Libel Chapter Outline

Libel law is meant to protect an individual’s reputation. If a person feels that his or her reputation has been affected, they can file a claim against the party responsible asking for damages and monetary compensation hoping to restore their name. This concept of someone’s reputation being worth something is a century old concept with famous writers such as Shakespeare exploring the idea.

An important consideration of libel is the truthfulness of the statement. Just because someone says something about another that can harm his reputation doesn’t mean he will fall void to libel. If the statement is true then the reporter was just doing his job reporting news. Defamation is the false communications about another person that damages that persons “fame” or brings him or her to dispute. Slander and libel are two forms of defamation. Slander is associated with spoken word while libel is with written defamation. The purpose of the libel laws are in an attempt to restore ones reputation when it has been negatively affected.

There are six elements of libel in the plaintiff’s case: A statement of fact, that is published, that is of and concerning the plaintiff, that is defamatory, that is false and for which the defendant is at fault. A statement of fact simply means that there must be an assertion of fact. Opinions cannot be considered libel because an opinion cannot be false. Publication means that the false assertion was made public. There only needs to be one source and one receiver for it to be legitimate. Identification means the plaintiff must show he was the person directly being targeted. There are three ways a person can be identified. Those are through stating their name, stating their title, through photographic images or within a context in which their identity can be inferred. Another element is that the statement must have defamatory purpose. The challenge is defining and establishing the standard of defamation. Lastly the statement must be false. 

Proposition 8

Proposition 8 is an inevitably and extremely controversial topic that creates an enormous amount of attention among activists and counter activists alike. We were asked to watch a PBS special which brought together the two lawyers that are representing 4 plaintiff’s demanding the right of gay and lesbian marriage. Ted Olson (Republican) and David Boies (Democrat) came together in an obscure case to defend basic constitutional rights that may seem unconstitutional to some. Whether one votes against proposition 8 due to political beliefs, hatred, uncertainty or whatever, these two lawyers that represent different parties come together to display the major void in our first Amendment by enacting such a proposition.

Its very interesting that a democrat, one who would typically support gay marriage, and a republican, one who normally will not support it, to come together and represent four citizens of this country who feel they are being treated as second class citizens. This topic goes beyond what someone religiously believes but rather the basic premise of a part of our constitution. We are granted the right of marriage whether it is between a black and a white, an imprisoned felon and a working class citizen, and so on. It is such a basic privilege that to deny someone that right is in direct violation of our constitution. That means that 6 million voters who said ‘YES’ to proposition 8 bi-passed our constitution and voted off of a belief.

Many people who feel gay marriage is wrong created propaganda to display the negative affects this could have on our society. Some consisted of protecting our children, allowing polygamy, allowing sodomy. Others stated that children would not receive the same nurture and care they could get from a heterosexual relationship. The other lawyers could not prove this in fact, for every argument they Olson and Boies had, the defending lawyers arguments were invalid. Olson and Boies basically laughed at such claims. They stated that such ads are only to scare people away from voting the constitutional way. This is a quote from Ted Olson that really stood out to me,

“The leading expert in the world about welfare of children from Cambridge testified that children do as well in a same sex environment, where both of their parents are the same sex, just as well as opposite sex parents. And it's important to recognize California recognizes the right of same sex couples to live together, to have children, to adopt children, or conceive of children in various ways that are available these days. There's 37,000 children or something.”

Our constitution grants us the basic right of marriage. It states that any two citizens may be married. It says nothing about a man and a women but just two citizens, It is clear that Olson and Boies’ arguments will be heard nationwide because it is the right thing to do under the laws we abide from. No argument can disagree otherwise in a legitimate matter. To say no to two people who are loving, law abiding, tax paying and among other things- to say they are not allowed to be married is treating them as a second class citizen thus, unconstitutional.

