Law Commons^™

Destroying Defamation, Leslie Y. Garfield Tenzer

Elisabeth Haub School of Law Faculty Publications

Fake News is destroying defamation. The recent proliferation of rushed journalism, online conspiracy theories that almost every news story is, in fact, “Fake News,” have created a desert of veracity. Widespread public skepticism about even the most mainstream Internet reporting means plaintiffs will have difficulty convincing jurors that third parties believed any reported statement to be true. Without such proof, it is almost impossible for a plaintiff to prove the elements of defamation.

To establish defamation, a plaintiff must show defendant published an assertion of fact that is false and damages the plaintiff's reputation Hyperbolic language or other indications that …

Why The Actual Malice Test Should Be Eliminated, John M. Kang

Faculty Scholarship

Under traditional common law, a plaintiff could recover damages for libel if she could prove that the defendant had published a factual statement about the plaintiff that tended to injure the plaintiff’s reputation. The plaintiff, at most, was required to show negligence to recover damages for libel. While the amount of money that any given plaintiff could recover in damages was uncertain, one thing was clear: the First Amendment would not protect libel. In 1964, in New York Times Co. v. Sullivan, the Supreme Court radically upended this received view of libel as unprotected speech. According to Sullivan, …

What The Lawyers Who Sue The Press Think Of The Press, And Media Law, Jonathan Peters

Popular Media

“HAVE A SCORE TO SETTLE WITH THE PRESS? Charles Harder, the media lawyer who ground Gawker.com to dust, is your man.”

That was the subhead of a GQ profile of Harder published in 2016, after he won a $140 million jury verdict for Hulk Hogan against Gawker (later settled for $31 million). The profile went on to say that Harder had established himself “as perhaps the greatest threat in the United States to journalists, the First Amendment, and the very notion of a free press.”

Whether or not that’s true, Harder has said it would be “awesome” if the Gawker …

The Case Against Expanding Defamation Law, Yonathan A. Arbel, Murat C. Mungan

Faculty Scholarship

It is considered axiomatic that defamation law protects reputation. This proposition—commonsensical, pervasive, and influential—is faulty. Underlying this fallacy is the failure to appreciate audience effects: the interaction between defamation law and members of the audience.

Defamation law seeks to affect the behavior of speakers by making them bear a cost for spreading untruthful information. Invariably, however, the law will also affect members of the audience, as statements made in a highly regulated environment tend to appear more reliable than statements made without accountability. Strict defamation law would tend to increase the perceived reliability of statements, which in some cases can …

The Defamation Injunction Meets The Prior Restraint Doctrine, Doug Rendleman

Scholarly Articles

In Near v. Minnesota, the Supreme Court added the injunction to executive licensing as a prior restraint. Although the Near court circumscribed the injunction as a prior restraint, it approved criminal sanctions and damages judgments. The prior restraint label resembles a death sentence. This article maintains that such massive retaliation is overkill.

A judge’s injunction that forbids the defendant’s tort of defamation tests Near and prior restraint doctrine because defamation isn’t protected by the First Amendment. Arguing that the anti-defamation injunction has outgrown outright bans under the prior restraint rule and the equitable Maxim that “Equity will not enjoin defamation” …

Rwu First Amendment Blog: David Logan's Blog: Discovering Trump 06-22-2018, David A. Logan

Law School Blogs

No abstract provided.

Bankruptcy Court Jurisdiction: Are Libel And Slander Personal Injury Torts?, Joseph Collini

Bankruptcy Research Library

(Excerpt)

A bankruptcy court may adjudicate tort claims, including libel and slander against a debtor, if it concludes that it has jurisdiction over those claims. The statutes governing a bankruptcy court’s jurisdiction, including title 11 of the United States Code (“The Bankruptcy Code”) and title 28 of the United States Code, are ambiguous. Consequently, the bankruptcy courts are divided as to their jurisdiction over libel and slander claims.

At the heart of this issue is the personal injury tort exception under 28 U.S.C.A. §157(b). The exception specifically limits the jurisdiction of the bankruptcy courts and states that personal injury torts …

Rwu First Amendment Blog: David Logan's Blog: Donald Trump And The Full-Employment-For-Lawyers Presidency, David A. Logan

Law School Blogs

No abstract provided.

Rwu First Amendment Blog: David Logan's Blog: Moguls And The Media 1-2-2017, David A. Logan, Roger Williams University

Law School Blogs

No abstract provided.

