[Student Name] 1L
[Student Email Address] Defamation
[Date] Midterm Mini Thesis Paper
Distinction Between Maliciously Disseminating Untrue Information and Spoofing a Public Figure
Black’s Law Dictionary defines defamation as the act of harming the reputation of another by making a false statement to a third person (Black and Garner). There are four elements that must be proven to successfully claim defamation:
- The statement must be made to a third person. It can either be orally or in writing. If done orally, that is slander. If done in writing, that is libel.
- The one alleging defamation must be able to prove that they are being defamed. One cannot sue if false statements were made about their parody. Satires do not amount to defamation.
- The statement must be harmful to the one alleging defamation. It many cases, it harms their reputation.
- It must be proved that the defendant was at fault.
Malice as an Element of Defamation
The landmark case which established malice as an element of defamation is New York Times Co. V Sullivan. The United States Supreme Court held that:
“This Court’s duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles have been constitutionally applied. This is such a case, particularly since the question is one of alleged trespass across the line between speech unconditionally guaranteed and speech which may legitimately be regulated. In cases where that line must be drawn, the rule is that we examine for ourselves the statements in issue and the circumstances under which they were made to see whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect. We must make an independent examination of the whole record, so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression. Applying these standards, we consider that the proof presented to show actual malice lacks the convincing clarity which the constitutional standard demands, and hence that it would not constitutionally sustain the judgment for respondent under the proper rule of law. The case of the individual petitioners requires little discussion. Even assuming that they could constitutionally be found to have authorized the use of their names on the advertisement, there was no evidence whatever that they were aware of any erroneous statements or were in any way reckless in that regard. The judgment against them is thus without constitutional support. As to the Times, we similarly conclude that the facts do not support a finding of actual malice. The statement by the Times’ Secretary that, apart from the padlocking allegation, he thought the advertisement was “substantially correct,” affords no constitutional warrant for the Alabama Supreme Court’s conclusion that it was a cavalier ignoring of the falsity of the advertisement from which the jury could not have but been impressed with the bad faith of The Times, and its maliciousness inferable therefrom. The statement does not indicate malice at the time of the publication; even if the advertisement was not substantially correct although respondent’s own proofs tend to show that it was — that opinion was at least a reasonable one, and there was no evidence to impeach the witness’ good faith in holding it. The Times’ failure to retract upon respondent’s demand, although it later retracted upon the demand of Governor Patterson, is likewise not adequate evidence of malice for constitutional purposes. Whether or not a failure to retract may ever constitute such evidence, there are two reasons why it does not here. First, the letter written by the Times reflected a reasonable doubt on its part as to whether the advertisement could reasonably be taken to refer to respondent at all. Second, it was not a final refusal, since it asked for an explanation on this point, a request that respondent chose to ignore. Nor does the retraction upon the demand of the Governor supply the necessary proof. It may be doubted that a failure to retract, which is not itself evidence of malice, can retroactively become such by virtue of a retraction subsequently made to another party. But, in any event, that did not happen here, since the explanation given by the Times’ Secretary for the distinction drawn between respondent and the Governor was a reasonable one, the good faith of which was not impeached. Finally, there is evidence that the Times published the advertisement without checking its accuracy against the news stories in the Times’ own files. The mere presence of the stories in the files does not, of course, establish that the Times “knew” the advertisement was false, since the state of mind required for actual malice would have to be brought home to the persons in the Times’ organization having responsibility for the publication of the advertisement. With respect to the failure of those persons to make the check, the record shows that they relied upon their knowledge of the good reputation of many of those whose names were listed as sponsors of the advertisement, and upon the letter from A. Philip Randolph, known to them as a responsible individual, certifying that the use of the names was authorized.” (New York Times Co. v Sullivan)
Proof of actual malice has been a requirement in many defamation cases in the United States. In Burnett v National Inquirer, Inc., the court held that:
“The matter herein was tried upon the premise respondent is a “public figure” and there was employed in establishing the liability of appellant the New York Times standard, expressed in the trial court’s instruction to the jury that in addition, plaintiff must prove by clear and convincing evidence that defendant published the item complained of with actual malice — that is, that the defendant published the item either knowing that it was false or with reckless disregard for whether it was true or false.” (Burnett v National Enquirer, Inc.)
