4. Elements of libel
• Defamation
• Falsity
• Fault
– Different standards for public officials (and
public figures) and private figures. But no
longer is libel a no-fault tort.
6. Elements of libel
• Defamation
• Falsity
• Fault
• Publication
• Identification
7. Elements of libel
• Defamation
• Falsity
• Fault
• Publication
• Identification
• Harm
8. Evolution of libel
• Falsity was not always an element of libel:
The greater the truth, the greater the harm
9. Evolution of libel
• Falsity was not always an element of libel:
The greater the truth, the greater the harm
• Fault was not an element of libel until the
1960s — it was a no-fault tort
10. Evolution of libel
• Falsity was not always an element of libel:
The greater the truth, the greater the harm
• Fault was not an element of libel until the
1960s — it was a no-fault tort
• How does requiring fault advance the
purpose of the First Amendment?
12. Libel versus slander
• What is the difference?
• Classic definition is that libel is written and
slander is spoken
13. Libel versus slander
• What is the difference?
• Classic definition is that libel is written and
slander is spoken
• Packaged television and radio reports have
blurred the difference. Today we talk
mainly about libel.
15. Can libel = prior restraint?
• In Near, Chief Justice Hughes wrote that
the Minnesota Public Nuisance Law
amounted to prior restraint
16. Can libel = prior restraint?
• In Near, Chief Justice Hughes wrote that
the Minnesota Public Nuisance Law
amounted to prior restraint
• Hughes cited Blackstone on post-
publication punishment
17. Can libel = prior restraint?
• In Near, Chief Justice Hughes wrote that
the Minnesota Public Nuisance Law
amounted to prior restraint
• Hughes cited Blackstone on post-
publication punishment
• Milton, in the Areopagitica, advocated
after-the-fact punishment, including death
18. Civil rights and libel
• As with Gitlowv. New York, the Times v. Sullivan
decision must be seen within the broader context of
the civil-rights movement
19. Anthony Lewis
• Wrote Make No
Law, a history of
Times v. Sullivan
• Retired New York
Times columnist
• Married to Margaret
Marshall, chief justice
of Mass. SJC
20. Ad on King’s
behalf
• Published in
New York Times
in 1960
• Contained several
minor errors
21. Four ministers also sued
• Rev. Ralph
Abernathy (right)
with King in
Alabama
• Idea was to keep
Sullivan’s suit in
state court
22. Times, ministers lose
• Found liable in
courtroom of judge
who presided at
re-enactment of
Jefferson Davis’s
inauguration
• $500,000 judgment
• Libel a state matter —
or is it?
23. Times v. Sullivan (1964)
• Unanimous decision written by
William Brennan
• Says Alabama court’s decision amounts to
punishment of seditious libel: criticism of
government officials
• Therefore, the Alabama court’s action is
unconstitutional under the First and
Fourteenth Amendments
24. William Brennan’s view
“[D]ebate on public
issues should be
uninhibited, robust, and
wide-open, and … it may
well include
vehement, caustic, and
sometimes unpleasantly
sharp attacks on
government and public
officials”
25. Actual malice
• New standard of fault that public officials
must show to prove libel
26. Actual malice
• New standard of fault that public officials
must show to prove libel
• Knowingly false
27. Actual malice
• New standard of fault that public officials
must show to prove libel
• Knowingly false
• Reckless disregard for the truth
28. A libel earthquake
• 1967: Actual malice standard extended to
public figures as well as officials
29. A libel earthquake
• 1967: Actual malice standard extended to
public figures as well as officials
• 1974: Private figures must at least show
negligence to win a libel suit
30. A libel earthquake
• 1967: Actual malice standard extended to
public figures as well as officials
• 1974: Private figures must at least show
negligence to win a libel suit
• 1989: Reckless disregard is defined as
knowledge of probable falsehood
32. Disadvantages for media
• Opens press defendants up to examination
as to their state of mind
• Harms media credibility by creating a
cynical attitude among press critics
34. Case study: Dan Rather
• A 1980s case very
similar to the story
that brought him
down in 2004
• Won by testifying he
believed documents
were authentic
• If he had lost, could
Rathergate have been
avoided?