First Amendment Commons^™

A Matter Of Public Concern: Eliminating The Public Concern Test To Safeguard New York Times Co. V. Sullivan, Alyssa T. Calcerano

Catholic University Law Review

In recent years, Justices Thomas and Gorsuch have expressed a strong interest in reconsidering, and perhaps overruling, the landmark defamation decision, New York Times Co. v. Sullivan. The Court’s defamation jurisprudence has undergone many changes since the landmark case was decided, namely, the Court has since adopted a test known as the “public concern” test. Though adopted by only a plurality of the Court, the “public concern” test has been integrated into the defamation decisions of lower federal courts and state courts. This comment encourages the Court to abandon any push toward the wholesale abandonment of Sullivan and, instead, …

A How-To Guide For When Your Favorite Meme Account Is Defamed: Involuntary Public Figures In Defamation, Privacy, And Intentional Infliction Of Emotional Distress Law, Elizabeth Mcmullen

Catholic University Journal of Law and Technology

The world we live in today has changed infinitely since the inception of our Constitution and early legal doctrine. Our Founding Fathers could never have predicted that we would one day live in a world where anyone living in any corner of the globe could garner millions of followers. Whether someone finds him or herself to be particularly proficient in writing Harry Potter fan fiction or to be the best creator of memes with an American Girl Doll focus, ordinary citizens could find themselves suddenly jolted out of quiet anonymity by one unexpectedly viral post. Despite years of Instagram micro-fame, …

Defamation 2.0, Cortelyou C. Kenney

Cornell Law Faculty Publications

There is a literal prohibition in the media bar that media lawyers cannot represent plaintiffs in suits for defamation. The stated principle behind this rule—a rule that can result in excommunication from the premier media law organization if it is violated—is that playing both sides of the defamation game is disloyal to traditional media actors because any chance of victory could inadvertently distort the law of defamation to increase the risk of frivolous suits against media outlets or other innocent third parties. But has the maxim finally gone too far?

Fueled by a new model where media profits are driven …

The First Amendment And The Second Sex, Cristina Carmody Tilley

Faculty Publications

Modern American law describes speech in stereotypically masculine terms: it is a “marketplace” where participants “joust” for dominance. Predictably, today’s speech jurisprudence can be hostile to the female voice, implicitly condoning gendered death threats, rape threats, doxing, and trolling as the necessary price of a vibrant national discourse. Unpredictably, the American Civil Liberties Union (“ACLU”) and its leading women drafted the blueprint for this modern speech edifice. The First Amendment and the Second Sex traces the ACLU campaign to dismantle a nineteenth-century speech regime that silenced some men while protecting many women. And it suggests that ACLU feminists—intent on securing …

Lies,Damn Lies, And Kamikaze Lies: Protecting Falsehoods In The Name Of Truth, Doris Deltosto Brogan

Faculty Publications

Despite calls to reverse New York Times v. Sullivan and abandon the reckless disregard standard for public figure defamation cases--calls offered by two Supreme Court Justices, a number of legal scholars and some members of the popular press-- this article demonstrates that Sullivan’s protections have never been more relevant or more necessary, particularly in light of an epidemic of malicious, often strategic falsity, as well as overt assaults on the institutional press by powerful actors. We need Sullivan now more than ever. Further, for Sullivan to do its work effectively, it must be reinforced by two other legal protections: robust …

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 …

Fuoco V. Polisena, 244 A.3d 124 (R.I. 2021), David Marks

Roger Williams University Law Review

No abstract provided.

Henry V. Media General Operations, Inc., 254 A.3d 822 (R.I. 2021), Stefanie D. Fischer

Roger Williams University Law Review

No abstract provided.

Rethinking Absolute Immunity From Defamation Suits In Private Quasi-Judicial Proceedings

The University of New Hampshire Law Review

No abstract provided.

