MLRC Media Libel Law Outline

SURVEY OF [FEDERAL CIRCUIT / STATE] LIBEL LAW

Survey Preparer(s)

(With Developments Reported Through August 1, 200X)

GENERAL COMMENTS

SIGNIFICANT DEVELOPMENTS
[narrative summary highlighting key developments over past year]

1. SUBSTANTIVE LAW - DEFAMATION
   
   
   1. Defamatory Meaning
      
      
      1. Definition of Libel and Slander.
         
         
      2. Treatment of "Implication" or "Insinuation" and "Innuendo."
         [including extent to which modern cases have specially related consideration of libel by "implication" to distinctions between "fact" and "opinion" - see infra, I.B - or to distinctions between application of "actual malice" and other standards of "fault" or "privilege" - see infra, I.D.1.b, I.D.2 and I.F.2]
         
         
      3. Examples of Nondefamatory and Defamatory Speech.
         [including potential "gist" or "sting" of the libel and any pertinent aspect of the "incremental harm" doctrine - see also "injury to reputation" and "libel-proof plaintiff" in I.G.1, infra]
         
         
      4. Per Se and Per Quod.
         
         
      5. Innocent Construction.
         
         
      6. Question of Law or Fact.
         
         
      7. Of and Concerning.
         
         
      8. Group Libel.
         
         
   2. Opinion
      
      
      1. General Rules.
         [extent to which cases have applied opinion privilege derived from Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); extent to which cases have applied tests such as Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984) (en banc), cert. denied, 471 U.S. 1127 (1985), for distinguishing opinion from fact; extent to which state has reconsidered opinion in the wake of Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), see also infra, I.B.3; and extent to which cases distinguish between opinion privilege and "fair comment"-type privilege under state law - see infra, I.F]
         
         
      2. Special Examples.
         [including Editorials; Cartoons; Satire; Humor; Parody; Fiction; Hyperbole; Literary or Esthetic Reviews (before or after Moldea v. New York Times Co., 22 F.3d 310 (D.C. Cir. 1994))]
         
         
      3. Effects of Milkovich.
         [including arguments that have already been recognized, or that may still be available, for continued broad protection of "opinion" in the aftermath of Milkovich, supra, including recognition of opinion privilege as a matter of state constitutional or common law, statements incapable of being proven false, see infra, I.C.3, or statements incapable of being reasonably understood as stating facts about an individual, see supra, I.B.2; see also infra, I.F.2 and III]
         
         
   3. Truth/Falsity
      
      
      1. Scope of Truth Defense.
         [including the concepts of "substantial truth"/"substantial falsity" and any cases considering the relationship of the substantial truth doctrine to the requirement of actual malice or other levels of fault]
         
         
      2. Burden of Pleading and Proof.
         
         
      3. Post-Milkovich.
         [including any cases dealing with "non-verifiable" statements or statements "not provably false" as an alternative ground for protecting "opinion"]
         
         
      4. Inaccurate or Distorted Quotations.
         [as comprising proof of falsity or substantial falsity as in Masson v. New Yorker Magazine, Inc., 111 S.Ct. 2419 (1991)]
         
         
   4. Fault
      
      
      1. Public Figure/Official Standard.
         
         
         1. Definition of Public Figure/Official Plaintiffs.
            [including categories of persons found to be either public figures/officials or private figures]
            
            
         2. Application of Actual Malice Rule.
            [including exemplary list of cases finding actual malice under New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (i.e., knowledge of falsity or reckless disregard), or finding absence of actual malice]
            
            
         3. Public/Private Status of Corporate Plaintiffs.
            [including instances in which corporations have been considered to be public or private figures; and relation between such holding and the capacity of corporations, as opposed to individual corporate officers, either to bring suit for defamation, or to be defamed, in jurisdiction]
            
            
      2. Private Figure Standard under Gertz.
         
         
      3. Standard for Nonmedia versus Media Defendants.
         [including whether jurisdiction, under Milkovich, supra, Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986), or Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), applies different fault standard to nonmedia as opposed to media defendants; and, if so, what standard jurisdiction applies to cases involving (1) nonmedia defendants and public figure/official plaintiffs and (2) nonmedia defendants and private figure plaintiffs and speech of public concern]
         
         
      4. Standard for Issues of Public versus Issues of Private Concern.
         [including whether jurisdiction distinguishes between issues of public and private concern under Dun & Bradstreet, supra, Philadelphia Newspapers, Inc. v. Hepps, and Milkovich, supra, or otherwise; identification of matters found or not found to be "of public concern"; and fault standard applicable in cases involving issues of private concern, including whether different standard is applied in cases involving public figure/official plaintiff as opposed to private figure plaintiff]
         
         
   5. Liability for Republication
      
      
      1. General Rule.
         [distinguishing among the original publisher's liability for its own republications; the original publisher's liability for "foreseeable" republications by others; and the republisher's independent liability for its own republication]
         
         
      2. Examples.
         [including Letters to the Editor; Wire Services; Advertisements; Reprints or New Editions; Computer Databases or Bulletin Boards; etc.]
         
