Libel Litigation Research Articles

The Press and Libel Before New York Times v. Sullivan

The Press and Libel Before New York Times v. Sullivan

How Can Journals Respond to Threats of Libel Litigation?

Trudo Lemmens and colleagues discuss how the mere suggestion of litigation can bias the medical literature by affecting editorial decisions. They argue that journals and authors should publicly post threats of litigation, or cease and desist letters, for which there are some international legal precedents. Please see later in the article for the Editors' Summary

Playing Against Type: Statistical Personhood, Depth Narrative, and the Business of Genre in James M. Cain's Double Indemnity

Playing Against Type:Statistical Personhood, Depth Narrative, and the Business of Genre in James M. Cain's Double Indemnity Frederick Whiting (bio) The characters, locale, and action of this story are fictitious; they do not represent and are not intended to represent, actual persons, places, or events. Disclaimer, 1992 Vintage edition of Double Indemnity The books didn't know anything to tell on me. Walter Huff, character1 Introduction An irony attends the inclusion of the disclaimer in Vintage Books' 1992 edition of James Cain's Double Indemnity.2 Absent from any of the editions of the novel that appeared during Cain's lifetime, the sentence invokes, in a form so familiar as to be by now nearly invisible, a long-standing distinction between two types of creature: literary characters and actual persons.3 The sentence attempts to foreclose the possibility of future legal action via what is ultimately a logic of genre: X in the book could not be the particular person Y in real life, not because X is not Y, but because X is a literary character and so could not be a historically particular person. Implicit in this logic is a distinction hearkening back to Aristotle [End Page 190] about historical particularity versus the broader typing of literary works, though with somewhat different truth claims in mind.4 Taken as an ontological pronouncement, the separation seems unobjectionable enough: there are literary characters and then there are real persons and neither requires further elaboration. As E.M. Forster put it in his Aspects of the Novel, unlike humans, literary characters needn't have glands.5 On the other hand, the disclaimer's very presence in the text bespeaks an anxiety, namely, that the distinction it draws is less than self-evident. Somatic referents aside, its appearance in the novel's front matter indicates that persons and characters are potentially confusable—a worry confirmed by a long history of libel litigation. Embodiment, then, is not the issue so much as is the correspondence or co-incidence of narrative descriptions between literary characters and actual persons. Of course, the irony doesn't reside in the fact that the character/person distinction is philosophically fraught—old news indeed.6 Rather it's that Double Indemnity itself focuses upon precisely the complications of this freighting. In both its thematic concerns and its formal elements, the novel, I will argue, is principally a rumination on personhood and narrative—on the relation between characters in stories and actual persons, and the role that types and typing play in our thinking about that relation.7 Since its publication, such critical response as the novel has received has tended to pass over the issue of the relation between persons and types. Where critics have taken up related concerns, such as, for example, agency or dehumanization, they've done so in a context that maintains the separation, concentrating on one side of the distinction or the other—either literary types or actual persons—without much bothering about the relation between them. Even cultural work interested in the ideological functions of genre has tended to focus exclusively on the dynamics of production and reception that characterize popular fiction rather than the formal conventions governing genre.8 Ultimately, this divided response adheres to the very distinction that the disclaimer wants to draw and that, I'll argue, the novel wishes to complicate. In what follows, I want to examine Double Indemnity's interest in the relation between persons and characters. More particularly, I want to analyze the relays between the novel's concern with type understood as an extra-literary concept that preoccupied a variety of real-world discussions (corporate, sociological/psychological, aesthetic) at the moment of its [End Page 191] publication, and with type understood as a staple feature of the formula genres (detective/crime fiction, gothic, confessional literature) that the novel uses to participate in these discussions. Ultimately, my claim is that in responding to anxieties about agency connected during this period to the discourses of actuarial science and depth psychology, Double Indemnity effectively assailed a longstanding opposition—one that continues to exert a powerful influence on present thinking—between types and persons. In...

Recent developments in internet defamation law

Internet defamation litigation is not the same as traditional libel litigation. Unique challenges facing plaintiffs seeking a remedy for destroyed goodwill of a business or damage to reputation include: anonymity of the author responsible for the defamation, cost of successfully tracking down the defendant and jurisdiction issues. This article considers certain legal issues raised by these unique problems and the efficacy of solutions offered in countries such as the United States, Canada, the United Kingdom and Australia.

Libel in the Blogosphere: Some Preliminary Thoughts

This brief essay attempts to account for the paucity of libel litigation relating to weblogs, and to explore ways in which the law of libel may change in response to the different character of weblogs, and new media in general.

