DAVID McHAM'S
COMMUNICATION LAW CENTER

• Home
• Syllabus
• Class Notes
• Resources
• Bio & Contact

Section 1
Section 2
Section 3

Section 4

• Libel
• Other Issues
• Section 4 Review

Section 4: Libel
Definitions
A Review Leading to Libel
Early Libel Cases
Reynolds and Faulk Cases
Libel and the Supreme Court, A List
Supreme Court Cases in Detail
New York Times v. Sullivan
Gertz v. Welch
Hustler v. Falwell
Milkovich v. Lorain Journal
Texas Libel Cases
Questions to Consider

Definitions
Be sure you can define these terms:
common law
precedent
a tort
civil libel
criminal libel
defamation
libel per se
libel pro quod
compensatory damages
punitive damages
privilege

"Red Flag Words"

Download "Red Flag Words"
1.3MB PDF

Return To Top

A Review Leading to Libel
What is judicial review?

What was the significance of Marbury v. Madison?

What did the Supreme Court decide in Fletcher v. Peck?

What was the effect of the ruling in Barron v. Baltimore?

Why Scott v. Sandford such an important case?
What was the effect of Plessy v. Ferguson?
In what year and in what case did the Supreme Court for the first time declare racial segregation to be unconstitutional?

What was the intent of the due process class of the 14th amendment?

What did Justice Holmes say in his opinion in the Schenck case?
What did he say in his dissenting opinion in the Abrams case?

In what case did the Supreme Court for the first time agree to hear a state case involving the guarantees of the First Amendment?
What did Justice Edward T. Sanford give as justification for hearing the case?

In what year and in what case did the Supreme Court for the first time overturn a state case involving the guarantees of the First Amendment?

Why was Near v. Minnesota such a significant case?
What would have been the consequence had the Supreme Court ruled the other way?

Return To Top

Early Libel Cases, A Historic Summary
Zenger
John Peter Zenger was tried for sedition in 1735. He was the printer for the New York Weekly-Journal. Zenger's backers criticized William Cosby, the British governor of New York, and Cosby initiated the charges against Zenger.

Zenger was represented by the best-known lawyer in the colonies. His name was Andrew Hamilton and he was from Philadelphia.

Hamilton argued that truth should be a defense for libel. The argument did not prevail at that time.

Hamilton also argued that the jury should decide the guilt or innocence of the accused. To that time, the main duty of the jury under the common law was to decide whether the person accused had in fact published the newspapers in question.

When he presented his case to the jury, Hamilton called the issue of freedom of expression "the best cause." The jury returned a verdict of not guilty, much to the dismay of the judges in the case.

Croswell
Harry Croswell was a printer and junior editor of The Balance and Columbian Repository of Hudson, New York. Croswell also put out a paper called The Wasp on an irregular schedule. In one issue Croswell printed an exchange from the New York Evening Post.

The article reported that Thomas Jefferson, the president at the time, had at some time in the past paid James Callender, a Richmond editor, to spread the word that George Washington had been a robber, traitor and perjurer.

The Wasp -- not the Post -- was prosecuted under state law. Why? Hamilton was friends with the people who put out the Post. Jefferson had said when he took office that some papers should be prosecuted under state law. That is, he was against the Alien and Sedition Acts, but thought that states could deal with the problem. The Wasp and Croswell was just that kind of paper.

The trial judge made it clear to the jury that it was to decide only the fact of publication and that truth and good motives were not defenses under New York law. Croswell was convicted.

Alexander Hamilton was one of the lawyers who represented Croswell on appeal in February 1804. It was said that he spoke before the state supreme court for six hours. Hamilton argued that the jury should decide the guilt or innocence and that truth should be a defense -- the same arguments used by Andrew Hamilton in the Zenger case.

Nonetheless, the four members of the supreme court split, thereby upholding the conviction of Croswell.

However, within months the New York legislature enacted a law that did permit truth as a defense in such common law cases. The state supreme court granted Croswell a new trial during the summer of 1805. He was not retried.

Pulitzer
On February 17, 1909, a District of Columbia grand jury indicted Joseph Pulitzer, Caleb Van Hamm and Robert Hunt Lyman of the World and the Press Publishing Company, the corporate name of the New York World. The defendants were charged with five counts of criminally libeling:

Delavan Smith and Charles R. Williams of the Indianapolis News were indicted on seven counts.

Eventually these indictments were quashed. But, the government didn't give up.

On March 4, 1909, the day Roosevelt left office, a federal grand jury in New York indicted the World and two of its editors on the ground that 29 copies of an offending issue had been circulated at the military reservation at West Point; other copies of the newspaper had been routinely sent to the New York post office for examination by postal inspectors.

An 1825 federal law, amended in 1898, entitled "An Act to Protect the Harbor Defenses from Malicious injury and for other purposes" was used as the basis for the indictment, although the law had never been used before for a libel prosecution.

