Involuntarily assumed; gives people redress from civil wrongs or injuries to their person, property, and economic industries.
Tort Law objectives
1– compensate a person for harm or loss from another’s conduct; – 2 – place the compensation cost only on those parties who should bear it; – 3 – to prevent future harms and losses.
an expression that tends to damage a person’s reputation and good name, or a right to enjoy social contacts, or a profession, business or calling.
written or printed defamation.
Types of libel
- Criminal - government statues that punish criticism of the goverment
- Civil - lawsuit between private parties
Forms of Defamation
- - Libel per se
- - Libel per quod
Strict liability – no finding of negligence required and if a damaged reputation resulted from a publication, there was liability – (people may be held liable for injuries they have caused even though they have not acted intentionally or negligently – the doctrine of strict liability is predicated on the nature of the activity in which the person is engaged.)
- - standard of proof required of private individuals
- - must address:
- Duty of care; Breach of duty; Factual cause; Harm; Scope of liability
Farmers Education and Cooperative Union v. WDAY (1959)
- Facts: W.C. Townley, a colorful independent candidate for the U.S. Senate from North Dakota, accused the FECUA of being controlled by Communists over WDAY.
- Importance: The U.S. Supreme Court declared that broadcasters are immune from liability for defamation by political candidates in political ads.
Beauharnais v. Illinois (1952)
- Facts: Beauharnais distributed racist literature. He was prosecuted under an Illinois group libel statute.
- Importance: The U.S. Supreme Court ruled that defamation directed at ethnic and racial groups can be illegal even when it is not directed at a specific individual.
Neiman-Marcus Co. v. Lait (1952)
- Facts: In a book, U.S.A. Confidential, it was asserted that the women working at the Neiman-Marcus department store in Dallas were “hookers” and the men in menswear were “fairies.”
- Importance: A court ruled identification can occur when defamation is aimed at a small group.
Cosgrove Studio and Camera v. Pane (1962)
- Facts: Pane ran an ad promising customers a free roll of film for every roll brought in for processing. Cosgrove warned readers in his ad. “You Get Nothing for Nothing.” Cosgrove said he would not inflate his film processing prices to give film away.
- Importance: Identification can occur even when the person/ business is not specifically named in the defamatory statement.
Garrison v. Louisiana (1964)
- Facts: Jim Garrison, the district attorney for New Orleans Parish, attacked judges stating they were lazy, “vacation-minded,” and sympathetic to criminals.
- Importance: USSC said state governments can’t censor critics of government without due process and that the role of the citizen critic of gov. must be protected by the First Amendment. For all practical purposes declared criminal libel unconstitutional.
New York Times v. Sullivan (1964)
- Facts: A Montgomery, Alabama, police official sued the NY Times for a March 29, 1960, advertisement purchased by a committee of civil rights activists. The ad contained several false statements and minor inaccuracies.
- Importance: USSC declared that public officials may recover for defamation upon proof of actual malice or reckless disregard for the truth. This established the “New York Times Standard.”
Rosenblatt v. Baer (1966)
- Facts: Rosenblatt, a reporter, wrote a story critical of the manner that a county-owned ski resort was managed by Baer.
- Importance: USSC ruled that the “Public Official” criteria was designated to include those in the hierarchy of government employees who have substantial responsibility for the conduct of government affairs.
Walker v. A.P. (1967)
- Facts: A.P. reported that retired army officer Major General Edwin Walker encouraged violence and led a charge against federal marshals during the integration of the University of Mississippi in 1962.
- Importance: USSC declared courts will seek to determine whether a journalist had, or should have had serious doubts about the truth of defamatory statements. Element of time to check and verify sources is very important in this case.
Curtis Publishing Co. v. Butts (1967)
- Facts: The Saturday Evening Post reported that Georgia football coach Wally Butts fixed a football game with Alabama. The Post relied on the unsupported testimony of a check forger.
- Importance: USSC declared that they will examine the credibility of sources, believability of the defamatory allegations and the effort made to investigate the statements in question. The media had plenty of time to verify the facts of this story, but didn’t.