NRJ Book: Insult to Injury: Libel, Slander, and Invasions of Privacy

Insult to Injury: Libel, Slander, and Invasions of Privacy, by William K. Jones (University Press of Colorado, 2003) 376 pages, $45Last March marked the 40th anniversary of New York Times Co. v. Sullivan, the landmark case in which the U.S. Supreme Court held that a public official cannot recover damages for a defamatory falsehood about his official conduct unless he proves that the statement was made with 'actual malice'-that is, with knowledge that it was false or with reckless disregard of whether it was false or not.Thus, the Sullivan rule-for the first time in American history-subjected defamation (libel and slander) law to First Amendment limitations. And it reflects the Supreme Court's awareness of the self-censorship that would-be critics, including the news media, are likely to face in engaging in their robust, uninhibited, and wide-open debates on the government and public officials.In Insult to Injun/, William K. Jones, professor emeritus of law at Columbia University, notes that the Sullivan decision was revolutionary because it dramatically altered the law of defamation. Criticism of the government and public officials is now a matter of constitutional privilege for Americans.Jones undertakes to examine defamation and related expressive transgressions such as invasion of privacy and intentional infliction of emotional distress. The book is divided into six parts. Its first four relate to and common law on press freedom and defamation. Part 5 centers on intrusions and public disclosures of embarrassing facts. While Part 6 purportedly concludes the book, its two chapters probe the fact-fiction relations and the Internet law.Although he discusses the U.S. Supreme Court's rulings, Jones pays close attention to lower courts' application of the Supreme Court's guidelines on the balancing of freedom of expression with individual reputation. This is a refreshing departure from the often-unwarranted fascination of legal scholars with the Supreme Court's free speech jurisprudence. As Judge A. Richard Posner of the 7th U.S. Circuit Court observed recently, the Supreme Court decisions receive disproportionate attention as compared with those of other appellate courts.Jones considers the current libel law a losing game. And his book is a measured effort on his part to make the unsatisfactory, complex law more manageable. But he is no advocate of the wholesale revision of substantive principles. Instead, he prefers procedural reform. Jones' three-stage proposal aims to make libel lawsuits expeditious and largely cost-free while vindicating plaintiffs' reputations if their claims are merited.Retraction or corrections to libel victims are first recommended as a moneysaving means to clear their names. If this pre-litigation approach does not work, Jones suggests that it move to the initial phase of the litigation. The first phase of the libel litigation revolves around the issue of falsity, not around whether the defendant was at fault. Under Jones' formula, the second phase of the libel litigation kicks in where falsity is particularly complicated. Here, the plaintiff must prove falsity and the requisite degree of fault (actual malice or negligence) as well. …

Libel Law in the Trenches: Reflections on Current Data on Libel Litigation

Libel Law in the Trenches: Reflections on Current Data on Libel Litigation

Libel Law and the Press

This article examines how the Korean press is trying to establish a `public person' privilege - which orginates from US libel law - as protection against libel litigation. The Korean press, free from political restraint since 1987, now faces an increasing number of libel suits that could impede press freedom. Considering that the press was almost immune to the threat of libel litigation, at least until 1987, the recent efforts of the Korean press to find a safeguard indicate that the libel situation in Korea has profoundly changed. Analysis of cases, news articles and editorials shows that there is a difference in the definition of `public person' between the courts and the media. The Korean press will continue constructing the meaning of `public person' as a means of protection until the courts realize the press's need for a safeguard against the threat of libel.

Freedom of the Press and Right of Reply under the Contemporary Korean Libel Laws: A Comparative Analysis

