Chapter 10: Electronic Media Regulation

Overview of the Topic:

With the emergence of electronic media, the U.S. federal agencies which regulated the dissemination of radios and radio stations emerged accordingly. The Federal Radio Commission was founded in 1927 as the aftermath of unsuccessful communication among the radio broadcasters and stations. The FRC was substituted with the FCC (Federal Communication Commission), which continued to regulate the growing spectrum of the electronic media.

When talking about the First Amendment rights among broadcasters, they have less protection than the print media does. For the most part, only licensed users may use a certain spectrum of broadcasting. Moreover, the FCC is in charge of making sure that the broadcasted content is in the public interest, yet FCC cannot censor the broadcasting material.

Additionally, the FCC set a rule that requires from the broadcasting stations to air at least three hours a week of content that is suitable for children and their cognitive needs. Other than this, the FCC had set a series of strict regulations that guide the amount of broadcasting, the nature of the content, and times of broadcasting as well.

Most importantly, every broadcast station must have an FCC license in order to be able to broadcast. The license is given to the stations that are able to meet a set of complex and strict standards that tend to be adjusted often.

The Supreme Court made the rules about cable stations having to carry some broadcast stations a constitutional rule. This forces cable carriers to set aside certain number of channels for lease. Also, the law limits the number of channels a cable system may devote to programming in which the system’s owner has a financial interest.

The Internet has full First Amendment protection, with limited regulation from the FCC.

Defining Key Terms:

Electronic media: broadcast and newer forms of media that utilize electronic technology or the digital encoding of information to distribute news and entertainment.

Federal Communications Commission (FCC): An independent U.S. government agency, directly responsible to Congress, charged with regulating interstate and international communications by radio, television, wire, satellite and cable.

Federal Radio Commission (FRC): A federal agency established by the Federal Radio Act in 1927 to oversee radio broadcasting, succeeded by the FCC in 1934.

Notice of proposed rulemaking: A notice issued by the FCC announcing that the commission is considering changing certain of its regulations or adopting new rules.

Broadcasting: Use of the electromagnetic spectrum to send signals to many listeners and viewers simultaneously.

Spectrum scarcity: Because a limited number of broadcast radio and television stations in a geographical area may use the spectrum without causing interference, the spectrum scarcity arises.

Lowest unit rate: the maximum rate a broadcaster or cable system may charge a politician for advertising time during the 45 days before primary election and the 60 days before general elections.

Zapple rule: a political broadcasting rule that allows a candidate’s supporters equal opportunity to use broadcast stations if the candidate’s opponents’ supporters use the stations.

Retransmission consent: Part of the federal cable television law allowing broadcast television stations to negotiate.

PEG access channels: Channels that cable systems set aside for public, educational and government use.

Nonduplication rules: FCC regulations requiring cable systems not to carry certain programming that is available through local broadcasting stations.

Net neutrality: The principle that holds that ISPs cannot charge content providers to speed up the delivery of their goods.

Important Cases:

Red Lion Broadcasting Co. Inc. v. FCC – The Court ruled in favor of the Red Lion, stating that the station did not exceed its authority nor violated the fairness doctrine for the political coverage.

Relevant Doctrine:

The FCC’s 2015 Open Internet Order (the three banned practices)

Throttling: Broadband providers cannot impair or degrade Internet traffic on the basis of content, applications or services.

Paid Prioritization: No “fast lanes”. Broadband providers do not favor some traffic over other traffic.

Blocking: Broadband providers may not block access to legal content, application or services.

Current Issues/ Controversies:

Generally, the Internet has provided relative amount of anonymity to certain users that have been hiding behind their avatars and virtual profiles. This often creates more freedom of expression among the anonymous users, where some of the cases grow into cyberbullying and disseminating extreme speech through Internet.

The issue that has come to be in some areas of the U.S. is whether cyberbullying deserves First Amendment protection. Numerous laws have been overruled by the Supreme Court as vague or overbroad, allowing for the Internet bullying to continue consequence-free.

As extreme speech is protected by the First Amendment, rational thinking may be that cyberbullying (which are mostly cases of online extreme speech) should also get the same protection. However, the emotional distress that it may cause and the levels to which it may be directed to only certain number of people potentially draws a different line of law to limit online freedom of expression.

Nonetheless, the Internet is still fully protected by the First Amendment, as its wide and global spectrum is hard to regulate on some equal level.

References:

Trager,R., Russomanno, J. & Ross, S.D. (2016), The law of journalism and masscommunication. Thousand Oaks, CA: Sage Publications.

Chapter Six: Privacy

Overview of the Topic:

When it comes to privacy, it has been one of the greatest concerns of American citizens. In the U.S. law system, there are several sources of privacy protection: U.S. Constitution, federal and state laws, and the Federal Trade Commission (FTC). The FTC is the chief federal agency in charge of consumer privacy regulations and of the enforcement of federal privacy laws.

Although privacy laws regarding the media are fairly inconsistent from state to state, the privacy laws were split into four torts: false light, appropriation, intrusion and private facts. These four categories allow for the law to recognize an individual’s dignity and right to privacy.

