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Lesson 34 - Libel 3:

Libel and the First Amendment

A newspaper publishes an article, reporting that a local candidate for mayor has failed to pay his taxes for the last 5 years. The reporter learned this from a confidential source at the tax office. The reporter has reason to believe this source, but it turns out the informant is flat out lying. The story is false, and because of it, the candidate for mayor loses the election. Can the mayor sue the newspaper?

No. In an important free speech case, New York Times v. Sullivan (1964), the Supreme Court held that public figures could not sue for defamation unless they could show that the publisher (1) knew that what it was publishing was false, or (2) unless the publisher was "reckless" about the truth of what it published. If the reporter knew the story was false, then there would be liability. Or if the reporter simply published an "anonymous tip" received on the phone without checking the story at all, then there would be liability. But if the reporter or the paper took even the most rudimentary steps to confirm the tip, then even if the story turned out to be false, neither the reporter nor the newspaper can be sued.

(The Supreme Court calls this the "actual malice" test, but it has nothing to do with "malice" in the ordinary sense of that term. The question is not whether you had ill will against the victim; the question is just whether you knew what you said was false, or you had been reckless about substantiating it.)

The federal constitution, then, limits libel suits when they concern public figures. Who is a "public figure"? That is a complex question, too complex to go into here. For now we can say this: Clinton is a public figure, but so too is Michael Jackson. The question is not just whether the person is a public official; it is more generally whether he or she has put his or herself in the public eye, and become very well known.

One reason why public figures have less protection from the law of libel is that the law assumes they can take care of themselves. They have, the law assumes, access to the media. If they want to defend themselves against a false charge, it is easier for them to do it than it is for a private person. And since they can use the media to defend themselves, the libel law is focused on those who don't have the same opportunity to protect themselves - again, private persons.

Next time: Should this rule change in the online world?


authors:
Larry LessigDavid PostEugene Volokh



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