Libel and the media   Times v. Sullivan ushers in anuncertain new age of press freedom
Elements of libel• Defamation
Elements of libel• Defamation• Falsity
Elements of libel• Defamation• Falsity• Fault  – Different standards for public officials (and    public figures) and priv...
Elements of libel•   Defamation•   Falsity•   Fault•   Publication
Elements of libel•   Defamation•   Falsity•   Fault•   Publication•   Identification
Elements of libel•   Defamation•   Falsity•   Fault•   Publication•   Identification•   Harm
Evolution of libel• Falsity was not always an element of libel:  The greater the truth, the greater the harm
Evolution of libel• Falsity was not always an element of libel:  The greater the truth, the greater the harm• Fault was no...
Evolution of libel• Falsity was not always an element of libel:  The greater the truth, the greater the harm• Fault was no...
Libel versus slander• What is the difference?
Libel versus slander• What is the difference?• Classic definition is that libel is written and  slander is spoken
Libel versus slander• What is the difference?• Classic definition is that libel is written and  slander is spoken• Package...
Libel versus slander
Can libel = prior restraint?• In Near, Chief Justice Hughes wrote that  the Minnesota Public Nuisance Law  amounted to pri...
Can libel = prior restraint?• In Near, Chief Justice Hughes wrote that  the Minnesota Public Nuisance Law  amounted to pri...
Can libel = prior restraint?• In Near, Chief Justice Hughes wrote that  the Minnesota Public Nuisance Law  amounted to pri...
Civil rights and libel• As with Gitlowv. New York, the Times v. Sullivan  decision must be seen within the broader context...
Anthony Lewis       • Wrote Make No         Law, a history of         Times v. Sullivan       • Retired New York         T...
Ad on King’s   behalf  • Published in New York Times     in 1960• Contained several   minor errors
Four ministers also sued• Rev. Ralph  Abernathy (right)  with King in  Alabama• Idea was to keep  Sullivan’s suit in  stat...
Times, ministers lose           • Found liable in             courtroom of judge             who presided at             r...
Times v. Sullivan (1964)• Unanimous decision written by  William Brennan• Says Alabama court’s decision amounts to  punish...
William Brennan’s view“[D]ebate on publicissues should beuninhibited, robust, andwide-open, and … it maywell includeveheme...
Actual malice• New standard of fault that public officials  must show to prove libel
Actual malice• New standard of fault that public officials  must show to prove libel• Knowingly false
Actual malice• New standard of fault that public officials  must show to prove libel• Knowingly false• Reckless disregard ...
A libel earthquake• 1967: Actual malice standard extended to  public figures as well as officials
A libel earthquake• 1967: Actual malice standard extended to  public figures as well as officials• 1974: Private figures m...
A libel earthquake• 1967: Actual malice standard extended to  public figures as well as officials• 1974: Private figures m...
Disadvantages for media• Opens press defendants up to examination  as to their state of mind
Disadvantages for media• Opens press defendants up to examination  as to their state of mind• Harms media credibility by c...
Disadvantages for public• Virtually no recourse for public official or  public figure
Case study: Dan Rather           • A 1980s case very             similar to the story             that brought him        ...
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Libel and the media

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Times v. Sullivan ushers in an uncertain new age of press freedom.

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Libel and the media

  1. 1. Libel and the media Times v. Sullivan ushers in anuncertain new age of press freedom
  2. 2. Elements of libel• Defamation
  3. 3. Elements of libel• Defamation• Falsity
  4. 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.
  5. 5. Elements of libel• Defamation• Falsity• Fault• Publication
  6. 6. Elements of libel• Defamation• Falsity• Fault• Publication• Identification
  7. 7. Elements of libel• Defamation• Falsity• Fault• Publication• Identification• Harm
  8. 8. Evolution of libel• Falsity was not always an element of libel: The greater the truth, the greater the harm
  9. 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. 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?
  11. 11. Libel versus slander• What is the difference?
  12. 12. Libel versus slander• What is the difference?• Classic definition is that libel is written and slander is spoken
  13. 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.
  14. 14. Libel versus slander
  15. 15. Can libel = prior restraint?• In Near, Chief Justice Hughes wrote that the Minnesota Public Nuisance Law amounted to prior restraint
  16. 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. 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. 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. 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. 20. Ad on King’s behalf • Published in New York Times in 1960• Contained several minor errors
  21. 21. Four ministers also sued• Rev. Ralph Abernathy (right) with King in Alabama• Idea was to keep Sullivan’s suit in state court
  22. 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. 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. 24. William Brennan’s view“[D]ebate on publicissues should beuninhibited, robust, andwide-open, and … it maywell includevehement, caustic, andsometimes unpleasantlysharp attacks ongovernment and publicofficials”
  25. 25. Actual malice• New standard of fault that public officials must show to prove libel
  26. 26. Actual malice• New standard of fault that public officials must show to prove libel• Knowingly false
  27. 27. Actual malice• New standard of fault that public officials must show to prove libel• Knowingly false• Reckless disregard for the truth
  28. 28. A libel earthquake• 1967: Actual malice standard extended to public figures as well as officials
  29. 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. 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
  31. 31. Disadvantages for media• Opens press defendants up to examination as to their state of mind
  32. 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
  33. 33. Disadvantages for public• Virtually no recourse for public official or public figure
  34. 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?
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