring to the plaintiff despite the fiction label.
34 In 2008, a New York trial court was faced with a so-called libel-in-fiction case when an attorney sued the producer of the popular television series “Law and Order” for telecasting an ostensibly fictional episode about a Brooklyn judge who was accused of accepting bribes from an attorney. There had been a widely publicized case in New York City in which a judge was accused of taking bribes from a divorce lawyer. Both the fictional TV lawyer and the real-life lawyer were about the same age and bore a physical resemblance to one another. The producers of the TV show petitioned the court to dismiss the case, but the court rejected the request. Given the context in which the TV show was presented, and the extensive media coverage of the actual scandal, “there is a reasonable likelihood that the ordinary
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viewer, unacquainted with Batra [the real-life lawyer] personally, could understand Patel’s [the TV lawyer] corruption to be the truth about Batra,” the court said.
35 In March 2011, however, the California Court of Appeals ruled that the creators of “CSI: Crime Scene Investigation” could not be sued for libel for an episode that aired in February 2009. The episode featured married real estate agents in Los Angeles. In the episode, the wife’s death “may have occurred during kinky sex in which she was handcuffed to the bed.” Married real estate agents Scott and Melinda Tamkin sued, alleging that the fictional married real estate couple were their likeness because one of the writers for the show had been shown property by the Tamkins and used their names as “placeholders” in early versions of the script. Although the Tamkins names were not used, the characters on the show had similar characteristics, financial difficulties and marital problems. The court ruled that a reasonable person would not understand that the fictional representations were “of and concerning” the Tamkins. Therefore, the representations could not be the basis for a libel suit.
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The reporter should always get complete identification for the subject of a news story, if only to confirm that he or she is writing about the correct person.
Journalists face somewhat of a conundrum today regarding identification. Traditionally, reporters have been taught to include full identification when writing or talking about someone: John Smith, 36, of 1234 Boone Street, a carpenter. This information will separate this John Smith from any other person with the same name. But the issue of privacy is of great concern today, and many people don’t want their ages or addresses in the newspaper or broadcast on television. Some news organizations now permit less than complete identification in sensitive situations. The reporter should always get complete identification for the subject of a news story, if only to confirm that he or she is writing about the correct person. Newspaper or broadcast station policy will determine how much of this information is used.
Group Identification
Can an individual who is not specifically identified in a libelous communication successfully prove identification by arguing that he or she is a member of a group or organization that was named in the communication?
The first consideration is the size of the group. Although persons who are part of a large group are usually not able to prove identification, in some situations members of a small group may be able to prove they have been identified by reference to the group as a whole. The courts have not come up with a magic number in this regard. Under the group libel rule, large groups, such as all college professors, could not sue for libel based on statements such as, “All college professors are lazy and most are unqualified to teach.” However, members of smaller groups might be able to sue depending on the size of the group and the language used. The smaller the group, the more likely it is that a statement identifies members of the group. Courts also consider if the statement is about “all” or “most” members of a small group. In 2009 three members of the St. Regis Mohawk Tribe sued The New York Post after the newspaper published an editorial opposing a proposal to let the tribe operate a gambling casino. The Post said the casino “amounts to a criminal
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enterprise.” The three plaintiffs were members of the tribal council, but the editorial did not name any individual. The court noted that there were 2,700 members in the tribe, a group far too large to satisfy the requirements of identification. Even accepting the arguments that the statements were directed against the governing body, no statements that tribal council members individually were corrupt or promoting a criminal enterprise were published, the court said.
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Courts will look at the circumstances as well as the number in the group. Care is especially appropriate if only a small number of the defamed group live in the community. If the charge is made that all astrologers are frauds and there is only one astrologer in the community, the remark can be dangerous. The plaintiff could convince a sympathetic jury that the comment was aimed at him, and that he has been severely harmed by the remark. While there is no definitive size or “magic number,” in an oft-cited example, the Oklahoma Supreme Court ruled a magazine article that said team “members” of a university football team used an amphetamine nasal spray to increase aggressiveness libeled all 60 members of the team. Although the article did not name any team member by name or position, a jury awarded fullback Dennis Morris $75,000, an award held up on appeal by the Oklahoma Supreme Court.
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DEFAMATION
The third element in the plaintiff’s case focuses on the words themselves. There are two kinds of defamatory words. The first kind, typically called “libel per se,” consists of words that are libelous on their face, words that obviously can damage the reputation of any person. Words like “thief,” “cheat” and “traitor” are libelous per se—there is no question that they are defamatory.
The second kind of words, usually called “libel per quod,” are innocent on their face and become defamatory only if the reader or viewer knows other facts. To say that Duane Arnold married Jennifer Carter appears safe enough. But if the reader knows that Arnold is already married to another woman, the statement accuses Arnold of bigamy. And that is a libelous accusation.
The distinction between these two kinds of words was once more important than it is today. At one time plaintiffs had to prove they were specifically harmed by the words in the second category. Damage was presumed from the words in the first category. All plaintiffs today must prove they were damaged by the publication of the libel. Still, in many jurisdictions, courts have erected significant barriers that make it more difficult for persons who sue for libel per quod to win their case than persons who sue for words that are clearly defamatory on their face.
The law does not contain a list of words that are defamatory. What is considered defamatory will vary by location and change over time. In each case a court must examine the particular words or phrase or paragraph and decide whether these words lower the individual’s reputation among a significant number of so-called right-thinking people in the community. Sometimes a precedent or many precedents will exist. Numerous cases, for example, establish that stating a woman is unchaste is libelous. But sometimes precedents
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aren’t always that useful. Times change; the meanings of words change. Describing someone as a slacker today might be unkind, but hardly libelous. But during World War I the term “slacker” was used to identify a draft dodger and was certainly defamatory.
At a libel trial, a judge and jury are supposed to consider the words in light of their ordinary meaning unless the evidence is persuasive that the defendant meant something else when the statement was published. Deciding if a statement is defamatory is a two-step process. First, the judge must decide if the statement is capable of being defamatory as a matter of law. Second, the judge will decide as a matter of law whether particular words are capable of conveying a defamatory meaning. The court will ask whether a reasonable person would regard this as a defamatory comment.
Legally, a communication is defamatory if it harms an individual’s reputation in the eyes of a “substantial and respectable minority” of a community. If only a small group of individuals would find a statement defamatory, that is not enough to be actionable. What constitutes a “substantial and respectable” minority of a community depends on a judge’s presumptions about a community’s values.
Peter Damon was an Army reservist who lost his arms while fighting in Iraq. He was interviewed on NBC television and told reporter Brian Williams “the pain is like my hands are being crushed in a vice.” Medication, he said, made the pain more tolerable. Damon added that despite his injuries and the injuries to others, he and other wounded servicemen and women were not anti-war; they stood behind the war effort. Filmmaker Michael Moore used a portion of Damon’s remarks about his pain in his anti-war film, “Farenheit 9/11.” He did not, however, include the comments about Damon’s support of the war. Damon sued, arguing that by including any of his comments in the film, it falsely portrayed him as endorsing Moore’s attack on the war and President Bush. The 1st U.S. Court of Appeals rejected this argument, ruling that there was no way that a reasonable viewer could construe Damon’s limited remarks about his injuries as supporting Moore’s attack on the war and the president.
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If the judge rules that the words are capable of a defamatory meaning, the fact finder—the jury, if there is one, or the judge—then must determine whether the words in fact convey a defamatory meaning. For example, when the superintendent of the sewer department for the small town of Abington, Mass., was terminated because he allegedly used town computers for personal business, he sued the local newspaper for stories about his firing. Town officials said they found pictures of nude and scantily clad women and other sexually suggestive subject matter on the computers. The newspaper reported that “pornography” was found on the computers. The Massachusetts Court of Appeals ruled that, as a matter of law, charges that the plaintiff had stored “pornography” on the town computers would be defamatory. But it said a jury would have to decide whether the images stored on the computers were really “pornography,” as that term is commonly understood.
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Innuendo as opposed to a flat assertion can be defamatory.
Innuendo as opposed to a flat assertion can be defamatory. Read the following actual news item from the Boston Record:
The Veterans Hospital here suspected that 39-year-old George M. Perry of North Truro, whose death is being probed by federal and state authorities, was suffering from chronic arsenic poisoning.
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State police said the body of Perry, and of his brother, Arthur, who is buried near him, would probably be exhumed from St. Peter’s Cemetery in Provincetown.
George Perry died in the VA hospital last June 9, forty-eight hours after his tenth admission there. . . . His brother, who lived in Connecticut and spent two days here during George’s funeral, died approximately a month later. About two months later, in September, George’s mother-in-law, seventy-four-year-old Mrs. Mary F. Mott, who had come to live with her daughter, died too. Her remains were cremated.
While the story lacked a good deal in journalistic clarity, it didn’t take a terribly insightful reader to understand what the reporter was trying to suggest. Mrs. Perry murdered her husband, her brother-in-law and her mother. The insinuations are that Arthur died after visiting the plaintiff’s home and that the mother had “died too.” Isn’t it too bad that her remains were cremated? This story cost the Hearst Corporation, publishers of the Boston Record, $25,000.
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A libel suit cannot be based on an isolated phrase wrenched out of context. The article as a whole must be considered. A story about baseball’s legendary base stealer, Ricky Henderson, might contain the sentence “Henderson might be the best thief of all time,” referring to his prowess as a base-stealer. Henderson cannot sue on the basis of that single sentence. The story itself makes it clear the kind of thievery the writer is discussing. Nevertheless, a libelous remark in a headline—even though it is cleared up in the story that follows—may be the basis for a libel suit.
One week after O.J. Simpson was acquitted of the criminal charge of murdering his wife and her companion, the National Examiner carried a headline on its cover, “Cops Think Kato Did It—He fears they will want him for perjury, pals say.” The story appeared on page 17 and carried the headline, “Kato Kaelin. . . . Cops Think He Did It.” The story said the police were trying to prove that when Kaelin testified at Simpson’s trial, he lied under oath, that he committed perjury. In his libel suit Kaelin argued that the headlines for the story suggested he was a suspect in the murders. Attorneys for the National Examiner said no, that was not what was intended. The word “it” meant perjury. Judges on the 9th U.S. Circuit Court of Appeals ruled that under California law the meaning of the publication must be measured by the effect it would have on the mind of the average reader, and in this case it was highly likely that an average, reasonable reader might conclude that the word “it” referred to murder.
42 Kaelin and the Examiner settled this suit in October 1999.
In 2014, the New York Post settled a high-profile defamation case involving its coverage of the April 2013 Boston Marathon terrorist bombing. The lawsuit stemmed from the paper’s infamous “Bag Men” cover of two people—16-year-old Salaheddin Barhoum and 24-year-old Yassine Zaimi—holding bags while attending the marathon. The case was settled after the trial judge refused to dismiss the case. Barhoum and Zaimi were not suspects in the bombings, but the Post’s use of the phrase “Bag Men” and the subhead “Feds seek this duo pictured at Boston Marathon” implied they were suspects.
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©ZUMA Press, Inc./Alamy Stock Photo
The New York Post settled a lawsuit over the April 18, 2013 cover of the Post. The cover featured a photo of two men near the site of the Boston Marathon bombing, with the headline, Bag Men: Feds seek this duo pictured at Boston Marathon
Although the Post argued a reasonable reader would only conclude that authorities were looking to speak with Barhoum and Zaimi and would not conclude they were suspects, the trial judge held otherwise. The judge wrote, “[A] reasonable reader could construe the publication as expressly saying that law enforcement personnel were seeking not only to identify [Barhoum and Zaimi], but also to find them, and as implying that the plaintiffs were the bombers, or at least investigators [suspected they were the bombers].”
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In 2016, a William Rembis sued Fox News for more than $10 million after the cable news network published an Associated Press article about him and posted pictures of Rembis and his wife on their Web site under the heading “Sex Crimes.” The article stated Rembis and his wife had been investigated by child welfare services in New Jersey, Michigan and Texas and stated the couple was accused of neglect. The story, however, did not involve any sex crimes.
44 In another 2016 case, Leah Manzari, more popularly known as “Danni Ashe” or the “most downloaded woman on the Internet,” sued Associated Newspapers over an article that appeared in the Daily Mail. In 2013, the Daily Mail published an article headlined, “Porn industry shuts down with immediate effect after ‘female performer’ tests positive for HIV.” The publication used a picture of Manzari despite the fact she wasn’t the ‘female performer’ referenced in the article.
45 These cases stand as examples of why individuals working in the media must be careful when they use images unrelated to the stories they write. As the judge in the Manzari case wrote, “A picture is worth a thousand words. A photograph, especially when coupled with text, can convey a powerful message: in this case a potentially defamatory one.” In addition to defamation claims, the careless use of pictures can also lead to trouble for appropriation for public relations and advertising professionals if the pictures are used without permission for “commercial purposes,” an issue discussed later.
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Factual assertions can obviously be the basis of a libel suit. Can a statement of opinion be defamatory? Well, that depends. If the question is, Can an opinion lower someone’s reputation? which is the definition of defamation, the answer is yes, an opinion can be defamatory. But if the question is, Can a defamatory opinion be the basis for a libel suit? The answer is probably no. American courts have ruled on numerous occasions that pure opinion is protected by the First Amendment.
46 A plaintiff cannot successfully sue for libel based on a statement that is pure opinion. Why? Because pure opinion cannot be proved to be true or false—it is simply an opinion. For example, “I think Brenda Baylor is a stupid jerk.” Even though this comment might lower Brenda’s reputation in the eyes of the community, how can you prove or disprove that someone is a stupid jerk? Without proof of falsity, the libel suit fails. So pure opinion is not a problem. But unfortunately, courts frequently have a difficult time determining what is and what is not pure opinion. Clearly, an opinion statement that contains a false fact can be libelous because of the false fact. “I think Brenda Baylor is a stupid jerk. You know, she scored only 150 on her SAT test.” The second sentence is a factual assertion and if it is false, it could surely support a claim of libel. In addition, simply including the phrase “In my opinion” does not automatically convert a factual statement into opinion. But other kinds of statements are not so clear. “Emissions from the Acme Smelter are harming the environment.” Is that a statement of fact or an opinion? Some people might believe that any emission from a smokestack harms the environment. But Acme might be in full compliance with Environmental Protection Agency rules and will argue its emissions are safe. So it depends. This topic is explored more fully on pages 229–236. Suffice to say for this discussion, opinion statements can harm a person’s reputation and are therefore defamatory. But if such statements are free of false and libelous facts, they usually cannot sustain a defamation lawsuit.
Although there is no space in this text for a catalog of defamatory words, an outline of the most common categories of problem words, words to which writers and editors need to pay special attention, is feasible.
Crime
Imputations of criminal behavior are responsible for a great many libel suits. Saying someone has done something illegal—from jaywalking to murder—is libelous. The use of the word “alleged” in these cases is often of little help. The meaning of the word “alleged” is “to be declared or asserted to be as described.” An alleged murderer is someone who has been declared or asserted to be a murderer. But by whom? If the state has charged Jones with murder, the state has alleged that he is a murderer. If that is the case, a reporter should say so: “Jones, who has been charged with murder” rather than simply, “the alleged murderer Jones.” But if Jones is merely being questioned in connection with the murder, he is not an alleged murderer, he is an alleged suspect. To call him an alleged murderer is inaccurate and libelous. The best guide for the reporter is this: Report what you know to be true. If Jones is being questioned as a suspect, say that. If police consider him a suspect, say that.
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Sexual References
Statements that a woman is unchaste, is sleeping with a man to whom she is not married, has been raped or is just promiscuous can be defamatory. A 2003 issue of Boston Magazine carried a story titled “The Mating Habits of the Suburban High School Teenager.” The thrust of the article was that teenagers in the Boston area have become more sexually promiscuous in the last decade. The article was illustrated with a photograph of Stacey Stanton and four other teenagers. In small type on the first page of the article was the following disclaimer:
The photos on these pages are from an award-winning five-year project on teen sexuality taken by photo journalist Dan Habib. The individuals pictured are unrelated to the people or events described in this story. The names of the teenagers interviewed for this story have been changed.
Stanton sued for libel, alleging that by juxtaposing her photo and the text in the article, the magazine insinuated that she was engaged in the promiscuous behavior described in the article. The trial court ruled against the plaintiff, saying that the disclaimer negated this interpretation. But the 1st U.S. Court of Appeals reversed this ruling, saying that the type in the disclaimer was so small that it might be overlooked by readers, or a reader might just look at the first sentence, describing where the photos came from, and ignore the second and third sentences. The lawsuit was allowed to proceed. And a U.S. District Court ruled in 2006 that allegations that a woman was using her position in the media to meet and engage in sexual relations with powerful and prestigious men to advance her career and social status was defamatory.
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The law traditionally has been less protective of men in this regard, but there are indications that this might be changing. A young male model sued the publishers of gay and lesbian publications for including his photo in advertising for “Lust,” a collection of photographs of naked, sexually aroused men engaged in explicit sex acts. The defendant was alone in the photo and was clothed from the waist down, but he argued that the use of the photo in advertising for such a publication suggests that he is sexually promiscuous. The defendants tried to argue that even if the use of the photo did imply sexual promiscuity, this was not a defamatory statement when made about a man rather than a woman. The Appellate Division of the New York Supreme Court disagreed, stating that “the notion that while the imputation of sexual immorality to a woman is defamatory per se, but is not so with respect to a man, has no place in modern jurisprudence. Such a distinction, having its basis in gender-based classification, would violate constitutional precepts.”
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Comments about other kinds of sexual behavior are also sensitive, but as Americans seem to be developing a more open mind regarding sexual behavior, the law is changing. Thirty years ago any allegation that a man was gay or a woman was a lesbian was defamatory per se.
49 There are surely courts that would still abide by that rule today. But many courts have taken a different position. A federal court in Massachusetts ruled in mid-2004 that an accusation that an individual is gay no longer imputes
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criminal conduct and, therefore, cannot be the basis for a claim of libel per se. The plaintiff in the case argued that some people in the community believe that homosexuals are less reputable than heterosexuals and cited laws against gay marriage to support his case. The court rejected this argument, noting that in the past, statements misidentifying whites as blacks were also considered defamatory, but not so today.
50 In 2012 the Appellate Division of the New York Supreme Court ruled that statements falsely describing someone as a lesbian, gay or bisexual were not defamatory.
51 The majority of recent cases have found that false allegations of homosexuality are not per se defamatory, although it is possible that the term is capable of a defamatory meaning and thus requires proof of damages. For example, in 2009 the U.S. District Court for the Southern District of New York rejected a claim from Howard K. Stern, a former companion of the late model/celebrity/socialite Anna Nicole Smith, that being called gay was defamatory per se under New York law. Stern sued over a book that suggested he had oral sex with another man at a party and appeared in pornographic videos having sex with other men. Citing changing public opinion, the decriminalization of sodomy, and the movement to legalize gay marriage, the judge in the case found that being falsely called a homosexual was no longer libelous on its face.
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Personal Habits
Material about the personal habits of an individual need to be carefully screened. To raise questions about an individual’s honesty, integrity or financial responsibility can be dangerous. Comments about consumption of alcohol or drugs can also cause problems. Libel law has traditionally protected people from false assertions that they have a contagious disease. Such an allegation can cause friends and acquaintances to shun the supposed victim because they don’t want to be infected by the disease themselves. This is not a common libel problem today. But it is a problem to suggest that someone suffers from a medical condition that implies, for example, sexual promiscuity or unsavory behavior on the part of the victim. The Nebraska Supreme Court in 1990 sustained a jury award of $23,350 to a Springfield, Neb., man who was falsely accused of having AIDS. This was a slander suit; it resulted when a prominent woman in a small town began spreading rumors about the plaintiff.
53 Finally, comments about an individual’s personal religious faith (“She doesn’t live up to the teachings of her church”), patriotism or political activities have also generated libel actions.
Ridicule
A person can be libeled by ridicule. Not all humorous stories about someone are necessarily defamatory; only those in which the subject of the story is made to appear “uncommonly foolish” tend to be dangerous. Newspapers are commonly victimized by false
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obituaries. At times the “deceased” has brought a libel suit in response to such a publication, but the courts have consistently ruled that to say someone has died is not defamatory; it does not lower that person’s reputation. But once a New England newspaper ridiculed a man by saying he was so thrifty that he built his own casket and dug his own grave. This story made the man appear to be foolish or unnatural.
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Business Reputation
Libel law probably goes furthest in protecting people in their business and occupations. Any comment that injures people’s ability to conduct a business, harms them in their job or makes it more difficult for them to pursue their occupation is generally defamatory. And businesspeople are generally more likely to sue. They tend to be more acquainted with law and more comfortable initiating a legal suit.
Corporations that believe their credit has been damaged or their reputation has been harmed can sue for this injury. The list of kinds of defamatory accusations is long. Assertions that a company is involved in illegal business or that it fails to pay its bills on time or that it deliberately manufactures unsafe products or that it is trying to break a union are all libelous. A suggestion that the proprietor of a public business encourages rowdy behavior, or tolerates fighting or permits drug deals to be made may also be libelous. In these cases the story reflects on the behavior of the owner and would be libelous.
Criticism of a Product
Criticism of a product falls into a different legal category, called “disparagement of property.” Such criticism is often called
trade libel, but it is not really libel at all. Trade libel, or product disparagement, focuses on the product itself. “Viking Runabout automobiles continually stall during a rainstorm.” That is an attack on the product. A libel of a business tends to focus on the alleged failings of the people who operate the business. “Viking Runabout automobiles continually stall during a rainstorm. The manufacturer, in order to save a few dollars, did not shield the electrical system properly and water leaks in at alarming levels, causing a short circuit.” This is an attack on the company as well as the product.
Many states also have adopted statutes aimed at protecting the reputations of specific kinds of businesses. Banks and insurance companies in many jurisdictions are shielded by special statutes designed to protect them from attacks on their fiscal integrity. In recent years many states have adopted statutes that outlaw publication of intentional lies about the fruits and vegetables grown in the state. These so-called “veggie libel laws” generally give farmers and growers a cause of action to sue anyone who makes a statement about the health risks of a particular food product that is not based on “verifiable fact or scientific or other reliable evidence.”
Talk show producer and host Oprah Winfrey was sued in 1998 by Texas cattle ranchers under that state’s False Disparagement of Perishable Food Products Act. A guest on Winfrey’s talk show had alleged that thousands of head of U.S. cattle were infected with bovine spongiform encephalopathy, the so-called mad cow disease, prompting the talk
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show host to declare that she was giving up eating hamburgers. Cattle prices dropped precipitously after the broadcast, and the ranchers sought millions of dollars in damages. Experts who viewed the case as the first important test of the constitutionality of the veggie hate laws were disappointed when U.S. District Judge Mary Lou Robinson ruled that the case could not proceed under the Texas law because the plaintiffs had not proved that cattle are “perishable food” as defined by the statute, or that “knowingly false” statements had been made, a requirement under the Texas law.
55 The 5th U.S. Circuit Court of Appeals affirmed the lower-court decision, but solely on the grounds that no knowingly false statements had been made about the cattle.
56 Similarly, in 2016, the North American Olive Oil Association filed a lawsuit in Georgia against Oprah’s protege, Dr. Mehmet Oz. According to Georgia law, food libel occurs when someone states that a perishable food product is not safe for consumption without reliable scientific inquiry, facts or data. Oz was sued for stating “[A] shocking 80 percent of the extra virgin olive oil that you buy every day in your supermarket isn’t the real deal. It may even be fake.”
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FALSITY
The fourth requirement the plaintiff must meet to sustain a libel suit is proof of falsity. But as previously noted, not every plaintiff must meet this requirement.
The world of libel plaintiffs is divided into two groups, public people and private people. A public person is a government official, an elected officer, someone who is leading a public crusade, a prominent entertainer, a visible religious or business leader. A private person is someone who is not a public person. As you will soon see, the law makes it far more difficult for a public person, as opposed to a private person, to win a libel suit.
In every instance a public-person plaintiff must prove that the libelous remarks are not truthful. But the Supreme Court has ruled that a private-person plaintiff must prove the falsity of the libelous statements only when the subject of the statement is a matter of public concern.
58 What is a matter of public concern? The U.S. Supreme Court has never defined “matters of public concern” although the phrase appears in a wide variety of cases, including cases involving speech by government employees, intentional infliction of emotional distress and false light invasion of privacy, as well as others. The Court has said that whether a statement dealt with a matter of public concern must be determined on the basis of the statement’s “content, form and context.”
59 Not a very clear definition.
In Snyder v. Phelps,
60 a case involving the tort of intentional infliction of emotional distress, the Court attempted to explain the concept in greater detail. After writing that “the boundaries of the public concern test are not well defined,” Chief Justice John Roberts nonetheless set out to articulate some principles. Roberts stated that speech is a matter of public concern when it relates to any political, social or other concern to the
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community, when it is the subject of legitimate news interest or general interest or when the speech has value to the public. Private speech, on the other hand, “concerns no public issue.”
Over time, courts will undoubtedly flesh out the definition of a “matter of public concern.” It could be argued that the definition should be broadly based and include most of what is published in newspapers and magazines, and what is aired on television or radio. However, we are now in an era of what might be called micro-media, vast numbers of Internet sites aimed not at large and diverse audiences, but tiny groups of users. Would the argument apply to these media as well as to a blogger who reaches only a few hundred like-minded individuals? Who knows.
Most plaintiffs, then, must prove that the defamatory material is false. In those few instances when a private person sues for a story that is not a matter of public concern, the defendant must prove that the material is truthful. How does one prove falsity or truth?
The first rule of proving truth or falsity is that the evidence presented in court must go to the heart of the libelous charge.
The first rule of proving truth or falsity is that the evidence presented in court must go to the heart of the libelous charge. The proof must be direct and explicit. If there is conflicting evidence, the fact finder—the judge or the jury—will decide who is telling the truth. Every word of a defamatory charge need not be truthful, only the part that carries the gist or the sting of the libel. To be protected, a defamatory statement does not have to be absolutely accurate in every aspect. Minor flaws are not actionable, so long as the statement was “substantially true.” Mistakes in a statement that do not harm a plaintiff’s reputation cannot be the subject of a defamation suit.
For example, if a journalist reports that Bill Williams was convicted of stealing $1 million when, in fact, Williams was convicted of stealing $950,000, the statement is substantially true. The statement is substantially true because the “gist” or “sting” of the defamatory statement is true. The statement that Williams was convicted of stealing a large amount of money is accurate. The statement that caused the harm was that Williams stole a lot of money.
A man was filmed fighting with another inmate in a prison and was identified in a TV broadcast as a member of the Aryan Brotherhood, a white prison gang and crime syndicate in the United States. The plaintiff sued the broadcasters, arguing that the allegation was false. But the court rejected the argument, noting that while the plaintiff technically was not a member of the Brotherhood, he was a member of Mexikanemi, a gang affiliated with the Aryan Brotherhood. The allegation was therefore substantially true.
61
Courts give libel defendants considerable leeway when evaluating the truth or falsity of a statement. But not all errors will be tolerated. At times even what might be regarded as a detail will result in a verdict for the plaintiff if it can be proved to be false. A firefighter in Des Moines, Iowa, was fired because, fire officials said, he had failed to pass a written emergency medical technician exam, a requirement to hold the job. The fire chief told reporters that the man had a reading problem. Despite undergoing tutoring at taxpayers’ expense, he was still capable of reading at only the third-grade level. The defendants asked that the case be dismissed because it was substantially true. But the court refused, and the Iowa Supreme Court affirmed this decision. There were two errors
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in the story, perhaps only details, but they carried a libelous sting. First, the firefighter had himself paid a substantial portion of the cost of the tutoring. More important, tests showed he read at a level comparable with the lower one-third of community college students, not a third-grader. The story was not substantially true.
62
Reporters must also remember that a jury in a libel suit will determine the truth or falsity of a story based on what the story said, not what the reporter meant. ABC was sued by the maker of a garbage recycling machine. Lundell Manufacturing sold the $3 million machine to a county in Georgia. After using the machine for a year or so, some people in the county said that the new machine had not solved the garbage problem. An ABC “World News Tonight” story included these comments:
In this south Georgia county of tobacco farms and pecan groves taxpayers are angry that they are stuck with a three million dollar debt for this garbage recycling machine that they never approved and does not work.
Network attorneys argued that the reporter meant that the machine does not work in the larger sense, that it doesn’t solve the county’s garbage problem. But a jury agreed with the plaintiff instead and said that they interpreted the comment to mean that the garbage recycling machine did not work, that it was defective. In 1996 the 8th U.S. Circuit Court of Appeals upheld the more than $1 million jury award and ruled that a jury could conclude that the network’s statement about the machine was false.
63
How does the court evaluate the truth of the charge? The jury does this with guidance from the judge. The jurors are presented with both the libelous untruthful statement about the plaintiff and the truth about the plaintiff. The untruthful statement will leave a certain impression about the plaintiff in the jurors’ minds. Does learning the truthful statement change that impression? For example, a television station refers to Hal Jones as a wife beater. Jurors gain an impression of Jones based on that statement. In truth, Jones struck his wife only once, during an argument, after she threw a coffee pot at him. Does the truth leave a different impression of Jones in the jurors’ minds? One court said that “a workable test of truth is whether the libel as published would have a different effect on the mind of the reader from that which the pleaded truth would have produced.”
64
Even if a story contains nothing but truthful statements it still might be regarded as false if important facts are left out and the story leaves a false impression.
Even if a story contains nothing but truthful statements it still might be regarded as false if important facts are left out and the story leaves a false impression. Some courts have called this defamation by implication. A South Carolina driver accidentally struck and injured the police chief of Eastover, S.C. She pleaded guilty to driving too fast for road conditions. A year later the police chief died and in two stories the newspaper repeated the account of the traffic accident, adding that the woman would not face additional charges despite the chief’s death. Everything in both stories was true, but the newspaper did not report that the police chief died from cancer. Readers could easily conclude that he had died from injuries sustained in the accident, and this would be false, the South Carolina Court of Appeals concluded.
65 In 2007 the Iowa Supreme Court said that defamation by implication was recognized in that state. However, a year earlier
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the Ohio Court of Appeals ruled false innuendo emanating from accurate statements—defamation by implication—was not actionable under Ohio libel law.
66 The Washington Court of Appeals ruled the same way in 2010.
67
Remember, truth and accuracy are not always the same thing. Correctly quoting someone or accurately reporting what someone else has said does not necessarily constitute publishing a truthful statement. Imagine that John Smith tells a reporter that the police chief changes arrest records of certain prisoners to simplify their getting bail and winning acquittal. This charge, attributed to John Smith, is contained in the reporter’s story, which is subsequently published. The police chief sues for libel. It is not sufficient for the reporter to prove merely that the statement in the story was an accurate account of what Smith said. Even if the reporter’s story contained an exact duplicate of Smith’s charge, truth can be sustained only by proving the substance of the charge, that the police chief has altered arrest records. It is the truth of the libelous charge that is at issue, not merely the accuracy of the quote in the story. Accuracy, then, is not always the same thing as truth.
The initial burden in the libel suit rests with the plaintiff, who must prove five important elements: that the defamation was published, that it was of and concerning the plaintiff, that the words were defamatory, that the allegations were false and that the defendant was at fault in causing this legal harm. The first four elements have been discussed in this chapter. Proving fault, the most complicated of the five elements, is the subject of Chapter 5.
SUMMARY
A plaintiff in a libel suit must first prove that the defamatory material was published; that is, that one additional person besides the plaintiff and the defendant has seen the material. The plaintiff must next show that the libel is of and concerning him or her. An individual can be identified for purposes of a libel suit by a name, nickname, photograph or even through a report of circumstances. Statements made about a very large group of people cannot be used as the basis for a libel suit for a single member of that group. However, if the group is smaller, individual members of the group may be able to sue for comments made about the entire group. The plaintiff must also prove that the words in the offensive statement are defamatory, that they lower his or her reputation. The most common kinds of defamatory statements contain allegations about criminal acts or sexual impropriety, include comments about personal habits or characteristics or reflect on the plaintiff’s patriotism, political beliefs or competence and qualifications in a business or occupation. Corporations or other businesses can be defamed, and the manufacturer of a product can sue, with great difficulty, for product disparagement. In lawsuits against the mass media the plaintiff normally must prove that the damaging statements are false. The evidence presented in court must go to the heart of the libelous charge; the gist or sting of the libel must be false. Minor errors, unless they relate directly to the gist of the libel, will not usually result in a finding of falsity. The test of falsity is whether the proven truth leaves a different impression of the plaintiff in the minds of the jury than the impression created by the defamatory falsehood.
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BIBLIOGRAPHY
American Law Institute. Restatement of the Law of Torts. 2nd ed. Philadelphia: American Law Institute, 1975.
Bezanson, Randall P., Gilbert Cranberg, and John Soloski. Libel Law and the Press. New York: The Free Press, 1987.
Gregorian, Dareh. “Ex-Vogue Model Snared in Ugly Web,” New York Post, January 6, 2009.
Hakim, Danny. “Suzuki Resolves a Dispute with a Consumer Magazine.” The New York Times, 9 June 2004, C6.
Media Law Resource Center. MLRC 2005 Report on Trials and Damages. Bulletin 2015 No. 1 (February 2015).
Moscov, Jim. “Truth, Justice and the American Tort.” Editor & Publisher, 27 November 2000, 16.
Pring, George. “SLAPPs: Strategic Lawsuits Against Public Participation.” Pace Environmental Law Review, Fall 1989, 8.
Pring, George, and Penelope Canan. “Strategic Lawsuits Against Public Participation.” Social Problems 35 (1988): 506.
Prosser, William L. Handbook of the Law of Torts. St. Paul, Minn.: West Publishing, 1963.
Rosalind Bentley, “Virgin or not? TV’s Dr. Oz faces Georgia lawsuit over olive oil claims,” Atlanta Constitution Journal, 30 November 2016.
William Robbins, “Springfield Journal; A Rumor of AIDS, a Slander Award.” The New York Times, 23 July 1990.
1
. See, for example, Troy Group, Inc. v. Tilson, 364 F. Supp. 2d 1149 (2005) for a suit based on an e-mail; 600 West 115th Street Corp. v. von Gotfeld, 80 N.Y. 2d 130 (1992) for a case based on a comment made at a public meeting, and Gordon & Holmes v. Courtney Love, No. B256367, Court of Appeals. Cal. Feb. 1, 2016, for a case based on a tweet made by musician and actress Courtney Love.
2
. Hakim, “Suzuki Resolves a Dispute.”
3
. Moscov, “Truth, Justice and the American Tort,” 22.
4
. See Pring, “SLAPPs”; Pring and Canan, “Strategic Lawsuits”; and Dill, “Libel Law Doesn’t Work.”
5
. Olson v. Cohen, Cal. Ct. of Apps., No. 13 221956 (9/12/11).
6
. Bezanson, Cranberg, and Soloski, Libel Law and the Press.
7
. See MacDonald v. Time, 554 F. Supp. 1053 (1983); Canino v. New York News, 475 A. 2d 528 (1984); and Coppinger v. Schantag, 34 M.L.R. 1141 (2006).
8
. City of Chicago v. Tribune Publishing Co., 139 N.E. 2d 86 (1923).
9
. See Columbia Sussex v. Hay, 627 S.W. 2d 270 (1981); Mutafis v. Erie Insurance Exchange, 775 F. 2d 593 (1985); and Philadelphia Newspapers v. Hepps, 475 U.S. 767 (1986).
10
. Hornby v. Hunter, 385 S.W. 2d 473 (1964).
11
. Little v. Consolidated Pub. Co., 38 M.L.R. 2569 (2010).
12
. Salyer v. Southern Poverty Law Center Inc., 701 F. Supp. 2d 912, 916–18 (W.D. Ky. 2009).
13
. U.S.C. 230 (1996).
14
. Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL323710 (N.Y. Sup. Ct. 1995).
15
. U.S.C. 230(f)(2).
16
. U.S.C. 230(f)(3).
17
. Batzel v. Smith, 333 F. 3d 1018 (2003).
18
. Schneider v. Amazon.com
Inc., 31 P. 3d 37 (2001). See also Universal Communications Systems Inc. v. Lycos Inc., 35 M.L.R. 1417 (2007), where the U.S. Court of Appeals ruled that the defendant, which operates a financial message board, was an online service provider for purposes of the law.
19
. Globe Royalties Ltd. v. Xcentric Ventures LLC, 544 F. Supp. 929 (2008). See also Barnes v. Yahoo! Inc., 37 M.L.R. 1705 (2009), where the U.S. 9th Circuit Court of Appeals ruled the CDA shielded Yahoo! from a claim that it negligently failed to remove content posted by a third party on an online message board.
20
. Miles v. Raycom Media Inc., S.D. Miss., No. 09-713, 8/26/2010.
21
. Fair Housing Council of San Fernando Valley v. Roommates.com, 36 M.L.R. 1545 (2008).
22
. Jones v. Dirty World Entertainment Recordings, LLC., 840 F. Supp. 2d 1008 (2012), appeal dismissed, No. 12-5133 (6th Cir. May 9, 2012).
23
. Jones v. Dirty World Entertainment Recording, LLC. 755 F. 3d 398 (6th Cir. 2014).
24
. Gregorian, “Model Snared in Ugly Web.”
25
. At least two states in 2008 investigated whether JuicyCampus was engaging in possible fraud by failing to follow its own terms-of-use agreement by allowing defamatory messages to be posted. In February 2009 JuicyCampus was shut down by its founder, Matt Ivester, who denied the closure was related to potential legal liability problems but rather that it was based on economic and advertising issues.
26
. Krinsky v. Doe 6, 159 Cal. App. 4th 1154, 1167 (Cal. Ct. App. 2008).
27
. Dendrite International Inc. v. Doe, 775 A. 2d 756 (N.J. Super. Ct. 2001).
28
. Doe v. 2TheMart.com
Inc., 140 F. Supp. 2d 1088 (W.D. Wash. 2001).
29
. Memorandum Opinion and Order, Jacobson v. Doe, Case No. CV-12-3098 (Idaho Dist. Ct. July 10, 2012).
30
. Doe v. Cahill, 884 A. 2d 451 (Del. 2005).
31
. Hanks v. Wavy Broadcasting LLC, 40 M.L.R. 1424 (2012).
32
. Allied Marketing Group Inc. v. Paramount Pictures Corp., 111 S.W. 3d 168 (2003).
33
. Weinstein v. Bullock, 827 F. Supp. 1193 (1994).
34
. Bryson v. News America Publications Inc., 672 N.E. 2d 1207 (1996).
35
. Batra v. Wolf, 36 M.L.R. 1592 (2008).
36
. Tamkin v. CBS Broad. Inc., 122 Cal. Rptr. 3d 264 (Ct. App. 2011).
37
. Lazore v. NYP Holdings Inc., 876 NY52d 59 (2009).
38
. Fawcett Publications, Inc. v. Morris, 377 P.2d 42 (Okla.).
39
. Damon v. Moore 520 F. 3d 98 (2008).
40
. Howell v. Enterprise Publishing Co., 893 N.E. 2d 1270 (2008).
41
. Perry v. Hearst Corp., 334 F. 2d 800 (1964).
42
. Kaelin v. Globe Communications Corp., 162 F. 3d 1036 (1998).
43
. Barhoum v. NYP Holdings, Inc., Superior Court Civil Actions No. 13-2062 (Mar. 5, 2014).
44
. Rembis v. Fox News Network, LLC, Case. No. 5:16-cv-00242-C (N.D.T. Oct. 28, 2016).
45
. Manzari v. Associated Newspapers, Ltd., No. 2:13-cv-06830-GW-PJW (9th Cir. 2016).
46
. See, for example, Milkovich v. Lorain Journal Co., 110 S. Ct. 2695 (1991).
47
. Stanton v. Metro Corp., 438 F. 3d 119 (2006); and Benz v. Washington Newspaper Publishing Co. LLC, 34 M.L.R. 2368 (2006).
48
. Rejent v. Liberation Publications, Inc., 197 A. 2d 240 (1994).
49
. Gray v. Press Communications LLC, 775 A. 2d 678 (2001).
50
. Albright v. Morton, 321 F. Supp. 2d 130 (2004). See also Donovan v. Fiumara, 114 N.C. App. 524 (1994); Miles v. National Enquirer, 38 F. Supp. 2d 1226 (1999); and Amrak Productions Inc. v. Morton, 33 M.L.R. 1891 (2005).
51
. Yonaty v. Mincolla, 40 M.L.R. 2014 (2012).
52
. Stern v. Cosby, 645 F. Supp. 2d 258 (S.D.N.Y. 2009).
53
. Robbins, “Spring Field Journal; A Rumor of AIDS, A Slander Award.”
54
. Powers v. Durgin-Snow Publishing Co., 144 A. 2d 294 (1958).
55
. Texas Beef Group v. Winfrey, 11 F. Supp. 2d 858 (1998).
56
. Texas Beef Group v. Winfrey, 201 F. 3d 680 (2000).
57
. Bentley, “Virgin or not? TV’s Dr. Oz faces Georgia lawsuit over olive oil claims.”
58
. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986).
59
. Dun & Bradstreet v. Greenmoss, 472 U.S. 749 (1985).
60
. 562 U.S. 443 (2011).
61
. Bustos v. United States, 38 M.L.R. 1747 (2010).
62
. Jones v. Palmer Communications, Inc., 440 N.W. 2d 884 (1989).
63
. Lundell Manufacturing Co. v. ABC Inc., 98 F. 3d 351 (1996).
64
. Fleckstein v. Friedman, 195 N.E. 537 (1934).
65
. Richardson v. State-Record Co., 499 S.E. 2d 822 (1998).
66
. Stevens v. Iowa Newspapers Inc., 35 M.L.R. 1385 (2007); and Stohlman v. WJW-TV, Inc., 35 M.L.R. 1103 (2006).
67
. Yeakey v. Hearst Communications Inc., 234 P. 3d 332 (2010).
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CHAPTER

