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Further Readings

Libel, Slander, and Defamation
A person who writes or publishes false information about another person, a group of people, or an organization like a corporation that injures their reputation may be found guilty of libel. Frequently, such conduct is not protectedby the First Amendment constitutional guarantees of freedom of expression. The U.S. judicial system has in a number of circumstances reinforced the notion that freedom of speech or the press is not absolute. Citizens, in exercising their freedoms under the Constitution, still hold a responsibility to not infringe on the rights of others, including the right of privacy and pursuit of happiness. The latter includes unjustly harming another's reputation such that one cannot freely function in society. When false statements causing injury are spoken rather than written, it is more commonly known as slander. Libel and slander are the two forms of defamation. If a person wishes to sue fordefamation, they must petition under libel or slander laws, which are very similar.
Libel in History
Following introduction of the printing press in the 1400s, the English government tightly regulated what was published. Execution was possible for writingor printing libelous material about the church or government. Through evolving English common law in the 1600s, a person publishing malicious statementsabout government or government figures could be prosecuted under sedition libel laws. Punishment for publication through such laws replaced blatant censorship rules by the 1700s. English libel law was rigidly enforced in the youngAmerican colonies, largely aimed at restricting criticisms of the king and government. In the eighteenth century, as the United States was being formed, freedom of expression was poorly protected in England. The lack of clear standards spelled out in a constitution left individuals open to the whims of those in political power.
As a result, the framers of the American Constitution eagerly recognized freedom of the press and speech in the First Amendment. The amendment reads, "Congress shall make no law...abridging the freedom of speech, or of the press."No mention of libel law was included but soon Congress passed a sedition libel law in 1789. Instantly the subject of great criticism, it was allowed to expire and President Thomas Jefferson pardoned all those who had been convictedunder the law.
From Common to Constitutional Law
For much of the nation's history, the First Amendment freedom of speech and press guarantees did not apply to cases involving libel or slander charges. Libel law was left to the states, and courts applied common law when hearing cases. Libel cases often involved both criminal and civil damages but the moretypical cases involved civil suits between individuals. The speaker, if foundguilty of libel, could face criminal penalties while the victim could receive a civil damage award. Defamatory statements harming a person's reputation through malice (hateful intent) were automatically considered untruthful statements until the speaker proved their truthfulness. The U.S. Supreme Court even issued rulings supporting this supremacy of state law for libel. In Chaplinsky v. New Hampshire (1942), the landmark decision exempting "fightingwords" from constitutional protection, the Court held that at no time was libelous expression critical for expressing opinion and therefore should not beprotected by the Constitution. A decade later in Beauharnais v. Illinois (1952), the Court reaffirmed the lack of constitutional protection for libel in its only case involving group libel laws. The strongly split decisionsustained an Illinois state law prohibiting the defamation of groups of people based on their race, color, or religion. Such laws were considered in the public's interest to restrict racial and religious intolerance. The constitutionality of group libel laws remained suspect through the remainder of the twentieth century.
Only a dozen years after Beauharnais, the Court, operating under the guidance of Chief Justice Earl Warren, dramatically changed direction. In New York Times v. Sullivan (1964), the Warren Court decided some forms oflibelous speech were important for political debate. A distinction was drawnbetween common citizens and public officials. The justices asserted that a requirement to prove absolute truth of statements made regarding a public official could significantly limit debate about public policy and government actions, quite contrary to the intent of the First Amendment. Therefore, the Courtcreated a higher standard for public officials to recover damages for libelous statements and limited officials to only collect civil damages. To do so,the official must prove malice by the speaker or writer or a "reckless disregard" as to the truthfulness of the statement. The decision established the demanding "actual malice standard." The decision in Garrison v. Louisiana (1964) extended the actual malice standard to criminal libel cases as well.
After Sullivan, the Court continued revising libel common law by rigorously protecting the press. The Court used three decisions in 1967 to clarifythe Times decision. In Associated Press v. Walker (1967) and Curtis Publishing Company v. Butts (1967), the Court greatly expanded the definition of public official to include public figures in general, including prominent business leaders, entertainers and sports figures. By becomingpublic figures, individuals in essence surrendered certain rights to privacy.In Time, Inc. v. Hill (1967) the Court further expanded the malice standard to apply to private individuals who were not public figures but were involved in events of public interest. This change was designed to free the media in reporting events with considerably less fear of lawsuit. The decisionwas soon reaffirmed in Rosenbloom v. Metromedia (1971).
