The Law of Journalism & Mass Communication divides libel into two distinct categories—the plaintiff’s case and defenses. Chapters 4 and 5 could be united as one, but this separation eases understanding for students by making the complex topic of libel more manageable. Chapter 4 focuses on the plaintiff’s case for both libel and a common companion tort, emotional distress (ED)/intentional infliction of emotional distress (IIED)/negligent infliction of emotional distress (NIED). In prior editions, emotion distress appeared in a standalone chapter.

Libel

Libel might be the most formulaic element of mass communication law. On the one hand, the plaintiff’s case is relatively straightforward. On the other hand, there are several specific defenses that can offset claims made by the plaintiff. When approached and presented in this way, students find the challenge of understanding libel less daunting.

At its foundation, libel law is about protecting reputation. Chapter 4 devotes some space to the notion of reputation and the importance associated with it over time and across cultures. It is important for the student to grasp the significance and thus the consequences when an individual is stripped of his or her reputation unjustly. It also explores the chilling effect of libel lawsuits on the media. SLAPP stands for strategic lawsuit against public participation, and it is a kind of lawsuit filed in an attempt to silence critics. The plaintiffs who file them are sometimes under investigation for possible wrongdoing or people whose questionable business motives are being exposed. Plaintiffs rarely win these cases. Because SLAPPs are often used to try to suppress First Amendment rights, 28 states have enacted anti-SLAPP legislation that gives courts a way to address meritless lawsuits of all kinds. Recently, the federal courts have weighed in on anti-SLAPP laws – the First, Second, Fifth, and Ninth U.S. Circuit Courts have applied anti-SLAPP acts in part or in whole. The Eleventh Circuit Court rejected one component of a state’s anti-SLAPP law in 2014.

As Chapter 4 explains, each element of the plaintiff’s case is vital; all must be demonstrated for a claim to be successful. The elements of the plaintiff’s case are a statement of fact that is published, that is of and concerning the plaintiff (identification), that is defamatory, that is false and that caused damage or harm and for which the defendant is at fault. But it is not coincidental that the most space is devoted to fault. It is arguably the most complex of all the elements. Thus, the instructor is urged to methodically and carefully explain its multifaceted dimensions—negligence, actual malice, public officials, public figures, private figures, and the key role that New York Times v. Sullivan plays.

With regard to New York Times v. Sullivan, this text strives to de-emphasize cases and emphasize important legal concepts. We all know the aversion students possess when it comes to memorization of case names, circumstances and rulings. Indeed, one can learn the basics of law absent a case-based approach. There are exceptions to this premise, however, and New York Times v. Sullivan tops that list. There may be no more important case in the law of journalism and mass communication. Accordingly, Chapter 4 allocates significant space to this case, both within the narrative and in sidebars devoted to the case, its significance, and the author of the ruling, Justice William Brennan.

Another case is important to student understanding of fault and when actual malice applies. New York Times v. Sullivan defines actual malice as knowledge of falsity or reckless disregard for the truth. It applies this standard of fault to public officials. But, one question that remained after New York Times v. Sullivan was how to apply actual malice to other kinds of plaintiffs. In Gertz v. Robert Welch, Inc., the Supreme Court held that private individuals do not have to prove actual malice but rather negligence as the standard of fault.

In the 1980s, the Supreme Court considered whether knowingly changing the statements of an interview subject qualifies as knowing falsity. In the Masson case, the Court ruled that it is not actual malice as long as the meaning of words remains the same. This is called the material change of meaning doctrine. In 2014, the Supreme Court upheld and clarified this doctrine in a case that involved a provision in the Aviation and Transportation Security Act (ATSA) that provides immunity for reporting suspicious behavior to the Transportation Security Administration (TSA) unless the reporting is made with actual malice. The Court held that requiring precise wording in reporting suspicious activity to the TSA would not be in line with the purpose of ATSA immunity.

Several boxes in the chapter explore libel online and via social media. Given that determining who published material is important as an element of the libel plaintiff’s case, online communication has raised the question about how courts should treat Internet Service Providers (ISP). Congress addressed this question in the Communications Decency Act, Section 230. This is discussed more in Chapter 5, which focuses on libel defenses, but it is worth noting that the law gives ISPs immunity from libel claims.

Emotional Distress

The emotional distress torts may be confusing to students because states treat them in widely varying ways. Generally, however, students will understand that negligent infliction of emotional distress (NEID) requires the plaintiff to show that the defendant had a duty of due care, breached that duty, the plaintiff was emotionally injured by the breach, and the plaintiff can show proximate cause on the defendant’s part. Similarly, students will understand that intentional infliction of emotional distress requires a plaintiff to show the defendant acted intentionally or recklessly, the action was outrageous and the action caused the plaintiff’s emotional injury. Also, public officials and public figures additionally must show the defendant acted with actual malice. There are no defenses for either tort if the plaintiff proves his or her case. The landmark Hustler v. Falwell case is excerpted at the end of the chapter.

Snyder v. Phelps, the recent U.S. Supreme Court case involving Westboro Baptist Church members picketing a soldier’s funeral, asks if free speech protections take precedence over protecting individuals from emotional distress. Although the Court answered in the affirmative in this instance, there are many issues on both sides of the case that students may discuss.