5
Libel
PROOF OF FAULT
©McGraw-Hill Education/Jill Braaten
In 1964, for the first time, the U.S. Supreme Court ruled that a libel plaintiff was required to show proof a defendant had been at fault when the defamatory material was published. Until that time, civil libel law had been governed by the doctrine of strict liability. Under this doctrine, a libel defendant was responsible for harming a plaintiff regardless of how cautious and careful he or she had been in preparing and publishing or broadcasting the story. This ruling changed the face of libel law. What had been a relatively simple tort became complex when it was infused with
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First Amendment considerations. This chapter outlines the two basic considerations relevant to fault:
Who is the plaintiff?
How was the story or material processed or prepared?
NEW YORK TIMES CO. v. SULLIVAN
A difficult and often violent struggle for civil rights took place in much of the Deep South in the late 1950s and early 1960s. Blacks, often accompanied by white civil rights workers, engaged in nonviolent civil disobedience to challenge a wide range of voting, accommodation and education laws that had left them as second-class citizens. Network television news was still in its early adolescence in this era; NBC and CBS carried only 15 minutes of news each night. There were no cable news organizations such as CNN, MSNBC or Fox News to provide 24-hour coverage. The story of the civil rights movement was carried throughout the nation via a handful of prestigious and frequently liberal newspapers, especially The New York Times. Segregationist leaders in the South hated these newspapers, which each day carried stories and pictures of another peaceful civil rights protest that had been met with violence or some other illegal act by government officials or by angry southern citizens.
On March 29, 1960, the Times carried a full-page editorial-advertisement titled “Heed Their Rising Voices.” The ad was placed by an ad hoc coalition of civil rights leaders called the “Committee to Defend Martin Luther King and the Struggle for Freedom in the South.” The ad leveled charges against public officials in the South who, the committee contended, had used violence and illegal tactics to quell the peaceful civil rights struggle. The basic thrust of the charges contained in the advertisement was true; but the ad, was filled with small, factual errors.
* Several public officials in Alabama sued the newspaper. The first case to go to trial was brought by Montgomery, Ala., police commissioner L.B. Sullivan, who sought $500,000 in damages for false and defamatory statements about the conduct of the Montgomery police department.
Sullivan was never named in the ad, but contended that comments about the behavior of the Montgomery police reflected on him. A trial court ruled on behalf of Sullivan, and his $500,000 damage award was upheld by the Alabama Supreme Court. This was despite the fact that only 35 copies of the offending issue of The New York Times were circulated in Montgomery County.
The U.S. Supreme Court reversed the decision, ruling that Sullivan could not recover damages in this case unless he proved that The New York Times published the false and defamatory advertisement either knowing it was false or that the paper exhibited reckless disregard for the truth when it printed the material.
1 That is, the Montgomery police
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©AP/Wide World Photos
Associate Justice William Brennan, the author of the Supreme Court decision in New York Times Co. v. Sullivan in 1964 and many other notable First Amendment rulings.
commissioner had to prove the newspaper had published the ad with knowledge of its falsity or that the persons who published the ad (both the members of the committee and the members of the newspaper’s staff) had been extraordinarily careless by not examining the charges made in the statement much more carefully (reckless disregard for the truth). Justice William Brennan labeled these two elements “actual malice”; proof of knowledge of falsity or proof of reckless disregard for the truth was proof of actual malice. The language in the court’s opinion extended the ruling in this case to all people whom the court called
public officials
. All public officials who sought to win a libel suit based on defamatory allegations about how they did their jobs or whether they were fit to hold those jobs henceforth would have to prove actual malice. Before examining the various elements in this new libel standard, let’s look briefly at the rationale Brennan and his colleagues used to support this fundamental change in the law.
THE RATIONALE FOR THE RULING
Stripped of its civil libel cover, this case was clearly one of seditious libel. A government official was criticized for the way he handled his public office. The newspaper was punished for publishing this criticism. The issues that
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generated the court ruling and the penalty for the newspaper were really not much different from what occurred in prosecutions under the Alien and Sedition Acts of 1798 and the Espionage and Sedition Acts of 1917 and 1918. Rulings by the Supreme Court had sharply limited the government’s power to use seditious libel to punish those who criticize it (see pages 56–68). What Sullivan and his co-plaintiffs were attempting to do was to resurrect sedition law via a civil libel action.
The nation has a profound and long-standing national commitment to the principle that debate on public issues should be uninhibited, robust and wide open. Debate on public issues is a fundamental part of the democratic process. All citizens are encouraged to take part in this debate. In the heat of any discussion it is inevitable that erroneous statements will be made by the participants. Many people will be fearful of taking part in the debate if they think they might be sued for libel if they make a misstatement that harms someone’s reputation. Whatever is added to the field of libel, wrote Justice Brennan, is taken away from the field of free debate. Freedom of expression, Brennan noted, needs breathing space to survive, and actual malice supplies that breathing space by protecting false statements unless they were published by the defendant who knew they were false or acted with reckless disregard toward their veracity.
2
Freedom of expression, Brennan noted, needs breathing space to survive.
When public officials like Sullivan take a government post, they must expect that their work will be closely scrutinized and even criticized by the people they serve. Officers of government have ample means to rebut this criticism. They usually have easy access to the press to deny allegations made against them, to give their side of the story, and to even verbally attack their critics. This kind of speech is also a part of the important debate within a democracy. Police commissioner Sullivan could have easily talked to reporters in Montgomery if he sought to publish the truth. Instead, he chose to punish The New York Times.
The actual malice rule imposed on the law of libel by the Supreme Court was already a part of the law in a handful of states prior to the 1964 ruling in New York Times Co. v. Sullivan. In the wake of the Sullivan decision, all state and federal courts had to follow this rule. By the end of the decade, the Supreme Court had extended the actual malice rule to people called
public figures
. People outside government frequently try to lead public debate on important issues. These people should not be any more immune to criticism and complaints than government officials, the court rationalized.
3 Public figures also need to prove actual malice in order to win a libel suit. Finally, in 1974, the high court added the final element to the libel fault rule when it declared that even private persons, persons who are not part of government or who have not tried to influence public opinion, must prove that the mass medium was at fault when the libel was published or broadcast.
4 The state courts were given some freedom in this ruling to determine just what kind of fault the private party suing a mass medium must prove. Under the First Amendment, the private-person plaintiff at least must prove that the mass media defendant failed to
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exercise reasonable care in preparing and transmitting the story, or was
negligent
, the high court said. But a state could ask that these plaintiffs prove even more to sustain their libel suits, the court added. The issue of the level of fault that the plaintiff must prove will be discussed in the second half of this chapter (see pages 198–208).
*
Several words have been used in the past few pages that beg for fuller explanation. Who is a public official? Who is a public figure? How do you define negligence? How do you define actual malice? The next section of this chapter attempts to add flesh to these bones, to make these legal concepts come more alive. Before moving to that, let’s briefly summarize the basic rules of fault.
1.
Private persons who sue the media for defamation must at least prove that the material was published through negligence. Negligence is defined in the law as the failure to exercise reasonable care.
2.
Individuals who are either public officials or public figures for purposes of a libel suit have to prove that the defendant exhibited actual malice when the material was published. Actual malice is defined in the law as publishing with the knowledge that the libelous assertion is false, or with reckless disregard for whether it is true or false.
PUBLIC PERSONS VERSUS PRIVATE PERSONS
All libel plaintiffs who sue the mass media must prove that the defendant in the case was at fault, that the publication or broadcast of the libelous material was not simply the result of an innocent error. Public officials and public figures must prove a higher level of fault than do private individuals. But who are public officials and public figures in the eyes of the law? Before exploring this issue a brief caution is warranted. One of the problems in the law of libel is that courts have taken perfectly good words that most of us use daily and have attached a slightly different meaning to these words. Students need to exercise caution because of this. Most of us could probably agree on a general definition of a public figure, for example. But in libel law these words mean something different. What we need to remember is the legal definition of these words, not the common everyday definition.
WHO IS A PUBLIC OFFICIAL?
Two questions must be asked to determine whether a libel plaintiff should be considered a public official:
1.
Who is this plaintiff—what kind of government job does he or she have? What is the job description?
2.
What was the allegedly libelous story about? What is the nature of the story?
We will consider these questions separately.
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Job Description
The kind of government job a person holds is one key to determining who is and who is not a public official for purposes of libel law. Let’s start with three general rules:
1.
Any person who is elected to public office, to even the most lowly public office, qualifies as a public official.
2.
Individuals who are appointed to or hired for government jobs may qualify as public persons in a libel action. It depends on the nature of the job.
3.
But not everyone who works for the government will be regarded as a public official.
Determining if a nonelected government employee should be considered a public official in a libel action is often troublesome for the courts. What lawyers like to call a bright-line rule doesn’t exist. (When courts consistently rule the same way on a legal question, lawyers often say a bright-line rule has been established. If, for example, in every instance the courts rule that a school teacher or a public works supervisor is a public official, this would be considered a bright-line rule.) Nevertheless, the Supreme Court has provided some useful guidance for the lower courts.
The Supreme Court has said:
It is clear that the “public official” designation applies at the very least to those among the hierarchy of government employees who have or appear to have to the public a substantial responsibility for or control over the conduct of governmental affairs.

5
Justice Brennan added that when a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, the person in that position qualifies as a public official. While Brennan’s remarks are fairly clear, let’s try to translate a bit. Citizens are concerned that everyone who works for the government—from the clerk at the welfare office to the crossing guard outside the school to the person who reads the water meter—does his or her job efficiently and correctly. But some government employees have jobs that include responsibilities that go far beyond the responsibilities of the average government employee: people like the head of the city’s welfare department, the individual in charge of school safety programs and the supervisor of the city water department. We have a special interest in their qualifications and how well they do their jobs. These people are likely to be counted as public officials.
Here are some examples of cases in which the public official designation has been an issue.
A timber management and contracting officer in the Eldorado National Forest in California was deemed to be a public official by a U.S. Court of Appeals.
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The appellate court said that his role in management of the sale of U.S. resources clearly marked him as one who had substantial responsibility for the administration of government matters.
6
An assistant superintendent of schools in a New York school district sued a newspaper for reporting that she had been convicted of misuse of school funds, which was incorrect. In her job, she supervised school principals and department heads, prepared curriculum proposals and had a role in determining what teachers got tenure. The New York Supreme Court ruled she was a public official because she had or appeared to have substantial responsibility over the operation of the school district.
7
The Ohio Court of Appeals ruled that the chief of the criminal section of a city law department was a public official because of his responsibilities and the importance of his position in the eyes of the public.
8
A junior state social worker was ruled to be a public official because her job carried with it “duties and responsibilities affecting the lives, liberty, money or property of a citizen that may enhance or disrupt his enjoyment of life.”
9 Public school teachers and police officers are also frequently determined to be public officials because they deal daily with the welfare or safety of people in the community.
10
In Washington state the administrator of a motor pool for a small county was declared to be a public official because he had the power to spend county funds without his supervisors’ approval.
11
The secretary and chief examiner of the Public Safety Civil Service Commission in Seattle was a public official, a federal court ruled, because she supervised other employees, managed the application process for people seeking employment with both the police and fire departments and supervised the testing process for all these applicants.
12
The city manager of a small Texas town was ruled to be a public official because she “wielded substantial responsibility for or control over the conduct of public affairs.”
13
The context in which the defamation occurs is often important. A planner with a state geological survey office might not normally hold a position that invites public scrutiny. But if this person is appointed by the governor to conduct a study of the feasibility of constructing a hazardous waste dump site near the state capital, this special assignment brings with it closer public scrutiny. In such a case a person who was not a public official might suddenly become one in terms of libel law.
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SUMMARY
To summarize, some of the criteria for determining when a nonelected government employee is a public official include:
The level of responsibility the individual has. In other words, how important is the job?
The kind of responsibility the person has. Police officers, teachers and social workers may be lower-level employees, but the way they do their jobs can have an important and immediate impact on people’s lives.
Does the individual have the authority to spend public money independently, without supervision?
What is the nature of the person’s job? The head of a task force to reorganize city employee health benefits and the head of the city’s anti-terrorism task force might supervise the same number of workers, earn the same salary and be at the same city management level. But it is likely that the public will take a far greater interest in the qualifications of the anti-terrorism task force supervisor and the way she does her job than in the qualifications and competency of the person heading the employee benefits task force.
The Nature of the Story
Who the person is—the kind of job he or she holds—is an important criterion. But it is only half the test. Equally important is the nature of the story. What was the defamatory content about? Whether proof of actual malice will be required depends upon the focus of the libelous statement. If the statement concerns (1) the manner in which the plaintiff conducts himself or herself in office—in other words, the way he or she does the job—or (2) the plaintiff’s general fitness to hold that job, then the plaintiff carries the burden of proving actual malice.
The first criterion relates to the plaintiff’s official duties and focuses on matters directly related to public responsibilities. For example, in the Seattle Civil Service Commission case noted earlier, the allegations against the chief examiner focused on a trip she took to Las Vegas to attend a black public administrators conference. The television station said she spent little time in seminars and workshops during the trip, but considerable time at the gaming tables. The court ruled that the strong nexus between her position and the alleged false statements meant that the story directly related to the way she conducted herself on the job.
14
But remember that public officials have private lives and not everything a government employee does in public necessarily relates to his or her official conduct. Dr. Lazelle Michaelis was the coroner of Otter Tail County, Minn., a position of substantial responsibility. She was also a private physician employed by a medical association. Because of her expertise in pathology she occasionally, as a favor, performed autopsies for
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the coroner in neighboring Becker County. A controversy developed when a television station reported that Michaelis concluded that the death of a young woman in Becker County was a suicide. Claiming her reputation was damaged by the publicity, she sued CBS broadcasting station WCCO for libel. The station argued that because Michaelis was the coroner in Otter Tail County she was a public official, obligated to prove actual malice. The court disagreed, saying that when Michaelis performed the autopsy in Becker County she was acting as a private doctor; she was paid by the medical association for which she worked. Her position in Otter Tail County had no relevance in this case.
15
The second element in this test—the plaintiff’s general fitness to hold office—is much broader and can even relate to a public official’s private life or personal habits. For example, the fact that the fire chief’s personal financial affairs are in considerable disarray probably doesn’t have much to do with how well she performs her job as fire chief. But a city treasurer who has problems with personal finances could be a different story. This might suggest the treasurer is not fit to manage the city’s financial affairs. The decision whether a particular allegation reflects on a public official’s fitness to hold the job will necessarily be a subjective one. And it is complicated by the fact that courts, in making this determination, seem to use an elastic standard that relates to the importance of the plaintiff’s job. It seems that almost anything about the personal life of the president of the United States is considered a measure of his or her fitness to hold that office. But the courts are unwilling to say the same thing about lower government officials. And the lower you go on the totem pole of public officeholders, the more the courts seem willing to rule that stories about private life have little to do with being a public official for purposes of a libel suit. It is incumbent on any journalist preparing a story on a public official’s private life to demonstrate within the story just how these revelations affect the government officer’s official responsibilities. This, in itself, could thwart a lawsuit.
ALL-PURPOSE PUBLIC FIGURES
Individuals deemed to be public figures must also prove actual malice when suing for libel. The Supreme Court has said that there are two kinds of public figures: all-purpose public figures and limited-purpose public figures. It was Justice Lewis Powell who established these twin categories in his opinion in Gertz v. Welch.
16 All-purpose public figures are those persons who “occupy positions of such pervasive power and influence that they are deemed public figures for all purposes.” The Court has also said there is a very rare subcategory of individuals called involuntary limited-purpose public figures.
TYPES OF PUBLIC FIGURES
1.
All-purpose public figures
2.
Voluntary limited-purpose public figures
3.
Involuntary limited-purpose public figures
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While Justice Powell’s description of an all-purpose public figure sounds simple enough, this is a category of libel plaintiffs that most courts have had difficulty identifying. Do the criteria relate to power or fame? Sometimes the powerful have little public recognition. Name the presidents of the 10 largest U.S. corporations—powerful individuals, but hardly widely known. For example, in the late 1980s, federal judges refused to classify William Tavoulareas, the president of Mobil Oil, one of the nation’s largest companies, as a public figure, saying that such a person must be so well known that his or her name is a household word. On the other hand, the famous often have little real power. People like Kim Kardashian or Taylor Swift come to mind. So who is an all-purpose public figure?
Surprisingly, perhaps, there haven’t been a lot of other cases that have legally defined an all-purpose public figure. In many cases, the plaintiff himself or herself who agrees to the designation as an all-purpose public figure.
17 Why would a plaintiff agree to such a designation since it certainly makes it more difficult to win a libel action? Most likely they want to exaggerate their prominence in the public eye to support a higher damage claim. Then again, a lot of performers, sports stars and other celebrities have very large egos that need constant care and feeding.
Typically, all-purpose public figures have fame and notoriety or pervasive power and influence on a national level. Everyone, everywhere knows about them. But others may enjoy such power and influence strictly on a local level. Everyone in a specific town or region or state knows about them. These people can be deemed all-purpose public figures as well. Consider the woman who lives in a community of 6,500 people. She was formerly the mayor, has served on the school board in the past and has been a perennial choice for president of the parent-teacher association. She is the president of the largest real estate company in town, is a director on the board of the local bank and owns the local pharmacy and dry cleaners. She is active in numerous service clubs, is a leader in various civic projects and is instantly recognizable on the street by the town’s residents. Her family founded the town 150 years earlier. If she is libeled in a community newspaper whose circulation remains almost exclusively in the community, it could be argued persuasively that this woman is an all-purpose public figure in the community. (See Steere v. Cupp,
18 in which the Kansas Supreme Court ruled such an individual was a total, or all-purpose, public figure.)
But some courts have rejected the notion that because someone is well known in a community, this automatically makes him or her an all-purpose public figure. A television reporter in Utah sued the station where she had worked for making false statements about why she was fired. The station argued she was an all-purpose public figure. She had reported stories for the station for three years, done promotional spots and appeared at special events for the station. One could speculate that a large percentage of people in the community could recognize the plaintiff, Holly Wayment. At least that is what the trial court surmised. But the Utah Supreme Court rejected the ruling that she was an all-purpose public figure. There was no evidence presented that she wielded any particular social or political influence or even proof that the news show on
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which she appeared was widely watched. “If we accept these facts as sufficient evidence of general fame in the local community, any reporter would qualify as an all-purpose public figure,” the court said.
19
What if the defamatory material circulates outside the local community, as well, to people who may not be familiar with the plaintiff? This question arose in 1985 in a libel suit by business executive George Martin against the Chariho Times in Rhode Island. Martin was clearly well known in the village of Shannock, where he owned and had developed a considerable amount of property over a period of 15 years. The Times was widely read by the 300 residents of the village, and a trial court ruled that Martin was a local all-purpose public figure. On appeal Martin argued that the newspaper had 3,000 subscribers, a far larger readership than just among the village residents by whom he was so well known. The Rhode Island Supreme Court, noting that Martin’s fame had spread beyond the Shannock village limits, agreed with the lower court and added that “very few individuals will be known to all subscribers or purchasers of any publication.”
20
LIMITED-PURPOSE PUBLIC FIGURES
Limited-purpose public figures are individuals who “. . . have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.”
Individuals in the second category of public figures outlined by Justice Powell in the Gertz decision are called limited-purpose public figures. Limited-purpose public figures are individuals who “. . . have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.”
21 This kind of libel plaintiff is regarded as a public person for a discrete part of his or her life, usually because of something this person has done to try to influence public opinion on a public issue. Between 1974 and 1979 the Supreme Court made four attempts to try to flesh out the definition of a limited-purpose public figure. From these four decisions three elements of a definition emerged. These elements form a base upon which other courts have erected their own definitions of limited-purpose public figures. Here are the elements:
A public controversy must exist before the publication or broadcast of the libelous matter. The outcome of this controversy must have an impact on individuals beyond those directly involved in the dispute. As one court noted, “A public controversy is not simply a matter of interest to the public; it must be a real dispute, the outcome of which affects the general public or some segment of it in an appreciable way.”

