Gertz v. Robert Welch, Inc. – 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974)
Facts: In 1968, a Chicago policeman named Nuccio shot and killed a youth named Nelson. Elmer Gertz, a reputable attorney, was hired by the Nelson family for civil litigation against Nuccio. Robert Welch, Inc., publisher of American Opinion, a magazine associated with the John Birch Society, published an article in 1969 accusing Gertz of being part of a Communist conspiracy to frame Nuccio. The article contained numerous inaccuracies, including claims that Gertz was a Leninist and had a criminal record. Gertz filed a libel suit, and the District Court ruled that the statements were libel per se. Despite the jury awarding Gertz $50,000, the District Court and Court of Appeals concluded that the New York Times v. Sullivan standard applied, protecting the publisher since Gertz was not a public figure or official and no actual malice was proven.
Issue: whether a publisher has a constitutional privilege against liability for defamation when the defamed individual is a private citizen rather than a public official or figure. Specifically, the Court had to decide if the New York Times v. Sullivan standard of "actual malice" applies to defamation cases involving private individuals.
Rule: The Supreme Court established that private individuals have more protection against defamatory statements than public figures or officials. The key rule derived is that states may set their own standards of liability for defamation involving private individuals, provided they do not impose liability without fault (strict liability). Furthermore, the Court held that the New York Times standard of proving "actual malice" does not apply to private individuals, who must only show that the defendant was negligent.
Application: Applying this rule, the Supreme Court found that Gertz was not a public figure or official. His involvement in the Nelson case was limited to his professional duties as a lawyer and did not thrust him into the public spotlight. The defamatory statements made by American Opinion were not protected under the New York Times standard as Gertz did not need to prove actual malice. Instead, the publisher could be held liable if it was shown that they acted negligently. Given that the magazine made no effort to verify the false statements about Gertz, the negligence standard was met.
Conclusion:
The Supreme Court concluded that the application of the New York Times standard to private individuals is inappropriate. It reversed the Court of Appeals' decision, ruling that states could impose a standard of negligence for defamation involving private individuals. Gertz was entitled to a new trial where he would only need to prove negligence, not actual malice. This decision struck a balance between protecting individuals' reputations and maintaining robust freedom of speech and press.
By ruling in favor of Gertz, the Court redefined the landscape of defamation law, providing greater protection to private individuals from defamatory falsehoods while acknowledging the societal interest in protecting free speech.
Feedback & Notes:
"A diversity action for libel" refers to a legal lawsuit involving a libel claim where the parties are from different states (or countries), allowing the case to be heard in federal court rather than state court. Here's a breakdown of the terms:
Diversity Action: This is a type of legal case that falls under "diversity jurisdiction" in the United States federal court system. Diversity jurisdiction allows federal courts to hear cases where the parties involved are citizens of different states or countries, and the amount in controversy exceeds a statutory threshold (currently $75,000).
Libel: Libel is a form of defamation expressed in a fixed medium, typically writing, but also includes pictures, signs, or electronic broadcasts. It involves making false statements about someone that damage their reputation.
So, "a diversity action for libel" would be a lawsuit filed in federal court where the plaintiff claims that the defendant has made false and defamatory statements in writing or another fixed medium, and the parties involved are from different states or countries.
The difference between "libel per quod" and "libel per se" lies in the inherent nature of the defamatory statement and the requirement to prove damages. Here's a detailed explanation:
Libel Per Se
Definition: Libel per se refers to statements that are considered so inherently defamatory that they are presumed to cause harm to the plaintiff's reputation without the need for further proof.
Characteristics:
-The defamatory nature of the statement is obvious and clear on its face.
-Common examples include statements that falsely accuse someone of a crime, assert that someone has a contagious or loathsome disease, allege that someone is unfit for their profession, or suggest that someone is guilty of serious sexual misconduct.
Damages:
-In cases of libel per se, damages to the plaintiff's reputation are presumed.
-The plaintiff does not need to provide evidence of specific harm or special damages (i.e., quantifiable losses).
Libel Per Quod
Definition: Libel per quod involves statements that are not obviously defamatory on their face and require additional context or extrinsic facts to understand their defamatory meaning.
Characteristics:
-The defamatory nature of the statement is not immediately apparent.
-The plaintiff must demonstrate that the statement is defamatory by providing additional context or facts.
-For example, if a statement appears innocent but becomes defamatory when combined with extrinsic facts known to the audience, it would be considered libel per quod.
Damages:
-In cases of libel per quod, the plaintiff must prove special damages.
-Special damages refer to specific, quantifiable losses that resulted from the defamatory statement (e.g., lost wages, medical expenses, loss of business).
-The plaintiff must show actual harm caused by the statement to succeed in the lawsuit.
Summary
Libel Per Se: Inherently defamatory statements that are presumed to cause harm. The plaintiff does not need to prove specific damages.
Libel Per Quod: Statements that require additional context to be understood as defamatory. The plaintiff must prove specific damages resulting from the defamatory statement.
Understanding this distinction is crucial in defamation cases, as it determines the burden of proof and the necessity of demonstrating actual harm to succeed in the lawsuit.
Presumed damages are a type of compensation awarded in defamation cases where the plaintiff does not need to prove actual harm or loss. Instead, the harm is assumed by the nature of the defamatory statement itself. This concept recognizes that some statements are so inherently harmful that damage to the plaintiff's reputation can be presumed.
There are two main types of defamation: libel (written defamation) and slander (spoken defamation). Presumed damages are more commonly associated with libel and slander per se (statements that are so egregious that harm is presumed).
Examples of situations where presumed damages might apply include statements that:
Accuse someone of a crime.
Imply someone has a contagious or loathsome disease.
Suggest professional incompetence or misconduct.
Imply moral turpitude or lack of chastity (historically more relevant in defamation cases involving women).
Presumed damages allow plaintiffs to recover without the burden of proving the actual damage to their reputation, recognizing the difficulty in quantifying such harm.
Live Class Notes:
Defamation prima facie requirements
1)a false statement purporting to be fact
2)publication or communication of that statement to a third person
3)fault amounting to at least negligence
4)damages or some harm caused to the reputation of the person or entity who is the subject of the statement.
Calculation of damages
-Basis of $50,000 damages:
Bad impact on Plaintiff’s reputation and career as a lawyer
-Problem: Reputation from ppl with the same occupation
-Wrongful death requires the calculation of the victim’s value
-Value differs from person to person based on his career, social status, and life expectancy
-Any victim can ask that damages based on his social status and reputation and history of his life
-Ppl are not equal in this area, E.g. defamation, insurance areas
-President’s injury of reputation is different from a judge’s injury of reputation
-Annual salary is a very important standard to calculate damages
Conflict of constitutional rights, e.g. freedom of the press, people’s right to know regarding a public matter
Conflict between tortfeasor (constitutional right of freedom of expression) and the victim (constitutional right of privacy right, i.e. protection of private personality)
Which one has a higher standard?
Whether the statement is false or not is a critical factor in defamation suits.
1.Truth as a Defense:
In defamation cases, truth is an absolute defense. If the defendant can prove that the statement in question is true, the defamation claim will fail. This is because defamation laws are designed to protect individuals from false statements that harm their reputation, not from truthful statements, no matter how damaging.
2.Burden of Proof:
The burden of proof typically lies with the plaintiff to show that the statement was false. This means that in a defamation suit, the plaintiff must demonstrate that the statement made by the defendant was not only damaging but also untrue.
3.Impact of Falsity:
The falsity of the statement is what makes it potentially harmful and defamatory. If a statement is false and has caused harm to the plaintiff’s reputation, it forms the basis for a defamation claim.
4.Public Figures and Actual Malice:
For public figures, in addition to proving the falsity of the statement, they must also show that the defendant acted with "actual malice," meaning the defendant knew the statement was false or acted with reckless disregard for the truth.
5.Opinions vs. Facts:
Statements of opinion are generally not considered defamatory because they cannot be proven true or false. For a statement to be defamatory, it must be a factual assertion that can be verified as false.
Determining whether the statement is true or not -> Whether the victim is injured -> whether the victim is a public figure -> whether the defendant had an “actual malice” (knowledge of falsehood or reckless disregard of truth) -> there should be any fault (mistake) to make the false statement; at least any fault or negligence is required for defamation -> statement should be a fact, rather than an opinion
Opinion cannot be punished by defamation; it’s a constitutional right of expression; regarding opinions, freedom of expression prevails over privacy
In South Korean court, vulgar expressions/opinions are protected under the constitutional right of freedom of speech.
