Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
Chapter Overview
Chapter 5: Libel: Defenses and Privileges
Chapter 5 is a companion to Chapter 4. Whereas Chapter 4 addresses the plaintiff’s side of libel,
Chapter 5 examines various libel defenses. While concepts in the two chapters are separated for
ease of explanation, there are areas of overlap. For example, it is sometimes useful to discuss a
particular defense within the presentation of the plaintiff’s case. In addition, a ruling such as New
York Times v. Sullivan, while clearly most appropriately presented within the plaintiff’s case, has
significant defense-related consequences. The ruling tipped the balance in favor of libel
defendants. Thus, instructors may want to consider broaching some defense issues when their
Chapter 4 corollaries are presented.
A fundamental fact that should be stressed in discussing libel defenses is that, while the entirety
of the plaintiff’s case must be proven for a successful claim, only one defense is necessary to
torpedo the plaintiff’s case. For this edition, we reorganized the chapter to better represent the
changing impact of certain key libel defenses. For example, Section 230 Immunity is now a go-to
defense in cases that broadly involve speech on the Internet and social media. It is not ironclad,
but students should know of its frequent use as a shield.
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
have weighed in on anti-SLAPP laws – the First, Fifth and Ninth U.S. Circuit Courts have
applied anti-SLAPP acts in part or in whole. The Eleventh Circuit Court and the D.C. Circuit
Court have rejected the application of anti-SLAPP laws in favor of applying the Federal Rules of
Civil Procedure.
Section 230 is part of the Communications Decency Act of 1996 and this important legislation
shows up in other chapters. Of importance here is the idea that Section 230 generally provides
legal protection to website operators and Internet service providers (ISPs) when issues arise from
the content created by others. For 20 years, courts have rejected attempts to limit the application
of Section 230 to only “traditional” ISPs like Verizon or America Online. Instead, they have
extended protection to the many diverse entities commonly called “interactive computer service
providers.” Under this broader definition, blog sites and other interactive services like YouTube,
Facebook, or Twitter that rely on user-generated content, information provided from third-party
RSS feeds or reader comments also may receive immunity from libel claims under Section 230.
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
The key to determining whether Section 230 protects against a libel claim is to identify the
source of the content and the extent to which the ISP interacted directly with the content. A
Points of Law box will help students navigate when Section 230 immunity applies and when it
does not.
Other libel defenses and considerations round out Chapter 5 – the wire service defense, single-
publication rule, libel-proof plaintiffs, summary judgment, motion to dismiss for actual malice,
jurisdiction, statute of limitations, and retractions. Any one of them can be the right “tool” for the
job of defending a libel claim.
Outline
I. Truth
II. Anti-SLAPP Protection
III. Fair Report Privilege
IV. Fair Comment and Criticism
V. Opinion
a. Letters to the Editor and Online Comments
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
b. Rhetorical Hyperbole, Parody and Satire
VI. Section 230 Immunity
VII. Other Defenses
a. Neutral Reportage
b. Wire Service Defense
c. Single-Publication Rule
d. The Libel-Proof Plaintiff
VIII. Additional Defense Considerations
a. Summary Judgment
b. Motion to Dismiss for Actual Malice
c. Jurisdiction
d. Statutes of Limitations
e. Retractions