22
The plaintiff must have voluntarily participated in this controversy. The press cannot generate a controversy and then pull the plaintiff into the fray.
The plaintiff must take a role in trying to influence public opinion regarding the controversy. In
Gertz
, the Court put a great deal of emphasis on the plaintiff’s access to media and whether that access was used in an effort to affect the outcome of the controversy.
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Now let’s look briefly at the four rulings to see how these elements emerged.
In the first case the plaintiff was Elmer Gertz, a well-known civil rights attorney. A police officer shot and killed a young man, and a serious controversy erupted in Chicago as authorities tried to determine what had happened. The officer was ultimately tried and convicted of murder. Gertz was retained by the family of the dead man to bring a civil action against the officer and the city. He played no part in the criminal investigation that resulted in the trial and conviction of the police officer. An extreme right-wing organization called the John Birch Society made outrageous charges against Gertz in a publication and he sued for libel. Was he a limited-purpose public figure?
The Supreme Court said no. The public controversy was about the murder of an innocent man by a police officer, and his subsequent trial and conviction. Gertz was at the periphery of this controversy, and he made no attempt to influence public opinion in this matter. He had a limited role as an attorney who represented the family in their attempt to win damages because of the death.
23
The plaintiff in the second case was a young Florida socialite named Mary Alice Firestone. She and her husband, Russell Firestone, a member of the Firestone tire family, sued each other for divorce. She contended she was libeled by Time magazine when it inadvertently labeled her an adulteress in a short article in the magazine. Mary Alice Firestone was widely known in the community as a member of the elite Palm Beach Society, an active member of the so-called sporting set. She was also aggressive in meeting with reporters on an almost daily basis to give her side of the story. When she sued, attorneys for Time argued she was a public figure who must prove actual malice. The Supreme Court disagreed.
Mary Alice Firestone, the Court wrote, did not assume any “role of especial prominence” in the affairs of society, other than Palm Beach society. And she did not volunteer to participate in the controversy that resulted from the divorce action. She was forced by law to go to court to dissolve her marriage.
24
In 1979 the high court decided two more cases. Ilya Wolston was the prototype private citizen. Unfortunately, he was the nephew of Myra and Jack Soble, two well-publicized American communists who were arrested during the Red Scare of the 1950s and charged with spying. Wolston lived in Washington, D.C., at the time, and after he was interviewed by the FBI he was ordered on several occasions to testify before a federal grand jury in New York. He grew weary of the harassment and after several grand jury appearances ignored a subpoena. He was held in contempt of court and was sentenced to three years’ probation. Fifteen news stories were published about Wolston and his grand jury appearances and one nonappearance. But after all the investigation, the government failed to discover any information that linked Wolston to communist activities.
Fifteen years later a book published by the Reader’s Digest identified Wolston as a Soviet agent. When he sued for libel, the publisher argued that because he was called to testify before a grand jury, because he was held in contempt of court and
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because this episode was reported in the press, Wolston was a limited-purpose public figure. The Supreme Court disagreed. Wolston did not voluntarily inject himself into any controversy; he was pulled in as the government pursued him because of his relationship with the Sobles. In the mid-1950s there was a legitimate public controversy over Soviet espionage in the United States, but Wolston had little if anything to do with that controversy and he made no effort to influence public opinion about any controversy.
25
In the final case, the high court decided that the research director of a public mental health hospital in Michigan was not a limited-purpose public figure. The plaintiff had applied for and received about $500,000 in federal grants to conduct research on animal aggression. Each month, William Proxmire, a United States senator from Wisconsin whom some regarded as the “fiscal conscience” of the Senate, awarded a federal agency or a federal official what he called “The Golden Fleece” award, because Proxmire believed he or she or it wasted taxpayer money. Proxmire regarded Hutchinson’s research as inconsequential if not silly and gave a Golden Fleece award to the agencies that had been funding his studies for the previous seven years and made derogatory comments about Hutchinson as well. The researcher sued for libel.
The Court ruled that Hutchinson played no part in the broad general controversy over how tax dollars are spent. Nor did he try to influence public opinion about this matter—all he did was apply for research grants to sustain his work. Simply taking public money to undertake research is not enough to make a person like Hutchinson into a public figure.
26
LOWER-COURT RULINGS
Deciding who is and who is not a limited-purpose public figure is one of the most subjective decisions courts must make in applying the law of libel. It is not surprising then that, despite the guidance from the Supreme Court, differences in this definition exist among the lower courts.
THE THREE FACTORS LOWER COURTS CONSIDER TO DETERMINE IF A PLAINTIFF IS A LIMITED-PURPOSE PUBLIC FIGURE
1.
Is the subject matter of the defamatory statement a pre-existing public controversy?
2.
Did the plaintiff voluntarily inject himself or herself into the controversy in a significant way?
3.
Did he or she try to affect the outcome or influence public opinion about the public controversy?
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A limited-purpose public figure must voluntarily become involved in a pre-existing public controversy in an attempt to influence the resolution of the controversy. A few lower courts have viewed the “voluntary participation” element of the criteria in a more liberal fashion. The Pennsylvania Supreme Court noted in 2007 that “some courts have held that a controversy may be created by a plaintiff’s own activities.”
27 A criminal rarely seeks to attract attention; yet some courts have said that by committing a criminal act an individual can legitimately expect to draw the kind of public attention that fosters a definition of a public figure. Lower courts typically hold that voluntary entry into the public eye is a prerequisite for public figure status. But there is disagreement among the courts as well. In March 1998 a U.S. District Court in Connecticut ruled that the wife of a physician who had continuing legal problems was a public figure. The doctor, on probation for five years because of charges of incompetence, was arrested and charged with 20 counts of fraud. “Despite the fact that plaintiff has not sought a public role, she has been thrust into the role of a public figure by virtue of her marriage to Dr. Zupnik—who clearly is a public figure.”
28 Three months later the Appellate Division of the New York Supreme Court ruled that the ex-husband of prominent television celebrity Joan Lunden was not a public figure simply because he was married for many years to the co-host of ABC’s “Good Morning America.” The Globe tabloid had suggested that prior to the divorce, while the couple was separated, Lunden’s husband had an affair with a prostitute. “Plaintiff is not famous in his own right and his marriage to Lunden certainly did not bestow upon him the sort of fame that is necessary to be considered a general public figure.”
29
An interesting case involving five broadcasts by CBS news over 18 months demonstrates how courting media attention can transform a plaintiff into a limited-purpose public figure. In 2009, the U.S. District Court for New Mexico heard a case involving Lillian Anaya, an employee of the Los Alamos National Laboratory (LANL) who was accused of using a government purchase card to buy a customized souped-up Ford Mustang. Based on a press release by LANL, the media began to investigate the alleged Mustang purchase and other irregularities in 2002. CBS aired five separate broadcasts on the investigation between November 2002 and April 2004. Initially after CBS named Anaya, she avoided media contact and refused interviews. When she later became the focus of CBS’s reports, however, she sought media coverage to combat the bad publicity being generated. When Anaya sued for defamation, CBS argued that she was a limited-purpose public figure because she had injected herself voluntarily into the public controversy over wasteful and fraudulent government spending. The court ruled that because Anaya had not injected herself into the controversy or sought media attention between November 2002 and February 2003, she was not a limited-purpose public figure when CBS’s first three broadcasts on the issue aired during that time. However, because Anaya began to court the press in a “concerted effort to publicize exonerating evidence” in June 2003, she became a public figure for broadcasts aired in October 2003 and April 2004.
30
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The Nature of the Controversy
The kind of controversy that generated the libel is an obviously important factor in determining whether a plaintiff is a limited-purpose public figure.
The kind of controversy that generated the libel is an obviously important factor in determining whether a plaintiff is a limited-purpose public figure. Unfortunately, because the Supreme Court has never fully articulated what constitutes a public controversy, lower courts have had difficulty applying the concept and use different approaches. In 1994 in a decision that echoed earlier Supreme Court rulings, the 4th U.S. Circuit Court of Appeals declared that “a public controversy is a dispute that in fact has received public attention because its ramifications will be felt by persons who are not direct participants.”
31 This is the same standard applied by the Georgia Supreme Court when it ruled that a group of plastic surgeons who were involved in a fight with other physicians over what kinds of medical specialists were qualified to perform plastic surgery were not public figures. This was a dispute that affected only members of the medical community, not the general public.
32 Courts do not always provide a great deal of analysis as to why a matter might be a public controversy. In 2000, a federal district court ruled that lobbying in Washington, D.C., was a public controversy because from “the early 1980s onward there has been a tide of concern and criticism about Washington lobbying.”
33 In 2011, a federal court held that a documentary film that depicted the treatment of Haitian laborers on sugarcane plantations in the Dominican Republic related to a public controversy with little explanation.
34 In 2011, in the Anaya case discussed earlier, the court wrote that the issues in question—fraud and the mismanagement of government resources—was a public controversy. Although the court wrote that not every controversy was automatically a “public controversy,” the court held that the misuse and mismanagement of funds at a major government facility was the sort of public controversy referred to in Gertz without explaining why. In 2013, in a case involving a profile of art appraiser and authenticator Peter Paul Biro that appeared in The New Yorker magazine, the U.S. Court of Appeals for a federal court ruled that statements about art and art authenticity addressed a public controversy.
35 In 2010, a court determined that statements by Oprah Winfrey about the headmistress of the Oprah Winfrey Leadership Academy for Girls, a private academy opened by Winfrey in South Africa, were related to two public controversies. First, the court determined that whether a public-private institution employing “a novel and innovative approach to providing a high-caliber education to girls from disadvantaged backgrounds” would succeed was a public controversy. Second, the court determined that statements related to abuse of students by “Dorm Parents” at the Academy was also a legitimate public controversy.
36
Many courts have repeatedly ruled that the mass media cannot generate a controversy and then, when a libel suit is filed, label the people they pulled into that controversy as public figures. A radio station in Brunswick, Ga., tried this ploy after it broadcast rumors that a local musician had murdered his girlfriend, who was the mother of his child. Travis Riddle had achieved a small degree of notoriety in Brunswick. He performed
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at local rap concerts, appeared once in a segment on MTV, self-produced a CD that sold fairly well in the area and was the subject of at least one newspaper article. But testimony revealed most of the staff at the radio station had never heard of him prior to the lawsuit. One of the DJs at the station began receiving calls one day accusing Riddle of murder and aired some of these callers. Riddle, who at the time was working as a banquet server in Atlanta, sued for libel. The station claimed he was a public figure.
The Georgia Court of Appeals asked the question, What was the controversy in this case? The accusations of murder generated a controversy, the defendant argued. But Riddle was never named as a suspect in a murder investigation. In fact, there was no murder. His girlfriend had merely disappeared for a few days. Her disappearance might have been newsworthy, but it was never publicized. But even then, if this generated a controversy, it was an issue that affected only her family and friends. This would not have been a public controversy. A jury awarded Riddle $100,000.
37
The Plaintiff’s Role
Once a court has ruled that a legitimate controversy existed it must then determine what role the plaintiff played in the controversy. This is a more difficult question. Was the plaintiff actually involved in the controversy that gave rise to the defamation? Or was he or she simply on the periphery? Was the participation voluntary or was the plaintiff drawn into the controversy by the mass media? Because no two cases are exactly alike, and because the answers to the questions raised above often involve subjective judgments, it is not surprising to find contradictory rulings among the courts in cases in which the facts seem somewhat similar. But this should stand as a warning to those who think the law is made up of a set of specific rules that are applied in exactly the same fashion in every case. This rarely happens, and perhaps never will, unless the human judges and jurors are replaced by computers. Let’s look at a few cases to explore how various courts have dealt with the matter of the role of the plaintiff in the controversy.
There is a sharp difference of opinion in the United States on the role women should play in combat. Carey D. Lohrenz was one of the first two women who became Navy combat pilots. She was assigned as an F-14 pilot on a Navy aircraft carrier. The controversy heated up when the other female combat pilot died when her aircraft malfunctioned as she attempted a carrier landing. At this point, some people began attacking both the idea of allowing women to fly high-performance combat aircraft and Lohrenz herself, saying she was incompetent and unqualified. She sued for libel.
The defense argued that because of the controversy over whether women should be allowed to fly fighter aircraft, Lohrenz, a female combat pilot, was a public figure for purposes of this issue. But Lohrenz’s attorney argued that she had not taken any part in this controversy—she simply trained as a naval aviator, chose to fly jets and accepted her assignment as a combat pilot when the opportunity presented itself. She certainly did not publicly participate in the debate over the wisdom of this change in policy.
The U.S. Court of Appeals sided with the defense. The court ruled that when Lohrenz chose to become a Navy aviator and when she chose to accept the assignment as an F-14 pilot,
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she should have realized she was becoming embroiled in the controversy over the role to be played by women in combat. She attained a special prominence in the dispute when she suited up to fly a Navy warplane, assuming a “central role in the controversy.”
38
In 1999 a Georgia court ruled that Richard Jewell was a public figure for purposes of his libel suit against Cox Enterprises Inc., publisher of the Atlanta Journal-Constitution. Jewell, a former deputy sheriff, discovered a bomb in a knapsack in a park during the 1996 Summer Olympic Games in Atlanta and then herded spectators out of the area before the device exploded. One person was killed, 11 others were injured. After the incident, Jewell gave about a dozen interviews to local and national media about the bombing and about park security in general. While Jewell was regarded as a hero at first, later law enforcement officials focused on him as a suspect in the bombing. Although Jewell was eventually cleared, he sued the Atlanta newspapers for comments published while he was the prime suspect in the case. The court ruled that Jewell was a public person because he voluntarily stepped into the controversy by giving the interviews to the press. At the time the statements were made by the newspapers, he was not simply defending himself from the accusations. “It is beyond argument,” the court ruled, “that plaintiff did not reject any role in the debate, was a prominent figure in the coverage of the controversy, and, whatever his reticence regarding his media appearances, encountered them voluntarily.”
39
A controversy arose in a small community in western Kentucky when a radiologist was fired at a regional medical center following complaints from former patients and a doctor who worked at the same facility. Extensive publicity accompanied the doctor’s termination, and ultimately he sued the local newspaper for libel, among other things. The newspaper argued that because of the controversy in the community, and the attending publicity, the physician was a limited-purpose public figure. But a federal court disagreed, ruling that the radiologist had not injected himself into the controversy. He was pulled into the fray when he was terminated, the court said. Also, he did not act in a manner designed to attain publicity; nor did he have unusual access to the media.
40
Contradictory decisions like these are often confusing, even to lawyers who specialize in libel law. They are evidence of two things: first, that the law of libel is still evolving, as it has during the past several centuries; and second, as noted in Chapter 4, that libel is still basically state law. While the constitutionalization of the tort has added some consistency to the development of the libel law, state judges still have considerable room to shape their own law.
BUSINESSES AS PUBLIC FIGURES
Businesses and corporations can sue for libel; they can also be classified as public figures for purposes of a libel suit.
Businesses and corporations can sue for libel; they can also be classified as public figures for purposes of a libel suit. Surely if a business attempts to lead public opinion during a controversy over an important public issue, it could be categorized as a limited-purpose
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public figure. For example, General Motors could be classified as a limited-purpose public figure if it was libeled as it attempted to lead public opinion against government-imposed automobile emission standards. But businesses have been regarded as public figures based on other criteria as well, criteria hammered out over the past two decades.
STANDARDS USED TO DETERMINE WHETHER A BUSINESS IS A PUBLIC FIGURE
1.
Did the business use a highly unusual advertising or promotional scheme to draw attention to itself?
2.
Is the business well known to the average person in the area where it has a presence?
3.
Is the business regulated by the government?
4.
Did the libelous comment about the business focus on a matter of public concern?
5.
Has the business undergone frequent and intense scrutiny by the media?
The Ohio Court of Appeals ruled in 2006 that two adult entertainment clubs that featured nude or partially nude dancing were public figures. The court said the clubs had been in the news for 10 years due to licensing matters and opposition from people in the area during zoning hearings.
41
Normal advertising will not generally establish the level of notoriety required to turn a business into a public figure. In 2014, the Thomas M. Cooley Law School sued a law firm, Kurzon Strauss, LLP, for $17 million over statements that criticized law schools for over-enrolling students and contended that law students could not pay back their student loans. The 6th U.S. Circuit Court of Appeals ruled that the law school was a limited-purpose public figure because it had voluntarily issued a report on the topics, publicly responded to the controversy in the media and used its Web site, advertisements, recruiting materials, written publications and career services presentations to disseminate its message.
42 However, even a spirited, but typical, comparative advertising campaign between U.S. Healthcare Inc. and Blue Cross in Pennsylvania did not propel either company into the public-figure status, according to the 3rd U.S. Circuit Court of Appeals.
43
Two court rulings in the 1990s, including one by the 5th U.S. Circuit Court of Appeals, have provided additional criteria that might be applied when determining whether a business is a public figure for purposes of a libel suit. In Snead v. Redland Aggregates, Ltd., the court of appeals ruled that the notoriety of a business to the average person in the relevant geographical area (the area in which the libel is circulated), the public prominence of the business because it manufactures widely known consumer
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goods and the frequency and intensity of media scrutiny of the business are all factors that need to be considered when a court makes a determination about the public-figure status of a business.
44 Also to be considered, the court said, is whether the libelous speech involves a matter of public or private concern. In this case the court ruled that a British firm that quarried sand, gravel and crushed stone was not a public figure. And a U.S. District Court in Pennsylvania ruled that a business’s relative access to the media and the manner in which the risk of defamation came upon the business (i.e., the context of the dispute that generated the libel) must be considered when deciding whether a business was a public figure or not.
45 While the criteria in both these decisions lack precision, these rulings indicate that some courts seem willing to consider the public-figure status of businesses in a broader light.
As noted by the 5th U.S. Circuit Court of Appeals in the Snead decision, generalizations that have some value when determining the public or private status of an individual don’t work well when applied to a business. Most courts seem more comfortable approaching the problem on a case-by-case basis. The lack of clear standards is an important reason journalists should be cautious when communicating about businesses, even those that have a high visibility in the community.
PUBLIC PERSONS OVER TIME
If someone is a public person (public official or public figure) today, will he or she still be regarded as a public figure 20 years from now? Yes, but only in regard to the issues or matters that generated the public-person status today. If Foster Pierson is a public figure today because he is at the forefront of a fight against a gun control initiative on the ballot in Indiana, he will still be regarded as a public figure in any story published or broadcast in the future regarding this initiative battle. Similarly, a woman who retires to private life after being mayor of Houston will still be regarded as a public person if she sues for libel for a story published 25 years from now that focuses on her conduct while she was mayor.
The 10th U.S. Court of Appeals ruled in 2002 that the former associate deputy director of the Federal Bureau of Investigation was a public person for the purposes of a libel suit based on a book about the Oklahoma City bombing in 1995. Oliver Revell was retired from the FBI when the book was published, but the court ruled that this was immaterial. That
the person defamed no longer holds the same position does not by itself strip him of this status as a public official for constitutional purposes. If the defamatory remarks relate to his conduct while he was a public official and the manner in which he performed his responsibilities is still a matter of public interest, he remains a public official within the meaning of New York Times.

46
A U.S. District Court ruled that a U.S. Secret Service agent who saved the life of President Gerald Ford in 1975 must still be regarded as a public person for purposes of a libel
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suit based on a story broadcast in 1992 about the attempted assassination.
47 Two attempts were made on Ford’s life in September 1975. Agent Larry Buendorf deflected the arm of assailant Lynette “Squeaky” Fromme on Sept. 5, 1975, and saved the life of President Ford while he was visiting Sacramento, Calif. Two weeks later a private citizen, Oliver Sipple, pushed away the arm of assailant Sara Jane Moore as she attempted to shoot the president when he was in San Francisco. This second incident became a major issue in the Bay Area when newspaper columnist Herb Caen speculated in print that the White House had not thanked Sipple for his heroic act because he was a homosexual. Sipple was gay, but sued the newspaper for invasion of privacy.
48 (See page 298 for more on this case.) Researchers at National Public Radio got the two incidents mixed up, and commentator Daniel Schorr, in a report on how the press tramples on the privacy of public people, said it was revealed after he saved the president’s life that agent Buendorf was a homosexual. The court ruled that Buendorf would have to prove actual malice to win his libel suit, something he was unable to do.
49 But in 1997 the Arkansas Supreme Court ruled that J. Michael Fitzhugh, a former federal prosecutor, was not a public person for purposes of a libel action he brought against the Arkansas Democrat-Gazette. The newspaper published a story that federal prosecutor Robert Fiske Jr. was about to initiate the first prosecution in the Whitewater investigation. Two men, Charles Matthews and Eugene Fitzhugh, were the defendants in the case. The newspaper ran what it thought were pictures of the pair. The Matthews photo was correct, but the Democrat-Gazette mistakenly published a photo of J. Michael Fitzhugh instead of a picture of Eugene Fitzhugh. The newspaper argued that because the plaintiff had been a federal prosecutor for eight years—clearly a public official during those years—he surely should be considered a public person for the purposes of this lawsuit. The court disagreed, ruling that while J. Michael Fitzhugh was and still is a public person for any story relating to his work as a federal prosecutor, he was not a public person for stories about matters outside that realm, including the Whitewater investigation. The simple error cost the newspaper $50,000 in damages.
50
INVOLUNTARY PUBLIC FIGURES
In Gertz, the Supreme Court also stated that there may be an “exceedingly rare” category of public figures: involuntary public figures. Involuntary public figures are people who are drawn into public controversies rather than those who have thrust themselves into a public controversy voluntarily. While the court did not provide a definitive definition of an involuntary public figure, typically individuals who have been drawn into a controversy through unforeseen or unintended circumstances are considered to be involuntary public figures. Although the court wrote that involuntary public figures would be “exceedingly rare,” some lower courts have found individuals to be involuntary public figures under specific situations. An involuntary public figure might not intentionally or purposefully seek attention. Rather, that person might have obtained the public’s
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attention unintentionally or without deliberate action. The person might have access to the media but did not necessarily voluntarily enter into a public controversy. Unfortunately, courts have been inconsistent in how they define involuntary public figures. In addition, some courts confuse the matter even more by finding there is no such thing as an involuntary public figure. In addition, while the Supreme Court hypothetically wrote that a plaintiff could be an involuntary public figure, the court itself has never specifically recognized a plaintiff as one.
PRIVATE PERSONS
In a libel action, if the plaintiff does not meet the definition of a public official, an all-purpose public figure, or a limited-purpose public figure, the court will regard the individual as a private person. This designation means the plaintiff will not be required to prove that the defendant lied or exhibited reckless disregard for the truth in publishing the libel. The plaintiff in most jurisdictions will have to demonstrate only that the defendant failed to exercise reasonable care in preparing and publishing the defamatory material. There are, however, a few exceptions to this rule. In Alaska, Colorado, Indiana and New Jersey, private-person plaintiffs must prove actual malice in cases involving matters of public concern.
51 In New York, private persons must prove a higher standard than simple negligence, but do not need to prove actual malice.
52 Gross negligence is a higher degree of fault than simple negligence, but a lesser degree of fault than actual malice. To find out the rule in your state, locate the most recent state supreme court ruling on libel. Within the text of this decision there is very likely to be a reference to the level of fault required by private-person plaintiffs.
SUMMARY
Under the fault requirement all individuals who sue a mass medium for libel must prove that the defendant was somehow at fault in publishing the defamatory material and that the publication (or broadcast) did not result from an innocent error.
What the courts call a public person must normally prove that the defendant acted with actual malice in publishing the libel; that is, the defendant knew the material was false but still published it or exhibited reckless disregard for the truth. What the courts define as private persons must prove at least that the defendant acted negligently, that is, in such a way as to create an unreasonable risk of harm. The courts have ruled that there are four kinds of public persons:
I.
Public officials: Individuals who work for a government in a position of authority, who have substantial control over the conduct of governmental affairs, and whose position in government invites independent public scrutiny beyond the general public interest in the qualifications and performance of all government employees. Libelous comments must focus on the plaintiff’s official conduct (the manner in which the plaintiff conducts his or her job) or on the plaintiff’s general fitness to hold public office.
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II.
All-purpose public figures: People who occupy positions of persuasive power and influence in the nation or in a community, who are usually exposed to constant media attention.
III.
Voluntary limited-purpose public figures: Individuals who voluntarily inject themselves into an important public controversy in order to influence public opinion regarding the resolution of that controversy. The key elements are these:
a.
Public controversy, the resolution of which must affect more people than simply the participants. The outcome must have an impact on people in a community.
b.
Plaintiffs who voluntarily thrust themselves into this controversy. An individual who has been drawn involuntarily into a controversy created by someone else (such as the press) will not usually be considered a limited-purpose public figure.
c.
Plaintiffs who attempt to influence the outcome of the controversy, to shape public opinion on the subject. This implies that a plaintiff has some access to the mass media to participate in the public discussion surrounding the controversy.
IV.
Involuntary limited-purpose public figures: Those rare individuals who have involuntarily entered into a public controversy. These individuals have access to the media to participate in the discussion surrounding the controversy but did not voluntarily seek out this access.
Using a variety of criteria, courts have ruled that businesses can be deemed public figures in a libel suit. Individuals who become public persons remain public persons throughout their lives with regard to stories published or broadcast that relate to incidents or events that occurred while they were public persons.
THE MEANING OF FAULT
Negligence = Failure to exercise ordinary or reasonable care
Actual malice = Knowledge of falsity or reckless disregard for the truth
NEGLIGENCE
“Negligence” is a term that has been commonly used in tort law for centuries, but has been applied to libel law only since 1974. In simple terms, negligence implies the failure to exercise ordinary care. In deciding whether to adopt the negligence or the stricter actual malice fault requirements, state courts are providing their own definitions of the standard. Washington state adopted a “reasonable care” standard. Defendants are
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considered negligent if they do not exercise reasonable care in determining whether a statement is false or will create a false impression.
53 The Tennessee Supreme Court has adopted a “reasonably prudent person test”: What would a reasonably prudent person have done or not have done in the same circumstance? Would a reasonably prudent reporter have checked the truth of a story more fully? Would such a reporter have waited a day or so to get more information? Would a reasonably prudent reporter have worked harder in trying to reach the plaintiff before publishing the charges?
54 In Arizona, negligence has been defined as conduct that creates unreasonable risk of harm. “It is the failure to use that amount of care which a reasonably prudent person would use under like circumstances,” the Arizona Supreme Court ruled.
55
Some of the more common reasons a defendant might be found negligent are these:
Reliance on an untrustworthy source
Not reading or misreading pertinent documents
Failure to check with an obvious source, perhaps the subject of the story
Carelessness in editing and news handling
Did the reporter make a good faith effort to determine the truth or falsity of the matter?
The question the court will always ask is, Did the reporter make a good faith effort to determine the truth or falsity of the matter?
Courts will often scrutinize the source of the reporter’s story when deciding whether or not there was negligence. After a reporter relied on a source whom police described as being an unreliable informant, and even the reporter admitted in court that he had found some of his source’s information to be incorrect, the Massachusetts Supreme Judicial Court ruled that a jury might find negligence in such a case.
56 But a superior court in New Jersey ruled in 2003 that when a criminal suspect was misidentified in a news story there was no negligence, because the reporter had gotten the wrong name from both the police and an assistant prosecutor.
57 And the courts have consistently ruled that a newspaper or broadcast station is not negligent when it relies on reports received from the Associated Press, Reuters or other legitimate news services.
58
Reportorial techniques,
59 are often scrutinized when a plaintiff asserts that a news medium has been negligent. But courts do not expect superhuman efforts from journalists, only general competence. The San Antonio Express-News was sued for libel when it inadvertently ran the wrong picture with a story it published on a woman convicted of prostitution, selling a child into prostitution and drug-related offenses. The plaintiff, who had the same name as the woman described in the Express-News story, had also been convicted of selling a child into prostitution, but was clearly not the woman described in the newspaper. Was there negligence in this case? The reporter had seven years of experience
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covering the courthouse and had spent six months researching the series of articles on the Texas Department of Correction’s parole system. She had submitted a request to the county sheriff’s office for a mug shot of the woman who was the subject of the story. The request included the woman’s name, date of birth and Department of Corrections identification number. The sheriff’s office gave her the wrong photo. The plaintiff insisted that the reporter failed to verify that she had the correct photo and that the reporter should have checked with the woman’s mother to make certain the correct photo was being used. The court disagreed. “The issue was not what Fox [the reporter] could have done to avoid the mistake. It is whether she acted reasonably; that is, as a reasonable reporter under similar circumstances would have acted.” The court said there was no negligence in this case.
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The definition of the term “negligence” will undoubtedly vary from state to state and possibly from judge to judge within a state. It is going to be some time before any kind of broad, consistently applied guidelines emerge. It is unlikely the Supreme Court will be of any help in this matter as it appears to be the intention of the court to leave the matter to the states.
There are, however, a few practical guidelines journalists and bloggers should follow to avoid liability. Being thorough, fair, accurate, carefully attributing sources and quotes, using photos that correspond to the story you are writing and not using ambiguous phrases that could libel someone through innuendo will minimize claims of negligence. In addition, using reliable sources will decrease the likelihood you publish false information. You should also always seek comments from the subject of your statements to give them an opportunity to respond to any allegedly defamatory statements. While nothing will completely reduce your liability, following professional norms and practices will help.
ACTUAL MALICE
Defining actual malice is somewhat easier than defining who is and who is not a public figure or public official, but it still presents judges with problems. In New York Times Co. v. Sullivan,
61 Justice Brennan defined
actual malice as “knowledge of falsity or reckless disregard of whether the material was false or not.” The two parts of this definition should be considered separately.
Knowledge of Falsity
“Knowledge of falsity” is a fancy way of saying “lie.”
“Knowledge of falsity” is a fancy way of saying “lie.” If the defendant lied and the plaintiff can prove it, actual malice has then been shown. In 1969 Barry Goldwater was able to convince a federal court that political gadfly Ralph Ginzburg published known falsehoods about him during the 1964 presidential campaign in a “psychobiography” carried in Ginzburg’s Fact Magazine. Ginzburg sent questionnaires to hundreds of psychiatrists, asking them to analyze Goldwater’s mental condition. Ginzburg published only those responses that agreed with the magazine’s predisposition that Goldwater was mentally ill
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and changed the responses on other questionnaires to reflect this point of view. Proof of this conduct, plus other evidence, led the court to conclude that Ginzburg had published the defamatory material with knowledge of its falsity.
62
Quotations are a part of most news stories, and they can pose an interesting problem for a court when libel is alleged. Two kinds of quotes might appear in a story. Statements that are enclosed within quote marks are called direct quotes and are supposed to represent an exact (or as close as possible) copy of what the subject said. But reporters also use what are called indirect quotes. These represent the substance of what the subject said, but not necessarily his or her exact words. Imagine that Sen. Maria Fernandez tells a reporter “We need to increase the size of the U.S. Army.”
Direct quote: “We need to increase the size of the U.S. Army,” Sen. Maria Fernandez said.
Indirect quote: Sen. Maria Fernandez said she believed the nation needs a larger army.
A legal question that can arise is this: If a journalist changes the words that were uttered by a subject, but still puts them inside quote marks, implying this is exactly what the subject said, can these be used as evidence of knowledge of falsity, actual malice? The Supreme Court confronted this question 20 years ago when a psychoanalyst named Jeffrey Masson sued New Yorker magazine and writer Janet Malcolm. Malcolm had interviewed Masson for more than 40 hours and wrote a long article about him, an article that was later republished as a book. Masson objected to many of the comments attributed to him as direct quotes, claiming that Malcolm had changed his words, that she had fabricated the statements. The quoted statements made him look foolish, he said, and he sued for defamation. Masson stipulated that he was a public figure, so he had to prove actual malice. He argued that changing his words in the direct quotes was evidence of knowledge of falsity.
A lower court agreed with the psychoanalyst, but the Supreme Court reversed this decision in a 7-2 ruling. The court ruled that readers do presume that words contained within quotation marks are a verbatim reproduction of what the subject said. Nevertheless, Justice Anthony Kennedy wrote, to demand that the press meet such a high standard is unrealistic. “If every alteration [of a quote] constituted the falsity required to prove actual malice, the practice of journalism, which the First Amendment is designed to protect, would require a radical change. . . . We conclude that a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity . . . unless the alteration results in a material change [emphasis added] in the meaning conveyed by the statement.”
63 The case was sent back for a trial in a lower court, but Masson was unable to convince a jury that Malcolm had knowledge of falsity when she wrote the story, and lost the case. An appellate court affirmed this verdict.
Reporters should strive to make certain direct quotes contain good copy of what a subject said, despite the leeway granted by the high court. But anyone who has worked as a journalist for even a short time knows it is often a real challenge to write down a speaker’s exact words. People can talk a lot faster than a reporter can write. Indirect quotes are a useful substitute.
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In a similar vein the Texas Supreme Court in 2005 ruled that it is not evidence of knowledge of falsity simply to show that a headline on a news story paraphrases the remarks of a speaker and is not a verbatim recitation of what the speaker said. The court said two questions must be answered: Would a reasonable reader believe these were the actual words of the speaker? And did the paraphrased comment alter the meaning of what the speaker actually said? If a reasonable reader would understand that this was a paraphrase or interpretation of what the speaker said, and not a recitation of the exact remark attributed to him or her, there can be no finding of actual malice.
Finally, if a headline says one thing, but the story says something else, is this always evidence of knowledge of falsity? The plaintiff will argue the defendant should have known that either the headline or the story was wrong—knowledge of falsity. But courts usually look beyond the obvious in such cases. A headline in the Nutley Sun said that two local men were arrested for stock fraud. The story said two men had been charged in a Securities and Exchange Commission civil complaint. The men were never arrested. The New Jersey Supreme Court ruled that just because the story said one thing and the headline something else, this was not evidence that the editors entertained serious doubts as to the statement in the headline. The discrepancy between the two was surely sloppy journalism, but the editor had been harried in getting the paper out. The fact the two items carried a different message was not evidence of knowledge of falsity.
64
Reckless Disregard for the Truth
Proof that the defendant failed to investigate a charge that later turns out to be false is not in and of itself sufficient evidence to prove actual malice.
Reckless disregard for the truth is a bit more difficult to define. In 1964 the Supreme Court said that reckless disregard could be shown by proving that the defendant had “a high degree of awareness of [the] probable falsity” of the defamatory material when it was published.
65 Four years later the Supreme Court said that in order to show reckless disregard for the truth, the plaintiff must bring forth “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.”
66 Proof that the defendant failed to investigate a charge that later turns out to be false is not in and of itself sufficient evidence to prove actual malice.
RECKLESS DISREGARD
A high degree of awareness of the probable falsity of the defamatory material when it was published
or
Sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of the publication
or
Evidence the defendant purposefully avoided the truth
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These definitions of reckless disregard are certainly useful in a theoretical sense. It is surely possible to envision a reporter or editor entertaining serious doubts about the truth of an allegation and publishing it anyway. However, neither of these definitions is terribly helpful in a practical sense. As Judge Kozinski of the 9th U.S. Circuit Court of Appeals wrote in his decision in a case involving the National Enquirer and Clint Eastwood, “As we have yet to see a defendant who admits to entertaining serious subjective doubt about the authenticity of an article it published, we must be guided by circumstantial evidence.”
67 Six years later the Georgia Court of Appeals ruled that “Absent an admission by the defendant that he knew his material was false or that he doubted its truth, a public figure [or public official] must rely upon circumstantial evidence to prove his case.”
68 Fortunately there is language in a 1967 Supreme Court ruling that has been extremely helpful to both jurists and journalists in charting a course by using such evidence. The ruling involved two cases, Curtis Publishing Co. v. Butts and AP v. Walker.