In Westmoreland v CBS, it was stated that:
“After consideration of several candidates and consultation with counsel, I conclude that the term “state of mind” is the most appropriate label to use in the presence of the jury to identify the element described in New York Times v. Sullivan, and other leading cases as “actual malice.” I believe this term is more precise and less likely to inflict prejudice than the others considered.” (Westmoreland v CBS)
The New York Times case shifted the burden of proving malice upon the plaintiff. The plaintiff must be able to prove that the defendant was malicious in the statement given by the defendant. Courts have applied the above principle in various cases. Proving actual malice can be difficult since the plaintiff will have to do more than questioning the defendant as to what their intention in making the statement was. In his concurring opinion, Justice Black stated:
“The Court goes on to hold that a State can subject such critics to damages if “actual malice” can be proved against them. “Malice,” even as defined by the Court, is an elusive, abstract concept, hard to prove and hard to disprove. The requirement that malice be proved provides, at best, an evanescent protection for the right critically to discuss public affairs, and certainly does not measure up to the sturdy safeguard embodied in the First Amendment.” (New York Times Co. v Sullivan)
Proving malice must be balanced with the rights and freedoms enshrined in the United States Constitution. In his concurring opinion, Justice Goldberg observed that:
“In my view, the First and Fourteenth Amendments to the Constitution afford to the citizen and to the press an absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses. The prized American right “to speak one’s mind,” about public officials and affairs needs “breathing space to survive,”. The right should not depend upon a probing by the jury of the motivation of the citizen or press. The theory of our Constitution is that every citizen may speak his mind and every newspaper express its view on matters of public concern, and may not be barred from speaking or publishing because those in control of government think that what is said or written is unwise, unfair, false, or malicious. In a democratic society, one who assumes to act for the citizens in an executive, legislative, or judicial capacity must expect that his official acts will be commented upon and criticized. Such criticism cannot, in my opinion, be muzzled or deterred by the courts at the instance of public officials under the label of libel.” (New York Times Co. v Sullivan)
In Herbert v Lando, the plaintiff was an officer of the army who was deployed to Vietnam. He said that superior army officers covered up some atrocities that were committed by American soldiers. Columbia Broadcasting System (CBS) covered those allegations made by the plaintiff. A documentary was later released. The plaintiff sued claiming that the defendant had maliciously defamed his character and that caused him great financial loss. In attempting to prove malice, the plaintiff’s lawyer deposed the defendant as well as the producer and the director of the documentary. The plaintiff also used video tapes of various interviews, transcripts of the defendant’s interviews, drafts of the actual documentary and reporters’ notes as exhibits to prove malice. The court held that those exhibits were sufficient to prove malice. The court also outlined other ways of proving malice. (Herbert v Lando)
A plaintiff can show inconsistencies between the defamatory statement and the facts that the plaintiff can prove in court. In discovery, the plaintiff may incur costs. However, when discovery is limited by the court, it may be difficult for a plaintiff to prove malice. (Oakes)
There have been questions as to what constitutes an editorial process. The main component of an editorial process is human judgment. In Miami Herald Publishing Co. v Tornillo, the United States Supreme Court stated:
“The choice of material to go into a new paper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public official, whether fair or unfair, constitute the exercise of editorial control and judgment.” (Miami Herald Publishing Company v Pat Tornillo)
Spoofing a Public Figure
Spoofing of public figures may involve parody, satire or caricatures. The general rule is that one may not recover damages for defamation caused by a false portrayal of a parody, satire or caricature of that person if a reasonable person would not view it as factual. This was established in the case of Hustler Magazine v Falwell. The respondent was a famous minister and commentator on current and political affairs. The appellant published a parody advert that insinuated that the respondent was a drunkard who had engaged in sexual acts with his mother. The respondent sued for defamation. The United States Supreme Court held that:
“We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing, in addition, that the publication contains a false statement of fact which was made with “actual malice,” i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. This is not merely a “blind application” of the New York Times standard, it reflects our considered judgment that such a standard is necessary to give adequate “breathing space” to the freedoms protected by the First Amendment. Here it is clear that respondent Falwell is a “public figure” for purposes of First Amendment law. The jury found against respondent on his libel claim when it decided that the Hustler ad parody could not “reasonably be understood as describing actual facts about respondent or actual events in which he participated.” The Court of Appeals interpreted the jury’s finding to be that the ad parody “was not reasonably believable,” and, in accordance with our custom, we accept this finding. Respondent is thus relegated to his claim for damages awarded by the jury for the intentional infliction of emotional distress by “outrageous” conduct. But, for reasons heretofore stated, this claim cannot, consistently with the First Amendment, form a basis for the award of damages when the conduct in question is the publication of a caricature such as the ad parody involved here. The judgment of the Court of Appeals is accordingly reversed.” However, the respondent was awarded damages for emotional distress. (Hustler Magazine, Inc. v Falwell)
While concurring, Justice White stated:
