Insult to Injury: Libel, Slander, and Invasion of Privacy

by William K. Jones

Overview

In Insult to Injury, William K. Jones reviews the seminal U.S. Supreme Court decisions that restrict the First Amendment in order to protect persons against defamatory falsehoods, invasions of privacy, and related psychic harm. Covering cases ranging from a restaurant owner driven out of business over a veal chop to a University of Georgia football coach accused of sharing plays with an opponent before a game, Jones examines the many subtleties of the law, its interpretation, and its restrictions.

Although the author concludes that the accommodations struck by the courts are appropriate, he nevertheless argues that there are serious deficiencies in the complex legal edifice that has been erected. After reviewing the relevant cases, Jones recommends a comprehensive new framework for dealing with the problem of defamatory falsehoods-a framework designed to afford greater protection for expressions on public issues while also providing more meaningful relief to the victims of harmful speech.

With material covering the impact of the internet and related electronic means of expression, Insult to Injury is sure to be of interest to current practitioners in the media bar, law students, and journalism students alike.

William K. Jones is the Charles Evans Hughes Professor of Law (Emeritus) at Columbia University.

Product Details

ISBN-13:	9780870817427
Publisher:	Univeristy Press of Colorado
Publication date:	12/08/2003
Pages:	376
Product dimensions:	5.90(w) x 9.10(h) x 1.10(d)

Read an Excerpt

INSULT TO INJURY

LIBEL, SLANDER, AND INVASIONS OF PRIVACY

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By William K. Jones

UNIVERSITY PRESS OF COLORADO

Copyright © 2003 University Press of Colorado
All right reserved.
ISBN: 978-0-87081-742-7

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Chapter One

THE MAN WHO HAD TO LEAVE TOWN

Denis Rety operated a successful French restaurant, La Belle Epoque, in Bay Harbor Islands, Florida. One evening in September 1982, Arthur Green was having dinner at the restaurant and observed an incident at a nearby table involving an acquaintance. The acquaintance complained to a waiter and later to Rety that a veal chop was tough. Rety responded that there was nothing wrong with the veal chop but that the customer was welcome to order another dish in view of his dissatisfaction. Green did not overhear any of the conversation; he was aware only that his acquaintance appeared upset. The next day Green learned from his acquaintance what had transpired the previous evening and wrote a letter to the restaurant, giving a false account of the veal chop incident and disparaging the quality of the restaurant.

Rety was angered by the letter, and he telephoned Green to express his displeasure. The telephone conversation escalated to a heated exchange. According to Rety, Green had called him a "Crazy Frenchman," to which Rety had replied, "I don't know what you are, a crazy German, a crazy Italian, crazyJew, but I am sure you are more crazy than I am." Green's version was that Rety had threatened him and his children, cursed at him, and called him anti-Semitic names.

Green sent Rety a succession of letters, the second of which accused Rety of making vile anti-Semitic slurs during the telephone conversation, and stated that Green was going to do everything in his power to destroy Rety's restaurant and run him out of town. Green sent copies of the letter to eight prominent Jewish political and social leaders in the Bay Harbor Islands area and to various friends and relatives. He also had about fifty conversations with others concerning his confrontation with Rety.

In the ensuing months, Green's letter received wide circulation and publicity throughout the Bay Harbor Islands community and elsewhere. Original recipients of the letter forwarded their copies to others. Stacks of the letter were distributed at the Miami Beach Chamber of Commerce. The letter was discussed at the town hall in Bay Harbor Islands, at the local chapter of the Anti-Defamation League, and at other community organizations and social groups. Copies of the letter were also circulated at prominent south Florida condominiums and apartment buildings. The letter was read to a busload of American tourists in Israel on a trip sponsored by the Greater Miami Jewish Federation.

The widespread publication and republication of Green's letter had a devastating impact on Rety, both financially and emotionally. Bay Harbor Islands was a predominantly Jewish community, Rety's restaurant catered to a largely Jewish clientele, and Green was a well-known and respected member of the Bay Harbor Islands Jewish community. Rety's restaurant experienced severe financial losses, and he was forced to declare bankruptcy. Rety was stripped of virtually all his financial resources.