69 Justice John Marshall Harlan outlined a test in his opinion to evaluate the conduct of both defendants in these libel cases. While a few courts have rejected Harlan’s criteria as a test for actual malice,
70 many courts have used it as the basis for their own definition of reckless disregard for the truth.
The two cases were joined and decided as one case. In the first case, Wally Butts, the athletic director at the University of Georgia, brought suit against the Saturday Evening Post for an article it published alleging that Butts and University of Alabama football coach Paul “Bear” Bryant had conspired to fix the Georgia-Alabama football game. The Post obtained its information from a man who said that while making a telephone call, he had accidentally overheard a phone conversation between Butts and Bryant. George Burnett, who had a criminal record, told the Post editors that he had taken careful notes. The story was based on Burnett’s recollection of what was said.
In the other case, Major General (retired) Edwin Walker, a political conservative and segregationist from Texas, brought suit against the Associated Press and a score of publications and broadcasting stations for publishing the charge that he led a mob of white citizens against federal marshals who were attempting to preserve order at the University of Mississippi in September 1962, during the crisis over the enrollment of a black man, James Meredith. Walker was on campus during the disturbances, but did not lead a mob. The AP report was filed by a young AP correspondent on the scene.
The court ruled that in the Butts case the Post had exhibited highly unreasonable conduct in publishing the story but that in the Walker case no such evidence was present. In the Butts case, the story was not what would be called a hot news item. It was published months after the game occurred. The magazine had ample time to check the report. The source of the story was not a trained reporter, but a layman who happened to be on probation on a bad-check charge. The Post made no attempt to investigate the story further, to screen the game films to see if either team had made changes in accord with what Bryant and Butts supposedly discussed. None of
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the many people supposedly with Burnett when he magically overheard this conversation were questioned by the Post. The magazine did little, then, to check the story, despite evidence presented at the trial that one or two of the editors acknowledged that Burnett’s story needed careful examination. Finally, both Butts and Bryant had strong reputations for integrity. There had never even been hints of this kind of behavior in the past.
In the Walker case, different circumstances were present. For the AP editor back in the office who was responsible for getting the story on the wires, it was breaking news, a story that should be sent out immediately. The information was provided in the “heat of battle” by a young, but trained, reporter who in the past had given every indication of being trustworthy. All but one of the dispatches from the correspondent said the same thing: Walker led the mob. So there was internal consistency. Finally, when General Walker’s previous actions and statements are considered, the story that he led a mob at Ole Miss was not terribly out of line with his prior behavior. There was nothing in the story to cause AP editors to suspect that it might be in error.
FACTORS COURTS USE TO HELP DETERMINE RECKLESS DISREGARD FOR THE TRUTH
1.
Story Timeliness: Was the news breaking? Was it “hot” news? Was the publication of the story urgent? Or was there sufficient time or reasons to more fully check the facts in the story?
2.
Source Credibility: How credible or reliable were the sources used? How reliable was the source of the story? Should the reporter have trusted the news source? Should the editor have trusted the reporter?
3.
Story Probability: Was the story inherently believable or probable? Or was the story so unlikely that it cried out for further examination?
These elements form the base of most judicial definitions of reckless disregard for the truth. Two additional burdens face the plaintiff seeking to prove actual malice.
The plaintiff must prove actual malice with “clear and convincing” evidence.

71 Normally in a civil lawsuit the plaintiff must prove his or her allegations with a “preponderance of the evidence,” which means that the plaintiff has more evidence than the defendant. “Clear and convincing” is a higher standard than a preponderance of the evidence, and it means that there can be little or no dispute about the evidence.
The Supreme Court has instructed appellate courts to re-examine the evidence in the case to determine that the record “establishes actual malice
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with convincing clarity.”

72 Typically an appellate court is bound to accept the evidentiary findings of the trial court (see pages 18–20). But if the First Amendment defense applies in a libel case, the appellate court is mandated to take a close look and make certain the evidence supports the finding of malice. Allotting the appellate court such evidentiary power not only gives the defendant a second chance to win the case on the basis of the facts, but it also forces trial court judges to take extra pains when examining the facts, knowing that their work will likely be closely scrutinized in the future. The following overview of court rulings on actual malice will help illuminate both the criteria for such a finding and these two defense advantages.
Applying the Actual Malice Standard
Courts use a variety of means to try to determine whether or not the defendant acted with reckless disregard for the truth. Since, as noted earlier, few defendants admit to entertaining serious doubts about the truth of something they have published, circumstantial evidence becomes an important element in many cases. And different courts use different tests.
In sorting out claims of actual malice, courts often are forced to delve deeply into the reporting process. In July 2003 newspapers in South Carolina reported that county employees, in competition with private business, had been seen working on property belonging to Deputy County Supervisor Robert Metts. A county councilwoman named Judy Mims originated these charges. The allegations were false, and Metts, a public official, charged that the newspapers exhibited actual malice by publishing them. A trial court and state court of appeals both awarded the defendants a summary judgment because there was no evidence of actual malice. But the state Supreme Court reversed and said a jury possibly could find evidence of actual malice. In its opinion the court listed the following factors a jury should consider.
The newspaper had a list of people who had received service from county employees and the defendant’s name was not on the list.
This was not a hot news story.
The reporter did not attempt to contact Metts for a comment or verification.
The reporter did not talk with Mims about how she supposedly discovered that county employees were working on Metts’ property.
The reporter was aware that Mims and Metts had an adversarial relationship.
73
The law does not require the complete verification of a story, especially a breaking story.
The law does not require the complete verification of a story, especially a breaking story. Two cases make this point. In 2003 the New York Post carried a short rewrite of a story carried on the Los Angeles Times wire service. The story suggested that rock music personality Ozzy Osborne’s former doctor had overprescribed various drugs during the time Ozzy was featured in a reality TV series, and these left him “stoned” most of the time during the TV series. The L.A. Times story accurately stated the state medical
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board “moved to revoke” the doctor’s license. However, the Post story, headlined “Ozzy’s Rx doc’s license pulled,” said the board had revoked his license.
74 The physician had a well-known detoxification practice, and had been in movies and on TV. He was a public person and would have to prove actual malice. At the trial the reporter said he did not recall writing that the license had been revoked, and thought the error might have occurred during editing. The editors testified they had no knowledge of how the mistake got into the story, that they did not investigate the claim because they thought it came from the Times story. It was not normal practice to check the facts in wire stories, they said.
75 The New York Court of Appeals ruled that it could find no evidence that suggested with convincing clarity the Post had committed actual malice and ruled in favor of the newspaper.
76
In 2011 the Appellate Division of the New York Supreme Court ruled that there was no evidence of reckless disregard for the truth when author Tim O’Brien wrote that Donald Trump did not have a net worth of $3 to $5 billion as Trump often asserted. O’Brien wrote that “three people with direct knowledge of Donald’s finances, people who had worked closely with him for years, told me his net worth was somewhere between $l50 million and $250 million.” Trump insisted the information was false and that O’Brien’s reliance on the word of three unidentified sources was evidence of reckless disregard.
O’Brien showed the court that he had reinterviewed the three sources before he published the material; all three sources independently gave him the same information; he then verified the information with other sources; and the three sources had given him other information on other matters that proved to be accurate. There was no evidence of reckless disregard of the truth, the court ruled.
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In 2012, a Virginia court threw out a $3 million libel verdict against a local newspaper, finding that a local school official failed to show that the allegedly defamatory article was published with actual malice. An assistant principal at Oscar Smith High School in Chesapeake, Va., sued The Virginian-Pilot for libel based on the newspaper’s reporting of his son’s 2008 assault on Robert Bristol, the father of a classmate who is a special education student. An article in December 2009 reported that Webb’s son, then a student at Great Bridge High School in Chesapeake, was not disciplined by the local school system for the assault. Although the statements were factually true, the article implied that the assistant principal obtained preferential treatment for his son and “a great injustice took place.” The judge ruled that Webb, a public official, failed to prove that Louis Hansen published the defamatory statements about him with “actual malice.” The judge ruled that although the only possible inference of the article was that the assistant principle secured preferential treatment for his son, this did not establish the reporter had serious doubts about what he wrote or implied, although it might be considered negligence.
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A 2014 case demonstrates that successful libel suits can also come from political advertisements. Iowa state Senator Rick Bertrand, a Republican, filed suit over a campaign ad claiming that Bertrand “put profit over children’s health.” The ad, paid for by
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the Iowa Democratic Party, claimed Bertrand was a “salesman for the most unethical company in the world” and that the company Bertrand had previously worked for sold a dangerous sleeping drug for children. On appeal the Iowa Supreme Court overturned the jury’s verdict in favor of Bertrand and ruled that he could not prove actual malice as a matter of law. In writing the ad, Bertrand’s opponent and the Iowa Democratic Party conducted research that revealed the FDA and others had criticized Bertrand’s former company for selling the drug. No further investigation was done to support the implication that Bertrand himself had sold the drug. The court held there was no evidence of reckless disregard for the truth because the statements were based on reliable sources and it didn’t matter that no further research had been conducted. In ruling against Bertrand, the Iowa Supreme Court wrote, “The First Amendment protects public discourse—even in the form of withering criticism of a political opponent’s past dealings or associations—unless the lodged attack is clearly shown to be false and made with actual malice.”
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Reporters and editors who attempt to rebut a charge of reckless disregard for the truth by using information they claim came from confidential sources need to be very careful. In some instances a court will simply block the efforts by the defense to even introduce such material. A federal court in Washington, D.C., ruled that The New York Times could not use such information in defending itself from a lawsuit by Dr. Steven J. Hatfill, a germ warfare specialist who once worked for the Army. Hatfill asserted that a column by Nicholas D. Kristof suggested he was responsible for the deadly anthrax mailings in 2001. Kristof claimed he had five sources for the allegations, but refused to identify them. Three of those sources ultimately gave Kristof permission to reveal their identities, but two remain confidential. Judge Liam O’Grady ruled that information from these sources could not be introduced at trial to substantiate the allegations in the column.
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*
One evolving issue related to actual malice is the matter of the defendant’s motivation for publishing the defamatory material. Before the ruling in New York Times Co. v. Sullivan the term “malice” was related to the question, Why did the defendant make these defamatory charges? Was it simply to inform the public of a problem or a concern, or were the charges published because the defendant didn’t like the plaintiff or was angry with the plaintiff? In other words, was the publication fostered by ill will, spite or malice? The actual malice standard outlined by the Supreme Court in 1964 doesn’t address why something was published or broadcast, but focuses instead on the defendant’s state of mind at the time of publication regarding the truth of the story. The high court called this actual malice, to distinguish it from traditional or common-law malice.
The Supreme Court has ruled on at least two occasions that a showing by the plaintiff of ill will or spite is not sufficient to prove actual malice.
81 A Florida District Court of Appeals ruled in 2010 that even an intention to portray the plaintiff in a negative light, even if motivated by ill will or evil intent, is not sufficient to show actual malice unless
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the publisher intended to inflict harm through knowing or reckless falsehood. Boxing promoter Don King had argued that when statements were made during an ESPN broadcast accusing him of crooked dealings, the producers were trying to put him in a bad light.
82 But state courts in Kentucky
83 and Washington
84 have ruled that evidence of ill will and spite can be used as evidence of actual malice in some circumstances. The 2nd U.S. Circuit Court of Appeals ruled in 2001 a reporter’s bias against an organization could be relevant to show a purposeful avoidance of the truth (actual malice) if it were coupled with evidence of an extreme departure from standard investigative techniques.
85 But even those courts willing to hear such evidence have set a fairly high standard for the plaintiff to meet.
SUMMARY
In a lawsuit against a mass medium, a private person must prove that the defendant was at least negligent in publishing the defamatory matter. Negligence has been defined as the failure to exercise reasonable care or as acting in such a way as to create a substantial risk of harm. In some states, in certain cases private persons will be required to prove more than simple negligence. They may be required to prove gross negligence, which is a standard that implies a greater degree of carelessness on the part of the defendant. An individual who has been declared to be a public person for the purposes of a libel suit must prove actual malice. Actual malice is defined as knowledge of falsity or reckless disregard of the truth. Transmitting a story with the knowledge of its falsity means that the publishers of the story knew it was not true but still communicated it to the public. To prove reckless disregard for the truth, the plaintiff must show that the publisher of the defamation had a “high degree of awareness of the probable falsity of the material” when it was published or that the publisher in fact “entertained serious doubts about the truth of the material” before it was published. The courts have established a set of three criteria to help determine whether material was published with reckless disregard for the truth. The jurists tend to look at these factors:
1.
Whether there was time to investigate the story or whether the material had to be published quickly
2.
Whether the source of the information appeared to be reliable and trustworthy
3.
Whether the story itself sounded probable or far-fetched
If the item was hot news, if the source was a trained journalist and if the information in the story sounded probable, it is unlikely there will be a finding of reckless disregard. However, if there was plenty of time to investigate, if the source of the material was questionable or if the information in the story sounded completely improbable, courts are more likely to permit a finding of reckless disregard for the truth.
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INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The tort of intentional infliction of emotional distress (IIED) first appeared in the late 19th century, but was not recognized by the “Restatement of the Law of Torts,” the highly regarded synthesis of tort law published by the American Law Institute, until 1948. As noted by a federal judge in 2008, the tort was created for a limited purpose to allow recovery in those rare instances in which a defendant intentionally inflicts severe emotional distress in a manner so unusual that the victim has no other recognized theory of redress.
86 In 1965 the “Restatement” provided for the first time a definition of the tort, which has four parts:
The defendant’s conduct was intentional or reckless.
The defendant’s conduct was extreme and outrageous.
The defendant’s conduct caused the plaintiff emotional distress.
The emotional distress was severe.

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What does “extreme and outrageous” conduct mean? Courts say it means conduct that goes beyond the bounds of decency and is utterly intolerable in a civilized society. This means something much more than just insults and indignities. And what does “severe” emotional distress mean? It means the distress suffered must be substantial and enduring, not merely minor and fleeting. On this element of IIED, courts also ask if a reasonable person in the position of the plaintiff would have suffered severe emotional distress. Why do they add this “reasonable person in the position of the plaintiff” requirement? To prevent thin-skinned or so-called eggshell plaintiffs (people who are too easily offended by almost anything) from recovering damages.
What does this tort have to do with libel law? Some plaintiffs who feel blocked in their attempts to sue for libel by the First Amendment defenses erected since 1964 have sought to use IIED as an alternate legal remedy. The most notable case emerged in the 1980s. The lawsuit was prompted when Hustler magazine published a parody of a series of widely circulated ads for Campari liquor. The real Campari ads featured interviews with celebrities who discussed the first time they tasted the liquor. The printed advertisements had fairly strong sexual overtones as the subjects talked about their “first time.” Although it was apparent by the end of each “interview” the celebrities were discussing the first time they had Campari, the ads played on the sexual double entendre of the general subject of “first times.” The Hustler parody was a fictitious interview with the Rev. Jerry Falwell, an evangelical preacher who in the 1980s led a conservative political action group called The Moral Majority. Falwell described his first sexual experience as an incestuous encounter with his mother. Falwell was also characterized by the parody as a drunkard. There was a small disclaimer at the bottom of the parody, and it was listed in the table of contents as fiction.
Falwell sued the magazine for libel, invasion of privacy and intentional infliction of emotional distress. The trial judge and its publisher, Larry Flynt, dismissed the invasion of privacy claim, but sent the other two to the jury. Jurors rejected the libel claim on the grounds that the parody was so farfetched, no person could possibly believe that it described actual facts about Falwell. The jury did award the Baptist preacher $200,000 in damages for emotional distress.
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©LFP Publishing Group LLC
The November 1983 issue of Hustler Magazine featured a “parody” advertisement for Campari Liqueur that contained an “interview” with Jerry Falwell. Falwell sued for invasion of privacy, libel and intentional infliction of emotional distress.
Hustler appealed the ruling, but a unanimous three-judge panel of the U.S. Court of Appeals for the 4th Circuit upheld the damage award, noting that all the proof that was needed in such a case was that the item was sufficiently outrageous as to cause emotional harm and that it was published intentionally.
88 While most journalists did not condone the Hustler style of parody, they nevertheless viewed the decision as a serious threat to freedom of expression. The sturdy First Amendment barrier built up to protect the mass media from libel suits brought by persons in the public eye was neatly circumvented by Falwell in this case. Because of his presence as a spokesperson for the conservative religious right in this
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nation, Falwell would likely be considered a public figure in a libel action and be forced to prove actual malice before he could collect damages. In this suit he did not even have to show negligence. Nor did the broad First Amendment protection that is granted to statements of opinion apply outside the law of libel. In the future, individuals suing for satire or parody could avoid having to surmount the constitutional barriers in libel law by instead filing an action for intentional infliction of emotional distress.
Hustler appealed to the Supreme Court and in 1988, in a unanimous ruling, the high court reversed the appellate court ruling. Chief Justice Rehnquist, noting that most people would see the Hustler parody as gross and repugnant, nevertheless rejected Falwell’s argument that because he was seeking damages for severe emotional distress rather than reputational harm, a standard different from that applied in libel should apply. “Were we to hold otherwise,” the chief justice wrote, “there can be little doubt that political cartoonists and satirists would be subjected to damages awarded without any showing that their work falsely defamed its subject.” Rehnquist added:
The appeal of the political cartoon or caricature is often based on exploration of unfortunate physical traits or politically embarrassing events—an exploration often calculated to injure the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided.
89
Falwell contended it was making a mockery of serious political cartoons to compare them to the Hustler parody, which was truly outrageous. The law should protect even public figures from such outrageous caricatures. Rehnquist disagreed, noting the outrageousness standard of liability would not work.
“Outrageousness” in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of jurors’ tastes and views or perhaps on the basis of their dislike of a particular expression.
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The Court ruled that in order for a public figure or public official to win an emotional distress claim, it would be necessary to prove three things:
1.
That the parody or satire amounted to statement of fact, not an opinion.
2.
That it was a false statement of fact.
3.
That the person who drew the cartoon or wrote the article knew it was false, or exhibited reckless disregard for the truth or falsity of the material. In other words, proof of actual malice is necessary.
Typical of many of the IIED cases that have been filed is a lawsuit from Florida. The 2-year-old child of a woman named Melinda Duckett was reported missing. CNN’s Nancy Grace, a former prosecutor, interviewed Duckett by telephone for use on her nightly cable broadcast. During the interview Grace verbally attacked Duckett, intimating that she had killed her own child. Just before the interview was aired on CNN, Duckett killed herself. CNN telecast the interview anyway, and rebroadcast it several
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times thereafter. The family sued for IIED/wrongful death. It claimed the interview was solicited by Grace under false pretenses, and was used merely to increase the ratings of the cable show. The federal court denied CNN’s motion to dismiss the case, noting that the plaintiffs had correctly alleged all the needed elements of an IIED action. A trial would be needed. The judge noted that there had been very few IIED cases in Florida where damages had been awarded and affirmed, but added that courts have tended to find that conduct that would normally be merely insulting or careless can become “outrageous” if it follows the death of a family member. In 2009 Grace reached a settlement with the Duckett estate in which she agreed to establish a $200,000 trust dedicated to finding Duckett’s missing son.
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SUMMARY
The intentional infliction of emotional distress is a new tort and punishes a wide range of conduct, including the publication or broadcast of material that is outrageous and causes severe emotional distress. Courts have made it extremely difficult for plaintiffs to win such suits by placing a substantial burden of proof on the injured party. The Supreme Court added to this burden in 1988 when it ruled that public-person plaintiffs would have to show actual malice as well to win their lawsuits.
BIBLIOGRAPHY
American Law Institute. Restatement of the Law of Torts. 2nd ed. Philadelphia: American Law Institute, 1975.
Ashley, Paul. Say It Safely. 5th ed. Seattle: University of Washington Press, 1976.
Austen, Ian. “Canadian Rulings Revise Law on Libel.” The New York Times, 23 December 2009, A12.
Barron, Jerome, and C. Thomas Dienes. Handbook of Free Speech and Free Press. Boston: Little, Brown, 1979.
Lewis, Anthony. Make No Law. New York: Random House, 1991.
Lewis, Neil A. “Judge’s Ruling Bars The Times From Using Sources’ Information in Defense Against Suit.” The New York Times, 17 November 2006, A12.
McCrory, John & Robert Bernius. “Constitutional Privilege in Libel Law.” 1 Communications Law 1997.
Prosser, William L. Handbook of the Law of Torts. St. Paul, Minn.: West Publishing, 1963.
Smolla, Rodney A. Suing the Press. New York: Oxford University Press, 1986.
———. “Dun & Bradstreet, Hepps, and Liberty Lobby: A New Analytic Primer on the Future Course of Defamation.” Georgetown Law Journal 75 (1987): 1519.
Stonecipher, Harry, and Don Sneed. “A Survey of the Professional Person as Libel Plaintiff.” Arkansas Law Review 46 (1993): 303.
* For example, the ad claimed that when students at Alabama State College staged a protest, armed police “ringed” the campus. Police were at the protest, but they did not ring the campus. When students refused to register for classes as a protest, the dining hall was padlocked, the ad claimed. In fact, only a small number of students without valid meal tickets were turned away from the dining hall.
Compared with the multimillion-dollar damage awards sought today, $500,000 doesn’t sound like much. But it was a staggering amount half a century ago.
1
. New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
2
. New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
3
. Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).
4
. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
* In 2006 Britain’s highest court, the Law Lords, ruled that journalists in that nation have added protections in libel actions brought by public figures, as long as their reporting is responsible and in the public interest. This was the first time a European nation adopted a Sullivan-like libel rule. In 2009 the Canadian Supreme Court handed down two decisions that also expanded protection for journalists who are responsible in reporting on issues of public interest. Austen, “Canadian Rulings.”
5
. Rosenblatt v. Baer, 383 U.S. 75 (1966) [emphasis added].
6
. Baumback v. American Broadcasting Cos., 26 M.L.R. 2138 (1998).
7
. Silverman v. Newsday Inc., 38 M.L.R. 1613 (2010).
8
. Scaccia v. Dayton Newspapers Inc., 30 M.L.R. 1172 (2001).
9
. Press v. Verran, 589 S.W. 2d 435 (1978).
10
. See, for example, Soke v. The Plain Dealer, 69 Ohio St. 3d 395 (1994); and Clark v. Clark, 21 M.L.R. 1650 (1993).
11
. Clawson v. Longview Publishing Co., 589 P. 2d 1223 (1979).
12
. Harris v. City of Seattle, 315 F. Supp. 2d 1105 (2004).
13
. Sparks v. Reneau Publishing Inc., 35 M.L.R. 2185 (2007).
14
. Harris v. City of Seattle, 315 F. Supp. 2d 1223 (2004).
15
. Michaelis v. CBS, Inc., 119 F. 3d 697 (1997).
16
. 418 U.S. 323 (1974).
17
. See Masson v. New Yorker Magazine, Inc., 881 F. 2d 1452 (1989), for example.
18
. 602 P. 2d 1267 (1979).
19
. Wayment v. Clear Channel Broadcasting, 116 P. 3d 271 (2005).
20
. Martin v. Wilson Publishing, 497 A. 2d 322 (1985).
21
. Gertz v. Welch, 418 U.S. 323 (1974).
22
. Eric Waldbaum, Appellant, v. Fairchild Publications, Inc., 627 F. 2d 1287 (D.C. Cir. 1980)
23
. Ibid.
24
. Time, Inc. v. Firestone, 424 U.S. 448 (1976).
25
. Wolston v. Reader’s Digest, 443 U.S. 157 (1979).
26
. Hutchinson v. Proxmire, 443 U.S. 111 (1979).
27
. See Clardy v. The Cowles Pub. Co., 912 P. 2d 1078 (1996); and Carr v. Forbes, 259 F. 3d 273 (2001).
28
. American Future Systems Inc. v. Better Business Bureau of Eastern Pennsylvania, 923 A. 2d 389 (2007).
29
. Krauss v. Globe International Inc., 674 N.Y.S. 2d 662 (1998).
30
. Anaya v. CBS Broadcasting, 626 F. Supp. 1158 (2009).
31
. Foretich v. Capital Cities/ABC, Inc., 37 F. 3d 1541 (1994).
32
. Georgia Society of Plastic Surgeons v. Anderson, 363 S.E. 2d 710 (1987).
33
. Gray v. St. Martin’s Press, Inc. 221 F. 3d 243 (D.N.H. 2000).
34
. Felipe Lluberes & Juan Lluberes v. Uncommon Productions, LLC, 663 F. 3d 6 (D. Mass. 2011).
35
. Biro v. Conde Nast, 963 F. Supp. 2d 255 (S.D.N.Y. 2013).
36
. Mzamane v. Winfrey, 693 F. Supp. 2d 442 (E.D.P. 2010).
37
. Riddle v. Golden Isle Broadcasting LLC, 621 S.E. 2d 822 (2005); 36 M.L.R. 2084 (2008).
38
. Lohrenz v. Donnelly, 350 F. 3d 1272 (2003). The Supreme Court refused in 2004 to review this decision.
39
. Jewell v. Cox Enterprises Inc., 27 M.L.R. 2370 (1999), aff’d Atlanta Journal-Constitution v. Jewell, Ga. Ct. App., 29 M.L.R. 2537 (2001). In 2005 Eric E. Rudolph, who had bombed abortion clinics and a gay bar, admitted the Olympic bombing as well. Richard Jewell died on August 29, 2007.
40
. Trover v. Paxton Medical Group, 36 M.L.R. 1241 (2007).
41
. Total
Exposure.com
, Ltd. v. Miami Valley Broadcasting Corp., 34 M.L.R. 1880 (2006).
42
. Thomas M. Cooley Law School v. Kurzon Strauss LLP, 759 F.3d 522 (6th Cir. 2014).
43
. U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia, 898 F. 2d 914 (1990).
44
. 998 F. 2d 1325 (1993).
45
. Rust Evader Corp. v. Plain Dealer Publishing Co., 21 M.L.R. 2189 (1993).
46
. Revell v. Hoffman, 309 F. 3d 1228 (2002). See also Newsom v. Henry, 443 So. 2d 817 (1984); and Contemporary Mission v. New York Times, 665 F. Supp. 248 (1987), 842 F. 2d 612 (1988).
47
. Buendorf v. National Public Radio, Inc., 822 F. Supp. 6 (1993).
48
. Sipple v. Chronicle Publishing Co., 154 Cal. App. 3d 1040 (1984).
49
. Buendorf v. National Public Radio, Inc., 822 F. Supp. 6 (1993).
50
. Little Rock Newspapers v. Fitzhugh, 954 S.W. 2d 187 (1997).
51
. John McCrory & Robert Bernius, “Constitutional Privilege in Libel Law.”
52
. Chapadeau v. Utica Observer-Dispatch, Inc., 341 N.E. 2d 569 (1975).
53
. Taskett v. King Broadcasting Co., 546 P. 2d 81 (1976).
54
. Memphis Publishing Co. v. Nichols, 569 S.W. 2d 412 (1978).
55
. Peagler v. Phoenix Newspapers, 547 P. 2d 1074 (1976).
56
. Jones v. Taibbi, 512 N.E. 2d 260 (1987).
57
. Yeager v. Daily Record, 32 M.L.R. 1667 (2003).
58
. Appleby v. Daily Hampshire, 395 Mass. 2 (1985); McKinney v. Avery Journal, Inc., 393 S.E. 2d 295 (1990); and Cole v. Star Tribune, 26 M.L.R. 2415 (1998).
59
. Sometimes referred to as “the wire service defense.”
60
. Garza v. The Hearst Corporation, 23 M.L.R. 1733 (1995). See also Martinez v. WTVG Inc., 35 M.L.R. 2176 (2007).
61
. 376 U.S. 254 (1964).
62
. Goldwater v. Ginzburg, 414 F. 2d 324 (1969).
63
. Masson v. The New Yorker, Inc., 111 S. Ct. 2419 (1991).
64
. Durando v. Nutley Sun, 40 M.L.R. 1461 (2012).
65
. Garrison v. Louisiana, 379 U.S. 64 (1964).
66
. St. Amant v. Thompson, 390 U.S. 727 (1968).
67
. Eastwood v. National Enquirer Inc., 123 F. 3d 1249 (1997).
68
. Lake Park Post, Inc. v. Farmer, 264 Ga. App. 299 (2003).
69
. 388 U.S. 130 (1967).
70
. See, for example, Clyburn v. News World Communications, 903 F. 2d 29 (1990).
71
. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
72
. Bose Corporation v. Consumers Union of the United States, Inc., 446 U.S. 485 (1984).
73
. Metts v. Mims, 37 M.L.R. 2275 (2009).
74
. Kipper v. NYP Holding Co., 37 M.L.R. 1673 (2009).
75
. Ibid.
76
. Ibid.
77
. Trump v. O’Brien, 39 M.L.R. 2471 (2011).
78
. Webb v. Virginian-Pilot Media Companies, LLC, Case No. CL10-2933 (Aug. 6, 2012).
* In January 2007 the U.S. District Court granted the newspaper’s motion for a summary judgment, ruling that Hatfi ll had failed to show evidence of actual malice. Hatfill v. New York Times Co., 35 M.L.R. 1391
79
. Bertrand v. Mullin, No. 12-0649 (May 16, 2014).
80
. Lewis, “Judge’s Ruling Bars The Times.”
81
. See Harte-Hanks Communications Inc. v. Connaughton, 109 S. Ct. 2678 (1989); and Beckley Newspapers v. Hanks, 389 U.S. 81 (1967). See also Johnson v. E.W. Scripps Co., 31 M.L.R. 1503 (2003).
82
. Don King Productions Inc. v. Walt Disney Co., 40 So. 3d 2516 (2010).
83
. Ball v. E.W. Scripps Co., 801 S.W. 2d 684 (1990).
84
. Herron v. King Broadcasting Co., 746 P. 2d 295 (1987).
85
. Church of Scientology International v. Behar, 238 F. 3d 168 (2001).
86
. Conradt v. NBC Universal Inc., 536 F. Supp. 2d 380 (2008).
87
. American Law Institute, Restatement of the Law of Torts.
88
. Falwell v. Flynt, 797 F. 2d 1270 (1986).
89
. Hustler Magazine v. Falwell, 485 U.S. 46 (1988).
90
. Ibid.
91
. Estate of Duckett v. Cable News Network, LLP, 36 M.L.R. 2210 (2008).
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CHAPTER

6
Libel
DEFENSES AND DAMAGES
©McGraw-Hill Education/Jill Braaten
Libel defenses are centuries old. Most grew out of common law, but today many defenses are contained in state statutes. Before the mid-1960s, when the Supreme Court began to add substantial new First Amendment burdens upon libel plaintiffs, defenses were the primary means of warding off a defamation lawsuit. Most plaintiffs today lose because they can’t meet the required fault standard (actual malice or negligence), but defenses remain important. Not only can a libel defense protect a defendant, it also can stop a plaintiff’s case quickly, saving the publication or broadcasting
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outlet both time and money. Citing an appropriate defense, a defendant can ask a judge to dismiss a case before trial. Such a dismissal is called a summary judgment. The judge may issue such a ruling if he or she does not think the plaintiff can prove what is required, as outlined in Chapters 4 and 5, or believes the defendant had a legal right (a defense) to publish or broadcast the defamatory material. Libel defenses are the primary subject of this chapter. Following this material is a brief outline of both civil libel damages and criminal libel.
SUMMARY JUDGMENT/STATUTE OF LIMITATIONS
The summary judgment is one of the best friends a media libel defendant has. About three-fourths of media requests for a summary judgment are granted by the courts. If the defendant’s request for such a judgment is granted by the court, the case ends without a trial. Trials cost a lot of money, and the press has not established a good track record for winning cases sent to a jury. Here is a brief outline of what happens in the summary judgment procedure.
After the plaintiffs have made their initial written allegations to the court, but before the trial begins, the defendants can argue that the lawsuit should be dismissed either because the plaintiff has failed to establish what is necessary to sustain the libel suit (publication, identification, defamation, falsity and the requisite level of fault) or because there is a legal defense that blocks a successful lawsuit. Under the summary judgment process, discussed in Chapter 1, as it considers this motion by the defense, the court is obligated to look at the plaintiff’s allegation in the most favorable possible way. And if there is any dispute regarding facts (which would be settled at a subsequent trial), it must be for now resolved in favor of the plaintiff. If, having considered these factors, the court determines that a reasonable juror, acting reasonably, could not find for the plaintiff, then the motion for summary judgment will be granted.
1 The plaintiff can also ask for a summary judgment, arguing there is no possible way a jury could find for the defendant.
Imagine that Laura Parker, the editor of a small newsletter, the Iowa Consumer News, publishes a story that accuses Argot Farms, a giant corporate grain producer, of selling corn to cereal makers that has been labeled as adulterated and unfit for human consumption by the U.S. Department of Agriculture. For many years Argot has portrayed itself in television advertising as an environmentally friendly and responsible corporation. Argot sues for libel, claiming that the story is false. Parker asks the court for a summary judgment and makes two arguments to support her request:
1.
The story is true and therefore the case should be dismissed.
2.
Argot Farms, because of its heavy television advertising, is a public figure. Therefore it must have proof of actual malice to win its case. It has made no allegations regarding actual malice, only charges of simple negligence on Parker’s part.
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Argot Farms asks the court to deny the motion for a summary judgment and makes the following three arguments:
1.
It is not a public figure, simply a business trying to win customers through normal advertising. Therefore it must only show negligence.
2.
The story is false.
3.
Parker got the information for her story from an unreliable source.
In ruling on Parker’s motion for a summary judgment the court must assume that the facts, as stated by Argot Farms, are true; the story is false and the information is from an unreliable source. If the case later goes to trial, both these “facts” will be examined through the presentation of evidence. Regardless of how the trial court judge rules, the side that loses could appeal the ruling to an appellate court.
The Supreme Court has given both trial and appellate courts wide latitude in granting summary judgments in libel cases.
The Supreme Court has given both trial and appellate courts wide latitude in granting summary judgments in libel cases, especially in suits brought by public persons. In 1986 the justices said that federal courts must grant a summary judgment in favor of the media defendants in cases involving actual malice unless the plaintiffs can demonstrate that they will be able to offer a jury clear and convincing evidence of actual malice.
2 Some trial judges had been hesitant about granting summary judgments because they believed that proof of actual malice calls the defendant’s state of mind into question, which is a matter better considered at trial. But judges who force a trial even in the face of a weak libel claim are playing into the hands of those litigants who like to use the law to harass the press.
STATUTE OF LIMITATIONS
For nearly all crimes and civil actions, there is a statute of limitations. As the name suggests, these represent the limitations on the time period the prosecution or a plaintiff has for filing suit. Courts do not like stale legal claims because memories fade and evidence is lost or destroyed. Prosecution for most crimes except homicide and kidnapping must be started within a specified period of time. For example, in many states if prosecution is not started within seven years after an armed robbery is committed, the robber cannot be brought to trial. He or she is home free.
The duration of the statute of limitations for libel actions differs from state to state, from one to three years (Figure 6.1).
* In most states the duration is one or two years; this means the libel suit must be started within one or two years following the date of publication of the offending material. Courts have had to decide the date of publication for the various mass media. The consensus is:
Newspapers: The date of publication for newspapers is the date that appears on the newspaper.
Radio and television: The date of publication is the date on which the material is broadcast or telecast.
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FIGURE 6.1
Plaintiffs must file libel suits before the statute of limitations expires. This chart indicates the duration of this filing period in the 50 states.
Magazines: The date of publication is the date on which the magazine is distributed to a substantial portion of the public, regardless of the date printed on the cover of the magazine.
3 The date printed on the cover rarely coincides with the date the magazine is distributed; for example, the October issue of a magazine is usually distributed in September or even August.
Internet: The date of publication is the date the material is first posted on the Web.
What if one or a few copies of the offending material are redistributed or republished after the initial publication date? If the material is altered or revised before it is republished, the statute of limitations is restarted.
4 Many states have adopted “the single publication rule.” This rule says that the entire edition of a newspaper or magazine is
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a single publication, and isolated republication of the material months or years later does not constitute a republication. The March 1, 2017, edition of the Richmond Beach Examiner is a single publication. The statute of limitations for anything contained in that edition starts on that day. If a few copies of the paper are distributed weeks or months later, this does not restart the statute of limitations clock. If a TV station rebroadcasts material, however, this might restart the clock since some courts think this is a new publication intended to reach a new audience.
5
Because material posted on the Internet is sometimes so ephemeral and easy to modify, the question of whether the single publication rule applies to a Web posting is raised frequently. For the most part the courts have said yes, it does apply. For example, in a California case a plaintiff argued that each time a defendant added anything to a Web site, this constituted a republication of all the postings on the site. The 9th U.S. Court of Appeals disagreed, ruling that unless the allegedly defamatory statement was altered or augmented or aimed at a different audience, it was not a republication.
6 Perhaps the best statement of the rationale behind these rulings came from the 3rd U.S. Court of Appeals in 2012.
Web sites are constantly linked and updated. If each link or technical change were an act of republication, the statute of limitations would be retriggered endlessly and its effectiveness essentially eliminated.
7
Jurisdiction
Is it possible for a plaintiff who has not filed a libel suit within the statute of limitations in his or her home state to file an action in another state that has a longer statute of limitations? The answer is yes, so long as the libel has been circulated in this other state. The Supreme Court clarified this question in two 1984 rulings, Keeton v. Hustler

8 and Calder v. Jones.