Goldwater v. Ginzburg (1969)
- Facts: Ralph Ginzburg, editor of Fact, asserted Goldwater suffered from a mental disease. In a second article he edited responses to a mail survey from psychiatrists to distort their comments about Goldwater.
- Importance: The U.S. Court of Appeals for the Second Circuit ruled that creating false statements to support one’s predetermined view is evidence of actual malice.
Cohen v. New York Herald Tribune (1970)
- Facts: Jimmy Breslin wrote a satirical article on a mob hit that was witnessed by Cohen.
- Importance: A New York court ruled that “mere exaggeration, irony or wit” does not make an article defamatory.
Greenbelt Cooperative Pub. Assn. v. Bresler (1970)
- Facts: The Greenbelt News Review wrote a story in which Bresler, a land developer, was charged with blackmail because he offered to sell land to the city only after the city rezoned a different parcel he owned.
- Importance: The USSC stated that the use of words, such as “blackmail,” when used in a public forum was determined to be non-actionable.
Rosenbloom v. Metromedia (1971)
- Facts: George Rosenbloom, a little known businessman, was arrested for selling obscene material. News of his arrest was aired over the radio.
- Importance: The USSC ruled that the burden of proof imposed on public officials extends to anyone involved in a matter of public concern, regardless of whether they were famous or unknown.
Ocala Star-Banner Co. v. Damron (1971)
- Facts: Leonard Damron, running for the office of mayor of Crystal River, Florida, was falsely reported by the Star-Banner of having been charged with perjury.
- Importance: The USSC decided that no matter how remote in time or place a charge of criminal conduct against a public official is, it is always relevant to his/her fitness for office.
Gertz v. Welch (1974)
- Facts: Elmer Gertz, an attorney, was libeled by an American Opinion article. The magazine charged that Gertz had engineered a “frame-up” of a policeman convicted for shooting a young boy.
- Importance: The USSC defined a public figure as one who thrusts oneself into the public arena involuntarily or assumes a role voluntarily in which publication is expected or assumed. States may define level of proof for a private person.
Time v. Firestone (1976)
- Facts: Mrs. Firestone sued Time after a “Milestones” item incorrectly reported that Russell Firestone had won a divorce on the grounds “of extreme cruelty and adultery.”
- Importance: The USSC ruled that Mrs. Firestone did not assume any role of special prominence in the affairs of society.
Herbert v. Lando (1979)
- Facts: A 1973 “60 Minutes” broadcast questioned allegations by Colonel Anthony Herbert of an official cover-up of atrocities committed by U.S. troops in Vietnam.
- Importance: The USSC held that a journalist’s mind may be probed in a libel case in order to establish actual malice.
Wolston v. Reader’s Digest Association (1979)
- Facts: Ilya Wolston refused to testify in 1958 before a federal grand jury investigating Soviet spy activities. Reader’s Digest reported this event 20 years later on a story concerning famous spy cases.
- Importance: The USSC said that Wolston did not thrust himself into the forefront of the controversy, but was “dragged unwillingly” into the spotlight.
Gazette v. Harris (1985)
- Facts: This litigation involved three cases: – misidentification of sex offender – misidentification of married , pregnant, sexual assault victim as “Miss” – misidentification of a child’s accidental death as a case of abuse
- Importance: The Virginia State Supreme Court declared that negligence is the legal standard of proof for private individuals in the Commonwealth of Virginia.
Dun and Bradstreet v. Greenmoss Builders (1985)
- Facts: Greenmoss Builders, a construction company, had a credit-reporting agency falsely say the company had filed for bankruptcy. In reality an employee of D & B confused records of a former Greenmoss employee with the firm.
- Importance: The USSC held that credit reports are a “private matter” and not a matter of “public concern.”
Philadelphia Newspapers v. Hepps (1986)
- Facts: A corporation that franchised a chain of Thrifty stores sued the Philadelphia Inquirer for linking the chain to organized crime.
- Importance: The USSC stated that private individuals seeking damages on matters of public concern have the burden of proving that the offending statements are false.