Compare opinion vs. facts; defamation applies only to the facts
If a reporter writes down someone’s opinion about something, that’s a fact.
Hearsay – opinion or facts?
Defamation: Defamation involves making a false statement about someone to a third party, causing harm to the person's reputation. It can be in the form of libel (written) or slander (spoken).
Hearsay Evidence: Hearsay is an out-of-court statement introduced to prove the truth of the matter asserted. Hearsay evidence is generally inadmissible in court unless it falls under one of the many exceptions or exclusions to the hearsay rule.
Challenges with Hearsay in Defamation Suits:
Reliability: Hearsay statements are typically considered less reliable because the person who made the statement is not available for cross-examination.
Admissibility: Courts usually do not admit hearsay evidence unless it meets specific exceptions or exclusions under the rules of evidence.
Proof of Publication: In defamation suits, the plaintiff must prove that the defamatory statement was published to a third party. Hearsay can complicate this requirement, as it may be difficult to establish that the statement was indeed published.
Exceptions and Exclusions:
There are numerous exceptions to the hearsay rule that may allow hearsay evidence to be admissible, such as admissions by a party-opponent, statements against interest, and present sense impressions.
If a hearsay statement falls under an admissible exception, it might be possible to use it in a defamation case.
No defamation can be established between two people; requires a third party
-Prima facie for defamation: publication for a third person
-If it’s a phone call between two individuals and not communicating to a third person, no defamation
-Even a text message, no defamation
-If three people are there, and the third person listens to the vulgar expression, defamation might be established
-Oral battery / insult crimes might be established between two people
-However, some jurisdictions do not require the third-party communication
We should not pick just one sentence without considering the total surrounding consequences, intention, faults, etc. to establish defamation
Fighting words cannot be protected under the freedom of expression
Connecting defamation with fighting words is the issue
Public welfare, security, and safety are the exceptions which can limit any fundamental rights
Truth is the absolute defense in defamation in the US
A neighbor openly reveals another’s criminal record; can they be sued for defamation? No
-In the US there is a criminal record research system; it’s technically not a private matter
Balancing test between protection of privacy vs public welfare, security, and safety
-Installation of CCTV in hospital is allowed
Fighting words must incite imminent danger
E.g. Trump told people to go the Capitol building and they marched toward the building and occupied it; is his statement fighting words?
Fighting words are defined by the Supreme Court in Chaplinsky v. New Hampshire (1942) as words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Key characteristics include:
Directed at a Specific Individual: Fighting words are typically directed at a specific person or group in a face-to-face confrontation.
Immediate Threat: They are likely to provoke an immediate violent reaction from the average person.
Factors against fighting words classification
Not Directed at Specific Individuals: The statement was directed at a large group of supporters, not at any specific individual or small group in a face-to-face manner.
Political Speech: Courts give wide protection to political speech, even if it is inflammatory or controversial, under the First Amendment.
Context of Public Rally: The setting of a public rally typically involves hyperbolic and rhetorical speech, which is often protected.
Factors Supporting Incitement
Call for Action: Encouraging people to march and occupy a government building could be seen as urging illegal activity.
Immediate Consequences: The immediate reaction of the crowd—marching to the Capitol and engaging in violent acts—could support a claim of incitement.
Legal Precedent: Incitement vs. Fighting Words
Incitement: Under Brandenburg v. Ohio (1969), speech advocating illegal action is not protected if it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
Directed to Inciting Imminent Lawless Action: The statement to march and occupy could be seen as directing imminent lawless action.
Likely to Incite Such Action: Given the subsequent events, it could be argued that the speech was likely to produce lawless action.
Trump's statement to march toward the Capitol and occupy it is more accurately analyzed under the Brandenburg test for incitement rather than the fighting words doctrine.
If there is a combination of facts and opinions, we should consider the whole consequences
Private vs. public figure
Public figure
Voluntarily placed himself in the public spotlight
Nationwide reputation or fame is required (you have to be well-known in that country)
“Although petitioner was consequently well known in some circles, he had achieved no general fame or notoriety in the community.”
“In this context, it is plain that petitioner was not a public figure. … He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public's attention in an attempt to influence its outcome.”