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Glossary of MCOM LAW

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Defamation/ Tort
Any communication that holds a person up to contempt, hatred, ridicule or scorn and lowers the reputation of the individual defamed.
Libel
Published or broadcast communication that lowers the reputation of an individaul by holding him or her up to contempt, ridicule or scorn.
Survival Statutes
A statute that permits an heir to continue to maintain a lawsuit if the plaintiff died after the suit was filed but before it was resolved.
To WIN a Libel Suit a Plaintiff Must Prove:
1. The libel was published
2. Words were of and concering plaintiff.
3. Material is defamatory.
4. Material is false.
5. Defendant was at fault.



Publication
In libel law, exposing an allegedly libelous statement to one person in addition to the subject of the libel.
Scienter
Guilty knowledge. In many criminal prosecutions, the state must prove that the accused was aware of the nature of his or her behavior. In an obscenity case, for example, the state must normally show that the defendant was aware of teh contents of the book he or she sold.
Indentification
As used in a libel suit, the requirement that the plaintiff prove that at least one person believes that the subject of the libelous remarks is the plaintiff and not some other person.
Single Mistake Rule
In libel law, a rule that states that it is not libelous to accuse a professional person or businessperson of making a single mistake.
Trade Libel
Product disparagement, and not considered true libel; disparaging a product as opposed to the manufacturer or maker of the product.
Fighting Words Doctrine
A legal doctrine that permits prior censorship of words that create a clear and present danger of inciting an audience to disorder or violence.
Public Officials
The designation of a plaintiff in a libel suit who is an elected public officer or is an appointed public officer who has or appears to have considerable responsibility for or control over the conduct of governmental affairs.
NEW YORK TIMES v. SULLIVAN (1964) pg. 168
-The New York Times published an ad that supported the Civil Rights Movement.

-Alabama Police commissioner, L.B. Sullivan sought $500,000 in damageds for false and defamatory statements about the conduct of the Mongomery police department.

-The U.S. Supreme Court unanimously reverese the decision, ruling that Sullivan could not recover damages in this case unless he proved that The New York Times published the false and defamatory advertisement knowing it was false, or that the paper exhibited reckless disregard for the truth when it printed the material.

-In other words, he needed to prove that the NYT lied when they printed the ad.





The Rationale for the NEW YORK TIMES v. SULLIVAN Ruling:
1. Stripped of its civil libel cover, this case was clearly on of seditious libel
(Sullivan was attempting to resurrect sedition law via a civil libel action).

2. The nation has a profound and long-standing national commitment to the principle that debate on public issues should be uninibited, robust and wide open. (Freedom of expression needs breathingspace to survive-- Justice Brenan.

3. When public officials like Sullivan take a government post, they must expect that their work will be closely scrutinized and even criticized by the people they serve.




Public Figures
The designation for a plaintiff in a libel suit who has voluntaily entered a public controversy in an effort to influence public opinion in order to generate a resolution of the issue.
Businesses As Public Figures:
To determine whether a business is a public figure or not, we must ask:

-Whether a business has used a highly unusual advertising or pormotional campaign to draw attention to itself.
-The notoriety of the business to the average person in the area where the buiness has a presence.
-Whether a business is regulated by the government.
-Whether the libelous comment about the business focuses on a matter of public concern.
-Frequencey and intensity of meida scrutiny of the business.





All-purpose Public Figures
People who occupy persuasive power and influence in the nation or in a community, who are usually exposed to constant media attention.
Limited-Purpose Public Figures
Individuals who voluntarily inject themselves into an important public controversy in order to influence public opinion regardign the resolution of that controversy.



Negligence
Failure to exercise reasonable care.
Actual Malice
Knowledge of falsity or reckless disregard for the truth.
Reasons a defendant might be found negligent:
-Reliance on an untrustworty source.
-Not reading or misreading pertinent documents.
-Failure to check with an obvious source, perhaps the subject of the story.
-Careless in editing and news handling.

The court will always ask:

DID THE REPORTER MAKE A GOOD FAITH EFFORT TO DETERMINE THE TRUTH OR FALSITY OF THE MATTER?










Knowledge of Falsity
A high degree of awareness fo the probable falsity of the defamatory material whein it was published.
OR
Sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth the publication.

Proving Actual Malice
1. The plaintiff must prove actual malice with "clear and convicing" evidence.