Republication Liability On The Web, Jeffrey Standen

Marquette Law Review

The tort of defamation evolved in an era where defamatory speech was published in books, magazines, newspapers, or other printed documents. The doctrines that are antecedent to the tort, such as publication, fault, defamation per se, presumed damages, and republication liability, similarly presumed that most defamation would appear in written form in a published work. Similarly, the significant limitations on defamation liability that were produced by a succession of Supreme Court constitutional precedent, including restrictions on prior restraint, heightened fault standards, expanded “public” classes, the “fact/opinion” dichotomy, and the “truth/substantial truth” burden shifting, also were based on a publishing world …

Proving Racism: Gibson Bros. Inc. V. Oberlin College And The Implications On Defamation Law, Liam H. Mcmillin

University of Cincinnati Law Review

No abstract provided.

Protecting Women's Voices: Preventing Retaliatory Defamation Claims In The #Metoo Context, Nicole Ligon

St. John's Law Review

(Excerpt)

As part of a personal commitment to positively utilize my legal skills, I joined the Legal Network for Gender Equity, a group of attorneys who support individuals seeking to come forward about their experiences with sexual harassment and assault. Through this network, I regularly counsel women who want to share their stories but are concerned that by doing so, they may open themselves up to costly defamation suits from their aggressors. Their concerns are not so much rooted in any notion that their stories are or could actually be defamatory. Instead, these concerns often stem from a recognition that …

Mypillow Lands Hard In Judge Wright’S Court, Michael K. Steenson

Faculty Scholarship

In Smartmatic USA Corp. v. Lindell, Smartmatic sued Michael Lindell and MyPillow, Inc. in Minnesota federal district court, alleging defamation and violation of Minnesota’s Deceptive Trade Practices Act based on Lindell’s claims of fraud in the 2020 presidential election, including that Smartmatic voting machines were rigged. This post focuses on Smartmatic’s defamation claim against Lindell and MyPillow.

Absolute Publishing Power And Bulletproof Immunity: How Section 230 Shields Internet Service Providers From Liability And Makes It Impossible To Protect Your Reputation Online, Victoria Anderson

Seattle University Law Review Online

No abstract provided.

Law School News: Logan Article Central To Scotus Dissent, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Free Speech In The Balance: Judicial Sanctions And Frivolous Slapp Suits, Shine Sean Tu, Nicholas F. Stump

Loyola of Los Angeles Law Review

The balance between free speech and access to courts in defamation tort actions is fraught with public policy concerns. On one hand, plaintiffs should have unencumbered access to the justice system to remedy real harms brought upon them by defamatory statements. However, defamation suits should not be wielded to suppress the constitutionally protected free speech rights of news organizations and of concerned citizens that are vital for well-functioning democracies. This Article argues for a new type of remedy, namely enhanced Rule 11 attorney sanctions, such as suspension or debarment, that should be available to defendants of defamation suits brought by …

Review Law: New York Defamation Applied To Online Consumer Reviews, Ian Lewis-Slammon

St. John's Law Review

(Excerpt)

In early July 2017, Michelle Levine booked her first and only appointment with gynecologist Dr. Joon Song for an annual exam. Ms. Levine had a dissatisfying experience with the office. She claims that Dr. Song’s office did not follow up with her for almost a month, and that when she called to ask about the results of a blood test, Dr. Song’s staff falsely informed her that she tested positive for herpes. To top it off, Ms. Levine alleges that the office overcharged her. Following this experience, Ms. Levine did what many others do when dissatisfied with a product …

Guess Who? Reducing The Role Of Juries In Determining Libel Plaintiffs' Identities, Nat Stern

St. John's Law Review

(Excerpt)

During the nomination hearings for now-Justice Brett Kavanaugh, considerable attention was drawn to a high school friend’s memoir featuring a fellow student named “Bart O’Kavanaugh.” By the memoir’s account, “O’Kavanaugh” in one episode blacked out—apparently from alcohol—on his return from a party. For any number of possible reasons, Justice Kavanaugh did not bring a libel suit against the book’s author. If he had, however, a crucial threshold issue—preceding questions of falsity and intent—would have been whether the memoir’s portrayal of “O’Kavanaugh” amounted to a false depiction of Kavanaugh himself. In the parlance of defamation doctrine, Justice Kavanaugh would have …