Arguments were heard before the Supreme Court on October 24, 1910. On January 3, 1911, the court ruled unanimously in favor of the World. But the decision was more or less on technical grounds. The court said the law in question was not applicable.

The decision did not give a ringing support for the concept of freedom of the press, which is what Pulitzer sought when he pushed the appeal.

The case: United States v. Press Publishing Company, 219 U.S. 1, January 3, 1911.

Ford v. Tribune
An executive at Ford Motor Company was quoted as saying that Ford employees who volunteered for the National Guard would lose their jobs if they went off to fight in The Mexican War. The Chicago Tribune ran an editorial entitled "Flivver Patriotism."

The editorial said:

One of the points here is the use of the word anarchist and the implication it had, especially in Chicago.

After the editorial came out, Ford agreed to allow employees to return to work if they joined the National Guard. He also sued the Tribune for a million dollars on September 7, 1916.

The case was delayed by legal maneuvers. It came to trial on May 12, 1919, and lasted 98 days. Robert R. McCormick, the publisher of the Tribune, spent $300,000 on the case. Ford spent more.

The trial was held at a neutral site, Mount Clemens in southeastern Michigan. It was this trial that established Ford as a man who didn't know much about anything but building a car, and caused the expression Henry Fordism to come into the language.

When he took the stand, Ford was unable to say when the United States had become a nation. He had been quoted in the Tribune in 1916 as saying that "history is more or less bunk." He was asked about that.

He said,

The jury found with Ford against the Tribune and awarded him six cents for damages and six cents for costs. McCormick didn't pay, hoping that Ford would appeal his lack of payment. Ford did not.

It was one of the great media events of its time.

Thompson and City of Chicago v. Tribune
William Hale Thompson, also known as Big Bill, was mayor. He was also (like Robert R. McCormick) a Republican, but he was tied into the power structure -- which McCormick was not.

Thompson was involved in a series of cases against the Tribune. The Tribune accused the city of not putting up war posters sent by Washington. Thompson sued. The Tribune renewed its claim. In all Thompson had four libel suits of $1,350,000.

The Tribune later charged that after six years of Thompson's rule as mayor the city was:

The city sued for $10 million. This was the first time that a governmental entity had brought suit in the United States.

McCormick determined to fight out this issue to the end, no matter what the cost, because of his belief in the freedom of the press.

A judge, Harry M. Fisher, ruled in favor of the newspaper. Judge Fisher said that if the city's contentions prevailed:

He agreed that newspapers could do much harm by unjustified attacks.

But, he said:

The city appealed. A year later the Illinois Supreme Court unanimously agreed with Judge Fisher. Chief Justice Floyd Thompson (no relation to William Hale Thompson) wrote:

Thompson's personal libel suit came to trial in May of 1922. The case was going badly for Thompson. Two jurors became ill. The Tribune offered to continue with a jury of ten, but Thompson's lawyers asked for a retrial. The case died.

Meanwhile, the Tribune had sued members of the Thompson administration seeking a return of $3 million in fees paid for consultants on a bridge built across the Chicago river. The trial began in June 1926 and lasted for two years.

In the end the judge ordered Thompson, Cook County Treasurer George Harding and Improvements Board Chairman Michael Faherty to repay $2,245,604. The decision was overturned on appeal.

This series of suits established McCormick as the great champion of the freedom of the press in his time.

Return To Top

Reynolds and Faulk Cases
Two interesting libel cases went to trial after World War II. One involved a long-running disagreement between two former friends. The suit was brought by Quentin Reynolds against Westbrook Pegler. They were among the best-known journalists of their time.

The other case involved the issue of blacklisting. In winning that case, John Henry Faulk and his lawyer, Louis Nizer, broke blacklisting. It was the only case won involving that issue.

Quentin Reynolds sues Westbrook Pegler
During the Depression and through World War II, no feud in the newspaper world equaled the battle between Heywood Broun and Westbrook Pegler.

Broun was perhaps the best-known journalist of his day. He was a columnist and he was one of the founders of the guild, the newspaper union. Pegler was a syndicated columnist for Hearst. His column originated in the New York Journal-American.

Pegler became very conservative. Broun was a leading liberal.

After Broun died, a book was written about him. A friend, Quentin Reynolds, reviewed the book in the New York Herald Tribune. In the review, Reynolds said that Pegler had called Broun a liar and that Broun had brooded over that. Reynolds said that although Broun had been suffering from only a cold at the time, Broun could not sleep or relax and died.

Pegler decided that what Reynolds wrote was a charge of moral homicide. He said he was answering that charge when he wrote a column about Reynolds on November 29, 1949. Reynolds sued.

The jury awarded Reynolds $1 in compensatory damages and $175,000 in punitive damages from Pegler, the New York Journal-American and the Hearst Corporation.