2. The Supreme Court has instructed appellate courts to re-examine the evidence in the case to determine that the record "establishes actual malice with convincing clarity."

Determining Reckless Disregard for the Truth:
1. Whether there was time to investigate the story or whether the material had to be published quickly.

2. Whether the source of the information appeared to be reliable and trustworthy.

3. Whether the story itself ounded probable or farfetched.



Summary Judgment
A judgment granted to a party in a lawsuit when the pleadings and other materials in the case disclose no material issue of fact between the parties, making it possible for the case to be decided on the basis of the law by the court. A summary judgment avoids a costly jury trial.
Statute of Limitations
A law that requires that a legal action must begin within a specified period of time (usually one to three years for a vicil case) after the legal wrong was committed.
TRUTH (pg. 212)
Traditionally, truth has been regarded as an important libel defense that completely protected defendants in lawsuits for defamation.

When a private-person plaintiff sues for a libelous statement that does not focus on something of public concern and therefore does not have to show falsity to the matter as a part of proving negligence, the libel defendant can escape liability in the case by showing that the defamatory matter is true.

Elements of Libel
-Libel war was published
-The words were of and concerning the plaintiff
-The material is defamatory
-The material is false
-The defendant was at fault



Identification
-The defamatory statement is " of or concerning him/her.

-Name
-Nickname
-Photograph
-References that would identify only one person.
-Group Identification







Libel per quod
words that are innocent on their face and only become defamatory when other facts are known.
Libel per se
Words that are libelous on their face.
Falsity
If the proven truth leaves a different impression of the plaintiff in the minds of the jury than the impression cerated by the defamatory falsehood.

False has to be defamatory and an impression.

Degrees of false- The part that is false has to be the part that is defamatory. This does not always make the statement false.



The Lawsuit as a weapon
-Many plaintiffs file libel suits to silence critics. These are referred to as strategic lawsuits against public participation.
To Prove Actual Malice: An individual must prove all three categories which has two elements:
- Proof of knowledge of falsity
- Reckless disregard for the truth
Classifying Public Officials
-Job description:

1. Courts will consider the kind of government job the person holds.
-Anyone who is elected to a government position is a public official.

2. Persons appointed or hired for government jobs may qualify as public persons depending on the nature of their job
*The level of responsibility
* The kind of responsibility
*Whether the person has responsibility to spend public money
* The nature of the persons job
* See pp. 172-173

Public officials must prove actual malice when the libel as remarks concern:
-The way the plaintiff conducts himself in public office.
-The plaintiffs general fitness for the job.

Limited Public Figures
-Those "who have thrust themselves into the forefront (spotlight) of particular public controversies in order to influence the resolution of the issues involved.

Public Controversy must exist before publication or broadcast of the libelous manner.

Some standards used to determine if a business is a public figure include:
-Whether a business has used a highly unusual promotional campaign to draw attention to itself.
-Whether a business is regulated by the government.
























Gertz v. Robert Welch (1974)
The Supreme Court of the United States established the standard of First Amendment protection against defamation claims brought by private individuals. The court held that, so long as they do not impose liability without fault, states are free to establish their own standards of liability for defamatory statements made about private individuals.
Time Inc. v. Firestone (1976)
A U.S. Supreme Court case concerning defamation suits against public figures.

Mary Alice Firestone was married to Russell A. Firestone, Jr., an heir to the Firestone Tire and Rubber Company family fortune. Mary filed for divorce, and Russell submitted a counterclaim on the grounds of extreme cruelty and adultery. The judge discounted much of the evidence concerning extramarital affairs. Nevertheless, Time, Inc., publisher of the eponymous weekly news magazine, ran an article about the affairs, despite evidence to the contrary. Mary filed suit in a Florida state court seeking $100,000 in damages for libel.

Reckless Disregard for the Truth: Jury Considerations
1. Whether there was time to investigate the story or whether the material had to be published quickly

2. Whether the source of the information appeared to be reliable and trustworthy.

3. Whether the story itself sounded probable or farfetched.





Four parts of the Tort Test
-The defendants conduct was intentional or reckless

-The defendants conduct was extreme and outrageous.

-The defendants conduct caused the plaintiff emotional distress.

-The emotional distress was severe.





Procedure for Summary Judgment
1. Plaintiff makes initial written allegations to the court.
2. Court determines if a reasonable juror, acting reasonably could find in favor of the plaintiff.
Jurisdiction
A libel suit can be brought in any state in which the libel has been circulated regularly.