9 Kathy Keeton, a resident of New York, sued Hustler magazine, an Ohio corporation, for libel in the state of New Hampshire. She did this because the statutes of limitations in both New York and Ohio had already expired. She was, in other words, too late to file in those two states. New Hampshire, however, at that time had a six-year statute of limitations. Hustler challenged the action, arguing that the suit should be brought in New York or Ohio but not New Hampshire. Only about 15,000 copies of the 1-million-plus circulation of the magazine were sold in New Hampshire, the defendant argued. A court of appeals ruled that the plaintiff had too tenuous a contact with New Hampshire to permit the assertion of personal jurisdiction in that state, but the Supreme Court unanimously reversed the ruling. Hustler’s regular circulation of magazines in New Hampshire was sufficient to support an assertion of jurisdiction in a libel action, Justice William Rehnquist wrote.
10
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The same day, the high court ruled that California courts could assume jurisdiction in a case brought by a California resident against the authors of a story that was written and published in a newspaper in Florida but circulated in California. Shirley Jones, the actress and singer who played the mother in “The Partridge Family” television show, sued two journalists for an article they wrote and edited in Florida and that was then published in the National Enquirer. At that time the Enquirer had a national circulation of about 5 million and distributed about 600,000 copies each week in California. A trial court ruled that Jones could certainly sue the publishers of the Enquirer in California, but not the reporters. Requiring journalists to appear in remote jurisdictions to answer for the contents of articles on which they worked could have a chilling impact on the First Amendment rights of reporters and editors, the court said. But again a unanimous Supreme Court disagreed, with Justice Rehnquist noting that the article was about a California resident who works in California. Material for the article was drawn from California sources, and the brunt of the harm to both the career and the personal reputation of the plaintiff will be suffered in California where the Enquirer has a huge circulation. In other words, the primary negative effect of the libel will be in California, he added. “An individual injured in California need not go to Florida to seek redress from persons who, though remaining in Florida, knowingly cause the injury in California,” Rehnquist wrote. The justice said that the potential chill on protected First Amendment activity stemming from libel actions is already taken into account in the constitutional limitations on the substantive law governing such suits. “To reinforce those concerns at the jurisdictional level would be a form of double counting,” he said.
11
Jurisdiction and the Internet
These two Supreme Court rulings stand for the proposition that publishers may be sued in any jurisdiction in which they distribute even a relatively small portion of their publication—even if the plaintiff does not reside in that jurisdiction. How does this principle apply to communication on the Internet? Any message published on the Internet is conceivably accessible in any state in the nation. Can the Web site operator or publisher of the allegedly defamatory material be sued in any or every jurisdiction? Is evidence that the message was received and downloaded by residents of the jurisdiction sufficient to begin a lawsuit in that jurisdiction? Or must there be stronger ties to the jurisdiction? The Supreme Court of the United States has passed on reviewing at least three cases that involve this jurisdiction question.
12 Lower courts seem to be more or less following one of two strategies: one that broadly applies the so-called effects test from the Calder case, or one that applies the Calder test much more narrowly. Remember, in that case the Supreme Court ruled that California courts could exercise jurisdiction over journalists who resided in Florida because the article concerned California activities of a California resident and was published in a national publication that had a large circulation in
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California.
13 But while the number of cases arising in the lower courts increases each year, there doesn’t seem to be a “one rule fits all” test emerging.
The Florida Supreme Court ruled in 2010 that a Washington resident who made defamatory comments about a Nevada corporation, whose principal place of business was Florida, could be sued in Florida. Several Florida residents had seen the article and responded to it. The court said the posting of defamatory comments online about a Florida company, comments that were accessible in Florida, constitutes committing a tortious act in Florida.
14
When an allegedly defamatory article about an Arizona corporation was placed online, the plaintiff sought to sue in an Arizona court. But a U.S. District Court ruled in 2010 that the material was not sufficiently focused on the state to generate specific jurisdiction, even if it was posted with knowledge of the company’s location.
15
The Ohio Supreme Court said in 2010 that a Virginia resident who posted allegedly defamatory comments on several Web sites may be sued in an Ohio court, even if his comments were not aimed at an audience there. When defamatory statements are made outside of Ohio, a nonresident may be sued in Ohio courts if the purpose of the statements was to cause injury to an Ohio resident.
16
On the other hand, in 2011, the 10th Circuit Court of Appeals ruled that neither simply posting material to the Internet nor hosting a Web site was enough to establish jurisdiction in an Internet defamation case. An Oklahoma man sued both the operators of a Web-based forum over an e-mail that was posted on the site and the individual who posted the e-mail. The court ruled that simply because the plaintiff’s reputation was harmed in Oklahoma, this was not enough to establish jurisdiction.
17
This recounting of these somewhat contradictory rulings is not presented to confuse the reader, but to demonstrate the lack of agreement in the courts. Where the plaintiff lives, where the defendant resides, what the defendant intended, at whom the article was aimed and what the article was about are all factors the courts are raising.
One final point: Courts in Australia and Great Britain, among others, have asserted jurisdiction in cases involving allegedly defamatory Internet messages that originated in the United States. The High Court of Australia ruled that because the plaintiff lived in Australia, and because the harm from the allegedly defamatory message did not occur until it was downloaded in Australia, the courts there could exercise jurisdiction.
18 The British case involved a U.S. resident, boxing promoter Don King, who the court said had many friends and acquaintances in England. The court ruled that the publication of an Internet posting
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takes place when it is downloaded. Please note that when a court in a foreign nation asserts jurisdiction in a libel case, the many important First Amendment protections that apply in a case tried in the United States rarely protect a defendant tried outside this country. (See page 159 for a fuller discussion of this problem.)
SUMMARY
A libel suit must be started before the statute of limitations expires. Each state determines how long this period will be. In all states it is one, two or three years for libel. A libel suit started after the expiration of the statute of limitations will be dismissed. Jurisdiction questions in Internet-based libel suits are still being sorted out by the courts, but usually are based upon where the content of the message was aimed, where the harm was caused and where the message was downloaded.
TRUTH
The First Amendment provides defendants in libel suits considerable protection. The defendant in a lawsuit filed against a newspaper or other mass medium is well defended by the constitutional fault requirements of actual malice and negligence placed on the plaintiff. But ther-e were defenses for libel even before the ruling in New York Times Co. v. Sullivan.

19 These emerged through common law and via statutes in many states. Truth, privileged communication, fair comment, consent and right of reply all work to protect the libel defendant—no matter who he or she might be. The applicability of each of these defenses in a particular case is determined by the facts in the case: what the story is about, how the information was gained and the manner in which it was published.
Traditionally, truth has been regarded as an important libel defense that completely protected defendants in lawsuits for defamation. To use this defense, the defendant was required to prove the truth of the libelous allegations he or she published. Truth is still a defense in a libel action, but it has lost much of its importance in light of recent rulings that require most libel plaintiffs to carry the burden of proving a defamatory allegation to be false when the story focuses on a matter of public concern. In those few instances when a private-person plaintiff sues for a libelous statement that does not focus on something of public concern and therefore does not have to show the falsity of the matter as a part of proving negligence, the libel defendant can escape liability in the case by showing that the defamatory matter is true. But the defendant carries the burden of proof; truth becomes a defense. The same rules apply to proving truth that apply to proving falsity, only they are reversed. The defendant must show that the allegations are substantially true. Extraneous errors will not destroy the defense. See pages 172–175 to refresh your memory on these matters.
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PRIVILEGED COMMUNICATIONS
The people of the United States have traditionally valued robust debate as one means of discovering the truths essential to building consensus. The law takes pains to protect this debate, making sure that speakers are not unduly punished for speaking their minds. Article 1, Section 6 of the federal Constitution provides that members of Congress are immune from suits based on their remarks on the floor of either house. This protection is called a privilege. The statement in question is referred to as a privileged communication.
ABSOLUTE PRIVILEGE
Today, privilege attaches to a wide variety of communications and speakers.
Today this privilege, sometimes called the privilege of the participant, attaches to a wide variety of communications and speakers. Anyone speaking in a legislative forum—members of Congress, senators, state representatives, city council members and so forth—enjoys this privilege. In 2005, appellate courts in Colorado and Illinois ruled that the privilege applied to statements made during meetings of a county hospital board and a city council zoning committee, respectively.
20 Even the statements of witnesses at legislative hearings are privileged. But the comments must be made in the legislative forum. The Supreme Court ruled in 1979 that while a speech by a senator on the floor of the Senate would be wholly immune from a libel action, newsletters and press releases about the speech issued by the senator’s office would not be protected by the privilege. Only speech that is “essential to the deliberations of the Senate” is protected, and neither newsletters to constituents nor press releases are parts of the deliberative process.
21
Similarly, the privilege attaches to communications and documents made in judicial forums—courtrooms, grand jury rooms and so forth. Judges, lawyers, witnesses, defendants, plaintiffs and all other individuals are protected so long as the remark is uttered during the official portions of the hearing or trial and the statement or document is in some way relevant to the proceeding. An attorney in Pennsylvania filed a complaint in a lawsuit and then faxed a copy to a reporter. He was sued for libel by the person named in the complaint, who argued that when he sent the complaint to the journalist, he was publishing its defamatory allegations. The attorney argued that since the complaint was a privileged judicial document, which it is, his act of sending the complaint was also privileged. The Supreme Court of Pennsylvania disagreed, ruling that sending the document to a reporter was an extrajudicial act and was not relevant in any way to the legal proceedings.
22
Finally, people who work in the administrative and executive branches of government enjoy the privilege as well. Official communications including reports, policy statements, even press conferences, presented by presidents, governors, mayors, department heads and others are protected. The Supreme Court of the United States ruled in 1959 that the privilege applies to any publication by government officials that is in line with the discharge of their official duties.
23 This case involved a press release issued by an official
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explaining why two federal workers were fired. The New York Court of Appeals echoed this ruling 20 years later when it said that a press release issued by an assistant attorney general concerning the investigation of a possible fund-raising scam was protected by the privilege.
24 The difference in the manner in which the courts treated the press releases by Sen. William Proxmire in a case noted previously (see page 189) and the two cases just cited stems from the different roots of the privilege. The congressional privilege stems directly from the U.S. Constitution and is limited by constitutional language that focuses on the deliberative process and lawmaking. Proxmire’s remarks fell outside these boundaries. The common law and/or state statutes are the sources of all other parts of the privilege, and courts have construed this protection quite liberally.
The privilege just discussed is an
absolute privilege. The speaker cannot be sued for defamation on the basis of such a remark. A similar kind of privilege applies also to certain kinds of private communications. Discussions between an employer and an employee are privileged; the report of a credit rating is privileged; a personnel recommendation by an employer about an employee is privileged. These kinds of private communications remain privileged so long as they are not disseminated beyond the sphere of those who need to know.
QUALIFIED PRIVILEGE
What is called
qualified privilege goes far beyond the absolute immunity granted to speakers at public and official meetings and the conditional immunity granted to certain types of private communications. Under the qualified privilege, an individual may report what happens at an official governmental proceeding or transmit the substance of an official government report or government document and remain immune from libel even if the publication of the material defames someone. This is how the privilege is outlined in the “Restatement of the Law of Torts”:
The publication of defamatory matter concerning another in a report of any official proceeding or any meeting open to the public which deals with matters of public concern is conditionally privileged if the report is accurate and complete, or a fair abridgment of what has occurred.
25
Actually, this definition of the privilege in the “Restatement” is a bit conservative, as courts continually extend the protection of qualified privilege to reports of more diverse kinds of government activity. This qualified privilege is sometimes called the privilege of the reporter, as opposed to the absolute immunity noted previously, which is often referred to as the privilege of the participant. The use of the term “reporter” signifies anyone who reports on what has happened, as opposed to the journalistic meaning of the term, a newspaper or television reporter.
CRITERIA FOR APPLICATION OF QUALIFIED PRIVILEGE
Report of a privileged proceeding or document
A fair and accurate summary published or broadcast as a report
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At the start, it is important to note that qualified privilege is a conditional privilege; that is, the privilege works as a libel defense only if certain conditions are met. First, the privilege applies only to reports of certain kinds of meetings, hearings, proceedings, reports and statements. Second, the law requires that these reports be a fair and accurate or truthful summary of what took place at the meeting or what was said in the report. The privilege is not lost even though there are allegations of actual malice against the reporter. The “Restatement of the Law of Torts” states: “The privilege exists even though the publisher himself does not believe the defamatory words he reports to be true, and even when he knows them to be false.”
26 Most state courts follow this rule.
27
The defendant bears the burden of proving that the privilege applies to the libelous material. The court determines whether the particular occasion (meeting, proceeding, report) is privilege. The jury determines whether the defendants report of the occasion is a fair and accurate report.
Before going into the details relating to the application of this defense, let’s look at a brief hypothetical example. During a meeting of the Mayberry City Council, Councilman Floyd Lawson, while discussing an increase in the garbage rates for city residents, says this: “Allied Garbage Co., which supposedly gives us a good rate to pick up the trash, is run by a bunch of crooks who are intent on cheating this city and all its citizens. I mean, I read it in the newspaper. These guys are a part of organized crime.” Because of the protection of the absolute privilege, the owners of Allied Garbage cannot sue Lawson. When the reporter who attended the meeting includes this comment in her story, the newspaper also is shielded from a lawsuit so long as the story is a fair and accurate summary of what Lawson said: “Councilman Floyd Lawson charged last night during a city council meeting that the owners of Allied Garbage Co. are a part of organized crime and are cheating the city.”
Courts have found the privilege applies to:
Legislative proceedings
Judicial proceedings
Executive actions
The privilege applies to what occurs during meetings of legislative bodies, from the U.S. Congress down to a meeting of a village council or a water district board. But courts have ruled that only what is said during the official portion of the meeting is included within the protective ambit of the defense. The privilege also applies to the reports of committee meetings of such organizations as well as to stories about petitions, complaints and other communications received by these bodies. The only requirement that must be met with regard to this aspect of the privilege is that the official body, such as a city council, must officially receive the complaint or petition before the privilege applies. The privilege usually applies to stories about the news conferences of members of a legislative body following a session, to stories about what was said during a closed meeting by the body and to stories about what was said during an informal gathering of legislators before or
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after the regular session, especially if what is said or what occurs during these kinds of events is of great public interest.
The privilege of the reporter also applies to actions that take place in judicial forums: testimony and depositions of witnesses, arguments of attorneys, pronouncements of judges and so forth. Stories about trials, decisions, jury verdicts, court opinions, judicial orders and decrees and grand jury indictments are all protected by the privilege. In 2011 a New York Supreme Court ruled that material contained in a criminal complaint was privileged.
28 Probably the most difficult problem a reporter on the court beat has to face is what to do when a civil lawsuit is initially filed. Under our legal system a lawsuit is started when a person files a complaint with a court clerk and serves a summons on the defendant. The complaint is filled with charges, most of which are libelous. Can a reporter use that complaint as the basis for a story?
In some states a complaint that has been filed is not considered privileged until some kind of judicial action has been taken.
29 The scheduling of an appearance by the litigants may be sufficient judicial action to cloak the document with the privilege. This rule, which requires a judge to become involved in the matter before the complaint is privileged, is designed to protect an innocent party from being smeared in a news report written about a lawsuit that has been filed but then quickly withdrawn. More and more states today follow the rule that the complaint becomes privileged as soon as it has been filed with the court and a docket number has been assigned or the defendant has been issued a summons.
30 Two cautionary notes are important. A reporter should never take a lawyer’s word that the lawsuit has been filed. The announcement may be a hoax to get publicity favorable to a client. A call to the courthouse is always in order. Also, ignore what the lawyer says about the case when he or she proclaims that the legal action has been filed. Normally, only comments or material contained in the formal judicial proceedings or court documents are protected by privilege.
Stories about those parts of the judicial process that are closed to the public may or may not be protected by the privilege. For example, court sessions for juveniles and divorce proceedings are frequently closed to protect the privacy of the individuals involved.
31 Some states regard these closures as important public policy and attempt to discourage publicity about such proceedings by denying the mass media the opportunity to apply the privilege if a lawsuit should result from press coverage. But this rule is changing. The 9th U.S. Circuit Court of Appeals has ruled that under California law, the press enjoyed the privilege to publish reports of proceedings in a family court that excluded the general public during its hearings.
32 And a broad reading of U.S. Supreme Court rulings in certain privacy lawsuits that were generated because of press reports of court hearings suggests that the First Amendment may place substantial limits on libel plaintiffs as well as those who are suing because of a report of a closed legal proceeding.
33
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As the evolution of the privilege proceeds, there is considerable litigation today about its application to elements in the so-called executive branch of government. Reports of the statements and proceedings conducted by mayors, department heads and other administrators and agencies, including law enforcement agencies, are usually shielded by the privilege.
The defense is generally confined to stories about speeches, reports, hearings or statements that are official in nature, things that are substantially “acts of state.” The law sometimes requires officials to undertake certain actions; other times, the actions are logical extensions of their official responsibilities. Reports based on confidential reports
34 or closed hearings that focus on governmental misconduct have been protected by the privilege. In the case of the closed hearing the Massachusetts Supreme Judicial Court official government actions include those conducted behind closed doors.
35
Reporters get volumes of information from the police and other law enforcement agencies. How much of this information is privileged? More and more each day. For decades a report that an individual has been arrested and charged with a crime has been protected by the privilege. Typically this was information contained on official police documents—called the blotter in some places, or the jail register in others. Today much more is protected. The Oklahoma Court of Civil Appeals ruled in 2010 that a police press release and press conference related to the search for a suspect were official functions of the police department and protected by the privilege.
36 Statements made to a reporter by a sheriff during an interview about an investigation were privileged, the Georgia Court of Appeals ruled in 2009.
37 The privilege can apply even if the information provided by the police is erroneous. A Florida judge wrote in 2007, “It will be inevitable that on occasion the media will publish information from government sources that turns out to be inaccurate. While this may be irritating to the subject of the newspaper or television reports, this is a small price to pay for the benefits the public receives from the privilege.”
38 And in 2009 the Arkansas Supreme Court ruled that witness statements contained in case reports were protected by the privilege even though these statements should not have been released.
39
Caution needs to be exercised here, however. The privilege surely does not apply to every statement made by every police officer on every topic. The Idaho Supreme Court refused to apply the privilege to statements that were made privately to a reporter by a police officer. The court said these statements went beyond the official police reports, which are clearly privileged documents.
40 Another note of caution. Some American courts have refused to allow the privilege defense when the document that contained the defamatory statement was not generated in the United States. In 2005, a U.S. District Court refused to allow the privilege defense to protect allegations that two Russians were involved in corrupt and criminal conduct. The court said, “the privilege is unavailable to
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defendants in this case because it does not extend to official reports of the actions of a foreign government.”
41
The privilege is not confined to those instances of reporting official government proceedings. The Washington Supreme Court ruled that the reporting of the charges on recall petitions is privileged.
42 A federal court in Idaho ruled that the privilege applied to a story about a meeting called by citizens to protest the actions of a judge. It clearly was not an official meeting but concerned important public business, the conduct of a public official.
43 The “Restatement of the Law of Torts” says that reports of what occurs at meetings open to the public at which matters of public concern are discussed are privileged.
44 In such a circumstance, the report of a public meeting, the key element undoubtedly is the subject of debate. Was it of public concern? Was it of limited public concern? Was it a purely private matter?
NEUTRAL REPORTAGE
In 1977 the 2nd U.S. Court of Appeals created a new variety of qualified privilege called
neutral reportage.

45 In a nutshell this privilege says that when the press reports newsworthy but defamatory allegations made by a responsible and prominent source, these reports are privileged, even if the reporter believed the allegations were false when he or she included them in the story. Very few other courts have joined the 2nd Circuit in accepting this privilege.
46 Most other courts that have been confronted with the defense have rejected it, including the Pennsylvania Supreme Court.
47 These courts have argued that neutral reportage is incompatible with previous Supreme Court rulings such as Gertz v. Robert Welch Inc., that it is unnecessary because of other high-court rulings, or that there is simply no basis in the law to support the defense. Neutral reportage is simply not a viable defense in most jurisdictions. The few courts that have accepted this defense seem to agree that it has four distinct elements.
The defamatory allegations must be newsworthy charges that create or are associated with a public controversy.
The charges must be made by a responsible and prominent source.
The charges must be reported accurately and neutrally.
The charges must be about a public official or public figure.
48
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ABUSE OF PRIVILEGE
A court will ask whether the story is a fair and accurate or true report of what took place or what is contained in the record.
Whether qualified privilege applies to a particular story is the first part of the test. Next, a court will ask whether the story is a fair and accurate or true report of what took place or what is contained in the record.
Fair means balanced. The story should be complete and include all sides of a contentious dispute. If at a public meeting speakers both attack and defend Conrad Nagel, the story should reflect both the attack and the defense. If a court record contains both positive and negative references about the subject, the news account should contain both kinds of references as well. If a reporter writes a story about a lawsuit that has been filed against a local doctor, the story should also contain the doctor’s response to the charges. There must be balance; that is the key.
An accurate or true report means that the story should honestly reflect what is in the record, or what was said. The story doesn’t have to be a verbatim account of what was said. The California Court of Appeals noted, “The privilege applies unless the differences between the facts and the manner in which they are described are of such a substantial character that they produce a different effect on the readers.”
49 The story must be an accurate summary of the statement or document. If the original statement or document contains erroneous material, it will not affect the privilege. But stories that contain even seemingly small errors can lose the privilege, if the errors are such that they change the impact of the report in the minds of the average reader.
A newspaper in Ohio reported that a sergeant in the local police department was terminated because he “had sex with a woman while on the job.” The woman was a female police dispatcher. An arbitration hearing was held when the officer denied the charges. The arbitration report concluded that the officer had made sexual remarks to the woman, but there was not conclusive evidence that he had ever touched her and no evidence to support the charge of having sexual relations with her. When the officer sued the newspaper for libel, the defendant argued that the story was essentially an accurate summary of the hearing report. The court disagreed. The court ruled that while there was evidence that there was some type of sexual relationship between the officer and the female officer, there was nothing in the arbitration report or a subsequent judicial review of the findings that said the officer had sexual relations with her while on the job. The story was not accurate because it did not contain the essence of the official reports.
50
Other kinds of errors are not as important. A Spokane, Wash., newspaper was sued after it reported that a businessman had lost a $250,000 judgment in a suit brought against him by Microsoft. The software maker accused T. James Le of selling counterfeit copies of Microsoft software. There were a few minor inaccuracies in the
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story, which was based on a privileged court file. One statement was false. The story said that Le had sold counterfeit copies of Office Pro and Windows 95 in December 1998. Actually, he sold only copies of Windows 95 in December 1998. But the Washington Court of Appeals ruled that the error was insubstantial. “Viewed in context with the entire story, the challenged passage is substantially accurate and fair as a matter of law,” the court said.
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The story should also be in the form of a report. If defendants fail to make it clear that they are reporting something that was said at a public meeting or repeating something that is contained in the public record, the privilege may be lost. The law says the reader should be aware that the story is a report of what happened at a public meeting or at an official hearing or is taken from the official record. These facts should be noted in the lead and in the headline if possible, as noted in the following boxed example.
AT CITY COUNCIL SESSION: MAYOR BLASTS CONTRACTOR WITH CHARGES OF FRAUD
Mayor John Smith during a city council meeting today charged the Acme Construction Company with fraudulent dealings.
The U.S. Court of Appeals for the District of Columbia Circuit ruled that qualified privilege did not apply to a magazine summary of statements contained in an official report from the National Transportation Safety Board. The report is an official record; it is clearly covered by the reporter’s privilege. But the summary in the magazine gave readers no clue that the statements constituted a summary of an official document. “The challenged [defamatory] assertion is simply offered as historical fact without any particular indication of its source,” the court said. The reader was left with the impression that the author of the article reached the conclusion contained in the defamatory allegations based on his own research.
52
One last point needs to be made. Traditionally, under the common law, if even a fair and true report was published not to inform the public but because the publisher wanted to hurt the target of the defamation, the privilege could be lost. Courts called this intent to harm the plaintiff common-law malice because the publisher had a malicious intent. In most states today, even if the plaintiff is able to prove common-law malice, the privilege will still protect the publisher. But this protection is not the law everywhere. The Minnesota Court of Appeals decided in June 1999 that proof of common-law malice can defeat the privilege in that state.
53 Be forewarned.
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SUMMARY
The publication of defamatory material in a report of a public meeting, legislative proceeding or legal proceeding or in a story that reflects the content of an official government report is conditionally privileged. The privilege extends to the meetings of all public bodies, to all aspects of the legal process, to reports and statements issued by members of the executive branch of government and even to nonofficial meetings of the public in which matters of public concern are discussed. Such reports cannot be the basis for a successful libel suit as long as the report presents a fair (balanced) and accurate (truthful) account of what took place at the meeting or what is contained in the record.
PROTECTION OF OPINION
The law has traditionally shielded statements of opinion from suits for defamation.
The law has traditionally shielded statements of opinion from suits for defamation. Opinion is a basic part of mass media in the 21st century, with art, music, film and television reviews; political commentary; news analysis; editorials and even advertising. Opinion-filled exchanges, often heated and exaggerated, are part of the basic political and social discourse in the United States. For several centuries a common-law defense, called fair comment and criticism, was the shield used to protect opinion statements from libel suits. In the past 45 years, however, two other defenses have been added, and there is some question whether the common-law protection afforded to opinion statements by the fair comment defense is needed or viable. In the following pages we examine all three of these potential defenses.
THE RIGHT TO LEAVE A BAD YELP REVIEW
In 2016, Congress passed and President Obama signed the Consumer Review Fairness Act. The law, which passed with bipartisan support, came after years of legal efforts to overturn so-called gag clauses in contracts. These clauses, which have been included in the fine print of sign-up forms and purchase agreements, are designed to prevent consumers from public criticism of companies. Opponents of these clauses say they are used by businesses to stifle free speech.
Such clauses are banned under the new law. The law also prohibits businesses from imposing a penalty or fee on a client if they write a bad review. Yelp, whose users have been sued by companies over negative reviews, said the Act “gives Americans nationwide new guaranteed legal protections when it comes to sharing these honest, first-hand experiences.”
Any business that violates the law will be fined up to $2,500 upon first violation and $5,000 for following violations. Consumers can receive up to $10,000 if they can prove the business acted recklessly in violating the law.
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RHETORICAL HYPERBOLE
In the late 1960s, a real estate developer had engaged in negotiations with a local city council for a zoning variance on some land he owned. At the same time the developer was also negotiating with the same city council regarding another parcel of land that the city wanted him to buy. The local newspaper published articles on the bargaining and said that some people had characterized the developer’s negotiating positions as “blackmail.” The libel suit that followed ultimately found its way to the U.S. Supreme Court. The high court rejected the plaintiff’s notion that readers would believe the developer had committed the actual crime of blackmail. “Even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered the [developer’s] negotiating position extremely unreasonable.”
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Four years later the high court rendered a similar ruling in a case involving a dispute among postal workers. The National Association of Letter Carriers was trying to organize workers at a post office in Virginia. The monthly union newsletter included the names of those who had not yet joined the union under the heading “List of Scabs.” Quoting the author Jack London, the newsletter said a scab carries a tumor of rotten principles where others have heart and is a traitor to his God, his country, his family and his class. A postal worker sued, claiming he was not a traitor. The high court cited the earlier decision in Greenbelt and said it was impossible to believe that any readers would have understood the newsletter to be charging the plaintiff with the criminal offense of treason. It was rhetorical hyperbole—lusty, imaginative expression.
55
Opinion statements, then, may be defended as being unbelievable rhetoric.
Opinion statements, then, may be defended as being unbelievable rhetoric. Here are some examples of the kinds of statements courts have ruled are rhetorical hyperbole:
Comments were made by a talk-show host that U.S. government contractors at the infamous Abu Ghraib prison in Iraq were “hired killers” and “mercenaries” who could kill without being held to account.
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Charges were made by a New York City council member that a disc jockey was a “sick, racist pedophile, a child predator,” and a “lunatic” who must be put behind bars and “should be terminated from the face of the earth.”
57
In 2013, a federal district court ruled that statements made during the 2012 election cycle were protected opinion because they were part of a heated political debate. The court ruled that calling campaign contributions to Mitt Romney “dirty” or “tainted” was protected opinion because the terms were loose and not susceptible of being proven true or false.
58
Rhetorical hyperbole is protected, then, because the language is so expansive that the reader or listener knows it is only an opinion, that it is not an assertion of fact. The tone of the language is normally the key. But in cases of satire or parody, the writer or broadcaster
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must be certain that a reasonable reader will in fact realize that the assertions are not meant to be taken as statements of fact. And this can be a close call sometimes. In 2002 a Texas appellate court was faced with a difficult case after a Dallas alternative weekly newspaper published what was purported to be a news story but was actually a fictional satirical piece. A seventh grader in the small town of Ponder, Texas, had been held in juvenile detention for five days after he read a Halloween story to his classmates that was laced with references to drugs and violence. Local authorities said the story amounted to a threat of violence and punished the boy. A reporter for the Dallas Observer apparently thought the punishment was nonsense and wrote a satirical fictional story about the same Ponder judge and prosecutor. The satire said authorities locked up a first-grade girl for preparing a report on Maurice Sendak’s Where the Wild Things Are, a popular children’s book. The story described the 6-year-old as being shackled in court and quoted the prosecutor as saying he had not yet decided whether to try the child as an adult. The story mentioned the earlier case, but everything else was pure fiction. It was published under a “News” heading in the newspaper. Some readers apparently thought the story was factual, and many complaints were filed against the two public officials. The judge and prosecutor sued for libel. The newspaper sought a summary judgment, arguing that the column was rhetorical hyperbole. The trial court rejected the motion and an appellate court affirmed the refusal. The court said the story had to be viewed in the light of several years of media attention to violence in the schools. The court added that the earlier real incident occurred in Ponder and involved two of the public officials quoted in the satirical column.
59 The Texas Supreme Court reversed and granted the summary judgment, ruling that reasonable readers would not understand the story as stating actual facts. There were clues within the column that the column was fiction, the court said, noting that the judge was quoted as calling for “panic and overreaction.” The story also quoted former Texas Gov. George W. Bush as stating that Maurice Sendak’s book “clearly has deviant sexual overtones,” and that “zero tolerance means just that. We won’t tolerate anything.” The court said the article did have a superficial degree of plausibility, but that is the hallmark of satire.
60 The paper won in the end, but it took about five years and undoubtedly cost a considerable sum. Satirists need to be careful.
Rhetorical hyperbole is a powerful defense, but it is not unassailable. And Web users especially must be careful. Communication on the Internet by nonprofessionals is often driven by emotion, not thought. Users often don’t even think about incurring liability for the comments they post. In 2017, a New York court dismissed a lawsuit against President Donald Trump based on a tweet made while he was a candidate. In January 2016, political consultant Corey Lewandowski appeared on CNN to criticize Trump’s decision to skip a primary debate on Fox News. Later, she appeared on CNN again stating she doubted Trump’s claims that he intended to self-finance his presidential bid. In response, Trump tweeted that after she begged him for a job, he had “turned her down twice and she went hostile. Major loser, zero credibility.” The court ruled that Trump’s language was “loose, figurative, hyperbolic reference to [Lewandowski’s] state of mind” and was therefore not capable of verification. Context, the court noted, was key in determining whether a statement was opinion. Trump’s tweets, according to the
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court, were typically vague and simplistic insults not worthy of serious consideration. The court wrote, that to some “truth itself has been lost in the cacophony of online and Twitter verbiage to such a degree that it seems to roll off the national consciousness like water off a duck’s back.”
61
THE FIRST AMENDMENT
The Supreme Court ruled in 1991 that a statement of “pure opinion” on a matter of public concern is protected by the First Amendment.
62 A libel action based on such a statement cannot succeed. Courts across America have adopted this principle as a fundamental rule of libel law. There has been substantially less agreement, however, on how to identify a statement of “pure opinion.” Chief Justice Rehnquist, the author of the 1991 ruling, said a statement of pure opinion is a statement that is incapable of being proved true or false. Pure opinion, Rehnquist said, does not assert or even imply a provably false fact.
The Supreme Court decision flowed from a case in which an Ohio sports columnist wrote that a high school wrestling coach and a school superintendent “lied” during a hearing in which they argued for the reinstatement of the wrestling team, which had been disqualified from participating in the state wrestling tournament. It’s hard to know what writer Ted Diadiun really meant when he wrote his column, but after a libel suit was filed against the newspaper, the sportswriter argued that he was simply stating his opinion that the coach and the school superintendent had not been honest when they testified at the hearing.
The case meandered through state and federal courts for nearly 15 years before the Supreme Court ultimately ruled in 1991 that Diadiun’s statement was an assertion of a fact, not simply an opinion. Rehnquist said the columnist would not have helped his case had he written “In my opinion, Milkovich [the coach] lied” or “I think Milkovich lied.” He is still asserting a fact. He is telling readers, the chief justice said, that “I know something that leads me to believe that this man lied under oath.” And this is the assertion of a fact, nothing more, nothing less. The newspaper ultimately paid $116,000 in damages to the plaintiffs. More important, perhaps, the publication spent close to a half million dollars defending itself.
It is unusual for lower courts to reject outright a principle of law enunciated by the Supreme Court, but that is what has happened in this case. The majority of lower courts in the United States that since 1991 have decided cases involving statements of opinion have indicated a dissatisfaction with the Milkovich standard. The consensus seems to be that defining an opinion statement using the single criterion of proving a statement true or false is far too conservative, that it would deny First Amendment protection to statements that an author intended to be opinion and that a reader or viewer would assume was opinion.
Many courts have gravitated to a different test for determining whether a remark is intended as an assertion of fact or a statement of opinion. This test includes the criterion outlined by the high court—can the statement be proved true or false—but requires the court to look at other dimensions of the published comment as well.
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The
Ollman
Test
In 1984 the U.S. Court of Appeals for the District of Columbia Circuit outlined a four-part test to determine whether a statement should be regarded as the assertion of a fact or as simply the speaker’s or writer’s opinion. The test, which emerged from the case of Ollman v. Evans,