Several books contain information on this.

The best book is My Life in Court by Louis Nizer. Also, Reynolds wrote an autobiography. The account of the trial was a Broadway play and a movie. It is A Case of Libel. The play is available. The case is Reynolds v. Pegler, 223 F. 2d 429

John Henry Faulk v. Aware
Austin native John Henry Faulk established his reputation in radio and television in New York in the 1950s. He had an afternoon program on WCBS radio. He was also on television. At one time he was the host of the CBS-TV's morning program.

Faulk ran into problems after he was elected second vice president of AFTRA in December 1955. He and the new officers ran on a platform opposed to Aware and the practice of approving people for work in radio and TV based upon their stand on communism.

In its bulletin of February 12, 1956, Aware accused Faulk of various incidents that it said showed his leanings toward communism. Faulk sued on June 26, 1956. He was fired at CBS on August 5, 1957.

His trial lasted six weeks in May and June, 1962. Faulk won. The case effectively ended the practice of blacklisting in areas of entertainment.

Faulk did an account of this experience in a book entitled Fear on Trial, which also was produced as a TV drama in the mid 1970s. Louis Nizer, his lawyer, also tells about the case in The Jury Returns.

What Nizer said about John Henry Faulk in The Jury Returns:

Faulk grew up in Austin. His father was a prominent lawyer. Both his parents were active in the Methodist Church. Faulk attended the University of Texas and studied under the folklorist J. Frank Dobie.

After the trial Faulk returned to Texas where he was widely sought as a speaker on First Amendment issues. He also did a one-main show entitled Pear Orchid. He was a regular on the television program Hee Haw.

To honor him, the Austin Public Library named its downtown library the John Henry Faulk Library after his death.

Return To Top

Libel and the Supreme Court, A List
The cases we will concentrate on are:

1. New York Times v. Sullivan, 376 U.S. 254, March 9, 1964

2. Garrison v. Louisiana, 379 U.S. 64, November 23, 1964

3. Curtis Publishing Company v. Butts and Associated Press v. Edwin A. Walker, 388 U.S. 130, June 12, 1967

4. Rosenbloom v. Metromedia, Inc., 403 U.S. 29, June 7, 1971

5. Gertz v. Robert Welch, Inc., 418 U.S. 323, June 25, 1974

6. Time v. Firestone, 424 U.S. 448, March 2, 1976

7. Hustler Magazine v. Falwell, 485 U.S. 46, February 24, 1988

8. Milkovich v. Lorain Journal, 497, U.S. 1, June 21, 1990

Return To Top

Supreme Court Cases in Detail
1. New York Times v. Sullivan, 376 U.S. 254, March 9, 1964
The Supreme Court ruled unanimously in favor of The Times.

The opinion established that a public official may not successfully sue for libel unless the official can prove malice. Malice was defined as "with knowledge that it (the material in question) was false or with reckless disregard of whether it was false or not."

Justice William J. Brennan wrote the opinion. Three justices favored a ruling that did not include malice. They were Hugo L. Black, William O. Douglas and Arthur J. Goldberg.

2. Garrison v. Louisiana, 379 U.S. 64, November 23, 1964
The Supreme Court struck down statutory criminal libel in the states under certain conditions. The court used the same test as it had in New York Times v. Sullivan: malice. Justice Brennan wrote the opinion for a unanimous court.

However, the opinion left open the possibility that states could enact criminal libel statutes that take malice into consideration. And, many states have done just that.

The opinion said: "Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity."

3. Curtis Publishing Company v. Butts and Associated Press v. Edwin A. Walker, 388 U.S. 130, June 12, 1967
In two decisions cited in one opinion, the Supreme Court said that a public figure cannot successfully sue for damages unless the public figure can prove malice.

In AP v. Walker, the court sided with the Associated Press. In Curtis v. Butts, the court decided for Butts and against Curtis.

The court established a new guideline, "accepted publishing standards," by which reckless disregard might be judged.

The difference in the two cases had to do with the amount of time involved in the publishing process. The Walker story originated under deadline pressure. The Butts story was published in a magazine with plenty of lead time.

Justice John M. Harlan wrote the opinion. The vote in Curtis was 5-4. The vote in Walker was 9-0.

4. Rosenbloom v. Metromedia, Inc., 403 U.S. 29, June 7, 1971
The court held that a private citizen involved in an event of public interest must prove malice to collect damages in a libel action. Justice Brennan wrote the opinion. The vote was 5-3. Justice William O. Douglas did not participate.

5. Gertz v. Robert Welch, Inc., 418 U.S. 323, June 25, 1974
The court set a new standard for determining whether a person is a public figure and determined that the plaintiff, Elmer Gertz, was a private citizen and not a public figure in this action.

The court said that a private citizen does not have to meet the actual malice standard of Times v. Sullivan to recover damages.

