Law Commons^™

Gag With Malice, Shaakirrah R. Sanders

Washington and Lee Law Review

This Article brings agriculture privacy and other commercial gagging laws into the ongoing debate on the First Amendment actual malice rule announced in New York Times v. Sullivan. Despite a resurgence in contemporary jurisprudence, Justices Clarence Thomas and Neil Gorsuch have recently questioned the wisdom and viability of Sullivan, which originally applied actual malice to state law defamation claims brought by public officials. The Court later extended the actual malice rule to public figures, to claims for infliction of emotional distress, and—as discussed in this Article—to claims for invasion of privacy and to issues of public importance or concern.

United …

Public Relations Litigation, Kishanthi Parella

Scholarly Articles

Conventional wisdom holds that lawsuits harm a corporation’s reputation. So why do corporations and other businesses litigate even when they will likely lose in the court of law and the court of public opinion? One explanation is settlement: some parties file lawsuits not to win but to force the defendant to pay out. But some business litigants defy even this explanation; they do not expect to win the lawsuit or to benefit financially from settlement. What explains their behavior?

The answer is reputation. This Article explains that certain types of litigation can improve a business litigant’s reputation in the eyes …

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” …

Just Because You Can Doesn’T Mean You Should: Reconciling Attorney Conduct In The Context Of Defamation With The New Professionalism, Heather M. Kolinsky

Scholarly Articles

The Florida Bar has recently proposed enforceable professionalism standards. While many states have professionalism codes they remain aspirational and unenforceable. Florida’s move toward enforceable professionalism standards is laudable, but raises concerns about how moving a “step above” the floor of the rules of professional conduct will affect advocacy and practice.

This paper examines how a shift to enforceable professionalism standards may impact absolute immunity. The paper suggests that as other states consider similar standards or simply how to better policy professionalism, perhaps it is time to also consider how discipline is imposed with respect to defamatory statements that are otherwise …

Taking Libel Reform Seriously, Rodney A. Smolla

Scholarly Articles

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