Law Commons^™

The Contribution Of Eu Law To The Regulation Of Online Speech, Luc Von Danwitz

Michigan Technology Law Review

Internet regulation in the European Union (EU) is receiving significant attention and criticism in the United States. The European Court of Justice’s (ECJ) judgment in the case Glawischnig-Piesczek v. Facebook Ireland, in which the ECJ found a take-down order against Facebook for defamatory content with global effect permissible under EU law, was closely scrutinized in the United States. These transsystemic debates are valuable but need to be conducted with a thorough understanding of the relevant legal framework and its internal logic. This note aims to provide the context to properly assess the role the ECJ and EU law play …

Material Falsity In Defamation Cases: The Supreme Court's Call For Contextual Analysis, Charles D. Tobin, Leonard M. Niehoff

Articles

In the book The Phantom Tollbooth, one of the characters, Milo, declares that he comes from a faraway land called Context. After a circuitous journey through many strange cities, bearing names that have meanings Milo struggles to understand, he finds himself back at home in his bedroom.

Context, by and large, is the home base for courts in defining the boundaries between actionable and nonactionable speech. Often, after circuitous travels through precedent and logic, courts meander back to the simple notion that the meaning and legal significance of words are determined by their context.

Zombies Among Us: Injunctions In Defamation Cases Come Back From The Dead, Jim Stewart, Leonard M. Niehoff

Articles

Here's a scary thought: an individual, unhappy with negative statements that have been made about him, sues for defamation and persuades the trial court to issue an injunction prohibiting the speaker from engaging in that speech again. An appellate court reviews the injunction and, in large measure, upholds it. This creepy scenario brings shudders to free speech and media advocates, who have long viewed such injunctions as prior restraints that the First Amendment forbids in all but the most extreme and extraordinary cases. As a recent decision from the Michigan Court of Appeals demonstrates, however, decades of United States Supreme …

Opinions, Implications, And Confusions, Leonard M. Niehoff

Articles

The law of defamation is haunted by ancient common law principles, such as the distinction between libel per se and libel per quad, that contribute nothing to our current jurisprudence beyond providing opportunities for misunderstanding and perplexity. Unfortunately, more contemporary doctrines have further complicated the field by sowing fresh confusions. This article explores two such doctrines-the principle that a defamation claim cannot rest upon an opinion and the principle that a defamation claim can rest upon unstated implications- and suggests that there are troublesome contradictions both within them and between them. In short, this article respectfully proposes that these two …

Long Live The Lie Bill!, Lucila I. Van Dam

University of Michigan Journal of Law Reform

What successful defamation plaintiffs typically desire and doctrinally deserve is to have their reputations restored. Presently, however, a plaintiff who has established that she was defamed by the defendant is entitled only to an award of damages, which does nothing to restore reputation. This Note proposes that in addition to a damages award, courts-- if they are to take seriously their obligation to compensate the plaintiff-- should order the defendant to retract the defamatory statement. Contrary to the prevailing view, this Note argues that the proposed retraction order does not jeopardize the First Amendment guarantee of free expression.

Relative Access To Corrective Speech: A New Test For Requiring Actual Malice, Aaron Perzanowski

Articles

This Article reexamines the First Amendment protections provided by the public figure doctrine. It suggests that the doctrine is rooted in a set of out-dated assumptions regarding the media landscape and, as a result, has failed to adapt in a manner that accounts for our changing communications environment.

The public figure doctrine, which imposes the more rigorous actual malice standard of fault on defamation plaintiffs who enjoy greater access to mass media, was constructed in an era defined by one-to-many communications media. Newspapers, broadcasters, and traditional publishers exhausted the Court's understanding of the means of communicating with mass audiences. As …

Corporate Cybersmear: Employers File John Doe Defamation Lawsuits Seeking The Identity Of Anonymous Employee Internet Posters, Margo E. K. Reder, Christine Neylon O'Brien

Michigan Telecommunications & Technology Law Review

Communications systems are now wide open and fully accessible, with no limits in range, scope or geography. Targeted audiences are accessible with pinpoint accuracy. Messages reach millions of readers with one click. There is a chat room for everyone. Most importantly, there is no limit on content. Therefore, employees can register their dissatisfaction by posting a message in a chat room. Moreover, the identity of the posting employee is not easily discoverable due to anonymous and pseudonymous communications capabilities. The nature of these online messages is qualitatively different from real-world communications. By way of example, newspapers have a responsibility regarding …

Reporting The Truth And Setting The Record Straight: An Analysis Of U.S. And Japanese Libel Laws, Ellen M. Smith

Michigan Journal of International Law

This Note argues that U.S. courts and lawmakers should adopt some aspects of Japanese libel law. Part I compares the balances struck in U.S. and Japanese libel law between promoting press freedoms and protecting individual interests. Part II focuses on the extent to which each system succeeds in addressing the objectives of encouraging aggressive, accurate reporting, and compensating libel victims. Finally, Part III proposes a new U.S. libel standard that would adopt, with some modifications, key elements of Japanese libel law without running afoul of established U.S. constitutional requirements.

