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September 3rd, 2015

Recap:

• We started this class by talking about what is not included as part o the

reedom o speecho !": you beating someone up is not protected under reedom o

speech

o #or a long time, being sharply critical o the go$ernment wastreated that way% &t wasn't part o the reedom o speech%

Wigmore, ater Abrams, said o (ustice )olmes' dissent: this

isn't reedom o speech* it is reedom o thuggery% +t a time o war, we can't let people undermine the war eort bydestroying weaponry so they also shouldn't underminemorale%

o -eore Brandenburg, there was no imminence re.uirement

/Schenck , Abrams%

• oday we will discuss another e"ception to the reedom o speech, whichhas also been narrowed o$er time #alse Statements o #act

• olicy: )ow do we gure out where these e"ceptions come rom4

istinction between #acts and 6pinions

• 7iable and deamation laws look to the actual assertions that are beingmade, whether implicitly or e"plicitly /not 8ust to the literal words

• Sometimes opinions can be treated as a actual opinion /!": 9& think you

should ne$er stay married to someone who cheats on you% hen you say,9& agree, ; should di$orce <% While you ha$en't said that < cheated, youare implying it%

• &n some situations, i you call someone a blackmailer, you are accusing

him o engaging in the crime o blackmail% -ut, depending on the conte"t,it may or may not be a actual assertion%

False Statements of Fact

• Brandenburg was a change in the law% re=Brandenburg you had much

less room or criticism% NY Times v. Sullivan was also a $ery signicantchange in the law% -eore NY Times v. Sullivan, the libel and deamationwere completely outside o the reedom o speech% <ou could get moneydamages against someone as long as you pro$ed by mere preponderanceo the e$idence that your reputation was hurt /strict liability% <ou weren'tre.uired to pro$e negligence or alsity% hat is still the regime in lots o

other countries, but it is no longer the regime in this country%

NY Times v. Sullivan /S>6?S 1@AB

• #acts: Sulli$an says statements in an ad$ertisement carried by the C<

imes had libeled him% )e says there are inaccuracies in thead$ertisement% he state action is the +labama decision to award Sulli$andamages /D500,000% +Ermed by the +labama Supreme >ourt%

• )ere, the >ourt chose to protect alse statements by re$ersing%

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• he >ourt makes it clear that go$ernments can ne$er be libeled% heyaren't people, their reputation can't be harmed, so you get to lie aboutthe go$ernment% Fo$ernment is uni.uely disabled rom pre$enting itselrom being lied about%

• olicy: What is the best argument against application o the 1+ to this

case4o hese statements add no $alue

o ?sing cost=benet analysis, there could be signicant costs to the

person and there are no measureable benets or these alsestatements

o We are not adding to the marketplace when people lie

o -y allowing this, you're undermining the incenti$e or the

newspapers that ha$e the resources to do any type o act=checking >ounter: the marketplace will weed out tabloids that ha$e

been conrmed liarso Why ha$e the costs be entirely placed on the person whose

reputation has been harmed4 We ha$e well=nanced newspapersand not as well=nanced in$idious person, why is the cost on theperson4

o Co other country has adopted this regime and they're doing ne%

his is unprecedented% !$eryone has always understood that libeland deamation are outside o the scope o the 1+%

o 6nce you're reputation is damaged, it's $ery hard to get it back%

• (ustice -lack and Foldberg concurred: libel suits should be categorically

prohibited% &t's speech and any restrictions are unconstitutionalo (ustice -lack: we aren't being protecti$e enough

o >ites Garrison v. Louisiana, which e"plain why any libel liabilityshould be allowed

• What can Sulli$an do now4 Sulli$an has to show they acted with

knowledge they were printing alse claims or that they had recklessdisregard /this is high barrier G he won't be able to do this

• 6ne could say that the central meaning o the 1+ is protection o the

criticism o go$ernment oEcials% his case ad$ocates or a robust abilityto criticiHe oEcials% hey won't like it, but that's their problem%

• Ia8ority suggests that we the people need inormation /robust discussion,space to be critical because it's actually how we e$aluate the 8ob thego$ernment is doing%

• he rst >ongress led with ramers o the >onstitution passed the +lienand Sedition +cts, under which indi$iduals were arrested, prosecuted, andcon$icted or criticiHing the go$ernment%

o ?nder resident (eerson, this was repealed% +ll those con$icted

were returned their nes and pardoned%o 9+lthough the Sedition +ct was ne$er tested in this >ourt, the attack

upon its $alidity has carried the day in the court o history%

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Fo$ernor $% roessor roblem /pg% A3

• #acts: roessor hears the Fo$ernor had se" with a 1A=year=old girl% )e

mentions this in a 1+ 7aw class% )e doesn't like the Fo$ernor and en8oyssaying bad things about him% he Fo$ernor sues the roessor or slander%

• #irst: who was this statement said about4 ublic gure or pri$ate gure4o )ere, it is a public gure% )is position in$ites public scrutiny /like