Does The Press Have A Right To Be Wrong?: Fake News, Press Freedom, And Defamation Law In 2021, Nathan T. Danielson

Journalism

The following study analyzes defamation lawsuits filed against Fox News and its on-air personalities by companies that manufactured and maintained voting machines used in the 2020 US presidential election. Smartmatic and Dominion accused Fox in court of broadcasting debunked allegations that the companies had rigged the election against incumbent president (and longtime Fox viewer) Donald Trump. The size of the sought-after damages, and the size of Fox itself, make this the largest “fake news suit” in history. This study explores the merits of the suits, defenses to defamation (particularly opinion, political speech, and retraction) and the potential ramifications of a …

Automation In Moderation, Hannah Bloch-Wehba

Faculty Scholarship

This Article assesses recent efforts to encourage online platforms to use automated means to prevent the dissemination of unlawful online content before it is ever seen or distributed. As lawmakers in Europe and around the world closely scrutinize platforms’ “content moderation” practices, automation and artificial intelligence appear increasingly attractive options for ridding the Internet of many kinds of harmful online content, including defamation, copyright infringement, and terrorist speech. Proponents of these initiatives suggest that requiring platforms to screen user content using automation will promote healthier online discourse and will aid efforts to limit Big Tech’s power.

In fact, however, the …

Public Official, Figures, And Controversies In Minnesota Defamation Law, Michael K. Steenson

Faculty Scholarship

In Minnesota, the plaintiff in a common law defamation claim is entitled to recover presumed damages in libel and slander per se cases. Those rules change when the First Amendment is injected into defamation cases when the plaintiff is a public official or figure or is a private person involved in a public controversy. A plaintiff who is a public official or figure must prove not only the elements of the common law defamation claim, but also that the defamatory communication was a false statement of fact and prove by clear and convincing evidence that it was made with actual …

Rescuing Our Democracy By Rethinking New York Times Co. V. Sullivan, David A. Logan

Law Faculty Scholarship

No abstract provided.

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 …

Law School News: Logan To Serve As Adviser On Restatement Third Of Torts 11-07-2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Brief Amici Curiae Of Electronic Frontier Foundation, 1851 Center For Constitutional Law, And Profs. Jonathan Entin, David F. Forte, Andrew Geronimo, Raymond Ku, Stephen Lazarus, Kevin Francis O’Neill, Margaret Tarkington, Aaron H. Caplan, And Eugene Volokh In Support Of Respondent-Appellant, Joni Bey And Rebecca Rasawehr V. Jeffrey Rasawehr, Supreme Court Of Ohio (Case No. 2019-0295), David Forte, Stephen R. Lazarus, Kevin F. O'Neill, Jonathan L. Entin, Andrew Geronimo, Raymond Ku, Margaret Tarkington, Aaron H. Kaplan, Eugene Volokh

Law Faculty Briefs and Court Documents

The brief argues that the Third District Court of Appeals, in violation of the First Amendment, erred in upholding an injunction that barred defendant from any online postings regarding plaintiff, whether or not those postings were to plaintiff or to third parties.

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” …

Ventura V. Kyle And American Sniper; The Anatomy Of A Public Figure’S Lawsuit, Michael K. Steenson

Faculty Scholarship

Chris Kyle's book, American Sniper, detailed his exploits as a prolific Navy SEAL sniper. In a book subchapter Kyle detailed an encounter with a "Mr. Scruff Face" in a San Diego Bar. The book states that Ventura made certain statements that were demeaning of the United States and the Navy SEALS. Scruff Face was subsequently identified by Chris Kyle as Jesse Ventura, former governor of Minnesota. Ventura sued Chris Kyle for defamation, appropriation, and unjust enrichment. Relying on trial court documents, briefs, and the opinions in the case, this article probes those theories of recovery with an emphasis on the …