INTRODUCTION TO LIBEL LAW

It wasn’t the biggest libel case in history, but it shows  the way the law protects people who speak out on public issues.  In the spring and summer of 2016, Esther Calhoun and three other Alabama Civil Rights activists were sued for libel by a waste dumping company for speaking out against pollution. Within a year, the company had to withdraw its lawsuit and reach an agreement with the activists. See post on this site.  (ACLU photo)

Libel is a false statement   about a living person or existing institution that is made to someone else and seriously  injures reputation by exposing them to public hatred, shame, disgrace or ridicule. If a statement is true, or if it doesnt cause damage, it’s not libel.

Someone who feels injured brings a libel  lawsuit in a  state or federal court. These plaintiffs are often people who disagree with things said about them in the media.

As a media professional, the possibility of becoming a defendant in a libel suit is one of the most significant hazards you may face. And so, it’s important to learn how to identify, avoid and mitigate libel.

Key  Concepts in Libel  

A libel lawsuit is a civil case (not criminal in the US or Europe). Allegations of libel in the mass media or on the Internet usually stem from articles that allege immorality, loathsome disease, crime, dishonesty or misconduct. People often sue to restore their reputations and to correct what they view as a falsehood, regardless of personal expense or the legal merits of their cases.

Five elements of libel must be present for a successful lawsuit: 

1. Identification of an individual or very small group of individually identifiable people who were allegedly defamed.  Note that there are two kinds of identification — direct (Per Se ) and indirect (Per Quod). Direct identification in libel names a person specifically. Indirect libel may point to an unnamed person or involve a circumstance or mistake that can be construed as holding that person up to ridicule. Under some circumstances, indirect libel might involve congratulating a woman on her pregnancy when she is not married.
2. Publication, broadcast or wide dissemination of defamatory material (Wide dissemination falls under libel; slander is neighborhood gossip).
3. Defamation, defined as untrue words that tend to harm a person’s reputation or expose them to hatred, contempt or ridicule. Defamation means that a statement actually harms the reputation of another person, rather than being merely insulting or offensive. Some words or ideas are defamatory per se (directly), and others may have to be proven as  libelous per quod (indirectly).
4. Fault on the part of the publisher or broadcaster, such as negligence or actual malice (defined below).
5. Damages — The plaintiff has to prove they were damaged, either directly (loss of income) or indirectly (provable pain and suffering). Damages may include:

a) special damages, (also called direct damages) that are quantifiable out-of-pocket expenses or losses. And / or
b) general (indirect) damages — compensation for non-monetary damages such as pain and suffering.
c) punitive which may be imposed by a court or jury to punish the guilty party.
d) nominal damages that are very small or symbolic. Example: the award of $1 in  Shockley v Witherspoon, 1984.

Defenses against libel:

1. Truth — If it’s true, it’s not defamatory, and therefore it’s not libel. But how is the truth proven? Which side has the burden of proof?  Who wins if the case is a tie? In the US, the plaintiff  must prove that the defamatory material is false. In the UK and much of Europe, the defendant must prove that what was written or broadcast is true. This makes the UK a much better venue for plaintiffs and the US a better venue for defendants.
2. Privilege — Testimony in a courtroom, statements from the floor of a legislative body (but not press releases), and some executive documents have absolute privilege.This means that public officials, witnesses and others in these circumstances are free to give information which may be damaging or false without fearing libel suits. (For example, a divorce lawyer couldn’t be sued for libel because of comments made during a trial). Reporters who accurately quote such testimony or statements are usually covered by a doctrine of qualified privilege, which depends on accurate and professionally competent reporting. One important exception to qualified privilege: In broadcast law, the Equal Time Rule extends absolute privilege to stations carrying federal candidates’ comments about public issues.
3. Fair Comment & Criticism — Opinions about the public performance of people who voluntarily place themselves before the public (musicians, comedians, politicians running for office, etc) are protected by the fair comment defense. But what is opinion and what is fact? In Janklow v. Newsweek, 1986, (described below) a federal appeals court said there were four criteria for determining if a statement is a fact:

a) The precision and specificity of the statement. (Calling someone a “fascist” is indefinite, and therefore an opinion; saying they had AIDs would not be).
b) The verifiability of the statement is important in proving it a fact.
c) The literary context in which the statement is made. Here the Harvard Lampoon might be treated differently from the Wall Street Journal.
d) The public context of the statement, for example, as part of the political arena, would tend more to be protected opinion.

4. Minor defenses, technical issues & other circumstances

Neutral reportage –– A fair attempt to be neutral in reporting both sides of a controversial issue. See, for instance, the Edwards v. National Audubon Society, 1977 case below. This defense varies considerably among states and federal jurisdictions and does not always apply.

Right of reply — When two parties (sometimes publishers) have already been exchanging libelous charges, and one finally sues the other, the defendant can claim to merely be responding and have a “right of reply.” This is an old and no longer well accepted defense which varies from state to state.

Libel-proof plaintiff — Someone with an already ruined reputation, for example a convicted murderer, is libel proof. Also, someone who is so public that almost anything can be said about them is considered more or less libel-proof. For example, the courts refused to hear a case brought by former President Bill Clinton against slime-blogger Matt Drudge related to allegations that he abused women. Clinton’s suit was settled out of court.

Rhetorical hyperbole — In some states, courts will hold that language in the context of an editorial or opinion is understood by readers to be figurative and not literal.