63 is known as the Ollman test for obvious reasons. Here are the four elements:
Can the statement be proved true or false? This is the basic test from Milkovich.
What is the common or ordinary meaning of the words? Some words that appear to be factual assertions are more often used as statements of opinion. If you call someone a turkey, you don’t really mean to suggest that the person has feathers and says gobble-gobble. Calling someone a moron doesn’t normally mean that his or her IQ score is way below average.
What is the journalistic context of the remark? Newspaper readers expect to find factual assertions in news stories on the front page. They don’t expect to find facts in editorial columns, they expect to find opinions. NBC news anchor Brian Williams gives us the news; Rush Limbaugh gives us his opinions, no matter how he happens to word the statements.
What is the social context of the remark? Certain kinds of speech are common to certain kinds of political or social settings. The audience attending a lecture by an eminent scientist on the need to vaccinate young children is expecting to hear facts. In a debate between two candidates for the legislature, the audience is prepared to hear opinion. Labor disputes, political meetings, protest rallies and other such settings usually generate high-spirited and free-wheeling commentary. People don’t usually expect to hear factual assertions.
OLLMAN
TEST
1.
Can the statement be proved true or false?
2.
What is the common or ordinary meaning of the words?
3.
What is the journalistic context of the remark?
4.
What is the social context of the remark?
The first important court to reject the single-criterion Milkovich test was the New York Court of Appeals, the high court in that state. The case, Immuno, A.G. v. Moor-Jankowski,

64 involved a scholarly scientific journal. The journal published a letter from a researcher who asserted that a plan by an Austrian pharmaceutical company to establish a laboratory in Sierra Leone that would use chimpanzees for research on hepatitis was simply a ploy to avoid the restrictions in place in western Europe and North America that prohibit the importation of the primates, which are regarded as an endangered species.
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The researcher, Dr. Shirley McGreal, further asserted that the plan could cause serious harm to the chimpanzee population in the region. The comments were published in a letter to the editor and were prefaced by an editorial note that identified McGreal as an animal rights advocate and stated that the company, Immuno, A.G., regarded the charges as inaccurate and reckless. The state high court said the letter was protected opinion. Under the single-criterion Milkovich standard, some of the statements would likely be regarded as factual assertions. But Chief Judge Judith Kaye rejected the single-criterion test, calling it a “hypertechnical” test that paid no attention to contextual matters. The defamatory matter was published in a letter to the editor, a forum where readers expect to find opinion statements. The page carried a warning that the views expressed in the letters were those of the letter writers. Judge Kaye noted that the readers of this journal were highly specialized researchers who were aware of the ongoing debate over the use of primates in medical research. The statements were protected, the court ruled, under the free press provisions of the New York state constitution.
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In 2010 a federal court in Virginia was faced with a libel suit not unlike the Immuno case. The plaintiff was Barbara Arthur, who is co-founder of the National Vaccine Information Center, an organization that is arguing that mandatory childhood vaccinations for measles, mumps and other such diseases should stop, because the vaccinations cause autism in children. The defendant was Dr. Paul Offit, a pediatrician and infectious disease specialist. Arthur writes books, serves on committees, appears on radio and TV and spends a good deal of time attacking Offit, who she says walks in lockstep with the pharmaceutical industry and demonizes caring parents. In a magazine feature story on Offit, “An Epidemic of Fear: One Man’s Battle Against the Anti-Vaccine Movement,” the doctor is quoted as saying Arthur’s theories make him crazy: “You just want to scream because she lies.” Offit added, “I’m in this for the same reason she is, I care about kids.”
Arthur said the statement “she lies” was false and defamatory. The court dismissed the claim, ruling that the statement was just emphatic language, an expression of outrage, and did not suggest Arthur lacked honesty or integrity. The court added:
Both the nature of the statement—including that it was quoting an advocate with a particular scientific viewpoint and policy position—and the statement’s context—a very brief passage in a lengthy description of an on-going heated public controversy—confirms that his is a protected expression of opinion.
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Both a U.S. District Court and the 9th U.S. Circuit Court of Appeals have ruled that a statement published in a New York Post column about the late Johnnie Cochran, one of O.J. Simpson’s attorneys, was protected by the First Amendment. The columnist called Cochran a “legal scoundrel” who “will say or do just about anything to win, typically at the expense of the truth.” The trial court ruled that the tenor of the column and the context of the statements dictated the readers would view the remarks as opinion, not allegations of fact. The appellate court agreed.
67 And the 1st U.S. Circuit Court of Appeals ruled that statements in a biography of Robert K. Gray that said the former Republican politician and public relations practitioner had faked his closeness to
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Ronald Reagan and other senior administration officials were protected opinions. “This is just the kind of subjective judgment that is only minimally about ‘what happened,’ but expresses instead a vague and subjective characterization of what happened,” the court said.
68 Again, context was a key.
It is often important to support opinion statements with facts unless the comments are obviously simply opinions. A hotel sued a Web site that reviewed hotels after the resort hotel was included on a list of “2011 dirtiest hotels.” The plaintiff complained that this was a statement of fact, but the federal court ruled that no reasonable person would confuse a ranking system, which uses consumer reviews for its ratings, for an assertion of facts.
69 Courts have also ruled that if the facts in a dispute are well known, opinion statements based on these facts don’t have to be fully outlined with the opinion statements. Recently, two courts dismissed defamation suits after ruling the statements were opinions based on facts that were disclosed. The Massachusetts Supreme Judicial Court held articles published in the Boston Herald regarding the suicide of Brad Delp, the lead singer of the band Boston, were protected. The newspaper was sued for an article that discussed potential reasons for Delp’s suicide. In ruling in favor of the newspaper, the court concluded the reasonable reader would have concluded the statements were opinion and deduction based on the disclosed facts.
70 A federal district court ruled that a Forbes article written by Dolia Estevez, a part-time correspondent for the Mexican media company Noticias MVS and Forbes contributor, was protected. Alejandra Sota Mirafuentes, a former spokesperson and advisor to former Mexican President Felipe Calderon, sued arguing she was defamed in an article titled, “The 10 Most Corrupt Mexicans of 2013.” The court ruled the article was protected opinion because there was no way to determine who was “most corrupt.” In addition, the decision to place Sota on the list was supported by the facts that Sota was being investigated by Mexican authorities for alleged embezzlement and trafficking and she attended Harvard’s Kennedy School without a bachelor’s degree. The court held that because the bases of the conclusion were fully disclosed and the article did not imply any further facts that were not disclosed, a reasonable reader would consider the conclusion to include Sota on the list to be the opinion of the author.
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But care must be exercised. The facts used to support the opinion must be correct. The pure opinion defense will not protect false facts contained in an opinion statement. Courts have ruled that some statements of opinion suggest the author has knowledge of defamatory facts that have not been disclosed, and these statements of what courts call mixed facts and opinion might fall outside the First Amendment protection given to pure opinion. When an executive told the New York Post that he had fired an employee because “she had a lousy work ethic,” and that “she was the highest paid person in the company who did the least amount of work,” he was suggesting he knew certain facts, unknown to the audience, that supported his opinion, facts that are detrimental (and hence defamatory) to the person about whom he is speaking, the New York Supreme Court ruled.
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AN UNVERIFIABLE STATEMENT OF OPINION CAN LOSE ITS PROTECTION IF IT
implies the existence of false, defamatory but undisclosed facts,
is based on disclosed but false or incomplete facts, or
is based on erroneous assessments of accurate information.
Leaving out facts in a story can also be a problem when the defendant attempts to assert the opinion defense. It could give readers an impression of the plaintiff that was unintended by the opinion writer. A case in point was decided several years ago in Rhode Island.
A man picketing and protesting the dismissal of an employee at a YMCA branch collapsed. The president of the branch was a physician who was conducting a board meeting while protesters marched outside. When he was informed that a picketer had collapsed, he offered his assistance. He was told his help was not needed because an aid unit was expected momentarily. When the protester died, the story received widespread publicity. The press reports included criticism of the doctor for not aiding the stricken man. All the stories left out the fact that the physician had offered to help the victim. The doctor sued and argued that the stories made him appear to be indifferent, uncaring and even callous. The defendants argued that the defamatory criticisms were opinions. A jury agreed with the plaintiff, noting that by leaving out the essential fact that the doctor had offered to help, the stories implied something that was untruthful.
73 The absence of this information turned protected opinion statements into defamatory factual allegations.
FAIR COMMENT AND CRITICISM
Fair comment is a common-law defense that protects the publication of statements of opinion. It has worked satisfactorily for several centuries. But like many other elements in the law of libel, fair comment has been seriously affected by the application of First Amendment protections to libel law. With the emergence of the First Amendment privilege for statements of opinion that has been outlined in the previous section, most lawyers say it makes more sense to rely on the power of the Constitution to protect their clients as opposed to using a workable, but less powerful, common-law defense. Hence, the status of the fair comment defense is in a kind of legal limbo right now.
74 The
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hundreds of fair comment precedents remain on the books as good law, but no one seems to cite them anymore.
The use of a fair comment defense requires the court to apply a three-part test:
1.
Is the comment an opinion statement? Courts have traditionally used a single-criterion test to answer this question: Can the statement be proved true or false?
2.
Does the defamatory comment focus on a subject of legitimate public interest? The courts have defined legitimate public interest very broadly to include everything from cultural artifacts to religion to medicine to advertising.
3.
Is there a factual basis for the comment? The third requirement of the three-part test is critical, for it is grounded in the legal rationale for the defense: the notion that both our democratic system of government and our culture are enhanced by the free exchange of ideas and opinions. Under this defense the facts may be outlined in the article or broadcast that contains the opinion, or, if the facts regarding a situation are so widely known, it is not necessary that they be spelled out anew for readers or viewers.
The defendant who is sued for defamatory opinion, then, may attempt to defeat the lawsuit using any or all of the three strategies just outlined. The defendant can argue that the defamatory statements are so broad, so exaggerated, that no one would regard them as factual assertions; that they are rhetorical hyperbole. The defendant may also argue that the statement is a pure opinion and protected by the Constitution. Finally, the defendant can argue that the common-law defense of fair comment provides a shield against a lawsuit.
TIPS ON AVOIDING A LIBEL SUIT BASED ON STATEMENTS OF OPINION
Journalists can take steps to avoid such a lawsuit in the first place. Mass media attorney David Utevsky suggests the following:
When stating an opinion, try to make certain it is understood as such. But remember the words “in my opinion” don’t change a statement of fact into protected opinion.
Don’t rely on journalistic context to protect you. Just because the libel appears in a review or a column or a commentary does not mean a court will always regard it as opinion.
Clearly state and summarize the facts on which your opinion is based. Ask yourself whether you believe a court could find that these facts support your opinion about the matter.
Make certain the facts are true. If there is a dispute about the facts, refer to both sides of the dispute when stating your opinion.
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SUMMARY
Statements of opinion are often immune to a successful libel action. The courts have said that rhetorical hyperbole—broad, exaggerated comments about someone or something—are obviously not assertions of fact and cannot stand as the basis for a successful libel suit. The Constitution also protects statements of opinion, but only pure opinion, according to the Supreme Court. Opinion statements that imply the assertion of falsehoods are not protected. The Supreme Court has ruled that the test to determine whether a statement is opinion or not is whether the statement may be proved false. Other courts have applied somewhat broader tests for opinion that focus on the ordinary meaning of the words and the journalistic and social context of the statement in addition to whether the statement can be proved to be false. Finally, opinion is protected by the common-law defense of fair comment.
DEFENSES AND DAMAGES
The privilege of the reporter and the defenses for opinion are not the only means at hand to thwart a libel suit. At least two other common-law defenses exist:
consent and
right of reply. Like fair comment, these defenses are old. Both have been used on occasion in the past with substantial success. Yet they are not universally accepted, and only rarely have they been applied in a libel suit in the last 45 years. Let’s briefly examine each.
CONSENT
Many legal authorities agree that an individual cannot sue for libel if he or she consented to the publication of the defamatory material.
75 Imagine that Mary Jones, a reporter for the River City Sentinel, hears rumors that John Smith is a leader of organized crime. Jones visits Smith and tells him that she has heard these rumors. Then Jones asks Smith if he cares if the rumors are published in the newspaper. Smith says it is OK with him, and Jones writes and publishes the story. In this instance Smith consented to publication of the defamation. Now this event is not too likely to happen, is it? Cases of this kind of express consent are extremely rare. Courts insist that the plaintiff either knew or had a good reason to know the full extent of the defamatory statement in advance of its publication before consent can be said to exist.
Implied consent is constructed on sound legal theory, but only a handful of courts have accepted this theory.
But there is another kind of consent that some courts have recognized. It is called indirect or implied consent. A plaintiff can give this kind of consent in at least a couple of ways. Some courts have ruled that when an individual comments on a defamatory charge and this response is published with the charge, the injured party has given indirect consent to publish the libel.
76 The logic to this argument is simple: If the response is printed, the charge must be printed as well or the story won’t make any sense. Courts have also ruled that if the plaintiff has told others of the defamatory charges against him or her, this amounts to implied consent to publication elsewhere.
77 Implied consent is constructed on
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sound legal theory, but only a handful of courts have accepted this theory. Nevertheless, getting a comment from an individual you are about to libel is a very good idea. Giving the subject of the story a chance to reply might reveal mistakes in the story, mistakes that can be corrected before publication or broadcast. It is the fair and equitable thing to do as well.
RIGHT OF REPLY/SELF-DEFENSE
Right of reply is another secondary defense. Like consent, it has not been commonly applied in recent years. Right of reply is sometimes called “the self-defense.” If an individual has been defamed, he or she may answer the defamation with a libelous communication and not be subject to a successful libel suit. The only limitation here is that the reply must approximate the original defamation in magnitude. Self-defense has this same limitation. The response cannot greatly exceed the provocation. The court will not accept a claim of self-defense if you shoot and kill someone who threw a spitwad at you.
As applied in libel law, if Joseph Adieu libels Kerry O’Shea, O’Shea has the right to respond. And if the response is defamatory, the right of reply defense will block a successful libel suit by Adieu. But scenarios like this are rare today; it is much more likely that O’Shea will forgo a reply, and simply sue Adieu. How does the right of reply defense protect the mass media, since newspapers and broadcasting stations rarely attack someone who has attacked them? Some libel authorities have argued that if the press acts as a conduit for comments carried by a party in a dispute, it can use the right of reply in defense of a lawsuit.
78 In other words, imagine Adieu libels O’Shea in a public speech. The local newspaper carries O’Shea’s libelous reply in its letters to the editor column. Adieu then sues the newspaper for publishing the libel. The publication can argue the right of reply defense protects it.
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In “Cases and Materials on Torts,” law professors Charles Gregory and Harry Kalven wrote:
The boundaries of this privilege are not clearly established and it gives rise to questions amusingly reminiscent of those raised in connection with self-defense: How vigorous must the plaintiff’s original aggression have been? Must the original attack itself have been defamatory? What if it [the original attack] is true or privileged? How much verbal force can the defendant use in reply? Can he defend third parties?
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In 2015, a Massachusetts judge specifically rejected the self-defense privilege. The lawsuit involved allegations and counter statements related to sexual assault allegations against actor and comedian Bill Cosby. After three women came forward to various media outlets alleging Cosby had sexually assaulted them, Cosby’s lawyer, Martin Singer, responded to the comments on behalf of Cosby. The women then sued, claiming Singer’s response defamed them. Among other things, Cosby’s lawyers argued the plaintiff’s claims should be dismissed even if they were defamatory because the statements were protected by the
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common-law privilege of self-defense. Although the case was tried in Massachusetts, the court applied the substantive law of Florida and California because the plaintiffs in the case resided in those states. The court ruled that neither California nor Florida recognize the self-defense privilege. The court noted that California courts have specifically rejected the privilege, and that while Florida courts have never explicitly rejected the privilege there was no reason to assume they would. The court wrote, “In the court’s view, the absence of any indication that Florida courts would adopt this privilege, especially when they have explicitly adopted other common-law defamation privileges, establishes no basis to assume the self-defense privilege would be recognized in Florida.”
81 Questions like these continue to reduce the effectiveness of the defense of a right of reply.
DAMAGES
In general, there are two broad categories of damages (or money) available in many civil lawsuits. They are: 1) compensatory damages, which are designed to compensate the plaintiff for injuries suffered as a result of the defendant’s conduct and to make the plaintiff whole again for the injuries he or she suffered; and 2)
punitive damages, which are designed to punish and to deter the defendant (and others like the defendant) from engaging in the same type of conduct in the future. Punitive damages thus go above and beyond compensatory damages, and they are supposed to send a message—often due to their vast size—to the defendant to never do the same thing again. Sometimes a jury may not award punitive damages (and, as discussed later, some states do not allow any punitive damages in libel cases), but when punitive damages are awarded, the plaintiff gets to keep them as a windfall, along with the compensatory damages.
Compensatory Damages
In general, there are three types of compensatory damages a libel plaintiff may be awarded: 1) general damages (sometimes called actual damages), which are designed to compensate for the intangible injuries of reputational harm and, in most states, emotional harm that a plaintiff might experience as a result of the publication of a defamatory statement (damages to compensate one for being shunned or avoided or exposed to hatred and ridicule, for instance, after a defamatory statement is published); 2)
special damages, which are designed to compensate for specific, precise and identifiable monetary harms, such as lost wages, lost income or a decrease in business revenue, that a plaintiff can prove he suffered as a result of a defamatory statement; and 3)
presumed damages, which are an old oddity in libel law that allow a plaintiff to recover damages for reputational harm without any proof of injury. Each of these three types of damages is discussed in more detail here.
General or Actual Damages
The most common libel damages are called actual damages, or damages for actual injury.
The most common libel damages are called general damages or
actual damages. Plaintiffs must bring evidence to the court to show that because of the publication of the defamation
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they have suffered reputational harm, which might include impairment of reputation or standing in the community, personal humiliation, or mental suffering and anguish.
82 Some of these concepts are pretty nebulous. How can mental suffering or anguish be proved in court and then measured in dollar amounts? As such, the awarding of even so-called actual damages is rarely a precise process. The plaintiff will ask for an amount that may or may not bear any relationship to the actual harm inflicted, and the court—usually the jury—will award what it thinks the plaintiff deserves, often regardless of the amount of damage inflicted. As noted in Chapter 4, juries have recently been asked to award or have awarded very large damages. If the amount is too high, the trial judge or an appellate court will frequently modify the amount of money awarded. The gross imprecision in awarding damages puts considerable pressure on both parties, but especially the defendant, to settle the case without going to trial.
Special Damages
Special damages are specific items of monetary or pecuniary loss, such as lost wages, caused by published defamatory statements. Special damages must be established in precise terms, much more precise terms than those for the actual damages just outlined. If a plaintiff can prove that he or she lost $23,567.19 because of the libel, that amount is then what the plaintiff can ask for and what will likely be awarded if he or she can convince the jury of the validity of the case. Special damages represent a specific monetary, and only monetary, loss as the result of the libel. Most plaintiffs do not seek special damages. However, in some cases special damages are all that can be sought. In trade libel, for example, the only award a plaintiff can get is special damages.
Presumed Damages
Presumed damages are damages that a plaintiff can get without proof of injury or harm. They can be larger than other types of compensatory damages. Thus, the Supreme Court has required defendants to show a higher level of fault in most cases to recover presumed damages. A public-person plaintiff or a private-person plaintiff suing for a libelous statement that focuses on a matter of public concern can only be awarded presumed damages (sometimes called general or compensatory damages) on a showing of actual malice, knowledge of falsity or reckless disregard of the truth. However, a private person suing on the basis of a libelous statement that focuses on a private matter and not a public concern need only show negligence to collect presumed damages.
83
Punitive Damages
Lawyers frequently call punitive damages, or exemplary damages, the “smart money.” Punitive damage awards are usually very large. As noted earlier, punitive damages are designed to punish defendants for misconduct and to warn others not to act in a similar manner.
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A public-person plaintiff or a private-person plaintiff suing for a libelous statement that focuses on a matter of public concern can only win punitive damages on a showing of actual malice, knowledge of falsity or reckless disregard for the truth. A private person suing for libel based on remarks made about a private matter, and not a public concern, can win punitive damages on a showing of negligence.
Punitive damages are the most onerous aspect of any libel suit, and many persons think they are grossly unfair. Punitive damages have been barred in some jurisdictions, including Louisiana, Massachusetts, Nebraska, New Hampshire, Oregon and Washington and have been limited in Colorado, Florida, Georgia, Kansas, Montana, Mississippi, North Dakota and Virginia.
84 Legislatures in other states, such as Alabama, Illinois and Indiana, have considered placing some kind of limits on punitive damages. In North Carolina, for example, punitive damages are limited to three times the amount of compensatory damages. Few, if any, legal authorities will argue that punitive damages ought to be completely abolished. They do in some instances serve a purpose. A business that consciously and aggressively sells harmful or dangerous products must be punished, most legal experts will argue. A publisher who consistently prints gross lies that shred the reputations of innocent people should suffer serious consequences. But the gargantuan size of some punitive damage awards, amounts that bear no resemblance whatsoever to the harm inflicted, has led many attorneys to argue that such awards violate the Eighth Amendment to the U.S. Constitution, which forbids the levying of excessive fines. In 1991, the U.S. Supreme Court ruled that the methods used by the courts to assess punitive damages are not “so inherently unfair as to be per se unconstitutional.” But, Justice Harry Blackmun wrote for the court, “the general concerns of reasonableness and adequate guidance from the court when the case is tried to a jury properly enter into the constitutional calculus.”
85 Five years later the high court overturned as “grossly excessive” an award of $2 million to an Alabama man who sued BMW for selling him, as a new car, an automobile that had been refinished to correct minor paint damage incurred in shipping. Again, the court declined to provide a specific test that should be applied at trial to guide the assessment of punitive damage awards, but offered three guideposts that could be used: the degree of reprehensibility of the defendant’s conduct, the ratio between punitive and actual damages and a comparison between the punitive damage award and any criminal or civil fines that could be levied by the state for similar conduct.
86 In 2001 the high court again spoke to the problem, warning lower appellate courts that they must give “searching scrutiny” to whether a jury’s punitive damage award is excessive.
87 In 2003 the high court made its sharpest attack on punitive damages when it overturned an award of $145 million that a Utah jury had given a couple who had sued State Farm insurance company. Justice Anthony Kennedy, writing for the six-person majority, said that the wealth of a defendant cannot justify an otherwise unconstitutional punitive damage award. The couple had been awarded $1 million in compensatory damages, the remaining $144 million as punitive damages. Kennedy said the ratio of
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145 to 1 resulted in a damage award that was “neither reasonable nor proportionate to the wrong committed.”
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RETRACTION STATUTES
The phrase “I demand a retraction” is common in the folklore of libel.
The phrase “I demand a retraction” is common in the folklore of libel. What is a
retraction? A retraction is both an apology and an effort to set the record straight. Let’s say you blow one as an editor. You report that Jane Adams was arrested for shoplifting, and you are wrong. In your retraction you first tell readers or viewers that Jane Adams was not arrested for shoplifting, that you made a mistake. Then you might also apologize for the embarrassment caused Adams. You might even say some nice things about her. At common law a prompt and honest retraction is usually relevant to the question of whether the plaintiff’s reputation was actually harmed. After all, you are attempting to reconstruct that part of her reputation that you tore down just the day before. She might have difficulty proving actual harm.
A majority of states have some kind of retraction law, according to libel authority Bruce Sanford. Some of these laws are very comprehensive; others provide extremely limited protection. Under a typical retraction statute, a plaintiff must give the publisher an opportunity to retract the libel before a suit may be started. Most states require the retraction to be published within a fixed amount of time after the defamatory material was published, such as 20 days, and that the retraction be published in as conspicuous a place and location as the original defamatory statement. In broadcasting, this means the same hour of the original broadcast. Retraction statutes, however, do not eliminate a libel suit if a retraction is timely published. They only affect the type of damages that can be recovered. If the publisher promptly honors the request for a retraction and retracts the libelous material in a place as prominent as the place in which the libel originally appeared, the retraction will reduce, and in some instances cancel, any damage judgment the plaintiff might later seek in a lawsuit. Most states hold that a timely retraction that is published in as conspicuous a place as the original defamatory statement prevents the recovery of punitive and or general/actual damages. Plaintiffs may only recover special damages. Failure to ask for a retraction or failure to ask for a retraction in the way prescribed by the statute can result in a dismissal of the libel complaint.
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In at least two states, retraction statutes adopted by the legislature have been ruled unconstitutional. In both Arizona
90 and Montana,
91 the state high courts have ruled that the state constitution gives citizens the right to sue for injury to person, property or character. The retraction statute diminishes that right and is hence unconstitutional, the courts ruled.
A court in at least one state applied a retraction statute to libel published on the Internet. The Georgia Supreme Court ruled in 2002 that the state’s law, which applies
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only to punitive damages, not the right to sue, is applicable to publications occurring on the Internet. Both the trial court and the state court of appeals had ruled it did not apply to Internet publications, that it applied only to publications in the traditional media. In this case the plaintiff had failed to ask for a retraction and therefore was denied the opportunity to seek punitive damages.
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In 2014, the Florida Court of Appeals concluded that the “media” covered in the Florida statute aren’t limited to the institutional media that have publishing as the main vehicle of publication. The court stated the question was whether the Internet site “is operated to further the free dissemination of information or disinterested and neutral commentary or editorializing as to matter of public interest.”
93 Online publications that meet this definition are covered by the Florida statute, ruled the court. In 2014, the California Court of Appeals ruled that California’s retraction statute did not apply to thewrap.com. Commenting on the law that was enacted in 1931 and amended in 1945, the court wrote, “Had the Legislature intended the statute to apply to defamatory material published on an online website, it could have amended the statute to say so.”
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SUMMARY
Secondary defenses, consent and right of reply, exist and may in rare instances aid a libel defendant. To collect damages in a libel suit, plaintiffs must demonstrate to the court that there was actual harm to their reputations. These are called actual damages. If plaintiffs can demonstrate specific items of monetary loss, special damages may be awarded. Plaintiffs may also seek to win punitive damages. In many states, a timely retraction of the libel can reduce damages significantly and even lessen the likelihood of a libel suit. These rules are governed by state laws called retraction statutes.
CRIMINAL LIBEL
Criminal libel has been a part of the law of defamation for as long as the law has existed. It is a close cousin to seditious libel and civil libel. Chapters 4, 5 and the better part of this chapter have dealt with civil libel, one person suing another for defamation.
Criminal libel is founded on the theory that sometimes it is appropriate for the state to act on behalf of the party injured by the libel and bring criminal charges against the defendant. Criminal libel has been justified traditionally with the argument that if the state fails to act, the injured party or parties may take violent action against the libeler to compensate for the damage they have suffered. The state has a substantial interest in preventing this violence from occurring.
Today, criminal libel law remains as kind of a relic of the past. But it is a relic that won’t seem to go away. Florida, Idaho, Kansas, Louisiana, Michigan, Montana,
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New Hampshire, New Mexico and North Carolina still have criminal libel laws. In 2008 an appellate court in Washington state declared its statute unconstitutional, and the legislature repealed the law the following year.
95 During the 2014-2015 legislative session, Georgia removed the State’s criminal defamation law. And there have been fewer than 100 criminal libel cases in the past 45 years. But seemingly every year one or two cases pop up. In 2008 two Wisconsin high school students were charged with criminal libel after assembling and posting a nude photo collage of a female classmate.
While prosecutions for criminal libel are limited, they have not disappeared. However, they frequently involve private individuals and not members of the media. In one in-depth study of criminal libel laws in Wisconsin, 37 of 61 (61%) prosecutions for criminal libel over a 16-year period in Wisconsin were “purely private quarrels.” A significant number of these involved attacks by spurned ex-lovers. For example, four specifically involved the spread of HIV/AIDS rumors and one involved a fake online posting of a profile and solicitation for nontraditional sex.
96 In 2015, the International Press Institute identified several prosecutions for criminal libel.
A former police chief in Utah was charged with criminal defamation for allegedly using the name of the current police chief to disparage Border Patrol agents.
A Louisiana man was convicted of criminal libel for criticizing a local public official. In an unpublished e-mail to the local newspaper, he questioned the paper’s lack of reporting on allegations of improper conduct by the public official.
A New Hampshire man was accused of criminal libel for misappropriating the name of a U.S. marine when criticizing local officers and officials in letters to the local newspaper.
A Minnesota man was accused of creating an e-mail account for his ex-girlfriend, posting a fake online profile for her and arranging meetings with strangers at her residence.
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Thus, while criminal libel does not receive much attention from either scholars or the media, it still exists. Despite these notable exceptions, however, authorities in most states are unwilling to take on someone else’s troubles and prosecute for criminal libel so long as a civil remedy is available. A prosecutor will generally gain very little public support by taking such an action. In an age when people are murdered, robbed, raped and assaulted with alarming frequency, most voters would rather see government officers arrest and prosecute real criminals.
Criminal libel differs from civil libel in several important respects. First of all, it is possible to criminally libel the dead. The state can use a criminal libel statute to prosecute
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an individual for damaging the reputation of someone who is deceased. In some states criminal libel is tied to causing or potentially causing a breach of the peace. This charge used to be quite common. If a publication, speech or handbill so provoked the readers or listeners that violence became possible or did in fact occur, criminal libel charges might result. But in 1966 the Supreme Court ruled that basing a criminal libel charge on a breach of the peace was unconstitutional.
98 This decision was an important factor, but only one factor, in the passing of “breach of the peace” as an aspect of criminal libel. It is extremely rare for such a case to occur today.
The Supreme Court has heard one other criminal libel case since the New York Times Co. v. Sullivan

