defamation and misc. free speech issues fall 2014 resources: harvard’s berkman center...

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  • Slide 1
  • Defamation and Misc. Free Speech Issues Fall 2014 Resources: Harvards Berkman Center http://www.citmedialaw.org/legal-guide/defamation EFF http://www.eff.org/issues/bloggers/legal/liability/defamation
  • Slide 2
  • Defamation Defamation required elements to prove: 1.False statement of fact about plaintiff by defendant 2.Publication - communicated to a third party 3.Damages the reputation of the plaintiff Defamation forms Oral: slander Written: libel Negligence standard, Gertz (1974)
  • Slide 3
  • Can you defame someone with a true, dark secret? A.Yes B.No 30
  • Slide 4
  • A defamatory tweet would be an example of A.Slander B.Libel 30
  • Slide 5
  • Defamation per se: If its defamation per se, proving harm to reputation is not required Per se categories: disease; criminal actions; misconduct related to profession or business; sexual misconduct. False statements involving these items are always actionable
  • Slide 6
  • If you are bring a lawsuit claiming the statement was defamation per se, you will not have to prove A.That the statement was communicated to a third party B.That the statement was false C.That the statement harmed your reputation D.All of the above E.None of the above 30
  • Slide 7
  • Defenses, Exceptions to Defamation Is it a statement of fact? Facts: capable of being objectively verified. Is it an opinion? Generally, opinions are protected speech. Stating false information opinion Other exceptions: merely offensive statements The Dumb Ass example in Vogel v. Felice if the meaning conveyed cannot by its nature be proved false Hyperbole Hustler v. Falwell Libel proof plaintiff
  • Slide 8
  • Which of the following is NOT a per se category for defamation? A.Disease B.Hyperbole C.Criminal conduct D.Business misconduct E.Sexual misconduct 30
  • Slide 9
  • Defamation and public figures Public figure: celebrity, politician, public official Examples: http://www.citmedialaw.org/legal-guide/examples-public-and-private-figures http://www.citmedialaw.org/legal-guide/examples-public-and-private-figures In addition to the three requirements, public figure plaintiff must prove that the defendant acted with actual malice (NY Times v. Sullivan) Knowing that it was false or with active disregard to statements truth. Regular defamation tests merely for negligence Reasonably prudent person, reasonable care Ex. David Beckhams $25 M suit against In Touch http://www.guardian.co.uk/football/2011/feb/15/david- beckham-magazine-libel-judge http://www.guardian.co.uk/football/2011/feb/15/david- beckham-magazine-libel-judge
  • Slide 10
  • Public figures who sue for defamation have an additional element to prove about the statement. What is it? A.the statement was communicated to a third party B.the statement was false C.the statement was made with actual malice D.the statement harmed his/her reputation. E.the statement was made with negligence. 30
  • Slide 11
  • Suppose that each of the following statements is untrue and was communicated to a third party. Is the statement defamation? Why? 1.Bob smells bad. 2.Alice is as dim as a 20 watt bulb. 3.Nurse Ellen tells Nurse Sam Dr. Steve had a 3 margarita lunch before performing that surgery. 4.George took the money. 5.Vivian has herpes. 6.Charlie Sheen, Lindsey Lohan called and she wants her smack back. 7.Bridget slept with the entire offensive line. 8.Bridget slept with Frank. 9.I think Bridget smoked weed at the party this weekend because I saw her coming out of her room, and when I went in I could smell it, and I found a roach. 10.Amy Winehouse had AIDs.