Comparative Defamation Law: England And The United States, Vincent R. Johnson

Faculty Articles

England and the United States share a common legal tradition that has been shaped by principles dating back at least 800 years to the time of the Magna Carta. Even after the American colonies declared their independence from England in 1776, English law was still widely followed in the new nation unless it was inconsistent with American institutions or new ideas. As late as 1964, American libel law was essentially "identical" to English libel law. This was true, in part, because until the mid-twentieth century, defamation law in both countries was defined "mainly by the common law and decisions of …

Amicus Brief In Support Of Motion For Reconsideration, In The Case Of Murray V. Chagrin Valley Publishing Co., Case No. 2015-0127, Supreme Court Of Ohio, David Forte

Law Faculty Briefs and Court Documents

Forte authored an Amicus brief in support of motion for reconsideration, in the case of Murray v. Chagrin Valley Publishing Co., Case no. 2015-0127, Supreme Court of Ohio, on issues dealing with free speech and libel. The brief was filed on July 20, 2015. In the brief, Forte writes, 'I have chosen to participate as an amicus curiae in support of the Motion for Reconsideration filed by Appellants Robert E. Murray, Murray Energy Corporation, American Energy Corporation, and The Ohio Valley Coal Company because as a career constitutional scholar, I believe that Appellants’ case presents questions of keen interest to …

The Making Of Modern Libel Law: A Glimpse Behind The Scenes, Stephen Wermiel, Lee Levine

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Laws Of Image, Samantha Barbas

Journal Articles

We live in an image society. Since the turn of the 20th century if not earlier, Americans have been awash in a sea of images throughout the visual landscape. We have become highly image-conscious, attuned to first impressions and surface appearances, and deeply concerned with our own personal images – our looks, reputations, and the impressions we make on others. The advent of this image-consciousness has been a familiar subject of commentary by social and cultural historians, yet its legal implications have not been explored. This article argues that one significant legal consequence of the image society was the evolution …

Name Calling On The Internet: The Problems Faced By Victims Of Defamatory Content In Cyberspace, Sarudzai Chitsa

Cornell Law School Inter-University Graduate Student Conference Papers

In the past decade or so, internet libel has become one of the hot topics in internet law. Internationally, courts have dealt with an enormous amount of cases brought by both the suppliers and consumers of the internet services. Although the advent of the World Wide Web has come with many legal problems; this paper will only focus at the problems that are being faced by the victims of defamatory speech on the internet in trying to seek compensation through the courts. These problems include, inter alia, the reluctance of the courts in unmasking the identity of the authors of …

Book Review: The Free Press Crisis Of 1800: Thomas Cooper's Trial For Seditious Libel, Eric Easton

All Faculty Scholarship

This article was an invited book review of a book of the same title by Peter Charles Hoffer. Hoffer, Distinguished Research Professor of History at the University of Georgia, has published this accessible case history as part of the University Press of Kansas’s Landmark Law Cases & American Society series, which he co-edits.

The book discusses one of the cases arising as a result of the Alien & Sedition Act under the presidency of John Adams, mostly targeting Republicans who editorialized against the Adams administration.

Lies, Honor, And The Government’S Good Name: Seditious Libel And The Stolen Valor Act, Christina E. Wells

Faculty Publications

Although the Supreme Court declared the crime of seditious libel inconsistent with the First Amendment long ago, the Stolen Valor Act, which punishes anyone who falsely represents themselves to have been awarded certain military medals, revives something very like that crime. the connection between the two crimes is not immediately obvious, but the government's underlying reasoning is nearly identical in both. Officials justified seditious libel prosecutions by claiming, without proof, that criticism of the government undermined its authority and reduced the public's respect for it, ultimately threatening national security. Contemporary government officials also argue, without proof, that the Act is …

The Phases And Faces Of The Duke Lacrosse Controversy: A Conversation, Angela J. Davis, James E. Coleman Jr, Michael Gerhardt, K.C. Johnson

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Anonymity In Cyberspace: What Can We Learn From John Doe?, Lyrissa Lidsky

Faculty Publications

This Article examines the evolution of the law governing libel suits against anonymous “John Doe” defendants based on Internet speech. Between 1999 and 2009, courts crafted new First Amendment doctrines to protect Internet speakers from having their anonymity automatically stripped away upon the filing of a libel action. Courts also adapted existing First Amendment protections for hyperbole, satire and other non-factual speech to protect the distinctive discourse of Internet message boards. Despite these positive developments, the current state of the law is unsatisfactory. Because the scope of protection for anonymous Internet speech varies greatly by jurisdiction, resourceful plaintiffs can make …

Anonymity In Cyberspace: What Can We Learn From John Doe?, Lyrissa Barnett Lidsky

UF Law Faculty Publications

This Article examines the evolution of the law governing libel suits against anonymous "John Doe" defendants based on Internet speech. Between 1999 and 2009, courts crafted new First Amendment doctrines to protect Internet speakers from having their anonymity automatically stripped away upon the filing of a libel action. Courts also adapted existing First Amendment protections for hyperbole, satire, and other nonfactual speech to protect the distinctive discourse of Internet message boards. Despite these positive developments, the current state of the law is unsatisfactory. Because the scope of protection for anonymous Internet speech varies greatly by jurisdiction, resourceful plaintiffs can make …

Solving The Employee Reference Problem: Lessons From The German Experience, Kenneth Glenn Dau-Schmidt, Matthew Finkin

Articles by Maurer Faculty

In this article we examine the problem of declining employer references in the American economy. We argue that the problem is not that employers inordinately fear potential slander and libel liability for giving references, but that they have no assurance of benefits from reciprocal references in exchange for taking any risk or suffering any cost in giving references. We provide a comparative legal analysis and argue that the United States might benefit from adopting an employer letter of recommendation system similar to that currently used in Germany.