99 ruling. The court ruled in Garrison v. Louisiana

100 that when the defamation of a public official is the basis for a criminal libel suit, the state has to prove actual malice on the part of the defendant—that is, knowledge of falsity, reckless disregard for the truth or falsity of the matter. Justice Brennan wrote that the reasons that persuaded the court to rule that the First Amendment protected criticism of public officials in a civil libel suit apply with equal force in a criminal libel suit. “The constitutional guarantees of freedom of expression compel application of the same standard to the criminal remedy,” he added. The Supreme Court has never answered the question of whether the actual malice rule applies to cases involving the criminal libel of private persons. Nevertheless, this ruling was a potent blow against criminal libel. Most of the state criminal libel laws that still exist fail to meet even the minimum constitutional requirements sent out by the high court in 1966.
*
This ruling was a potent blow against criminal libel.
BIBLIOGRAPHY
American Law Institute. Restatement of the Law of Torts. 2nd ed. Philadelphia: American Law Institute, 1975.
Dill, Barbara. “Libel Law Doesn’t Work, But Can It Be Fixed?” In At What Price? Libel Law and Freedom of the Press, by Martin London and Barbara Dill. New York: The Twentieth Century Fund Press, 1993.
Greenhouse, Linda. “For First Time Justices Reject Punitive Award.” The New York Times, 21 May 1996, A1.
———. “Justices Limit Punitive Damages—Victory for Tort Reform.” The New York Times, 8 April 2003, A16.
———. “Punitive Damages Must Get a Searching Review on Appeal, Justices Rule.” The New York Times, 15 May 2001, A18.
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Gregory, Charles O., and Harry Kalven. Cases and Materials on Torts. 2nd ed. Boston: Little, Brown, 1969.
Phelps, Robert, and Douglas Hamilton. Libel. New York: Macmillan, 1966.
Pritchard, David. “Rethinking Criminal Libel: An Empirical Study.” 14 Communication Law and Policy 3 (2009)
Prosser, William L. Handbook of the Law of Torts. St. Paul, Minn.: West Publishing, 1963.
Sanford, Bruce W. Libel and Privacy. 2nd ed. Englewood Cliffs, N.J.: Prentice-Hall Law & Business, 1993.
1
. See, for example, Nader v. DeToledano, 408 A. 2d 31 (1979).
2
. Anderson v. Liberty Lobby, 477 U.S. 242 (1986).
* Most courts that have considered the question have ruled the statute of limitations for libel actions applies as well to invasion-of-privacy suits. See, for example, Christoff v. Nestle USA Inc., 152 Cal. App. 4th 1439 (2007); Pierce v. Clarion Ledger, 34 M.L.R. 1275 (2006); and Chaker v. Crogan, 33 M.L.R. 2569 (2005).
3
. Printon Inc. v. McGraw-Hill Inc., 35 F. Supp. 2d 1325 (1998). See also MacDonald v. Time, 554 F. Supp. 1053 (1983); Wildmon v. Hustler, 508 F. Supp. 87 (1980); Bradford v. American Media Operations, Inc., 882 F. Supp. 1508 (1995); and Williamson v. New Times Inc., 980 S.W. 2d 706 (1998).
4
. Firth v. New York, 747 N.Y.S. 2d 69 (2002); Van Buskirk v. New York Times, 325 F. 3d 87 (2003); Mitan v. Davis, W.D. Ky., Civil Action No. 3:00 CV-841-5, 2/3/03; McCandliss v. Cox Enterprises Inc., 593 S.E. 2d 856 (2004); and Traditional Cat Assn v. Gilbreath, Cal. Ct. App. No. D041421, 5/6/04. In some states, if the offending material is republished in a different edition of a newspaper, or is posted by the newspaper on its Web site, this constitutes a separate publication. See Rivera v. NYP Holdings Inc., 35 M.L.R. 2127 (2007). And some states have not adopted the single publication rule. See Taub v. McClatchy Newspapers Inc., 35 M.L.R. 2179 (2007), for example.
5
. Lehman v. Discovery Communications Inc., 32 M.L.R. 2377 (2004).
6
. Yeager v. Bowlin, 40 M.L.R. 2491 (2012).
7
. In re Philadelphia Newspapers, LLC., 3 Fd. 161 (2012).
8
. 465 U.S. 770 (1984).
9
. 465 U.S. 783 (1984).
10
. Keeton v. Hustler, 465 U.S. 770 (1984).
11
. Calder v. Jones, 465 U.S. 783 (1984).
12
. ALS Scan Inc. v. Digital Services Consultants Inc., U.S. No. 02-483, cert. den. 1/13/03; Griffs v. Luban, U.S. No. 02-754, cert. den. 3/10/03; and Young v. New Haven Advocate, 315 F. 3d 256 (2002).
13
. 465 U.S. 783 (1984).
14
. Internet Solutions Corp. v. Marshall, 38 M.L.R. 2428 (2010).
15
. Xcentric Ventures, LLC v. Bird, 683 F. Supp. 2d 1068 (2010).
16
. Kauffmann Racing Equipment, LLC v. Roberts, 126 Ohio St. 3d 81 (2010).
17
. Shrader v. Biddiner, 315 F. 3d 1235 (10th Cir. 2011).
18
. King v. Lewis, High Court of Justice, Queen’s Bench Division, No. [2004] EWHC, 168 (QB), 2/6/04.
19
. 376 U.S. 254 (1964).
20
. Wilson v. Meyer, 34 M.L.R. 1906 (2005); and Stevens v. Porr, 34 M.L.R. 1086 (2005).
21
. Hutchinson v. Proxmire, 443 U.S. 111 (1979). Proxmire was sued when he attacked a Michigan man in a press release critical of wasteful government spending.
22
. Bochetto v. Gibson, 32 M.L.R. 2474 (2004).
23
. Barr v. Mateo, 353 U.S. 171 (1959).
24
. Gautsche v. New York, 415 N.Y.S. 2d 280 (1979).
25
. American Law Institute, Restatement of the Law of Torts.
26
. American Law Institute, Restatement of the Law of Torts.
27
. See Solaia Technology, LLC v. Specialty Publishing Co., 34 M.L.R. 1997 (2006), for example. But see also Freedom Communications Inc. v. Sotelo, 34 M.L.R. 2207 (2006), where the Texas Court of Appeals said that actual malice would rebut the privilege.
28
. Klig v. Harper’s Magazine Foundation, 39 M.L.R. 1987 (2011).
29
. See Amway Corp. v. Procter and Gamble Co., 31 M.L.R. 2441 (2003), for example.
30
. See Clapp v. Olympic View Publishing Co., LLC, 136 Wn. App. 1045 (2007), for example.
31
. But see Riemers v. Grand Forks Herald, 32 M.L.R. 2381 (2004) for a ruling by the North Dakota Supreme Court that reports of divorce proceedings are protected by the privilege.
32
. Dorsey v. National Enquirer, Inc., 973 F. 2d 1431 (1992).
33
. See Cox Broadcasting Co. v. Cohn, 420 U.S. 469 (1975); and Florida Star v. B.J.F., 109 S. Ct. 2603 (1989).
34
. Ingere v. ABC, 11 M.L.R. 1227 (1984).
35
. Howell v. Enterprise Publishing Co., 455 Mass. 641 (2010).
36
. Stewart v. NYT Broadcast Holdings, LLC, 240 P. 3d 772 (2010).
37
. Community Newspapers Holding Inc.v. King, 682 S.E. 2d 346 (2009).
38
. Vaillcourt v. Media General Operations Inc., 36 M.L.R. 1543 (2007).
39
. Whiteside v. Russellville Newspapers Inc., 375 Ark. 245 (2009).
40
. Wiemer v. Rankin, 790 P. 2d 347 (1990).
41
. Wynn v. Smith, 16 P. 3d 424 (2001); and OAO Alfa Bank v. Center for Public Integrity, D.D.C., No. 00-2208 (JDB), 9/27/05.
42
. Herron v. Tribune Publishing Co., 736 P. 2d 249 (1987).
43
. Borg v. Borg, 231 F. 2d 788 (1956).
44
. American Law Institute, Restatement of the Law of Torts.
45
. Edwards v. National Audubon Society, Inc., 556 F. 2d 113 (1977), cert. den. 434 U.S. 1002 (1977).
46
. See Price v. Viking Penguin, Inc., 881 F. 2d 1426 (1989); and Schwartz v. Salt Lake City Tribune (2005).
47
. See, for example, Dickey v. Columbia Broadcasting System, Inc., 583 F. 2d 1221 (1978); Young v. The Morning Journal, 76 Ohio St. 3d 627 (1996); Norton v. Glenn, 797 A. 2d 294 (2002); aff’d 860 A. 2d 48 (2004); and Bennett v. Columbia University, 34 M.L.R. 2202 (2006).
48
. See Khawar v. Globe International Inc., 46 Cal. App. 4th 22 (1996); aff’d 79 Cal. Rptr. 2d 178 (1998).
49
. Colt v. Freedom Communications Inc., 109 Cal. App. 4th 1551 (2003).
50
. Young v. Gannett Satellite Information Network, 40 M.L.R. 1197 (2011).
51
. Alpine Industries Computers Inc. v. Cowles Publishing Co., 57 P. 3d 1178 (2002).
52
. Dameron v. Washingtonian, 779 F. 2d 736 (1985); see also Trover v. Kluger, 37 M.L.R. 1165 (2008).
53
. Moreno v. Crookston Times Printing Co., 594 N.W. 2d 555 (1999).
54
. Greenbelt Publishing Ass’n, Inc. v. Bresler, 398 U.S. 6 (1970).
55
. Old Dominion Branch No. 496, National Association of Letter Carriers v. Austin, 418 U.S. 264 (1974); see also Delaney v. International Union UAW Local 94, 32 M.L.R. 1454 (2004).
56
. Caci Premier Technology Inc. v. Rhodes, 36 M.L.R. 2121 (2008).
57
. Torain v. Liu, 479 Fed. Appx. 46 (2008).
58
. Adelson v. Harris, 973 F. Supp. 2d 467 (SDNY 2013).
59
. New Times Inc. v. Isaacks, 91 S.W. 3d 844 (2002).
60
. New Times Inc. v. Isaacks, 32 M.L.R. 2480 (2004).
61
. Jacobus v. Trump, No. 153252/16 (Jan. 9, 2017, NY Sup. Court).
62
. Milkovich v. Lorain Journal Co., 110 S. Ct. 2695 (1991).
63
. 750 F. 2d 970 (1984).
64
. 77 N.Y. 2d 235 (1991).
65
. Immuno, A.G. v. Moor-Jankowski, 77 N.Y. 2d 235 (1991).
66
. Arthur v. Offit, 38 M.L.R. 1508 (2010).
67
. Cochran v. NYP Holdings Inc., 27 M.L.R. 1108 (1998), aff’d 210 F. 3d 1036 (2000).
68
. Gray v. St. Martins Press, Inc., 221 F. 3d 243 (2000).
69
. Seaton v. TripAdvisor LLC, E.D.Tenn. No. 11-549, 8/22/12.
70
. Scholz v. Boston Herald, Inc., No. 10-189-15 (Nov. 25, 2015).
71
. Sota Mirafuentes v. Estevez, 2015 U.S. Dist. LEXIS 166157.
72
. Pepler v. Rugged Land, LLC, 34 M.L.R. 1796 (2006).
73
. Healy v. New England Newspapers, 520 A. 2d 147 (1987).
74
. But see Magnusson v. New York Times Co., 32 M.L.R. 2496 (2004), where the Oklahoma Supreme Court ruled the fair comment defense was applicable in a lawsuit brought against a TV station by a physician.
75
. Phelps and Hamilton, Libel; and Sanford, Libel and Privacy.
76
. See Pulverman v. A.S. Abell Co., 228 F. 2d 797 (1956), for example.
77
. Pressley v. Continental Can Co., 250 S.E. 2d 676 (1978).
78
. See Phelps and Hamilton, Libel.
79
. See Fowler v. New York Herald, 172 N.Y.S. 423 (1918).
80
. Gregory and Kalven, Cases and Materials on Torts.
81
. Green v. Cosby, 138 F. Sup. 3d 114 (D. Mass. 2015).
82
. See Justice Lewis Powell’s opinion in Gertz v. Robert Welch, Inc., 4118 U.S. 323 (1974).
83
. Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 479 (1985).
84
. Dill, “Libel Law Doesn’t Work.”
85
. Pacific Mutual Life Insurance Co. v. Haslip, 111 S. Ct. 1032 (1991).
86
. Greenhouse, “Justices Reject Punitive Award.”
87
. Greenhouse, “Punitive Damages.”
88
. State Farm v. Campbell, 538 U.S. 408 (2003); and Greenhouse, “Justices Limit.”
89
. Milsap v. Stanford,139 F. 3d 902 (1998).
90
. Boswell v. Phoenix Newspapers, 730 P. 2d 186 (1986).
91
. Madison v. Yunker, 589 P. 2d 126 (1978).
92
. Mathis v. Cannon, 573 S.E. 2d 376 (2002).
93
. Comis v. Vanvoorhis (Fla. Ct. App. Apr. 11, 2014).
94
. Theiriot v. The Wrapnews, Inc. (Cal. Ct. App. Apr. 15, 2014).
95
. Parmelee v. O’Neal, 36 M.L.R. 1863 (2008).
96
. Pritchard, “Rethinking Criminal Libel: An Empirical Study.”
97
. Special Report, Criminal Libel in the United States, http://legaldb.freemedia.at/special-report-criminal-libel-in-the-united-states/.
98
. 384 U.S. 195 (1966).
99
. 376 U.S. 254 (1964); see also Ivey v. State, 29 M.L.R. 2089 (2001).
100
. 379 U.S. 64 (1964).
* In 2004 a U.S. District Court in California struck down on First Amendment grounds a state law that made it a crime to make a false accusation against a police officer. This wasn’t technically a criminal libel law, but it had many elements common to such laws. Hamilton v. City of San Bernardino, 32 M.L.R. 2594 (2004). The 9th U.S. Court of Appeals made a similar ruling on this law in 2005. See Chaker v. Crogan, 33 M.L.R. 2569 (2005). The California Supreme Court had two years earlier upheld the same statute. People v. Stanistreet, 58 P. 3d 465 (2002).
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CHAPTER

7
Invasion of Privacy
APPROPRIATION AND INTRUSION
©McGraw-Hill Education/Jill Braaten
Invasion of privacy is a multifaceted concept that is designed to redress a variety of grievances. These include the commercial exploitation of an individual’s name or likeness, the intrusion on our private domains, the public revelation of private and embarrassing facts about someone, and the libel-like publication of embarrassing false information about a person. After an initial exploration of the broader dimensions of the right to privacy, we will explore these four discrete legal areas in this chapter and in Chapter 8.
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CONCEPTIONS AND SOURCES OF PRIVACY IN THE UNITED STATES
The abstract concept of the right to privacy didn’t enter the American ethos until the end of the 19th and beginning of the 20th centuries.
Now, at the end of the second decade of the 21st century, there is little doubt that the privacy that still exists is in jeopardy; partly because of dramatic changes in communication technology, partly because of concerns raised after the 9/11 terrorist attacks and partly because a new generation of Americans, weaned on dozens of exhibitionist reality TV shows, seems more than willing to give away their privacy in exchange for the opportunity to participate in electronic social networking and perhaps achieve 15 minutes of Warholian fame or notoriety.
Privacy is an amorphous concept—what one generation considers private another may not, and what people consider private will vary from time to time, place to place and culture to culture. There are at least three basic conceptions of privacy:
Privacy of autonomy: In this light, privacy means private and personal decision making by an autonomous individual, free from government interference and intrusion. The most controversial niche of this conception of privacy is the right of a woman to choose to have an abortion found in the U.S. Supreme Court’s 1973 ruling in Roe v. Wade. More recently, the Court wrote in Lawrence v. Texas (see Chapter 1 for more on Lawrence) “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” Put differently, there is a right of decisional privacy possessed by individuals (and sometimes couples and families) that should be free from undue government interference.
Privacy of space: In this traditional conception of privacy, people possess a geographical or physical zone of privacy into which others may not intrude or trespass. Professor Jerry Kang refers to this as an individual’s territorial solitude. The notion that a person’s home is his or her castle captures the essence of this view. The legal theory described in this chapter called intrusion provides a remedy for violations of one’s physical space by means such as trespass or high-tech recording of images and sounds.
Privacy of information: The right of informational privacy—that there are some facts and data about oneself that should not be revealed either to or by others or that you should be able to control what other people do with information about you—is a third conception of privacy. It is particularly relevant today, as companies like Google, Facebook and Yahoo collect massive amounts of information about people—these companies, at heart, are all in the data collection business and they likely possess much information about you—that they sometimes sell to businesses, other individuals and even the government.
What all three of these conceptions of privacy have in common is the notion of control— the ability of individuals to control decisions, physical space and the flow of information. Discussions and debates about privacy thus frequently implicate other concepts such as access, secrecy and anonymity.
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What are the sources of privacy law in the United States? There four primary sources of privacy rights:
Constitutional law: At both the federal and state constitution levels, courts recognize privacy rights, either explicitly in the text of the constitutions or implicitly through their language. Although neither the U.S. Constitution nor the amendments to it specifically use the word “privacy,” the U.S. Supreme Court has recognized an unenumerated or implied federal constitutional right to privacy residing in multiple amendments. For instance, the Fourth Amendment protects people against unreasonable searches and seizures in their homes, papers and effects, and it generally requires a warrant issued by a judge, upon a showing of probable cause by law enforcement officers, to search such places and items. Viewed in this light, the Fourth Amendment implies privacy in one’s home, papers and effects. In addition, the Supreme Court has said that the term “liberty” within the Fourteenth Amendment’s Due Process Clause includes certain privacy interests.
 In contrast, the constitutions of at least 10 states specifically include the word “privacy” or “private” in their texts. For instance, Article 1, Section 1 of the California Constitution provides that people have an inalienable right in “pursuing and obtaining safety, happiness and privacy.” Article 1, Section 23 of the Florida Constitution, in turn, states that “every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.” Hawaii makes it explicit in Article 1, Section 6 of its constitution that “the right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest.” The right of privacy thus is framed in many different ways in state constitutions.
Statutory law: Many statutes at both the federal and state levels protect privacy interests. For instance, the federal Family Educational Rights and Privacy Act (FERPA) limits public access to student educational records (see Chapters 3 and 9 for more on FERPA), while the federal Health Insurance Portability and Accountability Act (HIPAA) protects the privacy of individually identifiable health information possessed by health-care providers and health plans (see Chapter 9 for more on HIPAA). The federal Children’s Online Privacy Protection Act (COPPA) is designed to protect the privacy of children (and their parents) when using the Internet and other modes of digital technology (see Chapter 15 for more on COPPA). States also have statutes that protect privacy interests. In fact, as this chapter later makes clear, several states now have statutes that give heirs the right to control the publicity interests in the names and likenesses of deceased celebrities. In addition, states like Florida have adopted statutory exemptions to their public records laws in order to prevent the public disclosure autopsy images. Such exemptions protect the privacy interests of the deceased’s loved ones (see Chapter 9 on “State Statutes That Limit Access to Information”).
Common law: This chapter and the one that follows it concentrate on three common law privacy causes of actions (legal theories of recovery): 1) appropriation/right of publicity; 2) intrusion into seclusion; and 3) public disclosure of private facts (also called publication of private information).
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These common law privacy theories provide remedies to individuals for certain invasions of their privacy interests. A fourth common law privacy theory called false light is discussed in a more limited fashion in this book because it significantly overlaps with defamation law and because an increasing number of states refuse to recognize its existence. Some states, it should be noted, have adopted statutes that codify all or part of these common law privacy theories.
Administrative law: Increasingly, the Federal Trade Commission (FTC) finds itself playing a front-and-center role as the nation’s chief privacy policy maker and enforcer. In 2015, the FTC issued a report called “Internet of Things: Privacy and Security in a Connected World.” The report is found at https://www.ftc.gov/system/files/documents/reports/federal-trade-commission-staff-report-november-2013-workshop-entitled-internet-things-privacy/150127iotrpt.pdf. In recent years, the FTC has settled claims against both Facebook, Google and Snapchat regarding alleged misrepresentations and deceptions in their privacy polices (see Chapter 15 for more on this discussion and the FTC’s active role in policing privacy on the Internet). Furthermore, the FTC today is concerned about the privacy implications of facial recognition technology used by both the government and private sectors. As this indicates, technology has forced many changes in the way we consider privacy. Any reference in this book a decade ago to facial recognition technology and the FTC’s concerns about it would have been unimaginable.
INVASION OF PRIVACY
Mass media have been integrally involved with the growth of the law of privacy, since the vast majority of early lawsuits were aimed at the press in one way or another. Over the past century, state legislatures and courts have fashioned legal rights that permit people who believe they have been injured to sue the mass media for infringing on their rights of privacy. The law is ragged in many ways because it is young and still developing, unlike libel law, which has existed for several centuries. And today, while concerns over the right to privacy range far beyond the behavior of the mass media, it is interesting to note that it was the intrusive newspaper reporting of the late 19th century that is the likely genesis of the law that exists today.
THE GROWTH OF PRIVACY LAWS
It wasn’t until the end of the 19th century that the need for a right to privacy became a public issue in the United States. America was rapidly becoming an urban nation. The streets of many cities were clogged with poor immigrants or first-generation Americans. Big city daily newspapers used a variety of sensational schemes to attract these potential readers. Editors often played out the lives of the “rich and famous” on the pages of their newspapers, permitting their readers to vicariously enjoy wealth, status and celebrity.
It was this kind of journalism that pushed two Boston lawyers, Samuel D. Warren and Louis D. Brandeis, to use the pages of the Harvard Law Review to propose a legally recognized right to privacy. Warren, the scion of a prominent Boston family, urged his friend (and future Supreme Court justice) Brandeis to help him write the piece,
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“The Right to Privacy.”
1 The article appeared in 1890 and is the fountain from which the modern law of privacy has flowed.
The pair argued, “Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’” Warren and Brandeis said they were offended by the gossip in the press, which they said had overstepped in every direction the obvious bounds of propriety and decency:
To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. . . .
The common law has always recognized a man’s house as his castle, impregnable, often, even to its own officers engaged in the execution of its commands. Shall the courts thus close the front entrance to constituted authority, and open wide the back door to idle or prurient curiosity?
2
To stop this illicit behavior, the two lawyers proposed that the courts recognize the legal right of privacy; that is, citizens should be able to go to court to stop such unwarranted intrusions and also secure money damages for the hardship they suffered from such prying and from publication of private material about them.
It was 13 years from the time the Warren and Brandeis article was first published until the first state recognized the law of privacy. The state of New York adopted a law that prohibited the commercial exploitation of an individual and called it a right to privacy. Interestingly, the right this new statute sought to safeguard was not even mentioned in the famous Harvard Law Review article.
The law of privacy grew slowly and sporadically over the next century.
The law of privacy grew slowly and sporadically over the next century. All but three states today recognize some kind of legal right to privacy. North Dakota has thus far refused to recognize the tort, and there have been no reported privacy cases in either Vermont or Wyoming.
3 Other states have rejected one or more of the four torts that constitute the modern right to privacy.
* And until the European Convention on Human Rights became a part of the law in Western Europe, nations like England and France didn’t recognize the invasion-of-privacy tort.

