Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
Class Activities
Chapter 4: Libel and Emotional Distress: The Plaintiff’s Case
I. Using Hypothetical Situations
For classroom activities, consider presenting hypothetical situations such as the one below. As
with any class activity, these can be handled in a variety of ways: whole class discussion, small
group discussion with each group reporting back to the entire class, each group taking a different
element of the case, etc.
Johnson, a minister and leader of the Heavenly Church of God, a worldwide
group with a reputed 10 million members, spoke in a city park (in a state that
follows the majority of states’ approach to libel law) to a gathering of 200 people.
A number of Hispanics were in the audience. The speech, delivered in English,
focused on whether America can assimilate recently arrived immigrants, including
those from Spanish-speaking countries. Johnson often had spoken on this topic,
urging Congress to limit immigration.
A reporter for a Spanish-language newspaper, who did not attend the speech,
wrote a story on the presentation, basing the article on telephone conversations
with four persons who were present at the speech. All four persons told the
reporter that Johnson said recent immigrants were “litterbugs” and were
responsible for the city’s filth. Three of the four said Johnson’s remarks clearly
referred to Hispanics.
The paper’s editors had a meeting to decide how to present the story. The problem
was that there is no exact Spanish word for “litter,” “littering,” or “litterbug.” The
editors chose to use the word “cerdos,” which means “pigs” in Spanish. They
decided alternative words were inappropriate, too vulgar, or too inflammatory.
When the word “cerdos” was used, both in the headline and in the story about
Johnson’s speech, the editors enclosed it in quotation marks to indicate, according
to the editors, that the word was being used figuratively and not in its literal sense.
After the article appeared in the paper, Johnson sued for libel. She presented to
the court signed statements from several community leaders, including some
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
Spanish speakers, stating that they interpreted the headline and story to mean that
Johnson had referred to Hispanics as “pigs,” and that, if so, their opinions of
Johnson had been adversely affected. Johnson also presented to the court a
transcript of the speech showing that the English word “pigs” never had been
used. Finally, Johnson submitted a statement from a doctor verifying that Johnson
was severely emotionally upset by public reaction to the story.
Can Johnson prove all the elements of a plaintiff’s libel case, and/or does the
newspaper have an effective defense?
Sample Answer
A libel plaintiff must prove the following elements: (1) publication, (2) identification, (3)
defamation, (4) fault (unless it is a Dun & Bradstreet case), (5) falsity, and (6) damages.
Publication is defined as a third party seeing and understanding the story. It is proven in court by
the judge taking judicial notice (or assuming) that a third party has seen and understood a story in
a mass medium. Because the article appeared in a newspaper, Johnson can prove publication.
(Even though it was a Spanish language paper, its readers could understand the language, so
publication took place.)
Identification is defined as the story being of and concerning the plaintiff. It is proven in court if
one person (or a few people) reasonably understood the story to be of and concerning the
plaintiff. The story was about Johnson’s speech, so it very likely specifically referred to
Johnson by name. Thus, there is identification.
Defamation is defined as injury to the plaintiff’s reputation. It is proven in court by a significant
and respectable minority of the community thinking less of the plaintiff, an accusation of a
serious crime or injury to the plaintiff’s business or profession (often shown by special
damages). Signed statements were presented that members of the community thought less of
Johnson when they believed she had referred to Hispanics as “pigs.” That supports a claim of
defamation.
Falsity is defined as material that is not substantially true. It is proven in court by showing the
community thought differently of the plaintiff after the publication appeared than before.
Johnson showed that she did not actually use the word “pigs,” thus showing falsity. And some
important community members thought differently of Johnson after the story.
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
For damages, the doctor’s statement is enough to support an award of actual damages, which
include compensation for emotional upset.
The key to the case will be the fault element. The court must decide if Johnson is a public figure
of some kind or a private individual (there is no indication Johnson is a public official) to
determine what level of fault she must prove.
If Johnson is a public figure, the likely category will be “limited” public figure. There is
nothing to support classifying her as an all-purpose public figure. The question, then, is whether
Johnson thrust herself into a public controversy in order to influence its outcome, and whether
the allegedly defamatory speech related to that controversy. Because (1) she often had spoken
about immigration and (2) had urged a particular resolution to the problem and the story
directly related to the public controversy, she meets the definition of a limited public figure. As
a public figure, Johnson must show actual malice on the paper’s part.
Actual malice is lying or reckless disregard of truth or falsity. The paper based its story and
headline on several sources, including some who believed Johnson referred to Hispanics as part
of the litter problem. There is no evidence that the paper doubted the accuracy of the sources.
The problem, then, is the use of the word “cerdos.” Did the editors know they were lying, or did
they recklessly disregard truth or falsity, when they translated “litterbugs” into the Spanish
word for “pigs,” stating or implying that Johnson referred to Hispanics as pigs”?
II. Using Stories from the Media
Consider using articles from the Internet, local newspapers, national newspapers, or magazines,
or recordings from local or national broadcasts. These can be used in the same way that
hypothetical situations are used. Have students make a case for the plaintiff by telling them a
wealthy client who insists in filing a libel suit has hired them. It is their job to make the case. The
key is walking through the plaintiff’s case elements step-by–step. This can be a classroom
activity or a written assignment for credit.
Here’s an example of an article you could use for this kind of activity: Can calling a
newspaper fake news” result in a defamation claim?
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
Additionally – you can return to this example when you get to Chapter 5 and defenses. For this
chapter, walk through the elements of the plaintiff’s claim. For Chapter 5, consider the relevant
defenses.
III. Discussion
1. Much time – perhaps too much – could be spent discussing the Hustler Magazine v. Falwell
case. Students may discuss whether Larry Flynt’s intentional vituperativeness should have
won the case for Jerry Falwell. They also may discuss if satire and parody have too much
First Amendment protection. Although the movie about the case, “The People vs. Larry
Flynt,” is somewhat rough, it could prompt considerable discussion about the media law.
2. Use the Snyder v. Phelps case to have students discuss intentional infliction of emotional
distress. We know how the Supreme Court decided, but it was a divided Court with powerful
arguments on both sides. Have students support and refute the majority and dissenting
opinion’s contentions.
IV. Minute Papers
A minute paper is just what it sounds like – a short, in-class writing exercise that usually takes
about a minute to complete. Students generally write about a question or issue the instructor
highlights which allows students to reflect on the day’s topic or lesson. Use any of the realWorld
law, social media law, international law or emerging law boxes in Chapter 4 to pose a question
that could reinforce student learning about a key concept in the chapter.