“As I see it, the decision in New York Times Co. v. Sullivan, has little to do with this case, for here the jury found that the ad contained no assertion of fact. But I agree with the Court that the judgment below, which penalized the publication of the parody, cannot be squared with the First Amendment.” (Hustler Magazine, Inc. v Falwell)
One cannot claim defamation or emotional distress in a matter of public interest. This principle was established in the case of Snyder v Phelps. The respondent was a minister at a local church. During the funeral of the petitioner’s son who was an army officer, the respondent and his congregants picketed with homophobic signs and messages against dead soldiers and the United States. The petitioner sued for emotional distress. The United States Supreme Court stated:
“Because we find that the First Amendment bars Snyder from recovery for intentional infliction of emotional distress or intrusion upon seclusion—the alleged unlawful activity Westboro conspired to accomplish—we must likewise hold that Snyder cannot recover for civil conspiracy based on those torts. IV Our holding today is narrow. We are required in First Amendment cases to carefully review the record, and the reach of our opinion here is limited by the particular facts before us. As we have noted, “the sensitivity and significance of the interests presented in clashes between First Amendment and state law rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case.” Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech. Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here— inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.” (Snyder v Phelps)
In Time Inc, v Hill, the respondent and his family were held hostage by fugitives. They were treated well and eventually; the fugitives were arrested. Joseph Hayes wrote a novel titled “The Desperate Hours” which became a bestseller. The novel was a depiction of the Hill family ordeal and included sexual threats. As a result of this publicity, the Hill family had to move from their home. A play of the novel was done by Broadway. Life Magazine’s publisher, Time Inc., published an article on the novel. Mrs. Hill had a mental breakdown after the publication of the article. The respondent sued for defamation. The United States Supreme Court held that:
“We do not think, however, that the instructions confined the jury to a verdict of liability based on a finding that the statements in the article were made with knowledge of their falsity or in reckless disregard of the truth. The jury was instructed that liability could not be found under Section 50-51 merely because of some incidental mistake of fact, or some incidental incorrect statement,” and that a verdict of liability could rest only on findings that Life published the article not to disseminate news, but was using plaintiffs’ names, in connection with a fictionalized episode as to plaintiffs’ relationship to The Desperate Hours; the Court variously restated this fictionalization requirement in terms such as whether appellant altered or changed the true facts concerning plaintiffs’ relationship to The Desperate Hours, so that the article, as published, constituted substantially fiction or a fictionalized version, whether the article constituted fiction, or was fictionalized, and that the article was published to advertise the play or for trade purposes. This latter purpose was variously defined as one to amuse, thrill, astonish or move the reading public so as to increase the circulation of the magazine or for some other material benefit, to increase circulation or enhance the standing of the magazine with its readers, and for the publisher’s profits through increased circulation, induced by exploitation of the plaintiffs. The court also instructed the jury that an award of punitive damages was justified if the jury found that the appellant falsely connected appellee to the play knowingly or through failure to make a reasonable investigation, adding “You do not need to find that there was any actual ill will or personal malice toward the plaintiffs if you find a reckless or wanton disregard of the plaintiffs’ rights.” Appellant argues that the instructions to determine whether Life altered or changed the true facts, and whether, apart from incidental errors, the article was a substantial fiction or a fictionalized version were tantamount to instructions that the jury must find that Life knowingly falsified the facts. We do not think that the instructions bear that interpretation, particularly in light of the marked contrast in the instructions on compensatory and punitive damages. The element of “knowingly” is mentioned only in the instruction that punitive damages must be supported by a finding that Life falsely connected the Hill family with the play knowingly or through failure to make a reasonable investigation. Moreover, even as to punitive damages, the instruction that such damages were justified on the basis of failure to make a reasonable investigation is an instruction that proof of negligent misstatement is enough, and we have rejected the test of negligent misstatement as inadequate. Next, the trial judge plainly did not regard his instructions as limiting the jury to a verdict of liability based on a finding of knowing or reckless falsity; he denied appellant’s motion to dismiss after the close of the evidence because he perceived that it was for the jury to find whether the Life article was true, or whether an inference could be obtained from reading it that it was not true. This implies a view that fictionalization was synonymous with falsity without regard to knowledge or even negligence, except for the purpose of an award of punitive damages. Finally, nothing in the New York cases decided at the time of trial limited liability to cases of knowing or reckless falsity, and Spahn, decided since, has left the question in doubt. The requirement that the jury also find that the article was published for trade purposes, as defined in the charge, cannot save the charge from constitutional infirmity. That books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment.” (Time Inc. v James J. Hill)
Conclusion
To prove defamation, actual malice must be proved as established in New York v Sullivan. This is the distinguishing factor between defamation and spoofing of a public figure. In parodies or satires of public figures, one cannot allege defamation because there is another character who is the subject, other than the one alleging defamation. Even if one is able to prove actual malice, one cannot allege defamation of a parody or fictional character that may seem related.
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