Rety and his family received hostile telephone calls, including death threats. Callers threatened to blow up Rety's restaurant and warned that his family should not walk in the streets. Rety was also ostracized by the local business community. In an unprecedented move, the Miami Beach Chamber of Commerce voted to expel Denis Rety and his restaurant from membership. The court observed: "From a well-established, honored and respected member of his community, [Rety] became a pariah. When he walked down the street in his neighborhood, people crossed the street to walk on the other side. He was deliberately slighted in public; for six months, he never slept more than two hours a night, and felt himself 'falling apart.' [He] had lost everything."

In the end, Rety had to leave town. He and his family moved to New Orleans where, with borrowed capital and a small down payment, Rety purchased another restaurant. Arthur Green had made good on his promise to ruin Rety and run him out of town.

In Rety's action for defamation, the jury accepted his version of the pivotal telephone conversation-a conclusion accepted by the appellate court in view of various contradictory and widely differing accounts of the conversation Green had given to others. After a nine-day trial, during which fifty-eight witnesses testified, the jury awarded Rety $22.5 million in compensatory and punitive damages. The trial judge reduced the award to $3.1 million, but the appellate court approved an award of $5.5 million, emphasizing the malicious character of Green's conduct.

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Rety v. Green is admittedly an extreme example, but it is hardly unique. During the anticommunist hysteria of the 1950s, in which Senator Joe McCarthy played such an important role, countless lives were ruined by unfounded or distorted accusations of communist affiliation. One of the casualties was John Henry Faulk, a radio and television performer. He had his own show and made guest appearances on other radio and television programs. Aware, Inc., an organization formed to combat communism in the entertainment industry, published a bulletin charging that Faulk was either a communist or a participant in communist activities. The bulletin went to about 2,000 names. As the court commented, "The mailing was designed to and did reach every source or possible source of plaintiff 's employment-radio and television stations, advertising agencies, sponsors of programs and advertisers, newspapers and columnists, and particularly the station employing the plaintiff and the sponsors supporting his program." Aware's charges against Faulk were unfounded.

The impact on Faulk was total devastation. Aware and its officers "pursued the plaintiff with the libel making sure that its poison would be injected directly into the wellsprings of his professional and economic existence. They did so with deadly effect. He was professionally destroyed, his engagements were cancelled and he could not gain employment in his field despite every effort on his part." In view of the deliberate and malicious character of the libel, the court approved compensatory damages of $400,000 and punitive damages of $150,000.

The impact of blacklisting on the entertainment industry was particularly severe. But the "poison" was not confined to any single group or industry. It permeated both U.S. public and private sectors, leaving economic ruin and personal tragedies in its wake.

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The objective of the law of defamation is to protect reputations against derogatory falsehoods. The starting point is a recognition that humans cannot live without interacting with one another. That interaction occurs in social settings, in business relations, and in debates about collective decision making. A derogatory falsehood may impair an individual's ability to maintain or extend social relationships, to obtain the job or credit or patronage necessary to economic survival, or to influence cohorts to pursue-or not to pursue-a particular course of collective action. At the extreme, a defamed individual may be ostracized by his or her social circle, deprived of economic opportunity, and neutralized in debates about collective policies impinging on important personal interests.

As demonstrated by Rety and Faulk, an individual's stake in reputation is high. But what is less widely recognized is the social interest in protecting private reputations. Defamation injures not only the defamed individual but others as well-all who would have had social or business dealings with the victim but cease to do so as a result of the falsehood. If, for example, John Brown is wrongly accused of being a liar and a cheat, he may be discharged by his employer, shunned by his bridge club, and excluded from meetings of his neighborhood association. But Brown must have been an effective employee, an accomplished bridge player, and a contributor at neighborhood association meetings; otherwise, he would not have been included in the first place. The defamation, if accepted as true, may well deprive the employer of a valued employee, the bridge club of an accomplished member, and the neighborhood association of a worthy contributor to community dialogue.