A private citizen may sue for actual injury, which the court said includes impairment of reputation, personal humiliation and mental anguish, as well as financial loss. Punitive damages, the court said, can be awarded upon a showing of actual malice.

The decision allows each state to determine the degree of fault that must be proved by the plaintiff. What has emerged as the most common standard is negligence. The best definition of negligence is a departure from normal publishing standards or procedures.

Justice Lewis F. Powell Jr. wrote the opinion in a 5-4 decision.

6. Time v. Firestone, 424 U.S. 448, March 2, 1976
The court said that Mary Alice Firestone, who was involved in a sensational divorce trial, remained a private citizen because she was drawn into the public forum largely against her will.

The case had to do with the way Time reported on the divorce:

Justice William H. Rehnquist (not yet the chief justice) wrote the opinion in a 5-3 decision. Dissenting were Brennan, Byron White and Thurgood Marshall. Justice John Paul Stevens did not participate.

7. Hustler Magazine v. Falwell, 485 U.S. 46, February 24, 1988
Hustler ran a takeoff of a Campari Liqueur advertisement with Jerry Falwell as the subject. The ad ran twice, in November 1983 and in March 1984. Falwell sued in federal court for libel and for for "intentional infliction of emotional distress."

The jury found the ad was too outrageous to be believed and could not be the basis of a libel action since Falwell's reputation was not damaged. But the jury awarded Falwell $200,000 -- $100,000 to compensate for "intentional infliction of emotional distress" and $100,000 in punitive damages.

The Supreme Court overturned the verdict by the lower court.

William H. Rehnquist, now chief justice, wrote the opinion for the court in a unanimous decision. Rehnquist said that the First Amendment protects even "vehement, caustic and sometimes unpleasantly sharp attacks."

Rehnquist said that the jury had decided that the ad parody was not factual. Therefore, no reckless disregard could exist.

He also said: "But in the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment."

This case resulted in a movie, The People vs. Larry Flynt.
This case can be found at http://en.wikipedia.org/wiki/Hustler_Magazine_v._Falwell.

8. Milkovich v. Lorain Journal, 497 U.S. 1, June 21, 1990
The Supreme Court in a 7-2 decision in an opinion written by Chief Justice William H. Rehnquist ruled that the First Amendment does not automatically shield expressions of opinion from being found libelous.

The suit was brought in 1975 by Michael Milkovich Sr. against the Lake County (Ohio) News-Herald (then owned by the Lorain Journal) over a column by sportswriter J. Theodore Diadiun.

The court said that newspaper columns and other forms of commentary may be libelous if they "imply an assertion of objective fact" that the plaintiff can prove is false.

William J. Brennan and Thurgood Marshall dissented.

Justice Rehnquist wrote:

The suit was settled in 1991 for an estimated $100,000.

Return To Top

New York Times v. Sullivan
One libel case related to the civil rights movement was the turning point in the history of libel in America.

Background on the Case
An advertisement ran in The New York Times on Tuesday, March 29, 1960, soliciting money for the Committee to Defend Martin Luther King and The Struggle for Freedom in the South.

Actually, defending King was only one of the three things the ad said the money would go for. (See the last paragraph of the ad).

As of that time, according to the ad, King had been arrested seven times and one of the charges was for "perjury" -- "an offense under which they could imprison him for ten years."

He had actually been arrested four times at that point. The perjury charge the ad referred to was state income tax evasion. He had been indicted by a grand jury in Alabama for perjury, a felony, related to his state tax returns for 1956 and 1958. King was subsequently acquitted of that charge.

King was a leader of the bus boycott in Montgomery that began on December 1, 1955, when Rosa Parks was arrested for not sitting in the back of the bus. When The New York Times ad ran King was living in Atlanta.

The headline for the ad repeated a Times editorial of March 19.

In all, 64 names were on the ad, including Mrs. Eleanor Roosevelt. Others were Harry Belafonte, Marlon Brando, Diahann Carroll, Nat King Cole, Sammy Davis, Jr., Ruby Dee, Van Heflin, Mahalia Jackson, Eartha Kitt, Sidney Poitier, Norman Thomas, Shelley Winters.

Also, local Alabama ministers were named in the ad, but it turned out they didn't agree to have their names listed.

The ad outlined a series of racial injustices in the South. One paragraph said:

Five suits were filed for libel based on the ad. None of the people who brought suit had actually been named in the ad. One of the suits involved the police commissioner in Montgomery, L.B. Sullivan. That's the way his name got on the case that went to the Supreme Court.

In the atmosphere that existed during the Civil Rights Movement, Sullivan and Mayor Earl James won $500,000 judgments each after trials in state court in Montgomery. The Times appealed to the United States Supreme Court.

Download "Heed Their Rising Voices"
PDF 2mb

The Supreme Court Ruling
The United States Supreme Court ruled unanimously on March 9, 1964, in The New York Times v. Sullivan that the Constitution prohibits a public official from recovering damages for a defamatory falsehood related to his official conduct. The court added one qualification: malice. Malice was defined as the condition present when the media would publish something "with knowledge that it was false or with reckless disregard of whether it was false or not."

The court, in an opinion written by Justice William J. Brennan Jr., said there was:

The court said:

This decision cleared the way for aggressive reporting of the civil rights movement, and later of the antiwar movement during the Vietnam War. Without this ruling, everything would have been different.

However, not everyone agreed with the limitation created by the court with the concept of malice.

The strongest objection was by Justice Hugo Black. Black was a senator from Alabama in the 1930s when he was appointed by Franklin D. Roosevelt to be a member of the court. His confirmation was held up when opponents discovered that he had had a membership in the Ku Klux Klan. He was to become known as the strongest advocate of First Amendment rights of any Supreme Court justice in history.

The Sullivan case, he wrote, offers:

Other Details of the Case
On April 8 (although the letter was misdated March 8) L.B. Sullivan sent a registered letter to The New York Times asking for a retraction. Sullivan was a member of the Montgomery city commission and was responsible for the police.

Specifically, Sullivan was the supervisor for the police department, the fire department, the cemetery department and the Department of Scales.

He also sent letters to the four black ministers in Alabama whose names were listed in the ad. They were Ralph D. Abernathy and S.S. Seay Sr. of Montgomery, Fred L. Shuttlesworth of Birmingham and J.E. Lowery of Mobile. They were all to testify later that until they received Sullivan's letter they had never heard of the ad.

The Times replied to Sullivan's letter, saying that the ad was substantially correct with the exception of the dining hall being padlocked.

Sullivan sued on April 19 in circuit court in Montgomery. He asked for $500,000 in damages.

On May 9, the governor of Alabama, John Patterson, wrote to the Times. In response, the Times published a story in which it apologized to Patterson. Patterson sued. He asked for $1 million in damages.

Later, suits were also filed by Earl James, the mayor of Montgomery; Frank Parks, another city commissioner; and Clyde Sellers, a former commissioner. Each asked for $500,000.

The Times was not at that time the national newspaper it is today. It had a circulation in Alabama of 394 out of a total circulation of 650,000.

Mistakes in the Ad
The advertisement contained four mistakes, although by any stretch of the imagination they were minor and did not factor in decisions in the case.

The ad said students from Alabama State College (in Montgomery) were expelled after students sang My Country 'Tis of Thee on the State Capitol steps. Instead, they sang the National Anthem on the capitol steps.

Nine students were expelled by the State Board of Education. That was for demanding service at a lunch counter in the Montgomery County Courthouse on another day.

The ad also said that the dining hall was padlocked "in an attempt to starve them (the students) into submission." The dining hall was not padlocked.

Also, Martin Luther King had been arrested four times, not seven.

Use of the term "violators" was of concern to those who sued.

The Trial
The L.B. Sullivan civil trial against The New York Times lasted three days, November 1 through 3, 1960, in state court in Montgomery, Alabama.

Since four Alabama ministers had been named in the ad, the question was whether they had given their permission to have their names used. At the trial, they testified that they did not. Their lawyers sought to remove them from the suit. The judge refused.

The jury deliberated for two hours and 20 minutes and brought a verdict for the plaintiff against both the Times and the four ministers. The total amount of compensation was $500,000.

Best source for information on this case is Make No Law, The Sullivan Case and the First Amendment by Anthony Lewis, published by Random House in 1991.

New York Times v. Sullivan, 376 U.S. 254, March 9, 1964

You may read the opinion at www.findlaw.com/casecode/supreme.html
.

Also see:

You can find the ad at various sites on the Internet.

Return To Top

Gertz v. Welch
The Gertz case changed libel law in much the same way that the Sullivan case had changed the law 10 years before. No clear evidence exists as to why the court needed to make this change. We can only surmise. The Supreme Court itself had changed and perhaps the new members of the court saw the previous rulings on libel as too lenient on the media.

The cases preceding Gertz had made it virtually impossible for anyone in the public eye to successfully sue for libel. Perhaps for this reason, a majority of the court decided to make a distinction between people who were public figures for some aspects of their lives but otherwise maintained their status as private citizens.

Two important aspects of libel law were changed as a result of the court's ruling in this case.

First, the court ruled that a person may be a public person in some aspects of his or her life, but they can remain a private person for other aspects of their lives.

Second, the court ruled that a private person only has to prove actual injury to collect damages. In other words, the previous standard of malice was removed for private citizens. However, should the private citizen be able to prove malice, he or she could then collect punitive damages.

In choosing the Gertz case to establish this new standard, they picked a man, Elmer Gertz, who was somewhat well known in Chicago. That is, the line between Gertz being a public and private citizen is not automatically clear. On the other hand, the situation that prompted his libel suit went beyond the bounds of acceptable comment.