ARTICLES FREEDOM OF THE PRESS AND RIGHT OF REPLY UNDER THE CONTEMPORARY KOREAN LIBEL LAWS: A COMPARATIVE ANALYSIS Jae-Jin Lee* I. INTRODUCTION An important task in a democratic society is to strike a bal- ance among essential but conflicting social interests. A govern- ment is responsible for the harmonious adjustment of contending rights. Thus, a government is expected to establish legal stan- dards to reconcile competing social interests by weighing their relative significance in society. A government also needs to pro- vide its people with remedies when their rights are unlawfully infringed. This proposition is true for the Korean government. The Korean government established the Press Arbitration Commission (PAC) to strike a balance between conflicting inter- ests of the media and the public. 1 Since its formation in 1981, PAC has been a central apparatus for resolving libel problems outside the courts and has provided individuals with a means to redress damage to their reputation. PAC has worked as an offi- cial forum that helped both the press and the public to resolve Assistant Professor, Hanyang University, Korea; Ph.D., Southern Illinois University-Carbondale; M.A., University of Iowa; M.A. & B.A., Seoul National University, Seoul, Korea. The author sincerely thanks Professors Robert Spellman, SIUC and Kyu-Ho Youm, Arizona State University for their expertise and guidance for this article. 1. PAC was established as a preliminary legal agency. It is mandatory for a person who wants to ask a court to order a right of reply to first apply to the com- mission for arbitration. The arbitration process is free of charge for both the public and the press. Right of reply refers to a remedy in libel litigation that awards an opportunity for publication of a counterclaim in the same media in which a defama- tory remark was made against an individual. The basis of the right of reply is that the one who has been libeled may answer in kind.

U.S. media and libel law: An international perspective

This article examines various issues facing American media when sued by foreign libel plaintiffs in U.S. courts. Foreign plaintiffs tend to be well-financed and internationally prominent public figures. For them, real vindication of their allegedly damaged reputation is not at the top of their litigational agenda. Rather, they often try to take advantage of such libel trials for political and ideological gains in their home countries. In adjudicating international libel litigation, American courts have enunciated various choice of law tests for balancing between the first amendment interests of the American press and foreigners' reputations. The Desai test, for example, recognizes first amendment protections for domestic publication of defamation by focusing on the status of plaintiff and the application of foreign libel law to the intentional and direct extraterritorial publication of the challenged statement so long as abandonment of first amendment protections is established.

The Chinese press and libel: Political and legal implications

1995 marks the 10th anniversary of Shen & Mu v. Du, the first libel case against the press in the history of the People's Republic of China. Through case and statutory analysis, this study identified various factors accounting for the explosion of libel litigation against the Chinese media since then and current problems faced by the Chinese media and judiciary in handling libel suits. In addition, it evaluated the impact of libel litigation on the country's press and legal systems. In conclusion, the authors expressed the belief that although the increase in libel litigation targeted against the media reflects the progress China has made in perfecting its legal system and educating the Chinese people in their civil rights and on legal matters, it has also produced a chilling effect on the media. This is especially dangerous for a society like China which is not yet used to having its problems scrutinized and publicized by the media.

The Libel Climate of the Late Nineteenth Century: A Survey of Libel Litigation, 1884–1899

This study examines libel litigation in the late nineteenth century and compares it to the libel climate in the late twentieth century. Libel reports in trade journals from 1884 to 1899 were surveyed and catalogued. The strongest similarity found is the frequent use of libel law by public figures and public officials. In both periods public persons sued over articles concerning public performance even though the likelihood of winning large damage awards was minimal. This finding suggests that minor changes in modern libel doctrine will not resolve current conflicts in libel law.

Media libel litigation: A search for more effective dispute resolution.

The libel litigation system does not efficiently or effectively resolve media libel disputes. Protracted and expensive litigation neither restores plaintiffs' reputations nor protects media defendants from intrusive discovery and potentially large damage awards. This article demonstrates how research on the characteristics of the libel litigation process and the interests and concerns of the disputants was synthesized with research on dispute resolution processes to develop an alternative process for resolving libel disputes outside the courts. The article discusses the potential feasibility of the voluntary, nonlitigation alternative program, informed by research on dispute processing and libel litigation. An evaluation of the program is being conducted to examine attorneys' and parties' reactions to the program and to assess the extent to which the program provides effective solutions to the problems of the libel litigation system.

Libel Lawyers as Risk Counselors: Pre‐publication and Pre‐broadcast Review and the Social Construction of News1

American libel law presents profound dilemmas about how to provide compensation to individuals for injury to their reputation without destroying First Amendment values of free expression and unfettered public debate. This paper looks at the substantial legal costs incurred by publishers and broadcasters in defending themselves against charges of libel, the response of the courts to limit press self‐censorship occasioned by the risks of libel litigation, and the perverse effect they both have on the social construction of the news. These tensions are captured in the role of the media lawyer who reviews news stories prior to publication or broadcast and advises editors about libel risks. Data are presented from interviews of 53 in‐house and outside counsel who regularly review stories for newspapers, television stations and networks, magazines, and other news organizations. A paradox emerges: media lawyers, in pursuit of constitutional protections of free speech, have come to enforce responsible journalism, while subtly chilling and shaping the ways the news is told.