MediaSpace Wiki

Regulation Of Media Fall2004 Session04

Politics and Journalism (McChesney)

• The conservative critique
  • Journalists have power over content
  • Journalists are liberal
  • Journalists use their power to advance a liberal agenda
  • Objective journalists would report as conservatives would
• McChesney certainly challenges these arguments

Libel

• Libel law is basically about truth, honor, and reputation
  • Mostly about reputation and the effects of of publication on reputation
  • It entails a difficult mix of common law, statute, and equity law
  • It exists largely to prevent worse things
    • Duals
    • Feuds
    • Vendettas
  • And like most law it can be used for good or ill
    • Repairing reputation
      • or at least getting compensation
      • while punishing those who attacked it
    • Discouraging criticism, even when it is fair
  • In the end it is a balance
    • of reputation
    • against speech and press
  • Which provides, through fear of lawsuit, an incentive to honesty
• Libel is a form of defamation
  • Slander is oral defamation and entails smaller penalties
  • Libel is published defamation and entails larger ones
  • New technologies have rendered the libel/slander distinction increasingly difficult
    • Libel increasingly is applied to any mass media content
• I have previously commented that all law is fractal
  • This is certainly true of libel law
  • "Fractal" refers to systems that
    • exhibit high degrees of layered complexity
    • are fine grained in their distinctions
    • and in which those distinctions are self-similar

A complex "fractal" pattern created by shining light through a stack of four Christmas Ornaments. Source: Four Spheres (Sweet, 2000) and http://foulger.info/davis/presentations/measuringFractalDecisionSpaces/index.htm

• The argument that all law is fractal is based on a notion of competing principles
  • We certainly see those in tonight's readings
    • The elements of libel
      1. Published
         • Leaves questions of who is responsible
         • The law generally assigns responsibility to anyone who had some level of editorial control
         • But doesn't hold "common carriers", including wholesalers and retailers, responsible
      2. Identification
         • a person or group
         • but which uneven rules about what constitutes a group
         • and different standards for different kinds of people
      3. Defamation
         • A statement that harms the reputation of someone
         • but with a sliding scale of what constitutes reputation
         • and a sliding scale of what represents harm
      4. Falsity
         • A libel is is a lie that harms someone
         • Truth that harms someone doesn't qualify
           • And the burden is increasingly one of proving falsity
         • Even a lie may not be seen as harming someone
           • Unless the harm is demonstrable
           • and, if the figure is a public one, there is "actual malice"
      5. Fault
         • There are different standards for fault
           • Private persons may only need to show negligence
           • Public officials and "all purpose" public figures must show actual malice
             • Knowledge of the lie
             • and reckless disregard of the truth
           • "Limited purpose" public figures operate somewhere in between
             • people who voluntarily insert their opinions into existing controversies with the intent of swaying opinion become limited purpose public figures
  • And there are secondary issues that sway decisions
    • the nature of the story
    • the nature of the controversy
    • voluntary actions
    • consent, including implied consent
    • right of reply
• Libel decisions can take a variety of forms
  • Dismissals
    • Summary judgments
    • statutes of limitations
    • jurisdiction
    • Privileged communication
      • Absolute - official communication that is not disseminated
      • Qualified - journalistic coverage of public meetings
        • coverage of public meetings that is accurate and complete is generally protected
        • but that privilege can be lost if the coverage is not "fair and balanced" (e.g. abuse of privilage)
    • Opinion is protected
      • Rhetorical hyperbole
      • Fair comment
      • Pure opinion
        • Can it be proved true or false?
        • How is the language commonly used?
        • What is the context (the editorial page is well protected)
        • What is the social context (e.g. are we reporting on an event that deals with facts or opinions)
  • Damages are most often limited to money
    • Special damages - the actual loss
    • Presumed damages - without proof of harm
    • Actual damages - compensation
    • Punitive damages - awards intended to punish and deter
  • But other forms of damages are sometimes awarded
    • Retraction
    • Criminal punishment (in the case of criminal libel)