Fifteen Minutes Of Infamy: Privileged Reporting And The Problem Of Perpetual Reputational Harm, Richard J. Peltz-Steele

Faculty Publications

This Article provides an overview of the labyrinth of media tort defenses, specifically the four privileges – fair comment, fair report, neutral reportage, and wire service – that come into play when the media republish defamatory content about criminal suspects and defendants without specific intent to injure. The Article then discusses these privileges in light of a hypothetical case involving a highly publicized crime and an indicted suspect, against whom charges are later dropped, but who suffers perpetual reputational harm from the out-of-context republication online of news related to his indictment. The Article demonstrates how the four privileges would operate …

The Fact-Conjecture Framework In U.S. Libel Law: Four Problems, Brian C. Murchison

Scholarly Articles

A requirement of U.S. defamation law is that an actionable statement be factual in nature, but courts since Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), have had considerable difficulty in distinguishing factual from non-factual statements and in articulating the value of non-factual public discourse in all its diversity. This Article reviews four topics - intent, context, conjecture, and hyperbole - that have been particularly troublesome to courts. It argues for a fresh appraisal of Justice Brennan's dissenting opinion in Milkovich and brings into the conversation the works of several current political theorists on the contributions of passionate political …

The Trials Of Oscar Wilde: An Account, Douglas O. Linder

Faculty Works

Old Bailey, the main courthouse in London, had never presented a show quite like the three trials that captivated England and much of the literary world in the spring of 1895. Celebrity, sex, witty dialogue, political intrigue, surprising twists, and important issues of art and morality - is it any surprise that the trials of Oscar Wilde continue to fascinate one hundred years after the death of one of the world's greatest authors and playwrights?

Regulating Cyberbullies Through Notice-Based Liability, Brad Areheart

College of Law Faculty Scholarship

With the growth of the Internet's uses and abuses, Internet harassment is making headlines. Given its immediacy, anonymity, and accessibility, the Internet offers an unprecedented forum for defamation and harassment. The salient problem with such cyberbullying is that victims are typically left without adequate recourse. The government should provide recourse by curtailing the near absolute immunity Internet Service Providers (ISPs) currently enjoy under the Communications Decency Act (CDA) and implementing a notice and take-down scheme similar to that for copyright infringement under the Digital Millennium Copyright Act (DMCA) for certain torts.

The Future Of Reputation: Gossip, Rumor, And Privacy On The Internet, Daniel J. Solove

GW Law Faculty Publications & Other Works

YouTube. Facebook. MySpace. Wikipedia. Google. These are among the many new ways people are communicating and obtaining information. In THE FUTURE OF REPUTATION: GOSSIP, RUMOR, AND PRIVACY ON THE INTERNET (Yale University Press, October 2007), Professor Daniel J. Solove warns that this new world demands new thinking about the nature of privacy.

Teeming with chatrooms, online discussion groups, and blogs, the Internet offers previously unimagined opportunities for personal expression and communication. But there's a dark side to the story. A trail of information fragments about us is forever preserved on the Internet, instantly available in a Google search. A permanent …

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

Faculty Publications

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 …

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 …

Libel In The Blogosphere: Some Preliminary Thoughts, Glenn Harlan Reynolds

Scholarly Works

This brief essay attempts to account for the paucity of libel litigation relating to weblogs, and to explore ways in which the law of libel may change in response to the different character of weblogs, and new media in general.

Law, Literature, And Libel: Victorian Censorship Of Dirty Filthy Books On Birth Control, Kristin (Brandser) Kalsem

Faculty Articles and Other Publications

This article presents a case study of the feminist jurisprudence performed by three early birth control advocates: Annie Besant, Jane Hume Clapperton, and Marie Stopes. In the late nineteenth and early twentieth centuries, the subject of birth control was so taboo that serious efforts were made to keep John Stuart Mill from being buried in Westminster Abbey because of his sympathies with the idea of family limitation. The threat of being charged with obscenity and immorality, whether in a legal indictment, in a literary review, or in the court of public opinion, effectively silenced much public discourse on this important …

Distinguishing The Concept Of Strict Liability In Tort From Strict Products Liability: Medusa Unveiled, Charles E. Cantú

Faculty Articles

The justifications for strict products liability and other cases of strict liability in torts are different and distinct. The United States judiciary has limited strict liability in tort law to seven distinct scenarios: (1) animals that are trespassing, are domesticated but vicious, or are wild by nature; (2) fact situations involving ultra-hazardous activities; (3) nuisance; (4) misrepresentation; (5) vicarious liability; (6) defamation; or (7) a workman’s compensation statute.

Strict liability is imposed for harm caused by animals capable of inflicting extensive harm. It also justifies liability for ultra-hazardous activities on the basis that an individual undertakes an activity that is …