More important, in a decentralized society dependent on the interaction of multiple parties, reputation plays a key role in regulating individual behavior. In their day-to-day activities, people do not focus inordinately on what the law does or does not allow. The law may have nothing to say on the issue at hand. Or it may expressly afford wide latitude. Or it may be beyond the comprehension of the ordinary person. But people do know what is expected of them. Social norms govern a wide range of interactions among persons within a community. Deviation from those norms is perilous. A merchant may be tardy in paying bills, slipshod in making deliveries, or harsh in his treatment of employees. Lawsuits are unlikely; indeed, no law need have been violated. But a reputation for slow payment may impair credit, a reputation for poor deliveries may reduce patronage, and a reputation for mistreatment of personnel may impede recruitment of new employees from the workforce.

The social interest in protecting reputation against unjustified attack is an important means of avoiding the perils of anarchy at the one extreme and oppressive government at the other. If a society cannot rely on reputational concerns to maintain an acceptable level of conformity to prevailing social norms, it has only two choices: to tolerate a disabling degree of disorder or to impose stringent police measures. Some sense of the dilemma may be seen in the problems posed by unruly young men in U.S. inner cities and elsewhere. Absent concern about their reputations in society at large, many disrupt schools, defy the work ethic, reject parental responsibilities, and prey upon one another and upon other members of society. What are the possible responses? In many cases, the only available solution is incarceration. The United States has almost 2 million persons confined in penal institutions, most of them young males. The alternative to a society premised on conformity to social norms is one in which government regulation and enforcement turn the society into one large prison.

Reputation is not accorded explicit constitutional recognition. But the protection of reputation against unjustified attack is integral to maintaining an open and democratic society.

Chapter Two

"HEED THEIR RISING VOICES"

On March 29, 1960, the New York Times carried a full-page advertisement entitled "Heed Their Rising Voices." The ad described the struggle of thousands of southern Negro students to obtain recognition of their constitutional rights and of the "wave of terror" with which they had been met. It was signed by sixty-four persons-many of national stature-and endorsed by twenty others, mostly clergymen in southern cities. The ad concluded with an appeal for financial support for the civil-rights movement in the South.

L. B. Sullivan was an elected official of the city of Montgomery, Alabama, when the ad was published. He sued the New York Times and four of the ad's signatories for libel, claiming his reputation had been impugned by the ad and by two excerpts in particular:

In Montgomery, Alabama, after students sang "My Country, 'Tis of Thee" on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission....

Again and again the Southern violators have answered Dr. [Martin Luther] King's peaceful protests with intimidation and violence. They have bombed his home almost killing his wife and child. They have assaulted his person. They have arrested him seven times-for "speeding," "loitering" and similar "offenses." And now they have charged him with "perjury"-a felony under which they could imprison him for ten years.

Sullivan, the elected commissioner in charge of the Montgomery police, claimed the advertisement had defamed him, and he demanded a retraction. The New York Times responded that it was "puzzled as to how you think the statements in any way reflect on you" and asked Sullivan to explain the respects in which the advertisement referred to him. Sullivan did not respond to the request for further information. Instead, he instituted an action for libel in an Alabama state court, claiming that-among other inaccuracies-the ad had defamed him in falsely charging that the police had ringed the campus; in fact, they had been deployed in strength near the campus on three occasions but had never ringed it. He also pointed out that Dr. King had been arrested four times, not seven as alleged, and that only one of those arrests had occurred during Sullivan's term of office. Further, Sullivan contended that the police-and therefore he-had been subsumed under the heading "Southern violators" and had been charged with complicity in the alleged bombing, assault, and perjury indictment concerning Dr. King. In fact, neither he nor the police had been implicated in any of these incidents.

An Alabama jury concluded that the advertisement had falsely accused Sullivan of misconduct, that the charge had been detrimental to Sullivan's reputation, and that the New York Times had acted maliciously in publishing an ad that contained assertions contradicted by its own news reports of civil-rights incidents in Montgomery. It awarded Sullivan $500,000 in compensatory and punitive damages against the New York Times and the individual signatories. The Alabama courts sustained the jury's award as consistent with the state's law of libel.

The United States Supreme Court reversed. In March 1964 the Court ruled that a state may not apply its law of libel to penalize good faith criticism of government policies or government officials. The Court relied primarily on the history of the Sedition Act of 1798, a federal law that had made criminal the utterance of "any false, scandalous and malicious writing or writings against the government of the United States [or] Congress [or] the President." Although the act had never been tested in the Supreme Court, fines levied in its prosecution had been repaid by Act of Congress, and pardons had been issued to those convicted and sentenced under the act-all on the ground that the act had been unconstitutional, a judgment reflecting "a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment." The Sedition Act expired by its terms in 1801 and was not reenacted.

