Defamation. CS 340 Fall Defamation: no First Amendment right to defame

Transcription

1 Defamation CS 340 Fall 2015 Defamation: no First Amendment right to defame Defamation required elements to prove: 1. False statement of fact about plaintiff by defendant 2. Publication communicated to a third party 3. Damages the reputation of the plaintiff Defamation forms Oral: slander Written: libel Negligence standard, Gertz (1974) 1

2 Can you defame someone with a true, dark secret? A. Yes B. No Yes No A defamatory tweet would be an example of A. Slander B. Libel Slander Libel 2

3 Defamation per se: If it s defamation per se, proving harm to reputation is not required Per se categories: disease; criminal actions; misconduct related to profession or business; sexual misconduct. False statements involving these items are always actionable If you are bring a lawsuit claiming the statement was defamation per se, you will not have to prove A. That the statement was communicated to a third party B. That the statement was false C. That the statement harmed your reputation D. All of the above E. None of the above That the statement was co... That the statement was false That the statement harmed... All of the above None of the above 3

4 Defenses, Exceptions to Defamation Is it a statement of fact? Facts: capable of being objectively verified. Is it an opinion? Generally, opinions are protected speech. Stating false information opinion Other exceptions: merely offensive statements The Dumb Ass example in Vogel v. Felice if the meaning conveyed cannot by its nature be proved false Hyperbole Hustler v. Falwell Libel proof plaintiff Which of the following is NOT a per se category for defamation? A. Disease B. Hyperbole C. Criminal conduct D. Business misconduct E. Sexual misconduct Disease Hyperbole Criminal conduct Business misconduct Sexual misconduct 4

5 Defamation and public figures Public figure: celebrity, politician, public official Examples: guide/examples public and private figures In addition to the three requirements, public figure plaintiffs must prove that the defendant acted with actual malice (NY Times v. Sullivan) Knowing that it was false or with active disregard to statements truth. Regular defamation tests merely for negligence Reasonably prudent person, reasonable care Ex. David Beckham s $25 M suit against In Touch beckham magazinelibel judge Public figures who sue for defamation have an additional element to prove about the statement. What is it? A. the statement was communicated to a third party B. the statement was false C. the statement was made with actual malice D. the statement harmed his/her reputation. E. the statement was made with negligence. the statement was communi... the statement was false the statement was made wit... the statement was made wit... the statement harmed his/h.. 5

6 Suppose that each of the following statements is untrue and was communicated to a third party. Is the statement defamation? Why? 1. Bob smells bad. 2. Nurse Ellen tells Nurse Sam Dr. Steve had a 3 margarita lunch before performing that surgery. 3. George took the money. 4. Vivian has herpes. 5. Charlie Sheen, Lindsey Lohan called and she wants her smack back. 7. Dr. Phil is having an affair with Oprah. 8. Bridget slept with Frank. 9. I think Bridget smoked weed at the party this weekend because I saw her coming out of her room, and when I went in I could smell it, and I found a roach. 10. Amy Winehouse had AIDs. Can you sue Twitter & Facebook over a member s defamatory comments? See 230 of the Federal Communications Decency Act 6

7 Your former friend defames you on Instagram. Can you successfully sue Instagram as Instagram was the online publisher? A. Yes B. No Yes No What Courtney Love can Teach Us about Defamation The first defamation lawsuit Resolution: settlement love settles twitterdefamation case/?_php=true&_type=blogs&_php=true&_type=blogs&emc=eta1&_r=1 The second lawsuit: esq/courtney lovesued again defamation The case went to trial. January 2014 verdict for Love k chow/why courtney love twibel_b_ html The third lawsuit: Pinterest comments include "you stole 36 bags of clothing on cctv" and "you stol;e 36 bags of my txtiles and designs and are still using my designs. esq/courtney love hit defamation lawsuit Settlement, Aug Love has agreed to pay another $350,000 to Dawn Simorangkir. _faces_second_damages_bill_for_online_row.html 7

8 Business Interests & Online Defamation Unfavorable reviews of businesses: T & J Towing v. Kurtz, Facebook group: Kalamazoo Residents against T&J Towing towing v kurtz weve got court documents Update & what is S.L.A.P.P.? Trip advisor: Dirtiest hotels list ffirms+dirtiest+hotel+defamation+ruling Unfavorable tweets against businesses: Worst car dealership in the world Alascio%20Response.pdf Apartment Mold: defamation lawsuit dismissed.html Misc. Free Speech Issue: Students right to free speech Application of Tinker v. Des Moines (1969 US S. Ct. case). Black armbands & school ban Students are persons under the Constitution Rights not left at the school house gate School must base decision on the likelihood of disruption of education environment and intrusion of others. Fraser standard (1986) student lewd speech distinguishing "vulgar" speech from the pure "political" speech in Tinker Hazelwood standard (1988) school paper case educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns." 8

9 Bell v. Itawamba Co. School Bd. (5 th Circuit, 2014) Student Bell posted rap video on his Facebook critical of two school coaches P.S. Koaches the Truth Need to be Told Classmates had told Bell about sexually inappropriate behavior directed at them from coaches. Bell created song to inform the world of what was happening. School says video was threatening, harassing and intimidating to employees. Bell said he was telling the truth. He only shared this video with his fb friends. Bell was suspended and transferred to an alternative school. Opinion: After watching & listening to Bell s video, is Bell within his 1 st Amendment rights to create and share the video? A. Yes, he is within the 1 st Amendment. B. No, the 1 st Amendment should not protect him. C. Unsure Wrap up notes, Bell case Mississippi Court held for: Appealed. Appellate Court held for: Yes, he is within the 1st Amen... No, the 1st Amendment should... Unsure 9

10 Finkel v. Dauber (NY, 2010) Secret Facebook group Victim of the bullying sues for defamation ves/2010/07/private_faceboo.htm Outcome? Free speech challenges for student speech consider A. The kind of speech (political, vulgarity, truth) B. The likelihood of disruption to the academic environment C. The rights of those around the student D. All of the above E. Nothing. Students do not have free speech rights The kind of speech (political, vu... The likelihood of disruption to... The rights of those around the... All of the above Nothing. Students do not have... 10

11 Misc. Free Speech Issue: Employee s right to free speech Basic Primer there free speech at work/ Some right to discuss working conditions Distinguish conditions discussion from mere venting Examples of venting: NJ first grade teacher properly fired for saying she felt like a warden overseeing future criminals Great explanation of the difference. social media policies comeunder regulatory scrutiny.html?pagewanted=all Bartender, unhappy about receiving no raise in 5 years, posts on Facebook that his customers are rednecks and hopes they choke on glass as they drive home drunk. What s your opinion on classifying this? A. Discussion of working conditions B. Personal venting Discussion of working cond... Personal venting 11

12 Anonymous Speech online Anonymous Speakers Online v. US D Ct for Nevada 9 th Federal Circuit, 2010 Heighten standard protecting anonymous speech is appropriate for protecting political speech. Lower standard is appropriate for plaintiffs needing to identify online commercial speakers. No right to defame anonymously. Cohen v. Google (NY, 2009) 12