Venue Shopping: choosing a state that has laws favorable to your legal action.







Absolute Privilege
-Immunity from libel suits granted to government officials and others based on remarks uttered or written as part of their official duties.
Qualified Privilege
-A media outlet is protected by qualified privilege if:

-The material comes directly from the report of a privileged proceeding or document.

-The material is a far and accurate summary published or broadcast as a report of the proceedings or documents.





Rhetorical Hyperbole
-Language so expansive that the reader or listener knows it is only an opinion, and that it is not an assertion of fact.

Fair Comment Defense Requires a Three Part Test:
1. Is it a n opinion?

2. is it a subject of legitimate public concern?

3. Is there a factual basis for the comment?





Right to Reply
-Right to reply is sometimes called the "self defense"
- The reply must be equal in magnitude and effect.
-Not accepted by many courts.

Actual Damages
-To reputation
-Standing the community
-Monetary loss
-Personal Humiliation
-Mental Suffering and Anguish





Special Damages
Special damages are specific items of pecuniary loss caused by published defamatory statements.
Presumed Damages
Damages that a plaintiff can receive without proof of injury or harm.



Punitive Damages
Punitive damages punish the defendant for misconduct and warn others not to act in a similar manner.
SLAPP LAWSUIT
Strategic
Lawsuit
Against
Public
Participation

-A lawsuit that is intended to censor, intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.
-A SLAPP is often preceded by a legal threat.






Libel on the Internet
-If the OSP (online service provider) is the author or originator of the libelous message, it will be regarded as a published or the material in a libel suit and be treated as a a newspaper published is treated. It is liable for the defamatory publication and can be sued for libel.

(EXAMPLE) A federal court ruled in 1998 that America Online was shielded from a libel suit brought by an aide to President Bill Clinton based on comments made in a an online political gossip column transmitted but not created by AOL.

Group Identification
-If the group is very small, the plaintiff usually has little difficulty convincing a court that identification has occurred.

-A group of 2 to 12 will be identified
-A group of 29 to 40 will not be identified


Fair Comment and Criticism
-Written reviews this common law defense for opinion worked for several centuries, but is currently in legal limbo.

-Fair comment defense requires (three-part test)
1. Is it an opinion?
2. Is it a subject of legitimate public concern?
3. Is there a factual basis for the comment?




Fair Comment
A libel defense that protects the publication of libelous opinion that focuses on the public activities of a person actin gin a public sphere.

Opinion
The written statement issues by a court that explains the reasons for a judgment and states the rule of law in the case.
Criteria for Application of Qualified Privilege
-Report of a privileged proceeding or document.
-A fair and accurate summary published or broadcast as a report.
Test for Libel
Public People: have to prove actual malice

Private People: have to prove negligence

Jurisdiction: Keeton v. Hustler (1984)
Keeton, a resident of New York, has a connection to New Hampshire only through the circulation of copies of a magazine she assisted in producing. Keeton claims to have been libeled in 5 separate issues of Hustler magazine. New Hampshire is the only state in which the statute of limitations for libel actions had not expired.
Petitioner
One who petitions a court to take an action; someone who starts a lawsuit, or carries an appeal to a higher court (appellant).
Statutes
Laws adopted by legislative bodies.
REASONS A defendant can be found NEGLIGENT
- Reliance on an untrustworthy source
- Not reading or misreading pertinent documents
- Failure to check with an obvious source, perhaps the subject of the story
-Carelessness in editing and news handling.


BUSINESSES AS PUBLIC FIGURES
To determine whether a business is a public figure or not:

1. Whether a business has used a high unusual advertising or promotional campaign to draw attention to itself.

2. The notoriety of the business to the average person in the area where the business has a presence.

3. Whether a business is regulated by the government.

4. Whether the libelous comment about the business focuses on a matter of public concern.

5. Frequency and intensity of media scrutiny of the business.











The 4th U.S. Circuit Court of Appeals uses this test:
- Did a controversy exist prior to the publication of the defamatory matter?

- Did the plaintiff voluntarily assume a role of special prominence in the controversy?

- Did the plaintiff seek to influence resolution of the controversy?

-Does the plaintiff have access to effective channels of communication?

-Did the plaintiff retain the public figure status at the time of the alleged defamation?







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