If truthful information is lawfully obtained from some kind of public record, publishing is protected by the First Amendment. However, the First Amendment doesn’t protect the publishing of private facts that are of no legitimate concern to the public. In proving defenses, newsworthiness can never diminish.

Defining Key Terms:

Fact Finder: a judge or the jury determining which facts presented in evidence are accurate.

Appropriation: Using a person’s picture, name, likeness or identity for commercial or trade purposes without permission.

Commercialization: The appropriation tort used to protect people who want privacy.

Transformative use test: A test to determine whether a creator has transformed a person’s name, picture, likeness, voice or identity for artistic purposes.

Artistic relevance test: A test to determine whether the use of a celebrity’s likeness, picture, identity or voice is relevant to a disputed work’s artistic purpose. 

Predominant use test: In a right of publicity lawsuit, a test to determine whether the defendant used the plaintiff’s name or picture more for commercial purposes or protected expression.

Intrusion upon seclusion: Physically or technologically disturbing another’s reasonable expectation of privacy.

Important Cases:

Cox Broadcasting Corp. v. Cohn – During a trial over a deceased 17-y.o. rape victim, a reporter for the Cox Broadcasting Corp. named the victim, regardless that her identity was kept private by other mass media outlets. The Supreme Court ruled the case in appellee’s advantage due to emotional distress cause by the publication of the deceased person’s name.

Riley v. California – The question whether the police has the authority to search a seized phone without permission. Riley’s argument to a Fourth Amendment right was overturned, hence he was charged for different violations.

Relevant Doctrine:

Constitutional Right to Privacy

• Protection comes from the Third, Fourth, Fifth and Fourteenth Amendments.
• The Constitution protects from governmental invasion of privacy.  
• Harlan’s “reasonable expectation of privacy” test establishes a Fourth Amendment right to privacy

Reasonable Expectation of Privacy Test

An individual has a Fourth Amendment right when:

1. A person exhibits an actual expectation of privacy
2. Society is prepared to recognize this expectation as reasonable.

The Four Privacy Torts

1. False Light: Intentionally or recklessly publicizing false information a reasonable person would find highly offensive
2. Appropriation: Using another’s name or likeness for advertising or other commercial purposes without permission. There are two subcategories of the appropriation torts: commercialization and right of publicity.
3. Intrusion: Intentionally intruding on another’s solitude or decision
4. Private facts: Publicizing private, embarrassing information

False Light

In order for a plaintiff to win the case, he/ she must prove:

• Publication
• Identification
• Falsity
• Highly offensive
• Fault

Defense:

• Libel Defenses

Appropriation

1. Commercialization: Applying to someone who wants to remain private and unknown except to family and friends. Using this person’s name, picture, likeness, or voice advertising or other commercial purposes without permission identifies as commercialization. It also cause emotional distress.
2. Right of Publicity: applying to someone who wants to be known far and wide, to be a celebrity – a musician, athlete, movie star or television personality. Using this person’s name, picture, likeness, voice or identity – or a look-alike or sound-alike – for advertising or other commercial purposes without permission invade this person’s right of publicity. It also devalues their economic values.

Commercialization

Plaintiff’s case

• Using a person’s name, picture, likeness, voice or identity
• For advertising or other commercial purposes
• Without permission

Defense:

• News
• Public domain
• First Amendment
• Incidental use
• Advertising for a mass medium
• Consent

Intrusion by Trespass

Plaintiff’s case:

• A reasonable expectation of privacy
• Intentional intrusion on the privacy
• The intrusion would be highly offensive to a reasonable person

Defense

• Consent

Private Facts

Plaintiff’s case:

• Publication
• Private/ Intimate facts
• Highly embarrassing
• Legitimacy of a public concern

Defense:

• First Amendment – truthful information lawfully obtained from public records

Current Issues/ Controversies:

Mid-January, a Chicago-native lawyer filed a suit against the local police of violating his First and Fourth Amendment rights by intercepting his phone during the Black Lives Matter protest. In the case, the plaintiff states that the police tends to use cell site simulators that gather the information from a targeted device without the owner’s permission nor knowledge. In his case, the plaintiff’s allegations call on the invasion of privacy as well. 

Although this case is not as controversial in its nature, it does raise a question on the issue of privacy, and how do different federal and state agencies regard a person’s right to private information. This case is somewhat similar to the Riley case in its basic concept, as both cases talk about the police seizing information from a person’s cell phone without warrant or permission.

As privacy in general is an extremely sensitive area of law for many, it is hard to draw a line where an authorities perform privacy invasion in their investigative measures. The issues revolving around privacy have to be handled with extreme caution, as it can be seen from the given example.

My Questions/ Concerns:

1. How can the concept of a ‘reasonable person’ be defined to reach some level of consistency in court?
2. Does emotional distress have bigger impact in the court’s decision in privacy torts in comparison to other elements of the privacy tort? For instance, if the information is truthful and legally obtained, would that be a sufficient defense if the information cause a severe emotional distress to the plaintiff?