- - Overturned laws in 8 states.
Harte-Hanks Communication v. Connaughton (1989)
- Facts: The Hamilton (Ohio) Journal News published a front- page story charging a judicial candidate, Daniel Connaughton, with planning blackmail and promising favors for help in smearing his opponent.
- Importance: The USSC ruled that this newspaper made a “deliberate decision not to acquire knowledge” that would have revealed the falsity of charges against Connaughton.
Milkovich v. Lorain Journal (1990)
- Facts: The News-Herald published a sports column stating wrestling coach Michael Milkovich had lied under oath to the Ohio Athletic Commission concerning his role in a fight that broke out during a wrestling match.
- Importance: The USSC held that fact-based opinions expressed in editorials enjoy special protection under the First Amendment.
Masson v. New Yorker (1991)
- Facts: Freudian scholar Jeffrey Masson sued New Yorker author Janet Malcolm for falsely quoting him as calling himself an “intellectual gigolo” and “the greatest analyst who ever lived.”
- Importance: The USSC ruled that minor changes in quotations fail to constitute defamation. The plaintiff has a burden to show that the altered words substantially damages his/her reputation.
Four Torts of Privacy
- 1. Appropriation/commercialization
- 2. False light
- 3. Intrusion
- 4. Private or embarrassing facts (emotional distress)
Definition: Using a person’s image or likeness (sound) for one’s own purposes (commercial) without permission or compensation. May cause shame, humiliation or loss of revenue.
Roberson v. Rochester Folding Box Co. (1902)
- Facts: Franklin Mills Company used Abigail Roberson’s picture, without her permission, in advertisements for the company’s flour.
- Importance: Although Roberson lost, it motivated New York legislators to pass the first privacy statute.
Zacchini v. Scripps-Howard (1977)
- Facts: Hugo “The Human Cannonball” Zacchini had his entire act (15 seconds) broadcast by a Cleveland TV station without his permission.
- Importance: The USSC ruled that the media must make sure that permission is acquired in commercial situations.
Carson v. Here's Johnny (1983)
- Facts: A portable toilet manufacturer used the phrase “Here’s Johnny” and “The World’s Foremost Commodian” in his advertisements without the permission of Johnny Carson.
- Importance: A Federal District Court ruled that in situations where a person is “known” by a name or slogan there is a need to secure permission before engaging in a commercial transaction.
Shields v. Gross (1983)
- Facts: Brooke Shields’s mother signed a release to a photographer to allow him to photograph Brooke at the age of 10 posing nude in a bathtub. At 17 Brooke tried to stop publication of the photos.
- Importance: A New York court declared that a signed model release is a very strong defense regardless of the time element.
- - A parent’s consent is binding for a minor.
Midler v. Ford (1988)
- Facts: Ford Motor Company broadcast an ad with a singer who was hired because she sounded like Midler when she sang “Do You Want To Dance.”
- Importance: A California court ruled that “Sound-Alikes” need to be legally cleared before undergoing a commercial venture.
Cher v. Forum (1982)
- Facts: Forum implied that Cher encourages others to join her as a subscriber to the magazine. This endorsement appeared on subscription cards without Cher’s permission.
- Importance: A New York court ruled that a magazine must secure permission to use a celebrity’s name in an endorsement.
Paulsen v. Personality Posters (1968)
- Facts: A company sold posters of Pat Paulsen during his “comic” run as a presidential candidate.
- Importance: A New York court ruled that the newsworthiness of an event may override a claim of appropriation.
- - The poster presented political commentary on a mock presidential campaign.
Time v. Hill (1967)
- Facts: In 1952 convicts held the Hill family hostage in their home. Life reported in 1955 on a play based on this true crime. Pictures were taken in Hill’s ex-home and showed convicts as “brutish.”
- Importance: New York Times v. Sullivan actual malice standard was applied by the USSC to the false- light privacy tort.
Cantrell v. Forest City Publishing (1974)
- Facts: Joseph Eszterhas of the Cleveland Plain Dealer wrote a story about a bridge collapse. Five months after the accident he wrote an article containing an interview with Mrs. Cantrell - an interview that never occurred.