Gertz was a lawyer representing a client in a civil case. American Opinion, the magazine of the John Birch Society, attacked Gertz's reputation and did so with false statements. Among other things, the magazine called Gertz a Leninist and a Communist-fronter.

The vote by the Supreme Court in this case was 5 to 4.

The opinion by Justice Lewis F. Powell Jr. contains some interesting statements. For example: "We begin with the common ground. Under the First Amendment there is no such thing as a false idea."

It quotes James Madison from the Virginia Resolutions of 1798:

And then the opinion says: Justice Powell said that private individuals may not have the means to address attacks against themselves the way people in public life can.

"For these reasons we conclude that the States should retain substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood injurious to the reputation of a private individual..." And, "We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual."

And, then, speaking to damages, the opinion says: "The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. Juries may award substantial sums as compensation for supposed damage to reputation without any proof that such harm actually occurred."

On the question of whether Gertz was a public figure or not, Powell wrote: "Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. It is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual's participation in the particular controversy giving rise to the defamation. In this context it is plain that petitioner was not a public figure."

Gertz v. Robert Welch, Inc., 418 U.S. 323, 1974

See the opinion at www.findlaw.com/casecode/supreme.html
.

Return To Top

Hustler v. Falwell
The ad that ran in Hustler was so outrageous that no one would consider it an assertion of facts or truth. It was a parody of an advertising campaign for Campari that was running in other magazines at the time. At the bottom of the ad it said, "Ad parody - not to be taken seriously."

On the other hand, the ad was in extremely bad taste - even for Hustler.

In the Campari campaign, famous people had their photographs taken sipping Campari with the headline declaring that the first time they had the drink... Campari is a liqueur.

Falwell sued for libel and for "intentional infliction of emotional distress." The jury denied the libel claim and found that the ad parody could not "reasonably be understood as describing actual facts about Falwell or actual events in which Falwell participated."

However, the jury ruled for Falwell on the issue of intentional infliction of emotional distress. It awarded him $100,000 in compensatory damages and $100,000 in punitive damages.

The Supreme Court was faced with a significant decision: Should it recognize a new kind of damages to go along with traditional compensatory and punitive damages? That is, could someone not be libeled but be awarded damages for emotional distress?

Chief Justice William H. Rehnquist in the opinion for the court said:

"This case presents us with a novel question involving First Amendment limitations upon a State's authority to protect its citizens from the intentional infliction of emotional distress. We must decide whether a public figure may recover damages for emotional harm caused by the publication of an ad parody offensive to him, and doubtless gross and repugnant in the eyes of most... This we decline to do.

"At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. ... We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions."

Then Rehnquist quoted Justice Oliver Wendell Holmes' dissenting opinion in the Abrams case:

"As Justice Holmes wrote, 'when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market...'"

Rehnquist reviewed earlier Supreme Court rulings on libel and quoted from some of them. He said that the robust political debate encouraged by the First Amendment is bound to produce speech that is critical to people involved in important public questions.

And then he reiterated the malice standard:

And then he addressed the central question that this case presented:

"Respondent argues, however, that a different standard should apply in this case because here the State seeks to prevent not reputational damage, but the severe emotional distress suffered by the person who is the subject of an offensive publication.

"Generally speaking the law does not regard the intent to inflict emotional distress as one which should receive much solicitude, and it is quite understandable that most if not all jurisdictions have chosen to make it civilly culpable where the conduct in question is sufficiently 'outrageous.'

"But in the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment."

Hustler Magazine v. Falwell, 485 U.S. 46, 1988

See the opinion at www.findlaw.com/casecode/supreme.html
.

See the ad on Wikipedia at Hustler Magazine v. Falwell

Return To Top

Milkovich v. Lorain Journal
The issue in Milkovich was whether couching a statement in the words "in my opinion" provides that statement with a defense of fair comment and criticism. The Supreme Court said it did not.

The resulting opinion by the court is important by implication: You can't couch a statement and escape the responsibility for what the statement says.

For instance, you can't quote someone else and then blame them.

Also, you can't use words like allegedly and reportedly and expect them to provide you with an excuse for printing a defamatory statement.

Instead, you are going to have to stand behind whatever you say or write. You cannot have some elusive defense to fall back on.

This case began in 1974 but wasn't decided by the United States Supreme Court until 1990.

Michael Milkovich Jr. was wrestling coach at Maple Heights High School in Ohio. His team was wrestling against Mentor High School when a fight broke out. At a hearing, Milkovich testified that he had played no role in the fight.

J. Theodore Diadiun wrote a column in the News-Herald, a newspaper published by the Lorain Journal Co. Diadiun's column about Milkovich's testimony had a headline that said, "Maple beat the law with the 'big lie.'" The column said:

In the majority opinion, Chief Justice William H. Rehnquist said: "The question whether the evidence in the record in a defamation case is sufficient to support a finding of actual malice is a question of law."