NY Times vs. United States

The New York Times v. The United States is an incredibly insightful case full of constitutional challenges that differ from ones ethical instincts. Daniel Ellsburg, a military analyst and an employee of the RAND Corporation during the Vietnam War is the genesis of this case. He revieled a long lost of speculation from people in ranks over in N. Vietnam back to the United States. He did so by sending papers to the New York Times and having them publish the never before known information. The speculation was inaccurately portraying the war to Americans in fear of a potential loss. Although this case does not directly involve Daniel Ellsburg, he is a prominent person in it. What this case actually about is the First Amendment, Freedom of speech. The New York Times printed these submissions from Ellsburg and was ordered to stop by the government, a direct violation of our constitutional rights. It was right then when the case was brought to the Supreme Court and discussed among some of the most brilliant lawyers of that time. Erwin N. Griswold argued the case for the United States point of view while Alexander Blickle argued the side of the New York Times.

Griswold’s main point of his argument was not that there had been a breech of stolen government property. Although the states,

“The fact that it was obviously acquired improperly is not irrelevant in the consideration of that question.” (Griswold)

While Ellsburg did take some of the 47 volumes of the Pentagon Papers and disseminate it among people, and not excluded that fact that he did do that, he wanted to portray that doing so directly results in a threat to national security. The documents were not owned by the NY Times nor has there ever been a constitutional rule that the government cannot restrict restraints on the press and freedom of speech. By giving this viewpoint he is showing grey area in our judicial system and attempting to make a point for doing such an unconstitutional thing.

“I suggest that when it is found by the District Court that the publication of the documents in the large may interfere with the ability of the Department of State in the conduct of delicate negotiations now in process are contemplated for the future, that should be enough by itself to warrant a restraint on the publication of the now quite narrowly selected group of materials covered in the special appendix and dealt with in some detail in my closed brief and the related papers which had been filed with the Court this morning.” (Griswold)

The above quote from the oral argument examined shows that although we allow our citizens the freedom of speech and press, if it is going to directly affect the set guidelines, the government must interfere. What was extremely interesting to me was how much information was not known by the lawyers due to the classification of such information. They spoke in extremely abstract and vague means, which is what made the case so interesting.

Griswold stated in one of the later part of his arguments,

“And I suggest to the court that it is perfectly obvious that the conduct of delicate negotiations in how process are contemplated for the future has an impact on the security of the United States.”

His facts to back it up are under an executive order 10501, written under Eisenhower, provides the foundation for this statement. Although in this instance, that executive order does not cover this exact example, Griswold explains that the order is too narrow and broadly written thus the district court judge used the wrong standard in his decision.

The next Lawyer, Alexander Blickle represented the NY Times argument. Blickle was given about 15 minutes less then Griswold was but I feel secured a much more persuasive point. He started by examining the points Griswold brought up in his examination of the case, stating that the details he stated do not relate to this case. He used as a sentence closer for much of his speech,

“Not in this case.”

I felt that is truly powerful because he is right and law is based on facts. Is this information obstructing a code of law? Will the information published directly affect the security of the nation? In my opinion and that of Blickle’s, it does not. Blickle was challenged many times by the Justice’s and given hypothetical scenario’s and for everyone, he had a thought out, well stated answer. He did agree that there could potentially be things in the 47 volumes that could be harmful to future negotiations with other nations but did not feel that it would be applicable to what has been published. While some of the volumes should be classified as top secret, not all of it falls under the standard of top secret, thus making it okay for it to be released.

Blickle stated that under Eisenhower’s executive order, publications that are published must have ‘direct negative affects’ on the nation. In this case, they do not. Again the Justices give him hypothetical examples of instances where the code of law would overstep someone’s humane instincts. His answer is that of a very bold, yet powerful one. Freedom has risks and its something American’s are willing to sacrifice to have.

“Whatever that case maybe in which under this Constitution under its rules of separation of powers, the President has independent inherent authority to act domestically against citizens, let alone to impose a prior restraint, whatever that case maybe, it cannot be this case.”