Sulli$an%o &s the mayor o urham a public gure4 <es% >hie o police4 <es% +

captain in the police orce4 Cot as ob$ious% + secretary in the policestation4 robably not% he custodian4 Co% <ou work or thego$ernment, but you're not a public gure because your position isnot one that would in$ite public scrutiny and you don't ha$e such apower or importance that the public has an independent interest inyour abilities%

o 7ower courts ha$e ound it almost impossible to police this

distinction% &t's hard to do this line drawing% 7ower courts ha$e erredon the side o nding people to be public gures, which means it'sharder or people to bring lawsuits when there are allegedly alsestatements made%

o he >ourt in Gertz : 9those classied as public gures ha$e thrust

themsel$es to the oreront o particular public contro$ersies inorder to inJuence the resolution o the issues in$ol$ed% &n eithere$ent they in$ite attention and comment%

o !"ample o someone who didn't thrust themsel$es orward, but are

still public gures: Sasha and Ialia 6bama, children o celebritieso <ou can be a public gure or all purposes or 8ust some purposes%

• Second: what is the topic o the speech4 &s it a public concern or pri$ateconcern4

o Dun Bradstreet : ocusing on se"ual practices, that's a matter o

pri$ate concern% -ut, that was written beore Ionica 7ewinsky, sothat might not be true today

o he line o public $ersus pri$ate concern is drawn $ery dierently

today and in this country in particularo 6nce could argue that i the person ran on a certain campaign and

then act inconsistently, then that makes it rise to the le$el o publicconcern

o What is a pri$ate concern4 )ealtho he diEculty is that you can argue and say whate$er interests

people is a public concern% he >ourt has not said something thatdramatic yet%

o Who has the burden4 Cow, the plainti has to pro$e the alsehood%

?nder common law, the deendant had to pro$e truth%

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• +ssuming the Fo$ernor is a public gure and this is a matter o publicconcern, so the 9actual malice test applies% What do we want to know tosatisy the actual malice test4

o Ialice is a misnomer here

o Fo$ernor must pro$e: the roessor knew it was alse or he acted

with reckless disregard We would need to know more about how he came across this

con$ersation +lso ask, did the roessor put it orward or its act $alue4

olicy iscussion

• (ustice White /Dun Bradstreet concurrence: we could ha$e the rule that

the rest o the world uses and still ha$e a pretty $igorous press like allthese other countries ha$e%

• 6ne criti.ue o NY Times v. Sullivan is that we are protecting way toomuch speech% he other argument /)ugo -lack side is that we areprotecting too much%

• hinking about this as the marketplace o ideas, there's a reasonable

argument that alse statements add nothing to the marketplace o ideas%

• Since NY Times v. Sullivan, a number o other countries ha$e e"plicitly

considered this regime +ustralia, Cew Kealand, >anada, lots o !urope,and not one has adopted our regime% Why not4

o Iaybe it's because the leaders o the countries want to protect

themsel$eso Iaybe it's because we think there might be a cost to this that

people think their reputation is going to be trashed and it'll be hard

to get it back• ri$ate gures don't ha$e the ability to get their reputation back, but

public gures do%o Gertz : you assume the risk by being a public gure and has a better

ability to counteract speech that hurts their reputationo Gertz , -rennan dissenting: denials and contractions are not hot

news and rarely recei$e the prominence o the original story% Co onecan get their reputation back, not e$en public gures

o Gertz , White dissenting: someone has to bear the costs% 7et's ha$e

the publisher pay that costs, rather the person against whom thealse statement is made% he press today is $igorous and robust

already% 7ibel suits will not rerain the publishing the truth G there isno e$idence that now, all o sudden, the press will stop printing ithere is a dierent libel and deamation regime% +lso, damage toreputation is hard to pro$e so re.uiring actual proo will destroy anychance o actual compensation% his will deter people rom enteringthe public arena, e$en though they could make a positi$econtribution because they don't want their reputation alselyattacked%

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#alse statements ser$e no purpose whatsoe$er in urthering

the search or truth% We are not adding the marketplace oideas with alsehoods%

&t really matters what your deault is% White's is that libel and

deamation laws are permissible%

• Should debates about ree speech be dri$en at all by empirics4 +nd i so,how should those empirics be gathered and used4 +re there things thataren't sub8ect to empirical $erication4

• on't lose sight o the act that there are real world conse.uence to thisL

&t's really hard or a public gure to win a case when alse statements aremade about them% here are really high burdens% <ou ha$e to be really,really reckless%

Summary o dierent kinds o alse statements /pg% A2:Said about Topic !ens rea re"uired in this situationublic gure ublic concern 9+ctual malice /NYT

ri$ate gure ublic concern >ompensatory damages: negligence6ther remedies: 9actual malice /Gertz

he go$ernment ublic concern +ll liability orbidden /NYT Co particularperson

ublic concern Sometimes, all liability orbidden / Alvarez *otherwise, 9actual malice

+ny person ri$ateconcern

Cegligence enough /Dun Bradstreet ,strict liability might also be possible

Ce"t class:

• roessor $% Fo$ernor problem

•

)ow we should understand e"ceptions4 Should we ha$e narrow categoriesor e"ceptions to ree speech4

• What does reedom o# the press add to reedom o speech4 ?se >itiHens

?nited

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