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Chapters 4, 5, and 6: Libel
Chapters 4, 5, and 6
Libel
Defamation remains the most tortuous topic in mass media law. The law is dense with scores of
ifs, ands, or buts scattered through the legal landscape. It is often contradictory, and it does not
always follow common sense. And the number of lawsuits that are litigated gives judges ample
opportunity to tinker with the law. That’s the bad news. On the other hand, the law has remained
fairly well settled. It is fundamentally the same as it was a decade or more ago. An indication of
this is the fact that no major U.S. Supreme Court libel ruling has been handed down in more than
20 years. Even in cases involving defamation on the Internet or via social media, judges have
largely applied existing law.
The three libel chapters, that is Chapters 4–6, contain many new cases, but none of these cases’
rulings resulted in a clear and important change in the law. However, there are developments in
this area that are covered and should be noted.
What Is New in These Chapters?
1. Questions on the liability of online service providers (OSPs) that carry illegal or
defamatory material posted by third parties continue to be regularly litigated, and the
protection of the OSP’s rights seems to be expanding. While there was some speculation
that the OSP’s rights would change, these chapters note that it has not changed. The
chapters now contain a discussion of the standard of review courts used to unmask
anonymous online posters and more information on Section 230 of the Communication
Decency Act.
2. There have recently been a number of very large defamation awards that have garnered a
good deal of media attention. The section titled “Damage Claims” has been completely
rewritten and contains new information and examples.
3. The chapters examine the use of defamation suits to stop negative social media reviews
and recent legislations designed to protect online reviews.
4. The chapters have an expanded discussion of the republication rule, the single publication
rule, and how these rules apply to online defamation.
5. The chapters have more examples of defamation suits involving works of fiction.
6. Chapter 4 has a new discussion of the Supreme Court’s use of the term “matters of public
concern” in Snyder v. Phelps.
7. Chapter 5 has a new section on involuntary limited-purpose public figures.
8. The chapters have new examples of what constitutes a public controversy.
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Chapters 4, 5, and 6: Libel
In addition, the chapters contain numerous new examples of legal principles from recent legal
cases.
The authors of the text present the rules of libel from a national standpoint, outlining them as
they flow down the main channels of the legal systems. But there are some differences in how
the law is applied by courts in the 50 states. However, it is important to remember that libel
remains largely a matter of state common law. Instructors should try to learn about the law in
their particular state. Then, they should point out these differences in class. Reading libel rulings
handed down by the courts in your state is one way to uncover these variations in the law. But if
you don’t have the background, time, or resources to undertake such research, attempt to locate
an outside authority who can guide you.
Problem Questions
1. Early one morning, a 911 operator received a telephone call from a distraught woman who
reported that she was hearing disturbing noises—crying and screaming—coming from a
small day care center adjacent to her house. Workers at the 911 operation center notified a
city social services agency of the report. But they also passed on the information from the
call to a local television (TV) station, WIXR, because they believed that the social services
agency was lax in its enforcement policies regarding day care centers. The TV station sent
a crew to talk to the owner of the day care center, Melinda Wall, and outlined the concerns
that had been reported to the crisis center. Wall declined to comment. That night the TV
station broadcast the following report:
• A city social services agency is reportedly looking into allegations of children crying
and screaming in the Happy Days Day Care Center at 1456 Marblehead Way.
• A neighbor reported the unusual sounds to a 911 operator, which in turn contacted
the agency and this station. An agency spokesperson reported that its investigators
are looking into the possibility of improper behavior by the day care center’s staff as
the cause of children’s crying and screaming.
• Happy Days Day Care Center is owned and operated by Melinda Wall, who refused
to comment about the allegations. The center has been open for six months. Prior to
that, Wall operated a similar center in Toledo, Ohio, for two years. The State of Ohio
revoked Wall’s license in 2006 when it found unsanitary conditions at the day care
center.