He said,

Rehnquist said that even in the common law the defense of fair comment did not extend to a false statement of fact, whether it was expressly stated or implied from an expression of opinion.

He said he wanted to avoid making a distinction between expressions of opinion and expressions of fact. And then,

And he said,

In the opinion Rehnquist reviewed the history of the Supreme Court's decisions in libel cases - in essence bring the cases up to date and showing how the majority decision in Milkovich fits into that history.

Not everyone on the court agreed with Rehnquist. Justices William J. Brennan Jr. and Thurgood Marshall dissented. Brennan listed examples of conjecture related to news events. He said that the events were matters of public concern and therefore worthy of protection.

Milkovich v. Lorain Journal, 497 U.S. 1, 1990

See the opinion at www.findlaw.com/casecode/supreme.html
.

Return To Top

Texas Libel Cases
Feazell v. WFAA-TV
On April 19, 1991, a state jury in Waco returned a libel verdict of $58 million against WFAA-TV in Dallas in favor of the former district attorney of McLennan County, Vic Feazell.

The suit stemmed from 11 reports broadcast on WFAA in 1985. They were the work of an investigative reporter for the station, Charles Duncan. The reports claimed wrongdoing by Feazell in connection with his duties as the district attorney.

Feazell began having difficulty with state and federal law enforcement agencies when they perceived that he was intruding in the Henry Lee Lucas case.

Feazell's office proved that Lucas could not have been involved in three McLennan County murder cases for which Lucas had been indicted. He also cast doubt on the handling of Lucas by a special task force set up under the Texas Department of Public Safety.

At that point the Department of Public Safety began investigating Feazell and managed to get the Federal Bureau of Investigation involved. WFAA was reporting the activities of the Texas Department of Public Safety and ran stories that said Feazell was involved in taking money from defendants and lawyers so that clients could get lesser punishment for DWI charges.

At the behest of the United States attorney's office, a federal grand jury indicted Feazell. He was brought to trial in Austin and was found not guilty in 1987.

Feazell then sued WFAA for libel. The trial was held in Waco in the spring of 1991. The jury found for Feazell and returned a verdict for $58 million in damages.

He and WFAA agreed to settle the case. The amount was not disclosed.

MMAR v. Dow Jones
MMAR was a Houston company that dealt in mortgage-backed securities. On October 21, 1993, The Wall Street Journal ran an article questioning the firm's business practices. A year later MMAR sued Dow Jones, contending that The Wall Street Journal article had caused the collapse of the company.

At a trial in federal court in Houston in 1997, a jury found for MMAR and returned a verdict for $22.7 million in compensatory damages and $200 million in punitive damages.

After the trial, the judge threw out the $200 million punitive-damage part of the award on the grounds that evidence didn't support the malice standard necessary for punitive damages.

In 1998, a former MMAR employee revealed to the Dow Jones lawyers that tapes existed that would support the defense. The tapes had not been made available to the defense at the time of the trial.

In August 1999 the trial judge threw out the remaining $22.7 million in compensatory damages. MMAR decided not to pursue the case any further.

Sylvester Turner v. KTRK Television
Another case that originated in Houston drew national attention. In 1991, Sylvester Turner, a Texas state representative, was involved in a close race for mayor of Houston. Just before the election, Wayne Dolcefino of KTRK-TV reported a story involving Turner and a man who had faked his death for insurance money. Turner lost the election and sued.

At the trial in state court in October 1996, a jury returned a verdict for Turner or $5.55 million -- $4.5 million in punitive damages against the station, $500,000 in punitive damages against Dolcefino and $550,000 in actual or compensatory damages against the station.

The trial judge reduced the punitive damages against the station to $2.2 million on the grounds that state law at that time limited punitive damages to four times the amount of compensatory damages.

On appeal, a three-judge panel of the 14th District Court of Appeals ruled that the broadcasts were essentially true and threw out the entire award. (987 S.W.2d 100) Turner appealed to the Supreme Court of Texas.

On December 21, 2000, the Supreme Court of Texas affirmed the judgment of the Court of Appeals but for different reasons.

The Supreme Court said that Dolcefino reported largely true statements but misled viewers. It said that because Turner was a public figure, he had to show clear and convincing evidence of actual malice.

Turner v. KTRK Television, Inc. and Wayne Dolcefino, 38 S.W.2d 103 (2000)

Veggie Libel Law
In 1996 Oprah Winfrey and a guest on her television program were discussing the beef supply in the United States in the context of mad cow disease that had broken out in England. Cattlemen in Texas took offense and sued in federal court.

