Defamation and Misc. Free Speech Issues

Fall 2014Resources:

Harvard’s Berkman Centerhttp://www.citmedialaw.org/legal-guide/defamation

EFFhttp://www.eff.org/issues/bloggers/legal/liability/defamation

Defamation

• Defamation required elements to prove:1. False statement of fact about plaintiff by

defendant2. Publication - communicated to a third party3. Damages the reputation of the plaintiff

• Defamation forms– Oral: slander– Written: libel

• Negligence standard, Gertz (1974)

Can you defame someone with a true, dark secret?

A. YesB. No

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A defamatory tweet would be an example of

A. SlanderB. Libel

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Defamation per se:

• If it’s 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

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 aboveE. None of the above

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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

Which of the following is NOT a per se category for defamation?

A. DiseaseB. HyperboleC. Criminal conductD. Business

misconductE. Sexual misconduct

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Defamation and public figures

• Public figure: celebrity, politician, public official– Examples: 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 Beckham’s $25 M suit against In Touch• http://

www.guardian.co.uk/football/2011/feb/15/david-beckham-magazine-libel-judge

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 falseC. the statement was

made with actual maliceD. the statement harmed

his/her reputation.E. the statement was

made with negligence.

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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.”

Can you sue Twitter & Facebook over a member’s defamatory

comments?

See § 230 of the Federal Communications Decency Act

http://www.eff.org/issues/bloggers/legal/liability/230

Your former friend defames you on Instagram. Can you successfully sue Instagram as Instagram

was the online publisher?

A. YesB. No

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What Courtney Love can Teach Us about Defamation

• The first defamation lawsuit– http://

www.techdirt.com/articles/20090329/2229284297.shtml• Resolution: settlement

http://artsbeat.blogs.nytimes.com/2011/03/04/courtney-love-settles-twitter-defamation-case/?_php=true&_type=blogs&_php=true&_type=blogs&emc=eta1&_r=1

Courtney Love cont’d

• The second lawsuit:– 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

Courtney Love cont’d (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

– Feb 20, 2014, the judge ruled the case can continue http://www.spin.com/articles/courtney-love-dawn-simorangkir-libel-lawsuit-howard-stern/

@midnight – Yelp reviews

http://www.cc.com/video-clips/szn7jo/-midnight-chuck-e--cheese-s-or-jail---gang-banging-daddies

Business Interests & Online Defamation

Unfavorable reviews of businesses:– Restaurant Yelps: http://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/d7C2so

– Trip advisor: Dirtiest hotels list• http://www.mondaq.com/unitedstates/x/264642/Libel+Defamation/Sixt

h+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/2009-12-19-Alascio%20Response.pdf

– Apartment Mold: • http://consumerist.com/2010/01/twitter-defamation-lawsuit-dismissed.html

What is your opinion? A blogger should get the same protections as a traditional journalist.

A. Strongly AgreeB. AgreeC. Somewhat AgreeD. NeutralE. Somewhat DisagreeF. DisagreeG. Strongly Disagree

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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, 9th 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.”

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/

• Online speech, accomplished using remailers– A series of servers that strip our identifying info &

sub in anonymous code or random numbers.(chained remailing)

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:

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.

Students rights cont’d

• 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."

Finkel v. Dauber

• 2010, NY case

• Secret Facebook group

– Victim of the bullying sues for defamation

– http://blog.ericgoldman.org/archives/2010/07/private_faceboo.htm

– Outcome?

Free speech challenges for student speech consider

A. The kind of speech (political, vulgarity)

B. The likelihood of disruption to the academic environment

C. The rights of those around the student

D. All of the aboveE. Nothing. Students do not

have free speech rights

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Misc. Free Speech Issue:Employee’s right to free speech

Article http://www.hrexaminer.com/is-there-free-speech-at-work/ • Some right to discuss working conditions

– EMT fired; found firing was improper• http://nyti.ms/djca6U

• Distinguish conditions discussion from mere venting– NJ first grade teacher properly fired for saying she “felt like a warden

overseeing future criminals” • http://blog.ericgoldman.org/archives/2013/01/tenured_school_1.htm

– Bartender example (see next slide)• http://www.nytimes.com/2013/01/22/technology/employers-social-media-policies-come-under-regulatory-scrutiny.html?pagewanted=all

Bartender, unhappy about receiving no raise in 5 years, posts on Facebook that his customers are rednecks and hopes

“they choke on glass as they drive home drunk.” Classify this.

A. Discussion of working conditions

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Free Speech Issue: When beliefs contradict law

• Amish stance on technology adoption.

• Wisconsin v. Yoder exemption for school

• What about requiring the Amish to use “technology”?– Mandatory, reflective traffic triangles on buggies– Traffic triangles. Watch:

• http://www.foxnews.com/us/2012/01/02/amish-sects-buggies-traffic-burden-for-some-kentucky-residents/

Opinion: Should the Amish be required to display the triangles when on public roads?

A. YesB. NoC. I’m conflicted (unsure)

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Result: Kentucky Supreme Court

Reasoning: