Torts Commons^™

Developments In The News Media Privilege: The Qualified Constitutional Approach Becoming Common Law, Lawerence J. Mullen

Maine Law Review

In late 1977 and early 1978, the Boston Globe published a series of articles about a Delaware corporation engaged in building fiberglass boats in New Hampshire. The articles reported a number of allegedly serious defects in the boats, some of which may have contributed to sinkings. Critical comments of boat owners, surveyors, Coast Guard officers, company employees and a repairman were included. The builder was given an opportunity to respond in part of one article. Provoked by this quotidien instance of investigative journalism, the boat builder brought a libel action against the Globe in federal district court. The boat builder's …

New York Times V. Sullivan: A Civil Rights Story, Samantha Barbas

Texas A&M Law Review

The 1964 Supreme Court decision in New York Times v. Sullivan established the “actual malice” rule in libel law, requiring that in order to win a libel suit, a public official must show that a defamatory statement was false and that the speaker made the statement knowing that it was false or “with reckless disregard of whether it was false or not.”

Sullivan involved a libel suit brought by segregationist Alabama officials against the New York Times (“Times”) and leaders of the civil rights movement. Sullivan arose from sectional battles over civil rights and integration in the 1960s. An all-white …

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, …

Hard Truths: Libel By Implication Doctrine And The Need For A Uniform Standard, Carly Ryan

University of Michigan Journal of Law Reform

Since the inception of the tort of libel, claims against the media have created a tension between the First Amendment’s commitment to a free press and the desire to prevent reputational harm to individuals. Further complicating the issue are cases in which plaintiffs allege that literally true statements are defamatory based on implications created through juxtapositions or omissions of facts. This is known as libel by implication, a tort currently governed by states through a patchwork of varying standards and interpretations. Not only does the lack of uniformity leave journalists without due notice of the law in the jurisdictions they …

Authorbots, Derek E. Bambauer, Mihai Surdeanu

UF Law Faculty Publications

ChatGPT has exploded into the popular consciousness in recent months, and the hype and concerns about the program have only grown louder with the release of GPT-4, a more powerful version of the software. Its deployment, including with applications such as Microsoft Office, has raised questions about whether the developers or distributors of code that includes ChatGPT, or similar generative pre-trained transformers, could face liability for tort claims such as defamation or false light. One important potential barrier to these claims is the immunity con-ferred by 47 U.S.C. § 230, popularly known as “Section 230.” In this Essay, we make …

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

The University of New Hampshire Law Review

No abstract provided.

The Duty Not To Continue Distributing Your Own Libels, Eugene Volokh

Notre Dame Law Review

Say something I wrote about you online (in a newspaper, a blog, or a social media page) turns out to be false and defamatory. Assume I wasn’t culpable when I first posted it, but now I’m on notice of the error.

Am I liable for defamation if I fail to remove or correct the erroneous material? Surprisingly, courts haven’t settled on an answer, and scholars haven’t focused on the question. Libel law is stuck in a time when newspapers left the publisher’s control as soon as they are printed—even though now an article or a post can be seen on …

Libel By Omission Of Exculpatory Legal Decisions, Eugene Volokh

Notre Dame Law Review

Is it libelous to write that someone has been convicted of a crime, but to fail to mention that the conviction has been reversed? Or to write that someone has been charged, without mentioning the acquittal? The answers, it turns out, are often “yes”; this Article lays out the precedents that so conclude.

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 …

Group Defamation, Power, And A New Test For Determining Plaintiff Eligibility, Jeffrey Greenwood

Fordham Intellectual Property, Media and Entertainment Law Journal

In the fall of 2014, Rolling Stone Magazine published an article describing the rape of a woman at a University of Virginia fraternity house. The story turned out to be false, and members of the fraternity sued for defamation. The suit raises an interesting question: under what circumstances may anonymous individual members of the fraternity recover? This Note describes the case, related common and constitutional law, as well as differences in group defamation doctrine across jurisdictions. After detailing problems with the existing paradigm, the Note proposes a new method for performing the analysis.

Online Defamation, Legal Concepts, And The Good Samaritan, Benjamin C. Zipursky

Valparaiso University Law Review

No abstract provided.

Falwell V. Flynt: Lampooning Or Liability; The Realization Of A Three-Pronged Tort Approach For Establishing Media Liability For Fictional Defamation, Christopher C. Patterson

Akron Law Review

This article will discuss the appellate court's interpretation and application of the three tort theories of liability. It will also analyze the potential floodgate effect this case may have on future defamation actions against the media for publishing fictional publications, including political cartoons.

Supreme Court, New York County, Renco Group, Inc. V. Workers World Party, Inc., Edward Puerta

Touro Law Review

No abstract provided.

Dun & Bradstreet, Inc. V. Greenmoss Builders, Inc.: Does The Actual Malice Standard Of Gertz V. Robert Welch, Inc. Apply To Speech On Matters Of Purely Private Concern?, Jeff Boykin

Pepperdine Law Review

No abstract provided.

Masson V. New Yorker Magazine, Inc.: Permission For Journalists To Quote What I Mean, Not What I Say, Kevin M. Erwin

Pepperdine Law Review

No abstract provided.

Ambiguity In The Realm Of Defamation: Rhetorical Hyperbole Or Provable Falsity? - Gorilla Coffee, Inc. V. New York Times Co., Tiffany Frigenti

Touro Law Review

No abstract provided.

Some Thoughts On Libel Tourism , Andrew R. Klein

Pepperdine Law Review

This paper addresses the topic of “libel tourism,” a phrase used to describe cases where plaintiffs sue for defamation in a foreign jurisdiction and then seek to enforce judgments in the U.S., where the outcome might have been different because of protections for speech embodied in the United States Constitution. A number of commentators have discussed libel tourism at length, and this paper does not provide a treatise on the topic. Rather, it reviews recent reactions from legislators, courts, and commentators, and then offer some thoughts about whether these reactions appropriately balance concerns of comity and free speech. Ultimately, the …

Lmao; That Guy Is Such A &*%#!: Redefining Defamation Law's Stagnant Community Standard In A Rapidly Changing World, Daniel Lewis

Florida A & M University Law Review

Nearly forty years ago in the heat of the civil rights movement, the Supreme Court famously considered whether a Montgomery, Alabama Commissioner who supervised the Police Department was damaged by defamatory comments. In determining whether the false statements published in the New York Times article lowered the Commissioner's reputation and impeded his reelection chances, the court wrestled with defining the community in which these comments were published. Should the Supreme Court consider the allegedly defamatory comments within the scope of a national community, as the New York Times is a national publication, or was the correct community restrained to the …

Considering The Libel Trial Of Émile Zola In Light Of Contemporary Defamation Doctrine, Peter A. Zablotsky

Touro Law Review

Touro Law School's three-day conference on the Dreyfus affair provided an opportunity to re-examine the libel trial Émile Zola. A modern view on tort law is provided to analyze this case as if it unfolded today.

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 …

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

Scholarly Articles in Law Reviews & Journals

No abstract provided.

In The Matter Of Ottinger V. Non-Party The Journal News, Daniel Haier

NYLS Law Review

No abstract provided.

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 …

U.S. Supreme Court Tort Reform: Limiting State Power To Articulate And Develop Its Own Tort Law–Defamation, Preemption, And Punitive Damages, Thomas C. Galligan

ExpressO

U.S. Supreme Court Tort Reform: Limiting State Power to Articulate and Develop Its Own Tort Law–Defamation, Preemption, and Punitive Damages analyzes and critiques the three primary areas in which the U.S. Supreme Court has found federal constitutional limits on a state’s power to articulate, develop, and apply its common law of torts. It is the first piece to consider all three areas together as an emerging body of jurisprudence which Professor Galligan calls U.S. Supreme Court tort reform. After setting forth a modest model of adjudication, the article applies that model to each of the three areas: defamation and related …

Are Talebearers Really As Bad As Talemakers?: Rethinking Republisher Liability In An Information Age , Jennifer L. Del Medico

Fordham Urban Law Journal

This Comment critiques the legal landscape surrounding republisher liability for defamation and ultimately calls for a more reaching approach to protect against such liability. Historically at common law republishers could be held liable for defamation regardless of whether they attributed the source of the material. However, starting in 1933 courts articulated the “wire service defense” that sought to eliminate liability for republishers when they “republished a wire story from a generally recognized reliable source of daily news.” Subsequent to the 1933 Florida court’s articulation of the defense many jurisdictions have adopted it. New York stands out as one of the …

Press Privacy And Malice: Reflections On New York Times Co. V. Sullivan, Irving R. Kaufman

Cardozo Law Review

No abstract provided.

The Hiss-Chambers Libel Suit, William L. Marbury

Maryland Law Review

No abstract provided.

Defamatory Opinions And The Restatement (Second) Of Torts, George C. Christie

Michigan Law Review

This Article will focus on one important aspect of the Institute's work: the question of whether opinion, including ridicule, can be an independent basis of an action for defamation. Before undertaking that inquiry, however, some basic concepts regarding defamatory opinions must be understood. First, a statement of opinion can, of course, often be reasonably construed to imply the existence of facts that would justify the opinion. If a direct statement of those facts would be defamatory, then the statement of an opinion that implies the existence of those false facts would be defamatory and capable of supporting an action for …