Constitutional Law: Protection of Individual Rights: First Amendment: Regulation of Speech Content: Defamation

  • Defamation: Written (libel) or spoken (slander) utterance of an untruth that injures one’s reputation.
      • Consider the status of the Plaintiff.
        • If Plaintiff is public official, the plaintiff can recover for defamation by proving falsity of the statement and actual malice.[1]
        • If Plaintiff is public figure[2], the plaintiff can recover by proving falsity of the statement and actual malice.
        • If Plaintiff is private figure and the matter is of public concern, to recover, the plaintiff need only show negligence.[3] For a matter of private concern, a private person need only show publication (i.e. that a false defamatory statement was made).
      • Defamation of fact required. Pure opinion may be actionable if “it is sufficiently factual to be susceptible of being proved true or false by other evidence.” Pure opinion is generally protected.
      • Freedom of the Press. The Press enjoys no special First Amendment privilege beyond that afforded an ordinary citizen.
        • Newsroom search. No 1st Amendment exception for newsroom search. Search warrant is required.
        • Disclosure of sources. No federal shield law. There’s no newsman’s privilege. News person must disclose sources.
        • Closure of criminal trials to the press. Media has constitutionally protected right to attend criminal trials. However, closure may be done if compelling state interests is shown that is narrowly tailored.
      • Public access to the media.
        • Fairness doctrine. Government may require broadcasters to provide coverage of both sides of an issue because of limited spectrum. Newspapers, however, may not be compelled to publish what they choose not to print.
          • Broadcasters need not accept political ads.
          • Political candidates have no right of equal time in a newspaper to reply to personal attacks.
      • Regulation of CATV. (intermediate level review). CATV operators may ban indecent programming on channels which are leased to unaffiliated 3rd parties. May NOT bad indecent programming as to public access channels. Nor may fed gov’t require that they scramble signals when they show sexually explicit pictures.

[1] Actual Malice – knowing statement was false + reckless disregard for the truth.

[2] Public figures – ones that thrust themselves into the limelight.

[3] If this private person plaintiff can also show malice, then he is entitled to punitive damages.