The television report generated considerable publicity about the center and its owner, with
more television reports and newspaper stories. But an investigation by the social service
agency revealed that nothing illegal or dangerous was occurring at Happy Days. The noise
reported by the neighbor came from a video on a television. The sound from the video
resonated throughout the neighborhood because one of the children had turned up the
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Chapters 4, 5, and 6: Libel
volume.
Wall sued WIXR for libel because of its initial report. She argued that it contained
numerous errors and that the WIXR’s employees had been negligent in preparing the story.
She cited the following errors:
• Happy Days had been open for 16 months, not 6 months.
• Wall operated a day care center in Toledo, Washington, not Toledo, Ohio.
• Her license for that facility was not revoked. The state merely refused to renew the
license unless Wall added additional bathroom facilities at the center, and she could
not afford to do that.
a. What will Wall have to prove to establish her libel suit?
b. The station argues that because of all the publicity about the allegations, Wall was a
limited purpose public figure. Was she? Why, or why not?
c. Will Wall win her case?
Answer: It is doubtful. The story was published, she was identified, and it was
defamatory. Whether or not the station was negligent need not be an issue because it
report was substantially true.
2. An unusual yet heavy snowstorm had hit Portland, Oregon, in December. It had paralyzed
the city for several days. The citizens and the press had criticized the city’s public works
department because they failed to clear the snow on the roads. This resulted in slippery
roads that led to pedestrians getting injured and cars getting damaged. Businesses also
incurred losses because their customers could not travel downtown. The Portland Patriot
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Chapters 4, 5, and 6: Libel
was especially brute in criticizing the workers of the public works department in their
editorials. One of them is as follows:
Here it is the 21st Century and the city’s road crews can’t even handle a simple
snowstorm. How many dollars were lost by businesses because their customers
couldn’t get downtown? How many cars were damaged and pedestrians injured
because of the slippery roads and sidewalks? And how many members of the road
crews sat on their duffs, in cafes, drinking coffee and eating donuts, while their
plows were parked for long periods on the streets outside, while the rest of us
struggled to go on with our lives. Their actions were criminal, causing untold harm to
hundreds of people. Supervisors reported all crews were working 16 hours a day. But
there is ample evidence that many of these workers simply sat on the sidelines,
waiting for the snow and ice to melt. It is time to take action against these
incompetent clods; fire the whole bunch.
The city had employed eighty-seven workers to clear the ice and snow off the roads. Seven
of them had filed a libel suit against the Portland Patriot for condemning the workers. The
workers argued that the following charges are defamatory: their actions were criminal, they
drank coffee and ate donuts instead of doing their jobs, and they are incompetent.
The Patriot raised two arguments in its defense of the libel suit. First, it argued that the city
workers are public officials and that they will have to show evidence of actual malice to
prevail and win the case. Also, the Patriot argued that the group of 87 members is a large
group and that individual members of the group cannot prove their identification. How
would a court rule on these arguments?
3. Dr. Russell Nye is one of the nation’s leading experts on breast cancer and mammograms.
Since 2008 he has headed a national campaign designed to inform women about breast
cancer and urge healthy women to get regular mammograms. Cynthia Adams is the
president of “No More Mammograms,” a national organization. Adams is a frequent guest
on talk television shows; she uses these public appearances to try to convince women to
stop getting mammograms. She writes columns about it as well. She contends that the
painful examinations are not reliable tests and that the procedure causes many medical
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Chapters 4, 5, and 6: Libel
complications. For the past three years, she has also vigorously attacked Dr. Nye, claiming
that he ignores the harmful nature of the tests and that he works closely with the industries
that create and sell the testing equipment.
After a particularly blistering attack by Adams against Dr. Nye, he lashes out at Adams
during an appearance on the “Ellen” program.
He says, “She has no medical or scientific training, she is ignorant of the scientific data. I
want to scream because she lies. She claims she wants to protect women. So do I. I care
about women. I want to protect them from cancer.”
Adams sues both Nye and the “Ellen” show for libel. She says that while it is true she has
no medical background, she has studied the science involved in the tests. And she has
never lied; the charge is false and defamatory. How would a court rule on these arguments?