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.