  • Slide 12
  • Can you sue Twitter & Facebook over a members defamatory comments? See 230 of the Federal Communications Decency Act http://www.eff.org/issues/bloggers/legal/liability/230
  • Slide 13
  • Your former friend defames you on Instagram. Can you successfully sue Instagram as Instagram was the online publisher? A.Yes B.No 30
  • Slide 14
  • What Courtney Love can Teach Us about Defamation The first defamation lawsuit http://www.techdirt.com/articles/20090329/2229 284297.shtml http://www.techdirt.com/articles/20090329/2229 284297.shtml Resolution: settlement http://artsbeat.blogs.nytimes.com/2011/03/04/courtn ey-love-settles-twitter-defamation- case/?_php=true&_type=blogs&_php=true&_type=blo gs&emc=eta1&_r=1 http://artsbeat.blogs.nytimes.com/2011/03/04/courtn ey-love-settles-twitter-defamation- case/?_php=true&_type=blogs&_php=true&_type=blo gs&emc=eta1&_r=1
  • Slide 15
  • Courtney Love contd The second lawsuit: http://www.hollywoodreporter.com/thr- esq/courtney-love-sued-again-defamation-192727 http://www.hollywoodreporter.com/thr- esq/courtney-love-sued-again-defamation-192727 The case went to trial. January 2014 verdict for Love http://www.huffingtonpost.com/eugene-k-chow/why- courtney-love-twibel_b_4688426.html http://www.huffingtonpost.com/eugene-k-chow/why- courtney-love-twibel_b_4688426.html
  • Slide 16
  • Courtney Love contd (2) The third lawsuit: Pinterest comments include "you stole 36 bags of clothing on cctv" and "you stol;e 36 bags of my txtiles and designs and are still using my designs. http://www.hollywoodreporter.com/thr-esq/courtney-love-hit- defamation-lawsuit-630423 http://www.hollywoodreporter.com/thr-esq/courtney-love-hit- defamation-lawsuit-630423 Feb 20, 2014, the judge ruled the case can continue http://www.spin.com/articles/courtney-love-dawn- simorangkir-libel-lawsuit-howard-stern/ http://www.spin.com/articles/courtney-love-dawn- simorangkir-libel-lawsuit-howard-stern/
  • Slide 17
  • @midnight Yelp reviews http://www.cc.com/video-clips/szn7jo/-midnight-chuck-e--cheese-s-or-jail---gang-banging-daddies
  • Slide 18
  • Business Interests & Online Defamation Unfavorable reviews of businesses: Restaurant Yelps: http://nyti.ms/fII6iPhttp://nyti.ms/fII6iP T & J Towing v. Kurtz, Facebook group: Kalamazoo Residents against T&J Towing http://www.citmedialaw.org/blog/2010/tj-towing-v-kurtz-weve-got-court-documents Update & what is S.L.A.P.P.? http://nyti.ms/d7C2sohttp://nyti.ms/d7C2so Trip advisor: Dirtiest hotels list http://www.mondaq.com/unitedstates/x/264642/Libel+Defamation/Sixth +Circuit+Affirms+Dirtiest+Hotel+Defamation+Ruling http://www.mondaq.com/unitedstates/x/264642/Libel+Defamation/Sixth +Circuit+Affirms+Dirtiest+Hotel+Defamation+Ruling Unfavorable tweets against businesses: Worst car dealership in the world http://www.citmedialaw.org/sites/citmedialaw.org/files/2009-12-04- Route%206%20Hyundai%20Demand.pdf http://www.citmedialaw.org/sites/citmedialaw.org/files/2009-12-04- Route%206%20Hyundai%20Demand.pdf http://www.citmedialaw.org/sites/citmedialaw.org/files/2009-12-19-Alascio%20Response.pdf Apartment Mold: http://consumerist.com/2010/01/twitter-defamation-lawsuit-dismissed.html
  • Slide 19
  • What is your opinion? A blogger should get the same protections as a traditional journalist. A.Strongly Agree B.Agree C.Somewhat Agree D.Neutral E.Somewhat Disagree F.Disagree G.Strongly Disagree 30
  • Slide 20
  • Bloggers as Journalists In the past, some courts have been hesitant to extend protections to bloggers. A recent decision may change that Obsidian Finance Group v. Cox, 9 th Circuit 2014 The protections of the First Amendment do not turn on whether the defendant was a trained journalist As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable.
  • Slide 21
  • Misc. Free Speech Issue: Anonymous Speech Anonymous publishing as a First Amendment right McIntyre v. Ohio Elections Commission US S. Ct 1995 http://gilc.org/speech/anonymous/ http://gilc.org/speech/anonymous/ Online speech, accomplished using remailers A series of servers that strip our identifying info & sub in anonymous code or random numbers. (chained remailing)
  • Slide 22
  • Does the First Amendment give you the right to speak anonymously online? Yes, but you do not have the right to speak falsely & injuriously. example below:
  • Slide 23
  • Misc. Free Speech Issue: Students right to free speech Faked profiles Mix of rulings Fake MySpace profile for a Texas principal Draker v. Schreibner Facebook parody profile of principal Trosch by high school student Layshock v. Hermitage School District 14 y o middle school student created fake MySpace J.S. v. Blue Mountain School http://blog.ericgoldman.org/archives/2012/03/suspension_for_1.htm Application of Tinker v. Des Moines (1969 US S. Ct. case). Black armbands & school ban Students are persons under the Constitution Rights not left at the school house gate School must base decision on the likelihood of disruption of education environment and intrusion of others.
  • Slide 24
  • Students rights contd Fraser standard (1986) student lewd speech distinguishing "vulgar" speech from the pure "political" speech in Tinker Hazelwood standard (1988) school paper case educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns."
  • Slide 25
  • Finkel v. Dauber 2010, NY case Secret Facebook group Victim of t