Retraction — Nearly every state allows a libel defendant to retract or apologize for defamatory material. In some states, retraction made within a certain time frame in the same editorial context may bar any recovery, while in others it may limit punitive damages. In any event, if an editor finds something wrong or grossly unfair, a correction or retraction is at the very least the ethical thing to do.

Consent –– If a plaintiff can be proved to have given consent to a libellous publication, he or she can’t sue for libel.

Statute of limitations — States have various time limits for filing libel actions. In Virginia, like most states, it is one year.

Death — Contrary to ancient tradition, it is not a legal problem to speak ill of the dead. For example, in James Bamford’s The Puzzle Palace, a book about the National Security Agency, a former government employee is called a Russian spy even though he was never convicted of anything other than contempt of court. The family considered a defamation lawsuit, but learned that it was impossible because the subject was dead. A court may continue a libel suit already filed by a person who dies before it is resolved, but relatives of a dead person cannot bring a libel suit.

Slander:  Slander is spoken defamation or malicious neighborhood gossip. Even in broadcasting, where defamation is spoken, the lawsuit is usually based on libel law.  Slander is usually treated as a misdemeanor.

The following are NOT DEFENSES against libel:

  • The word “allegedly” does not offer any protection. The phrase, “She allegedly has AIDS” is legally the same as “She has AIDS.”
  • Official attribution does not protect reporters unless a charge is documented. What the police or prosecutors may SAY about a criminal case is irrelevant. Privilege protects written communication from authorities, not casual remarks.  
  • Presume innocence:  In reporting an arrest, a journalist should stick to the facts. If the arrest document says that the charge is arson, don’t write:  “Joe Smith was arrested for committing arson, police said.”  Presume innocence and stick to the facts:  “Police have charged Joe Smith with arson.” Reporting the charge (not an arrest FOR a crime ) is factually correct and is also ethical in that the reporter does not presume guilt. (For a journalist to presume guilt and try to help the police or prosecutors is highly unethical). 
  • Off the record attribution is dangerous.  Example: It would be a serious mistake to report an off the record comment from police that a prominent citizen had been stopped for drunken driving unless there is a clear written record of the stop, a breathalyzer test or some other documentation backing up the allegation. The documentation should be on paper in the police station. In general, reporters must refrain from repeating courthouse gossip, even if probably true, unless it is provably true in court.
  • Claims of opinion do not shield a malicious statement of fact. It would be libelous to say, “in my opinion, the person has AIDs,” (if indeed this were untrue) because there is a factual allegation underlying the opinion.  With public figures, an allegation about an illness like AIDs may be proven true (as in the Roy Cohn suit against Jack Anderson) and the suit will be dismissed. With private figures, any similar allegation may lead to a “publication of private facts” privacy lawsuit. (See Section 5, Privacy)
  • Unofficial court documents lacking privilege can be a problem. Affidavits or allegations concerning misconduct are not privileged if the court has not admitted them into evidence or if the case is settled out of court. This doesn’t mean that they cant be reported, but care must be taken in assessing their validity, in noting their unofficial status, in attributing their origin and in providing opportunity for rebuttal. A reporter should not report frivolous or obviously extraordinary charges that lack substance. In other words, don’t let yourself be used for partisan purposes.

Definition of and defense against libel in Virginia

Va Code 8.01-45.
Action for insulting words. All words shall be actionable which from their usual construction and common acceptance are construed as insults and tend to violence and breach of the peace.

Va Code 8.01-46.
Justification and mitigation of damages. In any action for defamation, the defendant may justify by alleging and proving that the words spoken or written were true, and, after notice in writing of his intention to do so, given to the plaintiff at the time of, or for, pleading to such action, may give in evidence, in mitigation of damages, that he made or offered an apology to the plaintiff for such defamation before the commencement of the action, or as soon afterwards as he had an opportunity of doing so in case the action shall have been commenced before there was an opportunity of making or offering such apology.

Va. Code 8.01-223.2
Virginia and SLAPP suits —  Virginia has a statutory qualified privilege that immunizes statements made at public hearings from forming the basis for any claim for business conspiracy  or tortious interference .   (Also see 18.2-499) It applies to “statements made…at a public hearing before the governing body of any locality or other political subdivision, or the boards, commissions, agencies and authorities thereof, and other governing bodies of any local governmental entity concerning matters properly before such body.”   See this  article in Virginia Defamation Blog.

Key  Cases in Libel  

  • Rex v Zenger, 1734 — New York printer John Peter Zenger not guilty of seditious libel; truth as a defense. There’s actually a long and interesting story here that is told at U.KY Prof. Linder’s Famous Trials web site.
  • US v Press Publishing, 1911 — The US Supreme Court would not allow US president Teddy Roosevelt to use the Justice Department to (unsuccessfully) sue newspaper publisher Joseph Pulitzer over allegations of seditious libel. This was the “last gasp” of seditions libel lawsuits in the US until the 2020 Trump suits against the Washington Post and New York Times.
  • New York Times v Sullivan, 1964 — Alabama civil rights case became the standard for judging a libel suit by a public official against the media.  Under the “Sullivan standard,” a plaintiff who is a public figure must prove that a defendant (often in the media) knowingly published a falsehood or acted with reckless disregard for the truth.
  • Cases that clarified the Sullivan standard include:
    • AP v Walker, 1968 — How does the press know what is true or not, especially on deadline?
    • Curtis v Butts, 1968  —  What is reckless disregard?
    • Gertz v Welch, 1973 — Who is a public figure?
    • Ollman v Evans, 1979 — What is a fact?(More detail on these cases follows on the next pages)

Reading

United Kingdom commentary: