Media Law in the News

Part I: Summary
The area of law is libel.

This October writer and editor in chief at the Rumpus, Stephen Elliott, filed a lawsuit against Moira Donegan for publishing his name in a google spreadsheet titled "Shitty Media Men". Donegan shared this spreadsheet to create a safe space for women to anonymously report men in the media industry who have sexually assaulted and harassed them. Elliott is suing for libel, claiming that after his name was published he became emotionally distressed and his career was destroyed because of the false claims made. He is asking for $1.5 million in damages against Donegan and the individuals who wrote his name in the spreadsheet, claiming that the actions taken by these people were done purposefully to damage his reputation.
Part II: Legal Questions Raised

• Is Stephen Elliot a public figure?
• Is Moira Donegan responsible for the allegations if she did not write them herself?
• Are the allegations true? If not, did the individuals who accused Elliot do so maliciously or was it negligence?
• Can Stephen Elliot prove falsity?
• Would the community think differently of the plaintiff if the story were completely accurate?
• Will the defendant need to pay actual and punitive damages?
• Was Donegan wrong for publishing the spreadsheet and having no credible sources?

Part III: Relevant Doctrine

Plaintiff's Case for Libel

1. A statement of fact
2. That is published,
3. That is of and concerning the plaintiff
4. That is defamatory, 
5. That is false,
6. That causes damage (or harm) and 
7. For which the defendant is at fault.

Applying the test to the case...
Publication: Seen or heard by a third party? Yes, the spreadsheet with the plaintiff's name was distributed to many people through people and then linked online.
Identification: The story is "of and concerning" the plaintiff. Stephen Elliott's name was on the spreadsheet and many connected him to the sexual assault accusations.
Defamation: Was the plaintiff's reputation harmed? What do other people think about the plaintiff?
Stephen Elliott's reputation was harmed because of the allegations. He states that people in the industry did not want to work with him, friends distanced themselves, and sales on his most recent book did not do well.
Fault: Were the defendants' actions actual malice or negligent? 
At this point, there is not much information as to whether or not the individuals who accused Elliott in the spreadsheet were telling the truth. However, after he wrote a piece for Quillette and an Op-Ed for the New York Times a former colleague, Lyz Lenz, tweeted her experience of when Elliott had sexually harassed her. It does not seem that Moira Donegan can be held accountable for what other people wrote on her shared spreadsheet.
Falsity: Is the statement not "substantially true"? Would the community think differently of the plaintiff if the story were completely accurate?
It seems as though these allegations of sexual assault and harassment come from actual experiences individuals have had with Elliott.
Damages: Will the defendants be charged actual or punitive damages?
No, I do not think that it is possible for the defendants to be charged because the plaintiff cannot prove actual malice. Elliott will not be able to get the names of the individuals who wrote his name on the spreadsheet. Donegan will probably not have to pay damages to Elliott because she hosted third-party content, she did not accuse Elliott herself.

The Ollman Test:

1. Do the words have a commonly accepted meaning?
2. Can the statement be found to be true or false?
3. In what specific context do the words appear?
4. Broader Social Context: Is this a place where expression of opinions is common?

Applying it to the case...

Here the defendant's statements cannot be protected as an opinion defense because the accusations were made by anonymous individuals and there is not a lot of evidence to prove the statements are true. 

Part IV:
Overall, my analysis revealed that it would be difficult for Stephen Elliott to prove actual malice because he is a public figure or a limited purpose public figure. Elliot has several books published and is an editor for a literary website called Rumpus. Furthermore, Moira Donegan cannot be held responsible for what others wrote about Elliott. Under Section 230 of the Communications Decency Act of 1996, Donegan could be protected as a user of an interactive computer service (in this case Google) and cannot be treated as the publisher or speaker of any information provided by another information content provider (anonymous individuals).
I am satisfied with most of the questions posed in part II but I do not see how Elliott believes that Google would give him the emails of the individuals who contributed to the spreadsheet. Additional information to be considered in the case is evidence to prove if the allegations are true or false. By looking at this lawsuit, I understand better the libel law and how a plaintiff would have to go about proving defamation. How a libel case would proceed would depend if the person was a public or involuntary figure and if they could prove actual malice.

Chapter 5: Libel Defenses and Privileges

Topic Overview:
Defense options for those sued for libel depend on whether the statement was protected by the First Amendment. This chapter goes into the nine different ways in which a person can defend themselves against a libel lawsuit. Specifically, it discusses how a journalist is able to defend themselves if they have done their work to the best of their ability without actual malice or negligence. Neutral reportage states that the media should not be restrained from reporting an accusation as long as it was done fairly and objectively.


Defining Key Terms:

• SLAPP (strategic lawsuit against public participation): A lawsuit whose purpose is to harass critics into silence, often to suppress those critics' First Amendment rights. 
• Fair Report Privilege: A privilege claimed by journalists who report events on the basis of official records. The report must fairly and accurately reflect the content of the records; this is the condition that sometimes leads to this privilege being called "conditional privilege."
• Absolute Privilege: A complete exemption from liability for the speaking or publishing of defamatory words of and concerning another because the statement was made within the performance of duty such as in judicial or political contexts. 
• Conditional (qualified) privilege: An exemption from liability for repeating defamatory words of and concerning another because the original statement was made within the performance of duty such as in judicial or political contexts, on the premise that the reporting is fair and accurate. 
• Fair comment and criticism: A common law privilege that protects critics from lawsuits brought by individuals in the public eye. 
• Neutral Reportage: An accusation made by a responsible & prominent organization, that the accusation is protected by the First Amendment even when it turns out the accusation was false and libelous. Recognizes the First Amendment principle of the free flow of information and ideas is important. 
• Single-publication rule: A rule that limits libel victims to only one cause of action even with multiple publications of the libel. 
• Retraction Statues: State laws that limit the damages a plaintiff may receive if the defendant had issued a retraction of the material at issue, meant to discourage the punishment of any good-faith effort of admitting a mistake. 

Important Cases: 

Ollman v. Evans: Columnist Robert Evans wrote a piece about NYU Professor Ollman, calling his a Marxist and that he was trying to prepare his students for a revolution. Is it a statement of fact (maybe false) or pure opinion? A statement of pure opinion is protected under the First Amendment. The Ollman test was created.

Milkovich v. Lorain Journal Co.: The First Amendment defense covers two categories of opinion statements: hyperbole or exaggerated statements no one would believe and vague evaluations unable to be proved. 

Relevant Doctrine:

The Ollman Test (balancing test):

1. Verifiability: Do the words have a commonly accepted meaning? If so, it is likely to be a fact than opinion. 
2. Common Reading: Can the statement be found to be true or false? If so, it is more likely fact than opinion. 
3. Journalistic Context: In what specific context do the words appear? (e.g. opinion column)
4. Social Context: In what broader context do the words appear? (e.g. labor dispute) Is this a place where expression of opinions is common? 

Neutral Reportage: 

The First Amendment is a defense in a libel case if the following apply:

• The story is newsworthy & related to a public controversy.
• The accusation is made by a responsible person or group.
• The charge is about a public official, public figure, or public organization.
• The story is accurate, containing denials or other views.
• The reporting is neutral.

The Wire Service Defense: 

The wire service defense may be applied as long as the following are present:

1. The defendant received material containing the defamatory statements from a reputable newsgathering agency. 
2. The defendant did not know the story was false.
3. Nothing on the face of the story reasonably could have alerted the defendant that it may have been incorrect.
4. The original wire service story was published without substantial change.

Current Issues or Controversies:

Former sheriff Arpaio is suing the New York Times and writer of an Op-Ed for libel. Some of the defenses that can be made are a truth, if the accusations can be backed by evidence, and opinion, because the writer is allowed to publish their opinion on a public figure.

My Questions/Concerns:

Does the statute of limitations apply from when the person who wrote the article new about the information or when a third party is made known of the information? Can other writers bring up the same issue/information if they have something new to add?

References:

Trager, Robert., Ross, Susan Dente., & Reynolds, Amy (2018), The Law of Journalism and Mass Communication. Thousand Oaks, CA: Sage Publications. 

Chapter 4: Libel and Emotional Distress

Topic Overview:
This chapter discusses the conditions in which an individual is able to sue for libel and win in court. The plaintiff must prove that the defendant is at fault for publishing defaming material. It is important to note the distinction between parody and actual malice. Intentional Infliction of Emotional Distress test emphasizes that the defendants intentional or reckless actions involved actual malice that caused severe emotional distress.

Defining Key Terms:

• Damages: Monetary compensation that may be recovered in court by any person who has suffered loss or injury.
• Sedition Act of 1798: Made it a crime to write "any false, scandalous and malicious" statements against either the president or congress. (The act expired in 1801)
• Burden of Proof: The requirement for a party to a case to demonstrate one or more claims by the presentation of evidence. (In libel law, the plaintiff has the burden of proof.)
• Communications Decency Act: The part of the 1996 Telecommunications At that largely attempted to regulate internet content. The Communications Decency Act was successfully challenged in Reno v. American Civil Liberties Union (1997).
• Libel per se: A statement whose injurious nature is apparent and requires no further proof. 
• Libel per quod: A statement whose injurious nature requires proof. 
• Actual Malice: In libel law, a statement made knowing it is false or with reckless disregard for its truth. 
• All-purpose public figure: In libel law, a person who occupies a position of such persuasive power and influence as to be deemed a public figure for all purposes. 
• Limited-purpose public figure: In libel law, those plaintiffs who have attained public figure status within a narrow set of circumstances by thrusting themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved; this kind of public figure is more common than the all-purpose public figure. 
• Bootstrapping: In libel law, the forbidden practice of a defendant claiming that the plaintiff is a public figure solely on the basis of the statement that is the reason for the lawsuit. 
• Private Figure: Plaintiff who cannot be categorized as either a public figure or a public official. In order to recover damages, a private figure is required to prove not actual malice but merely negligence on the part of the defendant.

Important Cases: 

New York Times Co. v. Sullivan: Established the "actual malice" standard. In cases of libel, public figures must prove that the author had "knowledge of falsity and reckless disregard for the truth".

Hustler Magazine Inc. v. Falwell: The first amendment protected the magazine's Campari ad. A public figure/official who could prove that a satire included a false statement of fact published with actual malice could win a lawsuit for IIED. 

Relevant Doctrine: 

Libel Test:

• A statement of fact (not opinion)
• that is published
• is of and concerning the plaintiff
• is defamatory
• is false
• is the result of fault by the defendant
• And causes injury [or harm] to plaintiff

Intentional Infliction of Emotional Distress:

• Extreme and outrageous conduct
• Beyond the bounds of decency tolerated in a civilized society
• The conduct caused severe emotional distress
• The conduct was intentional or reckless

Current Issues or Controversies: 
In September of this year, a British cave diver who helped rescue the Thai boys sued Elon Musk for making accusations without evidence. Elon Musk accused the diver of being a "child rapist" on Twitter on several different occasions. The cave diver is seeking $75,000 in compensation and an injunction against Musk. 

My Questions/Concerns:

• What kind of evidence would be needed to show proof that the defendant is at fault and it caused injury? Is the plaintiff more likely to win a case if they were physically injured?

References:

Trager, Robert., Ross, Susan Dente., & Reynolds, Amy (2018), The Law of Journalism and Mass Communication. Thousand Oaks, CA: Sage Publications. 

Chapter 3: Speech Distinctions

Topic Overview:
This chapter discusses when the government has the right to have agency over the first amendment. Usually, the government would limit our freedoms if there were to be a threat to our national security i.e., clear and present danger. In addition, when the government has the right to stop someone or a group of individuals from expressing their freedom of speech if there is "imminent lawless action." This chapter also questions the media's role and if it has the ability to incite harm.

When individuals express their views it can sometimes lead to offensive speech but it is often difficult to note the boundaries of legal and illegal behavior under the first amendment. When words are not protected they are known as fighting words. Another term that could fall under that category would be hate speech because it can make others feel unsafe and stop them from fully participating in their first amendment rights. However, it is usually hard to win this argument in court. It is imperative to note the differences between types of speech because the government can only act when there is an immediate danger. There are specific forums in which people are legally able to protest or express their opinion.

Defining Key Terms:

• USA Patriot Act: The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001. The act gave law enforcement agencies greater authority to combat terrorism. 
• Chilling Effect: The discouragement of a constitutional right, especially free speech, by any government practice that creates uncertainty about the paper exercise of that right. 
• Clear and Present Danger: Doctrine establishing that restrictions on First Amendment rights will be upheld if they are necessary to prevent an extremely serious and imminent harm. 
• Incorporation Doctrine: The 14th Amendment concept that most of the Bill of Rights apply equally to states. 
• Negligence: Generally, the failure to exercise reasonable or ordinary care. 
• Proximate Cause: The legal determination of whether it is reasonable to conclude the defendant's actions led to the plaintiff's injury. 
• Fighting Words: Words not protected by the First Amendment because they cause immediate harm or illegal acts. 
• Underinclusive: A First Amendment doctrine that disfavors narrow laws that target a subset of a recognized category for discriminatory treatment. 
• Viewpoint-based Discrimination: Government censorship or punishment of expression based on the ideas or attitudes expressed. Courts will apply a strict scrutiny test to determine whether the government acted constitutionally. 
• True Threat: Speech directed toward one or more specific individuals with the intent of causing listeners to fear for their safety. 

Important Cases:

Tinker v. Des Moines Independent Community School District: The Court established the school classroom as a location that is "peculiarly the marketplace of ideas" where speech may be regulated only to prevent a "substantial disruption" to school activities.  

Elonis v. the United States: The Supreme Court relied on statutory construction to conclude only that a conviction for threats online, like any criminal conviction, requires a showing that the defendant intended to violate the law and make a true threat. 

Relevant Doctrine:

Fighting Words

Under the Supreme Court's fighting words doctrine, the First Amendment does not protect words that

1. Are directed at an individual and
2. Automatically inflict emotional harm or trigger violence

True Threats 

Speech directed toward one or more specific individuals with the intent of causing listeners to fear for their safety.

Incitement/Brandenberg Test

Advocacy of illegal action may be punished if it is:

1. Directed at inciting or producing imminent lawless action
2. and likely to incite or produce such action

Media Negligence:

To win a lawsuit for injury caused by media negligence, the plaintiff must prove a breach of the media's duty of care because the content posed a:

1.  Reasonable foreseeability of harm
2. Proximate (directly related) cause of harm

Current Issues or Controversies:

 Trump has incited violence, hate speech, and has never publicly condoned such behavior. He also gets away with a lot of the things that he decides to say in rallies and social media.

My Questions/Concerns:

1. What will it take for Facebook to regulate what people post?

References:

Trager, Robert., Ross, Susan Dente., & Reynolds, Amy (2018), The Law of Journalism and Mass Communication. Thousand Oaks, CA: Sage Publications. 

Chapter 2: The First Amendment

Topic Overview:
The first amendment provides the American public with the ability to speak on topics that are important but that might not necessarily be the same opinion of others. However, the United States still holds a limit on what exactly citizens can say and do and where they can express their viewpoints. In this chapter, we discuss how the judicial branch applies the first amendment and on what lands people are able to express their opinions.


Defining Key Terms:

• ad hoc balancing: Making decisions according to the specific facts of the case under review rather than more general principles. 
• Categorical Balancing: The practice of deciding cases by weighing different broad categories to create general rules that may be applied in later cases with similar. 
• Seditious Libel: Communication meant to incite people to change the government; criticism of the government. 
• Injunction: Court order prohibiting a person or organization from doing some specified act. 
• Strict Scrutiny: A court test to determine the constitutionality of laws aimed at speech content.
• Symbolic Expression: An action that warrants some First Amendment protection because its purpose is to express ideas. 
• Intermediate Scrutiny: A standard applied by the courts to review laws that implicate core constitutional values. 
• Important Government Interest: An interest of the government that is substantial or significant but not compelling. 
• Traditional Public Forums: Free speech is protected in like public streets, sidewalks, and parks. 
• Designated Public Forums: Government spaces or buildings that are available for public use (within limits). 
• Nonpublic Forums: Government-held property that is not allowed to be used for public speech and assembly purposes. 

Important Cases: 

New York Times Co. v. The United States (1971): The Supreme Court ruled that a court order preventing publication based on information linked from the Pentagon was unconstitutional based on prior restraint. Prior restraint is only allowed when it is clear that the release of information would lead to harm/danger. 

Reed v. Town of Gilbert (2015): The town's sign law was in violation of strict scrutiny, therefore it was unconstitutional.  

Relevant Doctrine: 

The Near Test (1931)

Prior Restraints are constitutional when necessary to prevent:

• Obstruction of military recruitment
• Publication of troop locations, numbers, and movement (national security)
• Foreseeable overthrow of government
• Obscene publications
• Incitements to violence
• Fighting words

Strict Scrutiny

1. Be necessary and 
2. Use the least restrictive means
3. To advance a compelling government interest

Intermediate Scrutiny

1.  Fall within the power of government and
2. Advance an important or substantial government interest that is unrelated to the suppression of speech and 
3. Be narrowly tailored to impose only an incidental restriction on First Amendment freedoms. 

Current Issues or Controversies:
The current U.S. president and his administration do not think that it is right for the press should speak out in such a harsh and critical way of the government but the job of journalists is not to withhold information from the public. I think that the way this administration behaves and speaks out against the media has contested with first amendment freedoms.


My Questions/Concerns:

1. What is an example of regulated speech?
2. For a content-based law what qualifies as "compelling government interest"?
3. In Reed v. Town of Gilbert, the city was not allowed the create categories for signs because there were too many regulations?

References:

Trager, Robert., Ross, Susan Dente., & Reynolds, Amy (2018), The Law of Journalism and Mass Communication. Thousand Oaks, CA: Sage Publications.