         
      3. Respondeat Superior.
         [including individual or vicarious liability of media executives, editors, reporters, freelance authors or other independent contractors; and rules regarding nonmedia "republishers," e.g., printers, distributors, libraries, booksellers, and on-line systems]
         
         
   6. Privileges
      [listing and briefly explaining the various privileges recognized as applicable to media cases]
      
      
      1. Absolute Privileges.
         
         
      2. Qualified Privileges.
         [including significant developments in state common law privileges - such as fair comment - as an alternative to federal constitutional protection for opinion, post-Milkovich]
         
         
      3. Fair Report Privilege.
         
         
      4. Statutory Privileges.
         
         
      5. Neutral Reportage.
         
         
   7. Injury/Damages
      
      
      1. Actual Damages.
         [including discussion of various components - e.g., general damages, compensatory damages, special damages, nominal damages or any other categories of compensable damages recognized in your jurisdiction, under whatever terminology or rubric - and detailing the particular requirements for recovery of each; also discussing the concept of proof of injury to reputation, to the extent separately recognized (including pertinent aspects, if any, of "libel-proof plaintiff" doctrine); also indicating whether or not compensation for mental distress is allowable, and if so, whether or not such compensation is dependent upon showing of injury to reputation]
         
         
      2. Punitive Damages.
         [including applications, if any, of Dun & Bradstreet, supra]
         
         
      3. Presumed Damages.
         [including whether the jurisdiction still permits presumed damages and the effect, if any, of Gertz, supra, and Dun & Bradstreet, supra]
         
         
   8. Broadcasts
      [including whether broadcasts are considered subject to libel or slander; whether broadcasts are subject to any special privileges, common law or statutory, see also supra, I.F.3; and whether cablecasts have been accorded different treatment]
      
      
      1. Criminal Libel and Slander
         [including relevant cases; statutes and constitutional provisions]
         
         
2. PROCEDURAL MATTERS
   
   
   1. Retraction, Correction, or Clarification
      [including whether retractions, corrections, or clarifications are governed by statute or common law]
      
      
   2. Statute of Limitations
      
      
      
      1. Duration.
         [indicating if different limitation periods are recognized for defamation and slander]
         
         
      2. Single Publication Rule.
         [including whether the Uniform Single Publication Act has been adopted or whether the rule of single publication has been recognized judicially]
         
         
      3. Definition of "Publication" for Limitation Purposes.
         
         
   3. Motions to Dismiss (Demurrers)
      
      
      1. Pleading of Exact Words.
         
         
      2. Issues for the Jury and Issues for the Judge.
         
         
      3. Special Rules for Libel Motions.
         [including whether motions to dismiss or demurrers in defamation cases have been accorded special consideration or heightened scrutiny under First Amendment or state law principles]
         
         
   4. Discovery
      
      
      1. Scope of Discovery.
         [including both plaintiffs' and defendants' discovery]
         
         
      2. Reporters' (Shield Law) Privilege.
         [including constitutional, statutory, or common law privileges - and, in particular, their availability and application in libel cases]
         
         
      3. Discovery of Editorial Material and Editorial Process.
         
         
      4. As a Prerequisite to Summary Judgment.
         
         
      5. Other Procedural Issues.
         [including any other procedural issues that have specially arisen during discovery in libel cases - e.g., in camera hearings; contempt citations; special discovery procedures to minimize First Amendment abridgement or editorial intrusion; etc.]
         
         
   5. Summary Judgment
      [including whether motions for summary judgment in defamation cases have been accorded special consideration or heightened scrutiny under First Amendment or state law principles; effects, if any, of Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) and/or Masson, supra; whether denials of summary judgment are appealable as of right, see also infra, II.H.4.e; and whether independent appellate review is applied to appeals from grants or denials of summary judgment under Bose Corp. v. Consumers Union of United States, Inc., 446 U.S. 485 (1984)]
      
      
   6. Burden of Proof
      [note that burden of proof as to truth or falsity is discussed supra, in I.C.2]
      
      
      1. Fault.
         
         
      2. Privilege.
         
         
      3. Clear and Convincing Evidence.
         [including the extent to which the elevated convincing clarity standard of proof has been applied to the various burdens of a defamation plaintiff]
         
         
   7. Trial.
      
      
      1. Jury Selection and Instructions.
         [including discussion of any applicable model or pattern jury instructions; use of special preliminary or "midstream" instructions; voir dire; etc.]
         
         
      2. Expert Witnesses.
         [including cases, articles, or local practice specifically with regard to use of expert witnesses or testimony in libel actions]
         
         
      3. Other.
         [including any other local trial or jury practice rules or procedures that may specially affect the defense of libel actions - e.g., motions in limine; evidentiary matters; etc.]
         
         
   8. Post-Trial and Appellate Review
      [in general and as applied in libel cases]
      
      
      1. Directed Verdict.
         [including standards pre- and post-Anderson v. Liberty Lobby, supra]
         
         
      2. Judgment n.o.v.
         [including standards pre- and post-Anderson v. Liberty Lobby, supra]
         
         
      3. Remittitur and New Trial.
         [including standards pre- and post-Anderson v. Liberty Lobby, supra]
         
         
      4. Appeal.
         
         
         1. General Standard of Appellate Review in Civil Cases.
            [describing normal standard of appellate review in civil cases in jurisdiction; and contrasting normal standard with special standard of review applicable under Bose, see infra, II.H.4.b]
            
            
         2. "Independent Appellate Review."
            [including cases pre- or post-Bose, supra, paying particular attention to effects, if any, of Harte-Hanks Communications v. Connaughton, 491 U.S. 657 (1989), on application of special standard of independent appellate review]
            
            
         3. Scope of Application of Independent Appellate Review.
            [including whether independent appellate review is applied differently to appeals by plaintiffs as opposed to appeals by defendants; appeals involving media as opposed to nonmedia defendants; appeals involving public as opposed to private issues; etc.]
            
            
         4. Independent Review Regarding Issues Other than Actual Malice.
            [including whether independent appellate review is applied to issues other than actual malice - e.g., negligence, opinion, truth/falsity, defamatory meaning, "of and concerning"; and whether courts have expressly or implicitly rejected such extensions]
            
            
         5. Interlocutory Appeals.
            [including whether interlocutory appeals are permitted as of right; whether interlocutory appeals are permitted as of right in libel cases; and whether interlocutory appeals have been specially permitted in libel cases based on First Amendment-type considerations]
            
            
   9. Remedies for Malicious, Frivolous, or Abusive Prosecution
      
      
      1. In General.
         [including recovery of a defendant's costs and attorney's fees, counterclaims, counteractions, other available actions, etc.; also including any remedies enacted in tort reform legislation that would apply to libel actions]
         
         
      2. Anti-SLAPP Statute.
         [special "SLAPP" suit type legislation or remedies and whether or not such litigation or remedies have been held to apply to media defendants]
         
         
   10. Directed Verdict.
       [including standards pre- and post-Anderson v. Liberty Lobby, supra]
       
       
   11. Judgment n.o.v.
       [including standards pre- and post-Anderson v. Liberty Lobby, supra]
       
       
       
   12. Prior Restraint
       
       
   13. Jurisdiction/Venue/Choice of Law
       
       
   14. Survivability and Descendibility of Libel Cases
       [including any cases or statutes considering, recognizing or rejecting a claim for libeling the dead]
       
       
   15. Libel Insurance
       
       
       1. General Availability.
          
          
       2. Insurability of Punitive Damages.
          
          
       3. Discoverability.
          [addressing whether availability of libel insurance is generally discoverable, whether or not admissible at trial; see infra, II.M.4]
          
          
       4. Evidence of at Trial.
          
          
3. PERTINENT STATUTES AND CONSTITUTIONAL PROVISIONS
   [list and briefly describe, including effects, if any, of enacted tort reforms on libel claims, extent to which jurisdiction has enacted special "declaratory judgment" statutes or "restoration of reputation" statutes, see also supra, II.I; and extent to which state constitutional free speech and press provisions have been read separately, and perhaps more protectively, than the First Amendment, particularly with regard to libel issues, see, e.g., supra, I.B.3]
   
   
   1. Constitutional Provisions
      
      
   2. Pertinent Statutes
      
      
4. BIBLIOGRAPHY
   [including local materials of use or importance to libel defense practitioners - e.g., key local treatises covering libel, leading local law review articles, pattern jury instructions, Internet resources, etc.]
   
   
5. NARRATIVE COMMENTS ON CURRENT AND FUTURE TRENDS