- Importance: The USSC declared that falsifying quotes constitutes actual malice and fictionalization.
Uhl v. CBS (1979)
- Facts: In a CBS documentary titled “Guns of Autumn,” CBS edited film footage to give the impression that Uhl was shooting geese on the ground.
- Importance: A federal district court ruled that a hunter shooting birds on the ground is highly offensive to the average person in western Pennsylvania.
Definition - the 4th Amendment protects private persons from intrusion from government - this tort protects a private person’s right to be left alone and control information about himself/herself.
Katz v. US (1969)
FBI had an electronic device attached to the side of the phone. Information collected convicted Katz. Katz argued that he had a reasonable expectation of privacy and USSC supported that a warrant needs to be limited in scope and duration so as not to violate the 4th Amend.
- MD, PA - 2 party consent
- VA, Fed. - 1 party consent
Hepting v. AT&T (NCA 2006)
- Facts: Class action lawsuit filed by EFF against AT&T alleging that AT&T was recording private information to the NSA by unlawfully monitoring the communications of the US. This is data information and was not the same claim about NSA doing warrant less phone calls.
- Outcome: The government invoked the State Secrets Privilege, which argues any information revealed by AT&T would harm national security.
Galella v. Onassis (1972-82)
- Facts: Ron Galella, a photographer, made a living of stalking Mrs. Onassis and her family to secure pictures.
- Importance: A federal district court ruled that overzealous members of the media can be restrained and must be respectful of the moments of private intimacy.
Le Mistral v. CBS (1978)
- Facts: Le Mistral was a restaurant that had received a poor bill of health from a health care official. CBS showed up one night with cameras disrupting the restaurant’s service.
- Importance: A New York court ruled that the newsworthiness of an event does not necessarily outweigh the right of a private company to conduct business undisrupted.
Florida Pub. Co. v. Fletcher (1975)
- Facts: A photographer took pictures of a fire scene for a fire official. The next day the Florida Times- Union ran “Silhouette of Death.” Mother sued for trespass.
- Importance: A Florida court determined that the doctrine of custom and usage protected the media because fire authorities had invited the media onto the property.
Sidis v. F & R Pub. Co. (1940)
- Facts: As an 11 year-old, William J. Sidis gave lectures to the math department at Harvard. The New Yorker many years later wrote a story concerning Sidis’s sad, unfulfilled life.
- Importance: The court determined that Sidis was still newsworthy after many years and had little or no claim to privacy.
Briscoe v. Reader's Digest (1972)
- Facts: Marvin Briscoe participated in an unsuccessful hijacking attempt 11 years earlier. He served his time. Reader’s Digest reported this event in a story.
- Importance: A federal district court ruled that Reader’s Digest had reported the information accurately and Briscoe was still newsworthy.
Williams v. KCMO (1971)
- Facts: KCMO had videotaped Williams arrest on the street. Williams was not charged with a crime, but his arrest was aired on the 6 pm news. 10 pm news aired tape, but announced no charges were placed by police.
- Importance: A Missouri court declared that the newsworthiness of an event outweighed any privacy concerns in fast breaking events.
Cape Pub. v. Bridges (1982)
- Facts: Hilda Bridges sued a Fla. paper over publication of a photo of her without clothes, fleeing the apartment where her husband had just committed suicide. Jury awards $10,000
- Importance: An appellate judge ruled that the newsworthiness of the situation outweighed any privacy claim.
Sipple v. Chronicle Pub. (1984)
Facts: Oliver Sipple, a decorated Vietnam Vet, saved President Ford’s life. His homosexuality was disclosed in follow-up newspaper stories. Importance: A California appellate court ruled that the newsworthiness of the event outweighed Sipple’s privacy claims.
Hustler Magazine v. Falwell (1988)
- Facts: A Campari-like ad in Hustler portrayed Falwell as an incestuous drunkard. This mock ad had a disclaimer in small print at the bottom of the ad.
- Importance: The USSC held that a person can not sue for emotional distress when there has been no defamation or privacy invasion.