The Court also relied on a privilege-recognized by a number of state courts-protecting from libel laws those who act in good faith in criticizing government policies and government officials, a view said to be favored by a consensus of scholarly opinion.

At the heart of the Court's reasoning were two propositions-one about the nature of free expression, the other about repression through self-censorship. The Court began by pointing to the "national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." Further, constitutional protection cannot turn on the truth of an assertion because "erroneous statement is inevitable in free debate, [and] must be protected if freedoms of expression are to have the breathing space that they need ... to survive." Referring to the writings of John Milton and John Stuart Mill, the Court observed that even a false statement may make a valuable contribution to public debate by bringing about "the clearer perception and livelier impression of truth, produced by its collision with error."

On self-censorship the Court observed that the instant litigation was but one of five libel suits brought against the New York Times in Alabama based on the one advertisement; they sought damages aggregating $3 million. "Whether or not a newspaper can survive a succession of such judgments, the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive." To be sure, the Alabama courts recognized truth as a defense. But under that rule, "would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so." Such a rule dampens the vigor and limits the variety of public debate in contravention of the First Amendment. Accordingly, the Supreme Court promulgated a new rule of constitutional law that "prohibits a public official from recovering damages for a defamatory falsehood relating to 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." Further, a court must independently examine the whole record; liability cannot be imposed absent proof of actual malice of convincing clarity. That standard was not met in the case at hand. Accordingly, the Alabama judgment was set aside as to both the New York Times and the individual signatories.

(Continues...)

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Excerpted from INSULT TO INJURY by William K. Jones Copyright © 2003 by University Press of Colorado . Excerpted by permission.
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Table of Contents

Contents

Acknowledgments....................ix
Prologue....................1
PART ONE POINT AND COUNTERPOINT 1 The Man Who Had to Leave Town....................7
2 "Heed Their Rising Voices"....................11
3 An Uncommon Common Law....................18
4 The First Amendment....................25
PART TWO PUBLIC OFFICIALS, PUBLIC FIGURES, AND PRIVATE PERSONS 5 Anything That Touches on Fitness for Office....................37
6 The Tale of the Furtive Night Watchman....................41
7 Into the Vortex of Public Controversy....................46
8 The Big Football Fix....................53
9 The Frame-up of Officer Nuccio....................61
10 The Golden Fleece of the Month Award....................67
11 The Reluctant Soviet Agent....................72
12 Special Cases: Unlimited, Irrelevant, and Involuntary Public Figures....................78
13 Strictly Business....................86
14 Purely Private Libels....................97
PART THREE OTHER ASPECTS OF DEFAMATION AND FALSE LIGHT 15 Group Libels....................107
16 Looking for Love? Sorry, Wrong Number....................112
17 Blackmail, Treason, Hypocrisy, and Lies....................118
18 La Cosa Nostra at Your Service....................125
19 The Greatest Analyst Who Ever Lived....................129
20 Five Scientists Who Were Paid to Lie....................132
21 The Airman Who Almost Fell to Earth....................138
PART FOUR PROCEDURAL ISSUES AND THE PATH TO REFORM 22 Actual Malice at Issue....................149
23 The Losing Game....................156
24 Bring in Da Plea Bring in Da Writ....................161
25Possible Pitfalls....................172
26 Paths Not Taken....................180
PART FIVE PRIVACY AND THE PRESS 27 The Right to Privacy....................191
28 Genius, Hero, Maverick, Threat....................195
29 The Man Who Would Be Woman....................202
30 Paparazzi....................216
31 Intrusions on Private Domains....................225
32 Broken Promises....................237
33 Deception and Subterfuge....................245
34 After the Pentagon Papers....................256
PART SIX FACT, FICTION, AND THE FUTURE 35 The Adventures of Artemus Jones....................273
36 Justice à la Corrigan....................280
37 The Impact of the Internet....................291
38 Concluding Observations....................305
Notes....................313
Bibliography....................363
Index....................371