They were relying on a veggie libel law passed by the Texas legislature in 1995. The law said that anyone who made false disparaging remarks against perishable foods could be sued for damages. The party bringing the suit would have to prove damages.

The Winfrey trial took place in federal court in Amarillo in 1998. During the trial, the judge dismissed the part of the suit dealing with the veggie law on the grounds that the statutory requirements for the case had not been met. The judge let stand the cattlemen's claim that they had been defamed.

The jury sided with Winfrey. The 5th U.S. Circuit Court of Appeals upheld the verdict two years later.

The veggie libel law is still on the books in Texas.

Other Texas Cases
Of course, current libel cases will be decided based on recent precedents. Nevertheless, several older Texas cases deal with issues that remain significant today. They are worth examining.

Raymundo Davila v. The Caller Times
In 1956, the Caller-Times in Corpus Christi used an Associated Press story that said a Texas Ranger had killed Raymundo Davila of Laredo. Davila, the article said, was stopped six miles east of Freer by the Ranger. Davila fired on the Ranger and the Ranger shot and killed him.

As it turned out, the dead man wasn't Raymundo Davila but his brother, Jesus Davila. Raymundo Davila sued the Caller-Times.

The question before the Court of Civil Appeals in San Antonio was whether the publication was privileged. The court ruled that it was not.

The case may be found at 311 S.W. 2d 945 (1958)

El Paso Times v. Richard C. Trexler
The El Paso Times ran an editorial concerning the participation of a teacher at the University of Texas at El Paso, Richard C. Trexler, in an anti-Vietnam war demonstration.

The Times editorial said that although it did not agree with Trexler's views, it did uphold and agree with his right to express those views, including the right to be involved in a peaceful anti-war demonstration. Later the newspaper ran a letter from a reader that said among other things: "There was a time when rats paid the penalty for treason against our Republic."

The trial court ruled that Trexler was a public figure and a jury ruled against him. The Court of Civil Appeals reversed and remanded the case.

The Supreme Court of Texas ruled that the evidence did not support actual malice as defined in New York Times v. Sullivan: "with knowledge that it was false or with reckless disregard of whether it was false or not." The judgment of the Court of Civil Appeals was reversed and the judgment of the trial court was affirmed.

This case is at 447 S.W. 2d 403 (1969)

John E. Foster v. Laredo Newspapers, Inc.
In 1973, the Laredo Times ran a story concerning a subdivision that had a flooding problem. The Times said that a surveyor, John E. Foster, had platted the subdivision. The story was incorrect in that the surveyor had not done the work.

The trial court granted summary judgment and the court of appeals affirmed - both on the grounds that the surveyor was a public official or public figure. In 1976 the Supreme Court of Texas ruled that a jury must decide the issues in the case.

The case is 541 SW2d 809 (1976)

Denton Publishing Company v. D.B. Boyd
In 1967, a reporter for the Denton Record-Chronicle attended a meeting of the city council and reported the next day on various actions by the council.

The story said that a developer, D.B. Boyd, had failed to pave streets because he had declared bankruptcy.

The newspaper was informed that Boyd had not declared bankruptcy, and it ran a correction. Boyd won a trial and the newspaper appealed.

The Supreme Court of Texas ruled that the newspaper account was not privileged. The opinion of the court said that the story did not say that the statements about the developer being bankrupt were made by someone at the city council meeting. Instead, it was the reporter who said, "The developer... declared bankruptcy..."

"The problem arises," the opinion said, "because the article as published is subject to interpretation that, as a matter of background information, Boyd was in fact bankrupt instead of reporting that it was stated as the City Council meeting that he was bankrupt. The publication would be within the privilege provided by statute as long as it purported to be, and was, only a fair, true and impartial report of what was stated at the meeting, regardless of whether the facts under discussion at such meeting were in fact true, unless the report was made with malice."

The case is at 460 S.W.2d 881 (1970)

Return To Top

Questions to Consider
What's the legal difference in libel and slander in Texas?

Under what circumstances would a libel case be tried in federal court?

Define defamation:

What are red flag words? What are examples of red flag words?

The plaintiff in a libel action may seek two kinds of damages.
What are they?

Name as many defenses to libel as you can:
What is the best defense against libel?
What's the problem with proving truth as a defense?

What is privilege?
In Texas, what matters are covered by privilege?
However, to qualify for privilege the reporting must be:

Suppose someone is arrested for a crime.
Is the arrest privileged?
Is the police report privileged?
Is the information in the complaint privileged?
Is what the police tell you about the crime privileged?

At what point in a criminal proceeding can a suspect's name be used in the report of a crime?

What's wrong with using such terms as allegedly and reportedly in connection with the report of a crime?

In a civil case, is the filing of the original petition or suit privileged?
What about subsequent pleadings? Are depositions privileged?
At what point in this process do these become privileged?

However, you may report on petitions and pleadings if certain precautions are taken. What are those precautions?

Return To Top