Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
Chapter Overview
Chapter 4: Libel and Emotional Distress: The Plaintiff’s Case
The Law of Journalism and Mass Communication divides libel into two distinct categories – the
plaintiff’s case and defenses. Chapters 4 and 5 could be united as one, but this separation eases
understanding for students by making the complex topic of libel more manageable. Chapter 4
focuses on the plaintiff’s case for both libel and a common companion tort – emotional distress
(ED)/intentional infliction of emotional distress (IIED)/negligent infliction of emotional distress
(NIED).
Libel
Libel might be the most formulaic element of mass communication law. On the one hand, the
plaintiff’s case is relatively straightforward. On the other hand, there are several specific
defenses that can offset claims made by the plaintiff. When approached and presented in this
way, students find the challenge of understanding libel less daunting.
At its foundation, libel law is about protecting reputation. Chapter 4 devotes some space to the
notion of reputation and the importance associated with it over time and across cultures. It is
important for the student to grasp the significance and thus the consequences when an individual
is stripped of his or her reputation unjustly.
As Chapter 4 explains, each element of the plaintiff’s case is vital; all must be demonstrated for a
claim to be successful. The elements of the plaintiff’s case are a statement of fact that is
published, that is of and concerning the plaintiff (identification), that is defamatory, that is false
and that caused damage or harm and for which the defendant is at fault. But it is not coincidental
that the most space is devoted to fault. It is arguably the most complex of all the elements. Thus,
the instructor is urged to methodically and carefully explain its multifaceted dimensions –
negligence, actual malice, public officials, public figures, private figures, and the key role that
New York Times v. Sullivan plays.
With regard to New York Times v. Sullivan, this text strives to de-emphasize cases and emphasize
important legal concepts. We all know the aversion students possess when it comes to
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
memorization of case names, circumstances and rulings. Indeed, one can learn the basics of law
absent a case-based approach. There are exceptions to this premise, however, and New York
Times v. Sullivan tops that list. There may be no more important case in the law of journalism
and mass communication. Accordingly, Chapter 4 allocates significant space to this case, both
within the narrative and in sidebars devoted to the case, its significance, and the author of the
ruling, Justice William Brennan.
Several boxes in the chapter explore libel online and via social media. Additional new boxes
examine President Donald Trump’s threat to change libel laws, fake news and global trends in
defamation law. Given that determining who published material is important as an element of the
libel plaintiff’s case, online communication has raised the question about how courts should treat
Internet service providers (ISPs). Congress addressed this question in the Communications
Decency Act, Section 230. This is discussed more in Chapter 5, which focuses on libel defenses,
but it is worth noting that the law gives ISPs immunity from libel claims.
Emotional Distress
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
The emotional distress torts may be confusing to students because states treat them in widely
varying ways. Generally, however, students will understand that negligent infliction of emotional
distress requires the plaintiff to show that the defendant had a duty of due care, breached that
Outline
I. A Brief History
II. The Elements of Libel: The Plaintiff’s Case
a. Statement of Fact
b. Publication
i. Republication
ii. Vendors and Distributors
c. Identification
i. Group Identification
d. Defamation
i. Business Reputation
ii. Trade Libel
e. Falsity
i. Substantial Truth
ii. Libel by Implication
f. Fault
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
i. New York Times v. Sullivan
g. Actual Malice
i. Knowledge of Falsity
ii. Reckless Disregard of Truth
III. Emotional Distress
IV. Intentional Infliction of Emotional Distress
a. Outrageousness
b. Actual Malice
V. Negligent Infliction of Emotional Distress