The Involuntary Public Figure Class Of Gertz V. Robert Welch: Dead Or Merely Dormant?, Dale K. Nichols

University of Michigan Journal of Law Reform

This article does not resolve the debate over involuntary public figures but argues instead that in light of the Court's pronouncements in Firestone, Hutchinson and Walston, the involuntary class should be abolished. Part I briefly traces the evolution and significance of public figure status in defamation law, and reviews various interpretations of the involuntary public figure references in Gertz. Part II examines the status of the involuntary class after Firestone, Hutchinson and Walston, and discusses the extent to which future use of the class remains logically consistent with those decisions. Finally, the article considers the merits of …

Injury To Reputation And The Constitution: Confusion Amid Conflicting Approaches, George C. Christie

Michigan Law Review

It is the thesis of this article that the long-run implications of Firestone and Paul v. Davis will force a radical reformulation of the circumstances under which an individual may obtain legal redress for injury to his reputation brought about by falsehoods. The Court will eventually be obliged to abandon its fragmented treatment of the subject: At present, some injured persons have no chance of recovery; others are faced with requirements of proof that make recovery very difficult; still others can recover under significantly more relaxed standards of proof. The nature of the Court's likely reformulation will be developed later …

Tort Liability Of A University For Libelous Material In Student Publications, Michigan Law Review

Michigan Law Review

While attention will occasionally be drawn to the impact of the New York Times privilege, this Note largely assumes that a defamed plaintiff is capable of overcoming the constitutional barriers imposed by New York Times and its progeny. In other words, the assumption is made that libelous statements either fall outside the constitutional privilege or that the plaintiff can demonstrate actual malice in the student authors or editors. The Note will analyze the traditional theories which may be invoked to establish the university's liability for defamatory material in student publications. First, a range of student newspaper-university relationships will be examined …

The Expanding Constitutional Protection For The News Media From Liability For Defamation: Predictability And The New Synthesis, Michigan Law Review

Michigan Law Review

The tort of defamation has a long and complex history dating back to the sixteenth century. Though this tort from the very beginning did not find favor with the law courts, it has managed to survive into the second half of the twentieth century. But this survival may not endure much longer since the Supreme Court has found a deep conflict between the law of defamation and the first amendment. The reasons for this conflict and the Supreme Court's basic resolution of it in favor of first amendment values have been the subject of much scholarly comment, but the Court's …

Libel And Slander - Absolute Privilege - Affidavit To Support Petition To Set Aside Judgment

Michigan Law Review

Judgment in a case against Dorothy Mann by the administratrix of a certain estate was rendered in April, 1934. Action to vacate this judgment was instituted in September, 1936. In May, 1936, Irving Mann, defendant in the principal case, executed an affidavit which contained libellous matter defaming the present plaintiff; this affidavit was used to support the petition to set aside the earlier judgment. Held, the defamatory affidavit would not support plaintiff's defamation action; the occasion was one of absolute privilege. Schmitt v. Mann, (Ky. 1942) 163 S. W. (2d) 281.

Libel And Slander - Libel Per Quod - Necessity Of Special Damages, Michigan Law Review

Michigan Law Review

In her petition, the plaintiff alleged that she had been defamed by the defendant and claimed damages therefor. The allegations were that the defendant had executed a letter and false wage assignment and had sent them to the employer of the plaintiff, whereby the plaintiff was embarrassed and humiliated, and held up to ridicule and scorn. The lower court sustained a demurrer to the petition, and an amended petition was stricken from the files and dismissed. Held, a good cause of action had been stated. The court said: "It is not and is not claimed to be a cause …

Libel And Slander - Qualified Privilege - Fair Comment - Bona Fide Misstatement Of Fact, Michigan Law Review

Michigan Law Review

A newspaper publisher reported in his papers the filing by a certain person, with executive officers of the United States, of charges that a federal employee had removed certain documents from files over which he had supervision. The filed charges were "greatly enlarged and embellished upon" by the publisher, so that the statements made in the paper amounted in themselves to charges by the publisher against the employee. There were no allegations of malice in the subsequent suit by the employee against the publisher. Held, that the right of fair comment upon matters of public interest does not extend …

Declaratory Judgments- Extension Of Protection Against Injuries To Personality

Michigan Law Review

The widespread acceptance of the declaratory judgment as a statutory supplement to common law and equitable remedies has raised some searching questions as to the relation between right and remedy in Anglo-American law. The declaratory judgment can operate in anticipation of specific wrongs that would be a basis for ordinary legal or equitable relief. It does not depend for its efficacy on the use of the familiar remedies of law and equity - that is, on damages, specific restitution in replevin and ejectment, and the injunction and specific enforcement in equity. The question may therefore be asked whether the development …

Torts - Libel By Talking Pictures - Rasputin Case

Michigan Law Review

The motion picture production of "Rasputin The Mad Monk" portrayed an episode in which Rasputin seduced a young lady of the Russian court. Alleging that the character of the seduced was patterned after her own so that she had been defamed, the plaintiff brought an action of libel against the producers. Held, the plaintiff was entitled to damages of what, in this country, would amount to about one hundred and twenty-six thousand dollars. Youssoupov. v. M-G-M Pictures, England (1934).

Torts - Libel And Slander - Publication

Michigan Law Review

Defendant uttered words which were defamatory of the plaintiff. The statement was made to defendant's wife and defendant had no reason to believe that they would be overheard. Held, there was no publication. Springer v. Swift (S. D. 1931) 239 N. W. 171.

Constitutional Law - Freedom Of The Press - Restraints On Publication, Maurice S. Culp

Michigan Law Review

A recent Supreme Court decision establishes a new concept of freedom of the press, and adds new meaning to the liberty safeguarded by the Fourteenth Amendment. The defendant, Near, was enjoined from publishing his newspaper because it was alleged that the paper was largely devoted to the publication of malicious, scandalous, and defamatory articles about the grand jury, public officials, and others. The injunction was granted pursuant to a statute which made the publication of a malicious, scandalous, or defamatory newspaper, magazine, or periodical a nuisance subject to abatement by injunction. The Supreme Court of the United States decided that …