Privacy law is far more idiosyncratic from state to state than is libel law. In other words, it is somewhat easier to make generalizations about libel law that reflect the law in every state or in most states than it is to make these generalizations about the law of privacy. Part of the problem is that some states have protected the right to privacy through statutes, and these often are very particular. The New York statute, for example, is quite
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explicit about how the right to privacy is protected in that state, and some aspects of the law common in most states are not a part of the New York law.
Today the law of privacy encompasses protection for at least four separate legal wrongs. Three of these have absolutely nothing to do with the law as outlined in 1890 by Warren and Brandeis.
FOUR AREAS OF PRIVACY LAW
1.
Appropriation of one’s name or likeness for trade purposes
2.
Intrusion upon an individual’s solitude or seclusion
3.
Public disclosure of private facts about an individual
4.
Publishing material that puts an individual in a false light
The first kind of invasion of privacy is called
appropriation and is defined as taking a person’s name, picture, photograph or likeness and using it for commercial gain without permission. Appropriation is technically the only right of privacy guaranteed in some of the states that have privacy statutes. When a celebrity’s name or likeness is used without his or her consent, the appropriation is said to affect the celebrity’s right of publicity. For example, in 2016 Lindsay Lohan sued the video game maker Rockstar Games claiming the fictional character Lacey Jonas from the video game “Grand Theft Auto V” violated Lohan’s right of publicity. The laws are limited to outlawing this one kind of behavior. But as a matter of fact, judicial construction of these laws has allowed them to encompass some of the other aspects of invasion of privacy as well.
Intrusion is the second type of invasion of privacy, an area of the law growing rapidly today, and is what most people think of when invasion of privacy is mentioned. Intrusion upon the solitude and into the private life of a person is prohibited. As discussed later in this chapter, the use of drones raises serious concerns about intrusion.
The third arm of the law prohibits
publication of private information—truthful private information—about a person. What is truthful private information? Gossip, substance of private conversations and details of a private tragedy or illness have all been used as the basis of a suit. And in 2016, wrestler Hulk Hogan won a jury verdict of more than $100 million based upon Gawker’s publication of a hidden-camera sex tape featuring Hogan (see Chapter 8 for more on this case).
Finally, the publication of material that places a person in a
false light is the fourth category of the law of privacy. This category is an outgrowth of the first area of the law, appropriation, and doesn’t at first glance seem like an invasion of privacy at all, but it is regarded as such by the law. Because false light overlaps significantly with libel and because a growing number of states don’t look favorably upon the false-light category of privacy, it is given less space in this edition of the book than the other three areas.
The tremendous growth of communication via interactive computer systems (i.e., the Internet) has generated substantial challenges in the application of the law of privacy. The relative ease of access and use of these systems has resulted in numerous
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privacy problems. In March 2012, the Federal Trade Commission issued a report called “Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for Business and Policy Makers.” It provides a framework of recommendations and best practices for all commercial entities that collect or use consumer data that can be reasonably linked to a specific consumer, computer or other device, unless the entity collects only nonsensitive data from fewer than 5,000 consumers per year and does not share the data with third parties. Several federal laws already address some aspects of privacy, such as the Health Insurance Portability and Accountability Act (see Chapter 9). The FTC report provides that “the framework is meant to encourage best practices and is not intended to conflict with requirements of existing laws and regulations. To the extent that components of the framework exceed, but do not conflict with existing statutory requirements, entities covered by those statutes should view the framework as best practices to promote consumer privacy.” A copy of the report is available at http://ftc.gov/os/2012/03/120326privacyreport.pdf.
Among the highlights is a principle called “Privacy by Design,” under which the FTC calls for companies to incorporate privacy protections into their practices, such as data security, reasonable collection limits, sound retention and disposal practices and data accuracy. Other key principles are:
Simplified Choice for Businesses and Consumers: Companies should give consumers the option to decide what information is shared about them, and with whom. This includes a “Do-Not-Track” mechanism that would provide a simple way for consumers to control the tracking of their online activities.
Greater Transparency: Companies should disclose details about their collection and use of consumers’ information, and provide consumers access to the data collected about them.
Although merely recommendations, the FTC report called on Congress to consider enacting baseline privacy legislation and it reiterated an earlier call for data security and data broker legislation. The bottom line for now is that if self-regulatory efforts continue to flounder and fail, we can expect a large wave of federal privacy statutes in the near future.
A few caveats or warnings are appropriate before each of the four aspects of privacy law is detailed. First, only people enjoy protection for their right to privacy. Corporations, labor unions, associations and so forth can protect their reputations through libel law, but they do not have a right to privacy.
* (Other laws protect businesses against unfair commercial exploitation.)
The right to privacy is most easily understood if each of the four areas of the law is considered as a discrete unit. Don’t try to apply the defenses that may be applicable in appropriation to publication of private information. They don’t work.
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There is much about the law of privacy that defies logic. Why is putting someone in a false light considered an invasion of privacy, for example? Challenging the logic of the law serves little purpose and usually makes learning the law more difficult.
The law of privacy is young—about 128 years old if you start with the Warren and Brandeis proposal. There are a lot of legal questions that haven’t been answered, or at least answered satisfactorily. Bad court decisions are abundant. With these warnings in mind, let’s now turn to the privacy torts, starting with appropriation.
APPROPRIATION
It is illegal to use an individual’s name or likeness for commercial or trade purposes without consent.
Appropriation is the oldest of the four privacy torts. Until recently it was the most comprehensible. Appropriation protects an individual’s name or likeness from commercial exploitation. Two of the earliest privacy cases on record are good examples of how the appropriation tort is supposed to protect an individual from commercial exploitation. In 1902 young Abigail Roberson of Albany, N.Y., awoke one morning to find her picture all over town on posters advertising Franklin Mills Flour. Twenty-five thousand copies of the advertisement had been placed in stores, warehouses, saloons and other public places. Roberson said she felt embarrassed and humiliated, that she suffered greatly from this commercial exploitation and she therefore sued for invasion of privacy. But she lost her case, and the state’s high court ruled that
an examination of the authorities leads us to the conclusion that the so-called “right of privacy” has not yet found an abiding place in our jurisprudence, and, as we view it, the doctrine cannot now be incorporated without doing violence to settled principles of law by which the profession and the public have long been guided.
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Following this decision a great controversy arose in New York, led by newspapers and magazines, many of whom expressed outrage at the way the court had treated Roberson. The controversy settled on the state legislature, which during the following year, 1903, adopted the nation’s first privacy law. The statute was very narrow; that is, it prohibited a very specific kind of conduct. Use of an individual’s name or likeness without the individual’s consent for advertising or trade purposes was made a minor crime. In addition to the criminal penalty, the statute allowed the injured party to seek both an injunction to stop the use of the name or picture and money damages.
Two years later Georgia became the first state to recognize the right of privacy through the common law. Paolo Pavesich, an Atlanta artist, discovered that a life insurance company had used his photograph in newspaper advertisements. Pavesich’s photograph was used in a before-and-after advertisement to illustrate a contented, successful man who had bought sufficient life insurance. A testimonial statement was also ascribed
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to the artist. He sued for $25,000 and won his case before the Georgia Supreme Court, which ruled that
the form and features of the plaintiff are his own. The defendant insurance company and its agents had no more authority to display them in public for the purpose of advertising the business . . . than they would have had to compel the plaintiff to place himself upon exhibition for this purpose.
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RIGHT OF PUBLICITY
The appropriation tort actually encompasses two slightly different legal causes of action. One is the right to privacy; the other is called the
right of publicity. The differences between these two sound legalistic, but they are actually quite important.
Traditionally, the right-to-privacy dimension of appropriation was designed to protect an individual from the emotional damage that can occur when a name or likeness is used for a commercial or trade purpose. Imagine how embarrassed Abigail Roberson felt the morning she awoke to find her picture on all those advertising posters. The right to publicity, on the other hand, is an attempt to remunerate individuals for the economic harm suffered when their name or picture is used for advertising or trade purposes, and they are not compensated for it. The proposition is a simple one: An individual’s name or likeness has economic value, and using it without permission is akin to theft. But the difference between emotional harm and economic harm is sometimes easier to state than to apply.
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The second distinction between the right of privacy and the right of publicity often helps resolve this question. Because the right of publicity protects a property right—the economic value in a name or likeness—normally only someone whose name or likeness has a commercial value can successfully allege a violation of his or her right of publicity. An average person—Jane Doe, for example—would likely be embarrassed to find her picture on a box of Wheaties. But it would be extremely difficult for Doe to argue in court that General Mills was actually promoting its cereal this way because kids all over America want to eat what Jane Doe eats. But kids may want to eat the same cereal that basketball player LeBron James or swimmer Michael Phelps eat. The names and pictures of these professional athletes have commercial value and would enhance the value of the cereal (or the cereal box) in the eyes of consumers. Simply put, only well-known people have a legally recognized economic value in their names or likenesses, and except in unusual cases, they are the only ones who can sue for damage to their right to publicity. The average person can only assert emotional damage in a right of privacy suit.
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Finally, something that has an economic value, like a house or a painting or a ring, can usually be passed on to an heir when the owner dies. Something of emotional value, like a reputation or mental health, is gone when its owner passes on. Consequently, it is possible in some states for a celebrity, sports star or some other well-known person who has died to pass on the property right in his or her name to his or her heirs. The heirs can sue for violation of the deceased’s right to publicity. Lawyers say that the right of publicity is descendible. For the rest of the people, their right to privacy dies when they do.
LOHAN LEGALLY MAULED BY PITBULL? NAME-CHECKING ALONE IS NOT APPROPRIATION
The rapper Pitbull (Armando Christian Perez for those less canine inclined) includes a lyric in the 2011 hit song “Give Me Everything” that goes: “So, I’m tiptoein’ to keep flowin’/ I got it locked up like Lindsay Lohan.” Apparently no fan of Pitbull (although supposedly a big one of Red Bull), the trouble-plagued actress sued the rapper. She alleged that she did not consent to or authorize the use of her name in the song and that the use of her name thus constituted appropriation.
In February 2013, however, a federal judge in New York granted Pitbull’s motion to dismiss Lohan’s lawsuit. Specifically, Judge Denis R. Hurley wrote that under New York’s misappropriation statute, “the use of an individual’s name—even without his consent—is not prohibited . . . if that use is part of a work of art.” Songs, in turn, are works of art protected by the First Amendment. Furthermore, Judge Hurley reasoned that “the fact that the song was presumably created and distributed for the purpose of making a profit does not mean that plaintiff’s name was used for ‘advertising’ or ‘purposes of trade’ within the meaning” of New York’s misappropriation statute. Additionally, the judge noted that the use was merely incidental, as Lohan’s “name is mentioned one time in only one of 104 lines of the song.” For all of these reasons, Lohan’s lawsuit was easily dismissed; she was barking up the wrong legal tree.
While the legal right to privacy is about 128 years old, the notion of a right to publicity is far younger.
7 And it really has only been in the past three decades that right to publicity litigation has accelerated. There are two reasons for this. The first is the tremendous growth of the cult of celebrity in the United States and the world. Stories and pictures about entertainers, musicians, sports personalities and others overflow in the traditional mass media and online. Entire publications, television shows and Web sites are devoted to them. Second, American businesses and other organizations have seen this trend and now decorate their products, ads, promotions and so on with the likenesses and names of these celebrities. And many of these individuals believe they should be compensated
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for these uses. For example, many college athletes have brought actions against the video game maker Electronic Arts which has used their likenesses, names and other personal data without permission or payment.
AN AD IS AN AD . . . EVEN WHEN IT OFFERS CONGRATULATIONS TO MICHAEL JORDAN
In 2015, basketball legend Michael Jordan settled a lawsuit against two Chicago-area supermarket chains, Jewel Food Stores Inc. and the now-defunct Dominick’s Finer Foods LLC, based on the unauthorized use of the basketball legend’s likeness in a 2009 special edition of Sports Illustrated. The settlement followed an August 2015 trial in which Jordan won an $8.9 million jury verdict from Dominick’s. The Jewel case never went to trial. While the terms of the agreement were confidential, Jordan’s team was reported to be pleased with the deal.
In 2010, Jordan, widely considered the greatest basketball player of all time, sued Safeway Inc., the parent company of Jewel Food Stores, and the now-defunct Dominick’s, contending the companies used his likeness without his permission to tout their brands in a special issue of Sports Illustrated that commemorated Jordan’s entrance into the NBA Hall of Fame. Jordan argued the two chains used his name in violation of the Illinois Right of Publicity Act, the Lanham Act, the Illinois Consumer Fraud and Deceptive Trade Practices Act and the common law tort of unfair competition.
The Dominick’s full-page ad featured a coupon for the chain’s “Rancher’s Reserve” steak below the words “Michael Jordan . . . you are a cut above” and displayed the grocer’s trademarked logo and slogan colored in the Chicago Bulls’ signature red, black and white.
The Jewel ad was placed on the inside back cover of the same issue and, while it offered no promotion, included a picture of the Jewel Osco logo and a nod to Jordan that played off the supermarket’s logo “good things are just around the corner.” The ad read, “Jewel-Osco salutes #23 on his many accomplishments as we honor a fellow Chicagoan who was ‘just around the corner’ for so many years.”
Today there are probably as many right-to-publicity cases being litigated as right-to-privacy lawsuits. In the following discussion of the appropriation tort, the two—right of publicity and right of privacy—will be intermingled. The law is basically the same; only the damage asserted by the plaintiff in the lawsuit is different.
USE OF NAME OR LIKENESS
Courts have spent considerable time attempting to define what is or is not an illegal use of a name or likeness. In the 1970s and 1980s, most courts seemed to take a very expansive view of the concept of use. But beginning in the 1990s, some appellate courts began to narrow this definition. A summary of cases will illustrate this trend.
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Everybody knows what a name is, and it is therefore unnecessary to dwell on that term. It should be noted, however, that stage names, pen names, pseudonyms and so forth count the same as real names in the eyes of the law. For example, if the name of singer Lady Gaga is used by a wig company in advertisements for its wigs without her consent, the wig company cannot successfully defend against Lady Gaga’s right of publicity lawsuit because her real name is Stefani Joanne Angelina Germanotta. Only the names of people are protected under appropriation. The names of businesses, corporations, schools and other “things” are not protected under the law. However, the use of a trade name like Kodak or Crest can create other serious legal problems (see Chapter 14).
What is a likeness? A photograph of an individual is obviously a likeness. But the photo doesn’t have to be a facial shot.
8 A New York court ruled it was up to a jury to decide if a photograph in a cosmetics advertisement of the back of a woman bathing in a stream could be identified as a likeness of the plaintiff, who had been secretly photographed.
9 On the other hand, another New York court ruled in 2011 that a physical fitness company called Pure Power Boot Camp did not violate the publicity rights of two of its former drill instructors when it used their images in an advertisement for Pure Power. Why? Because their backs were turned to the camera and thus they were not recognizable. As the court noted, there must be a “clear representation” of “identifying features” such that the individuals would be “recognizable from the advertisement itself.”
10 A likeness can also be a sketch or a drawing.
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Protecting a voice might also be encompassed in a law protecting a name or likeness. In 2008 the 3rd U.S. Court of Appeals refused to dismiss a lawsuit by the son of John Facenda who sued N.F.L. Films for using his father’s distinctive baritone voice in a commercial vehicle promoting the release of the video game “Madden N.F.L. 06.” For years Facenda had been the voice of N.F.L. Films, a popular series of video summaries of the National Football League games. But he had never agreed to have his voice used in a commercial for the video game. The defendants used 13 seconds of his commentary from the N.F.L. Films series in the promotional TV video to underscore the degree to which the Madden video game authentically re-created the N.F.L. experience. The court said Facenda’s voice had commercial value, that the N.F.L. used it for commercial purposes and that he had never consented to such a use. The case would have to go to trial.
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Celebrities have argued—with some success—that the protection of their likeness extends to depictions of characters they played in movies or on television. An actor named George McFarland, who as a child in the 1930s played a character called Spanky in a series of short comedies known as the “Our Gang” comedies (and later as “The Little Rascals” when they were shown on television), sued the owner of a restaurant called Spanky McFarland’s. The eating establishment was filled with memorabilia from the film series. A federal appeals court ruled that it was clearly a triable issue of fact as to whether the actor had become so identified with the character that the use of the name
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in a commercial venture would invoke McFarland’s own image.
13 The 9th U.S. Court of Appeals reached the same conclusion when George Wendt and John Ratzenberger sued a restaurant chain for installing animatronic robots that looked like Norm Peterson and Cliff Clavin, characters played by Wendt and Ratzenberger on the long-running TV series “Cheers.” The court said a performer does not lose the right to control the commercial exploitation of his or her likeness merely by portraying a fictional character in a motion picture or television series.
14 In 2009 Woody Allen agreed to a $5 million settlement in his lawsuit against American Apparel, a trendy clothing company known for its racy advertising. The apparel company used a frame from the film “Annie Hall,” which depicted Allen as a Hasidic Jew, on billboards in Los Angeles and New York, and on its Web site. Allen had sought a $10 million judgment. But not all courts have followed this path. In 2008, a federal court in New York ruled that the state statute did not “extend to fictitious characters adopted or created by celebrities.”
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“LACEY JONAS?” OR LINDSAY LOHAN?
Actress Lindsay Lohan has sued for appropriation more than once. In 2014, Lohan sued video game maker Rockstar Games and distributor Take Two Interactive over a character featured in the video game “Grand Theft Auto V.” Lohan’s lawsuit claimed that the character, Lacey Jonas, was based off a photograph of her taken in 2007. Despite prominent placement in the game’s marketing, Jonas is a minor character in the game itself. Players in the game are tasked with enduring Jonas, a vain, vapid, demanding and self-indulgent actress, while attempting to outrun paparazzi. Lohan claimed the character, combined with cover art and promotional material, constituted an “unequivocal” use of her likeness without her permission.
The defendants initially responded by asking a court to dismiss the case, stating the lawsuit was a “legally meritless” publicity stunt and noting that Lohan had filed frivolous lawsuits in the past (such as when she attempted to sue rapper Pitbull over his lyrics, discussed earlier in this chapter). Lohan responded by filing a more detailed version of the lawsuit. The court allowed the lawsuit to move forward, ruling that Lohan’s statement showed enough evidence that her right to publicity had been violated and that Rockstar did not provide sufficient evidence to prove that the character was not based on Lohan.
Eventually, however, a five-judge panel in the Manhattan Appellate Division ruled that the lawsuit was without merit. Even if Rockstar found inspiration in Lohan, the court reasoned, the “video game’s unique story, characters, dialogue, and environment, combined with the player’s ability to choose how to proceed in the game,” rendered it a work of fiction and satire. That is, the court ruled that even if the in-game character constituted a representation of Lohan, the video game did not fall under the statutory definitions of “advertising” or “trade.”
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©Galvin Rodgers/Alamy Stock Photos
©Michael Tran/FilmMagic/Getty Images
“Actress Lindsay Lohan sued the makers and distributors of Grand Theft Auto V for using her ‘likeness’ without permission.”
Other celebrities have argued—again, sometimes successfully—that their right to publicity was violated when a business used someone who looked like or sounded like the celebrity in its advertisements. In August 2012, Old Navy reached a settlement for an undisclosed amount with Kim Kardashian over a TV commercial called “Super C-U-T-E.” It featured a Kardashian lookalike named Melissa Molinaro singing while shopping her way down the aisles of an Old Navy store. Kardashian sued for millions, claiming Old Navy and its owner, The Gap, had violated her right of publicity. The complaint alleged that the ad featuring Molinaro “falsely represent[s] that Kim Kardashian sponsors, endorses, or is associated with” Old Navy and that the ad was purposefully “designed and intended to confuse, to cause mistake, and to deceive the public into believing” Kardashian appeared in it. Do your own online search for side-by-side images of Kardashian and Molinaro (perhaps best known for her stellar performance in the 2012 motion picture “Jersey Shore Shark Attack”) to determine if there is a confusing resemblance.
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Bette Midler successfully sued the Ford Motor Company when it hired a singer who sounded almost exactly like Midler to sing one of Midler’s hit songs for a soundtrack in a television advertisement. A federal appeals court ruled, “The singer manifests herself in the song. To impersonate her voice is to pirate her identity.” Not every voice impersonation would necessarily be actionable, the court said. But when the distinctive voice of a widely known professional singer is deliberately imitated, this can amount to an appropriation.
17 Other performers have filed similar actions against advertisers. Will a
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disclaimer protect an advertiser from an appropriation suit when a look-alike model or sound-alike singer is used? Yes, if the disclaimer is prominent. Small type at the bottom of a full-page ad will not do the trick; nor will an audio disclaimer camouflaged by music or noise in a radio or television spot.
A high-water mark (or low-water mark, depending on your point of view) in the battle by celebrities against advertisers came in 1992 when television personality Vanna White successfully sued electronics manufacturer Samsung when it published a newspaper and magazine advertisement that depicted a robot, reminiscent of C3PO of “Star Wars” fame, wearing a blond wig, evening dress and jewelry, standing next to a video board similar to the one used on “Wheel of Fortune.” The ad was supposedly saying that Samsung electronic products would still be state of the art long after White had been replaced by an android. A federal court ruled that this photo was a use of White’s image, and constituted an actionable appropriation.
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The tide favoring celebrities seems to have turned somewhat in the wake of the White ruling, which was widely criticized. In some important cases defense attorneys were successful in raising First Amendment issues and the courts were asked to balance the protection for freedom of expression with the protection of a celebrity’s image. The 10th U.S. Court of Appeals blocked an attempt by the Major League Players Association to stop the distribution of a set of satirical baseball cards that made fun of many well-known players. The court said even though the cards used caricatures of the players, and the sale of the items was a commercial enterprise, the cards were parodies or social commentary protected by the First Amendment. “While not core political speech . . . this type of commentary on an important social institution constitutes protected expression,” the court said.
19 More recently a federal court ruled that the use of Major League baseball players’ names in online fantasy baseball leagues did not amount to making commercial use of a player’s identity.
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In an important ruling in 2001 the California Supreme Court fashioned a useful test for determining when the use of a celebrity’s likeness constitutes an infringement on the right of publicity, and when it is protected free expression. The test, which is known as the transformative use test, has been cited favorably by other courts.
The creative appropriation of celebrity images can be an important avenue of individual expression.
An artist named Gary Saderup created a charcoal drawing of the Three Stooges comedy team. Making a single drawing is not a problem since the law exempts single and original works of fine art from the purview of the California statute. But Saderup went on to create lithographic prints and T-shirts that also contained the drawing and was sued by Comedy III Inc., a company that owns the rights to the Stooges. Justices on the California high court noted immediately the First Amendment implications in the issue. “Because celebrities take on public meaning, the appropriation of their likenesses may have important uses in uninhibited debate on public issues, particularly debates about culture and values,” the court noted. The creative appropriation of celebrity images can
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be an important avenue of individual expression, the justices added. The importance of celebrities in society means that the right to publicity has the potential of censoring significant expression by suppressing alternative versions of celebrity images that are “iconoclastic, irrelevant, or otherwise attempt to redefine the celebrity’s image.” There must be a test, then, that takes these values into account, the justices went on. The court focused on what it called the transformative elements in the reproduction. If the reproduction is simply a literal translation of the celebrity’s image, then the First Amendment concerns are surely minimal. But it is a different matter if the user has added other elements to the image, has significantly transformed the image into a parody, used the name in a song, lampooned the prominent person, or in some way used the celebrity’s likeness as a vehicle for the expression of opinion or ideas. Then the rights of free expression take precedence over the right of the celebrity to protect his or her right to publicity. As noted above, this rule from the Three Stooges case is frequently known as the transformative use test. In this case, the court said, Saderup used a literal depiction of the Stooges for commercial gain without adding significant expression beyond his trespass on the right to publicity. He was held liable for violating the publicity rights of Comedy III Productions.
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In 2016, the 9th U.S. Circuit Court of Appeals rejected a First Amendment defense to right of publicity claims in a case involving the video game Madden NFL made by Electronic Arts. Released annually, every updated version of the Madden NFL video game series includes all current players for all 32 NFL teams, along with player names, team logos, colors and uniforms. Electronic Arts paid National Football Players Inc., the licensing arm of the National Football League Players Association, annual licensing fees in millions of dollars to use current players’ likenesses. From 2001 through 2009, however, the annual version of Madden NFL also included popular “historic teams.” Electronic Arts did not obtain a license to use the likenesses of the former players on these teams. Although the players on the historic teams were not identified by name or photograph, each was described by his position, years in the NFL, height, weight, skin tone and relative skill level in different aspects of the sport. Some of the former players on these teams sued Electronic Arts under California statutory and common law. Electronic Arts claimed its use of the former players’ likeness was protected under the transformative use defense formulated by the California Supreme Court in Comedy III Productions. The 9th Circuit, however, ruled that the video game was not transformative. “Madden NFL replicates players’ physical characteristics and allows users to manipulate them in the performance of the same activity for which they are known in real-life—playing football for an NFL team. Neither the individual players’ likenesses nor the graphics and other background content are transformed,” wrote the court.
22 In March 2016, the U.S. Supreme Court denied Electronic Arts’ petition for a writ of certiorari.
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THE HURT LOCKER OF APPROPRIATION? A TRANSFORMATIVE MOVIE CHARACTER
“The Hurt Locker” won six Academy Awards, including best picture, in March 2010. The movie, about an elite U.S. Army bomb squad doing dangerous duty in Iraq, also spawned a lawsuit. Jeffrey Sarver, who served in Iraq as an explosive ordinance disposal technician, claimed that a central character (staff sergeant Will James) in the movie was based upon his life. He sued in Sarver v. Hurt Locker, LLC for misappropriation/right of publicity, alleging his identity and likeness were used without his consent to make “The Hurt Locker.” Indeed, the movie’s screenwriter, Mark Boal, was embedded with Sarver’s unit in 2004 while Boal was gathering information for an article that appeared in Playboy. Boal also interviewed Sarver on several occasions after Sarver returned to the United States.
In 2016, the 9th U.S. Circuit Court of Appeals held that Sarver could not sue for appropriation for several reasons. First, the court noted that “The Hurt Locker” was not a commercial use. Therefore, it did not receive less First Amendment protection. Second, Sarver did not make the investment required to produce a performance of interest to the public or invest time and money to build up economic value in a marketable performance or identity. The court ruled while Sarver’s story was of public interest, Sarver had not sought to attract public attention to himself. The movie that brought Sarver’s story to life did not steal Sarver’s “entire act” or otherwise exploit the economic value of any performance or persona he had worked to develop. Instead, the movie’s writers used Sarver’s life to inspire their work. The court concluded, “In sum, ‘The Hurt Locker’ is speech that is fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life—including the stories of real individuals, ordinary or extraordinary—and transform them into art, be it articles, books, movies, or plays.”
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The 6th U.S. Court of Appeals, citing both the Cardtoons and Saderup decisions, ruled in 2003 that artist Rick Rush did not violate Tiger Woods’ right to publicity when he painted a picture of the golfer commemorating his 1997 Master’s golf tournament victory. The picture featured Woods in the foreground and six other golfing greats in the background. Rush produced 250 limited edition serigraphs, which he sold for $700 each, and 5,000 smaller lithographs, which were priced at $15 each. He was sued by ETW Corporation, which holds the exclusive marketing rights to Woods, for trademark infringement and violation of the golfer’s right to publicity. (The court held a person’s image or likeness cannot function as a trademark. See Chapter 14 for more on trademark law.) As for the right to publicity, the court said Rush’s work was creative and transformative, and this made it worthy of First Amendment protection. The substantial creative content in the work outweighed any adverse effect on ETW’s market.
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©Hulton Archives/Getty Images
The comedy team of the Three Stooges was the focus of a California lawsuit based on the right to publicity. The case resulted in the development of the transformative use test for balancing right of publicity interests against artistic freedom of expression concerns.
An important contrary ruling involving a celebrity since the Saderup case was a decision in the summer of 2006 by the Missouri Court of Appeals upholding a $15 million verdict against comic book artist Todd McFarlane. McFarlane created a Spawn comic book character named Anthony Twistelli in 1992. McFarlane changed the name of the character to Tony Twist and later told fans the character was modeled after National Hockey League player Tony Twist. Twist sued for appropriation. After nearly 10 years of litigation the appellate court rejected free speech arguments and adopted what it called a “predominant-use” test. Speech with a predominant artistic purpose is protected, while
COLLEGE FOOTBALL VIDEO GAMES: FORMER PLAYERS SUCCESSFULLY SUED ELECTRONIC ARTS FOR VIOLATING THEIR RIGHT OF PUBLICITY
Electronic Arts once produced a video game series called “NCAA Football.” These games were popular for their realism and detail, including the use of more than 100 “virtual teams” that used real college’s names, uniforms, fight songs and mascots. The virtual players, in turn, closely resembled real-life players and shared their vital and biographical information.
Former Rutgers quarterback Ryan Hart sued Electronic Arts, alleging the use of his likeness and biographical information in “NCAA Football” violated his right of publicity. Electronic Arts countered that video games are a form of speech protected by the First Amendment and that the “NCAA Football” series is artistic expression.
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In 2013, the 3rd U.S. Circuit Court of Appeals ruled in Hart v. Electronic Arts

25 that the transformative use test developed in the Three Stooges case of Saderup (described earlier in this section) was the proper test to balance Hart’s right of publicity interest against Electronic Art’s interest in freedom of expression. In explaining this test, the appellate court noted that a mere literal depiction of a celebrity re-created in a different medium is not a transformative use. On the other hand, a transformative use alters the meaning behind the use of a celebrity’s likeness, perhaps by lampooning, adding social commentary or placing the celebrity in a fanciful and imaginative setting.
Applying the transformative use test to the facts of Hart, the appellate court wrote that the issue was whether real-life quarterback Ryan Hart’s identity was sufficiently transformed in the “NCAA Football” video games. Hart’s “identity,” the court explained, encompassed not only his visual likeness, but also his biographical data.
The court then examined the content of the video games. It determined that Hart’s “avatar does closely resemble the genuine article. Not only does the digital avatar match [Hart] in terms of hair color, hair style and skin tone, but the avatar’s accessories mimic those worn by [Hart] during his time as a Rutgers player. The information . . . also accurately tracks [Hart’s] vital and biographical details.”
Next, the court examined a critical factor—the context in which Hart’s identity was used—to determine if the use was transformative. In ruling for Hart and against Electronic Arts, the court wrote that “the digital Ryan Hart does what the actual Ryan Hart did while at Rutgers: he plays college football, in digital re-creations of college football stadiums, filled with all the trappings of a college football game. This is not transformative; the various digitized sights and sounds in the video game do not alter or transform the Appellant’s identity in a significant way.”
The court also rejected Electronic Arts’ argument that a video game player’s ability to alter the avatar’s appearance makes the use transformative. “Given that Hart’s unaltered likeness is central to the core of the game experience, we are disinclined to credit users’ ability to alter the digital avatars in our application of the transformative use test to this case,” the court wrote.
The 9th U.S. Circuit Court of Appeals reached a very similar conclusion in 2013 in favor of another former college football player in Keller v. Electronic Arts. The 9th Circuit also applied the transformative use test from Saderup, and it found that Electronic Arts’ use of former Arizona State quarterback Sam Keller’s image and biographical information was not transformative. In brief, two different federal appellate courts—the 3rd and 9th Circuits—in 2013 ruled for the college players and against Electronic Arts.
In September 2013, shortly after both rulings against it in Hart and Keller, Electronic Arts announced it would stop producing the NCAA Football video game series. In 2014, Electronic Arts submitted for judicial approval a whopping $40 million settlement with the class-action plaintiffs in both Hart and Keller, along with a third case involving former UCLA basketball player Ed O’Bannon that stemmed from a college basketball video game. The settlement was approved in 2015 by a federal judge in California.
And what about the NCAA? In 2014, it paid $20 million to the plaintiffs to settle the lawsuits.
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speech with a predominant commercial purpose is not. This is a highly subjective test that had never been used by another court. The burden falls on the judge to decide what is art and what is commerce. McFarlane argued that when he first used Twist’s name, he was a relatively unknown player in Canada, and therefore use of the name had no commercial benefit. The court disagreed. It was enough that McFarlane intended to create the impression that the hockey player was associated with the comic book, the court said.
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It’s important to note that similar issues of transformative use and parody arise in copyright cases (see Chapter 14). In fact, the transformative use test fashioned in Saderup is largely borrowed from fair use considerations in copyright law. For instance, the 7th U.S. Circuit Court of Appeals in 2012 in Brownmark Films v. Comedy Partners

27 considered whether a “South Park” parody of a real-world viral video called “What What (In The Butt)” violated the copyright interests of the owner of that video. As the appellate court colorfully wrote, “the ‘South Park’ version re-creates a large portion of the original version, using the same angles, framing, dance moves and visual elements. However, the ‘South Park’ version stars Butters, a naïve nine-year old, in a variety of costumes drawing attention to his innocence: at various points he is dressed as a teddy bear, an astronaut and a daisy.” In ruling in favor of “South Park,” the court noted that the underlying purpose of the “South Park” version of the video “was to comment on and critique the social phenomenon that is the ‘viral video.’” The court added that the “South Park” video “imitates viral video creation while lampooning one particularly well-known example of such a video” and that “this kind of parodic use has obvious transformative value [emphasis added].”
ADVERTISING AND TRADE PURPOSES
What are advertising and trade purposes? While minor differences exist among the states—especially among the states with statutes—a general guideline can be set down: Advertising or trade purposes are commercial uses; that is, someone makes money from the use. Here are examples of the kinds of actions that may be regarded as a commercial use:
1.
Use of a person’s name or photograph in an advertisement on television, on radio, in newspapers, in magazines, on the Internet, on posters, on billboards and so forth. Rapper 50 Cent sued a Philadelphia car dealer for $1 million in 2005 for using his name in an ad for a Dodge Magnum. The ads used the slogan, “Just Like 50 Says.”
2.
Display of a person’s photograph in the window of a photographer’s shop to show potential customers the quality of work done by the studio.
3.
A testimonial falsely suggesting that an individual eats the cereal or drives the automobile in question.
4.
Use of an individual’s name or likeness in a banner ad or some other commercial message on a Web site.
5.
The use of someone’s likeness or identity in a commercial entertainment vehicle like a feature film, a television situation comedy or a novel.
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A 2013 decision by the Supreme Court of Georgia in Bullard v. MRA Holding, LLC, illustrates well the first of these categories. The case centered on Lindsey Bullard, who claimed the use of her photo on a box cover for a “Girls Gone Wild” video constituted misappropriation of her likeness. Back in 2000, when Bullard was just age 14 and a middle schooler, she exposed her breasts during spring break to two unknown men in a parking lot in Panama City, Fla. Although aware the men were taping her, Bullard did not know what future use they might make of the video. Ultimately, the video was sold to MRA Holding, which markets “Girls Gone Wild.” A still photo of Bullard flashing was taken from the video and put on the box cover. MRA Holding blocked out Bullard’s breasts and superimposed the inscription “Get Educated!” in that space. This image also appeared in TV commercials and Internet ads.
In ruling for Bullard, Georgia’s high court wrote that “under the facts of this case, Bullard can be seen as endorsing the ‘College Girls Gone Wild’ video through the use of her image.” The court rejected the notion that Bullard’s consent to be videotaped amounted to consent for MRA Holding to use her image on the box cover. “The men to whom Bullard exposed her breasts never indicated to Bullard that they worked for, had any connection with, or had any intention of giving Bullard’s image to, MRA for the purpose of selling ‘College Girls Gone Wild’ videos. Nor did Bullard have any contact with MRA to give MRA permission to use her image for that purpose,” the court reasoned. Is there another problem with lack of consent in this case? As described in the next few pages, minors typically cannot consent to the use of their names or likenesses without additional permission from a parent or guardian. Having already found for Lindsey Bullard, however, the court “decline[d] to reach that issue.”
The kinds of uses outlined in Example 5 pose the most complicated legal problems because of the varied circumstances involved. And courts often have difficulty sorting through these circumstances to arrive at consistent decisions. What if a producer just happens to pick the name of a real person for use in a television program? Michael Costanza sued Jerry Seinfeld and others for use of the name Costanza in the successful situation comedy. But the fictional character was named George and the plaintiff’s full name or photo was never associated with the show. The similarity of the plaintiff’s last name and the fictional character did not amount to an illegal appropriation, the New York court ruled.
28 In 2005, the Florida Supreme Court ruled that the state’s commercial misappropriation statute did not apply to a motion picture or any other use that does not “directly” promote a product or service. The children of two of the crew members of the Andrea Gail, the fishing boat that was lost during “The Perfect Storm,” sued Time Warner for using the names of the men in the feature film of the same name without permission. The fact that the motion picture was created for profit did not warrant defining the term “commercial purpose” in the statute to include a motion picture, the court said.
29 As noted earlier, the Manhattan Appellate Division ruled that Grand Theft Auto V did not fall under the statutory definitions of “advertising” or “trade.” But caution should be exercised in such cases as a cause of action for false-light privacy might be generated because the events included in the film have been fictionalized in some manner (see Chapter 8).
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NEWS AND PUBLIC INTEREST EXCEPTION
What about this argument? A newspaper runs a photograph of John Smith on the front page after his car rolled over several times during a high-speed police pursuit. Smith sues for invasion of privacy, arguing that his picture on the front page of the newspaper attracted readers to the paper, resulted in the sale of newspapers and therefore was used for commercial or trade purposes.
More than a century ago New York courts first rejected this argument, ruling that the law was intended to punish commercial use, not the dissemination of information.
30 And since that ruling other courts have consistently rejected this claim. The U.S. Supreme Court has ruled that the fact that newspapers and books and magazines are sold for profit does not deny them the protection of liberty of expression.
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Asking 15 different judges what is newsworthy or what constitutes a matter of public interest could very likely result in 15 different answers. So-called reality television shows blur the line between legitimate news and entertainment. And judges can become confused. A New Jersey appellate judge noted this problem when he wrote, “It is neither feasible nor desirable to make a distinction between news for information and news for entertainment in determining the extent to which the publication is privileged.” In this case several individuals who had been admitted to an emergency room at a hospital were videotaped for the television program, “Trauma: Life in the ER,” which was telecast on The Learning Channel. The court ruled the program to be news.
32 In 2016, a federal court dismissed a misappropriation of likeness claim stemming from the movie “Straight Outta Compton.” Gerald Heller, a highly successful music executive sued over the use of his likeness in a movie about the rise of the rap group N.W.A. Heller also sued for defamation and false-light invasion of privacy. On the misappropriation claim, the judge ruled that the public interest defense allowed “film producers to depict matters in the public arena without fear of liability.” The judge wrote that the subject matter of the film—Heller’s tumultuous relationship with NWA—involved a matter of public interest. The judge held that because there was “little doubt that N.W.A. has had an influence on popular culture both domestically and internationally,” Heller’s role in the group’s rise to stardom was certainly a matter of public interest and the film’s use of Heller’s likeness was protected by the First Amendment.
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In another case a 14-year-old Florida girl posed for a series of pictures that she believed would appear in Young and Modern, a magazine aimed at teenage girls. The photos appeared in a 1995 edition of the publication, but not exactly in the context the young model expected. They illustrated a regularly published column called Love Crisis. In this edition a 14-year-old letter writer told the columnist she had gotten drunk at a party and had sex with three different boys. What should I do? she asked. Don’t do it again, the advice columnist replied, and be sure to get test