Following Rosenbloom, many believed the Court had gone too far in restricting a private individual's ability to challenge the media when defamatorystatements were published about them. The media was becoming too unaccountable. As membership on the Supreme Court changed in the 1970s, the Court weakened the actual malice standard. The Court in Gertz v. Welch (1974) again focused primarily on the status of the alleged libel victim, whether they were public figures or not, and not on the nature of the event at issue. Public figures were considered those who intentionally placed themselves before the public, excluding those who inadvertently became caught up in public situations. The ruling returned greater First Amendment protections to private individuals when suing the media for defamation. A part of the Court's reasoningwas that public figures had greater access to the media for responding to false statements about them. Also, lower courts were no longer left with the burden of deciding which events were of public interest and which were not. In suits against the media, private individuals were still required to prove negligence to win their case. Consequently, individuals who willingly became involved in public controversies were still required to satisfy the actual malicestandard in proving defamation for false statements by others. In Philadelphia Newspapers Inc. v. Hepps (1986), the Court went further in protecting the press by ruling that any private individual must bear the burden of proving the falseness of statements when suing the media. If defamatory statements related strictly to a private matter, the standard would not apply.
Just when somewhat of a trend was becoming established in Court rulings after1971 that libel was constitutionally protected in increasingly fewer situations, the Court surprisingly expanded protections further in Hustler Magazine Inc. v. Falwell (1988). The Court ruled unanimously, which was highlyunusual for a libel case, that even when a private individual proves the published statements about them are false, they can still not collect damages ifthe particular topic was of public interest. The Court provided a surprisingly broad interpretation for determining what a public needs to know. Only three years later, the Court in Masson v. New Yorker Magazine (1991) addressed the issue of when an author altered a quote attributed to a public figure to enhance their story. Again, the Court held that malice must be proven towin damages by the public figure.
Libel in the Late 1990s
By the end of the 1990s, alleged libel victims were required to satisfy certain conditions in seeking recovery of damages: 1) Did the speaker actually convey the defamatory statement to others; 2) was reference to the victim clear;3) could the victim demonstrate some actual injury? In other words, at leastone other person must have heard or read the comment and perceived it as defamatory and not in jest. In comparison to libel, proving slander required stronger proof of damages unless the statements refer to criminal or sexual behavior, disease, or business and professional references. Of course, many contended that the added requirement for public figures to prove actual malice wasalmost insurmountable to successfully sue for damages.
On the other hand, those accused of making libelous statements also had certain standards to satisfy in proving innocence. These factors included provingthe defamatory statement was true, showing the target of the statement consented to it being published, publication was accidental, or if a privilege exists which provided immunity to the speaker. Those exempt, or privileged, fromlibel liability, included attorneys, judges, jurors, witnesses, and others conducting some relevant public business.
Liability for making libelous statements also extended to others who repeatedor republished statements they knew were defamatory. This liability also extended to libraries, bookstores, and others who distributed materials. It wasmore limited for telephone companies and Internet service providers. While incommon law only living persons could be defamed, some state laws also protected the deceased as well.
The Ongoing Libel Dilemma
With the increasing complexity of libel law through the latter part of the twentieth century, some legal experts argued that libel law should be abolished. Justice Hugo Black stated in an interview in 1962 that he firmly believed the First Amendment intended to prohibit all libel or defamation laws. The Supreme Court had been inconsistent through the years in its findings concerninglibel cases, and even had seen justices concurring on the same opinion but strongly disagreeing over the reasons for their finding. Difficulty was oftenexperienced in determining if a person was a public figure, or what the truthmay be behind essentially political opinions. In addition, studies indicatedlibel law complexities frequently led to jury confusion and courts ruling infavor of the alleged victims with minimal evidence their reputations had been damaged.
The meteoric rise of the electronic communications era through the 1990s onlyadded further libel law concerns. When a libelous statement could reach millions of people around the world in an instant, after-the-fact punitive measures offered little protection. Claims were made that people's reputations wererarely protected by libel law, yet the press and others were left vulnerableto large and expensive lawsuits. Libel claims were the most common legal problems facing journalists with court decisions highly unpredictable. The threat of such lawsuits posed a "chilling effect" on publishers to print information they were not absolutely sure was true, especially for the smaller publishers with less cash reserves to sustain high court costs. Libel cases could labor along for years consuming a good deal of staff time and energy. Some contended that the press should enjoy full immunity from libel laws so as not torestrict debate over political issues. Without libel law, the public aided bythe press, rather than the courts, would determine the accuracy of defamatory statements.
Libel law proponents still believed the ability of individuals to protect their reputation was basic to freedom and public order. However, libel law as itexisted in the late twentieth century protected neither the media nor targeted individuals. Numerous reform proposals through the 1990s were offered butlittle progress was made. Some key proposals, such as the Uniform DefamationAct, eliminated monetary awards for damages in favor of more straightforwarddeclaratory judgements by the court, called for formal retractions of defamatory statements if found guilty, removed the actual malice standards for public figures, and placed the responsibility on alleged victims for proving defamatory statements false with clear and convincing evidence. If the alleged victim could not prove the falseness of statements, then the individual would have to pay the legal expenses of those accused of libel within reason. Few states had adopted such laws by the late 1990s as the search for more effectiveways of protecting reputations from unjust comments persisted.

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