References:

Trager,R., Russomanno, J. & Ross, S.D. (2016), The law of journalism and masscommunication. Thousand Oaks, CA: Sage Publications.

Weiss,D.C. (Jan 13, 2017). Chicago lawyer sues police over interception of hiscellphone information during protest. ABAJournal. 

Media Law in the News 1: Former ‘Apprentice’ Contestant Files Defamation Suit Against Trump

Summary of the Case

Recently, one of the former contestants of Donald Trump’s reality show “The Apprentice” Summer Zervos, filed a lawsuit against Donald Trump for defamation.

Namely, the plaintiff had previously filed a lawsuit against Trump for sexual assault, which happened during the election campaign period.
Summer Zervos brought a sexual assault case to the New York State Supreme Court against Trump in October 2016. In her case, the plaintiff stated that Trump “had kissed and groped her without her consent”. After these accusations were made public, Mr. Trump stated on several occasions that the plaintiff (as the other women with similar accusations) was lying and that the assault was fully invented by the plaintiff herself “to get attention”.
This is the exact reason which motivated Zervos to file a new lawsuit against Trump only few days before he entered the White House. Also, after seeing the ‘Access Hollywood’ story, Zervos was enraged by Trump’s following negation of such behavior, giving her more drive to publicly talk about her experiences. Since the case involves an incident that happened before Trump’s taking office, the government official immunity doesn’t apply.

In the lawsuit, it is stated that “Donald Trump lied again, and again, and again, and again. In doing so, he used his national and international bully pulpit to make false factual statements to denigrate and verbally attack Ms. Zervos”. By doing so, Mr. Trump is considered to have subjected Zervos “to threats of violence, economic harm, and reputational damage”.

In the gist of the case, Summer Zervos is suing Donald Trump for emotional harm and economic damages, which account for the defamation case. Nonetheless, the facts of the case must undergo certain evaluations according to which the results of the case will be decided.

Legal Questions

Given the facts of the case, some of the legal questions that may be raised are the manner in which the court or the plaintiff could prove that Donald Trump was lying. What would be a legal and credible way of proving Trump’s dishonesty?

Moreover, what is the plaintiff’s level of public involvement? In other words, can we identify Summer Zervos as any form of public figure?

Other than that, would the impeachment be immediate if the case advanced?

And finally, there would definitely be a lot of questions regarding the discretion of court officials, and how inclined would they be to rule the case in President’s Trump advantage? This could be an issue, especially recognizing Trump’s leadership character as being fairly impulsive if not satisfied.

Relevant Doctrine

The doctrine that applies is the Plaintiff’s case for Defamation (Slander), Defamation being the category of law.

In order for a case to identify as slander, it must be publicly expressed as a statement of fact, of and concerning the plaintiff, and has to include defamatory content. Moreover, the slander has to false and cause actual injury or damage.

The six categories of the plaintiff’s case for slander are: publication, identification, defamation, fault, falsity and damage. In order to win the case, the plaintiff must be able to prove all of these in the court.

Publication

In order to prove publication, the statement must be heard by a third party. Since Donald Trump was a public figure before he became a public official, most of his interactions were done through different media outlets. To add, the statements given in the case were made in press conferences, which automatically confirms their publication.

Identification

Although in the portion about identification, it is required that at least one person reasonably believes that the slander is regarding the plaintiff. In this case, Summer Zervos’ name was directly mention in some of the statements, which is a proof itself.

Defamation

To prove defamation in court, the plaintiff must be able to prove that a respectable and a substantial minority of the community thinks less of her or that shows hatred toward her. Additionally, if the plaintiff experienced loss of jobs or any damage to her profession, the defamation is automatically proven. Taking into account Mr. Trump’s powerful and influential position in the public, it can be seen how a substantial and respectable part of a community might think less of Zervos after hearing the claims made by Trump.

Fault

To prove fault, the court must first establish whether Zervos has to prove negligence or actual malice, depending on her level of involvement in the public eye. Considering Zervos participation in the media, she is considered to be a limited purpose public figure. Limited purpose public figures usually enter the public sphere by being a part of a controversy for a limited amount of time, which grants them certain level of access to the media.

Hence, Zervos must be able to prove actual malice to the court in order to win the case. Actual malice is defined as the knowledge of falsity or reckless disregard for the truth. On the other side, Donald Trump as the defendant only has to have one good defense in order for the case to be dropped.

Falsity

If the statement given is not substantially true, it is considered to prove falsity. In Zervos’ case, Trump repeatedly said that the plaintiff was lying. In the article, Zervos’ lawyer says that they have conducted a polygraph test to prove that the plaintiff was telling the truth. Consequently, this would lead to a logical conclusion that Trump was, indeed, lying. Nevertheless, this should still be further proven in court proceedings.

Damage

The very core of the alleged accusations made by Zervos is the emotional and economic damage that the defamation caused her. According to the facts from the case, this would fall under the category of punitive damages, which would result in punishing the defendant. Furthermore, Zervos’ lawyer also stated that “the purpose of the lawsuit was not financial, but […] to get Mr. Trump to admit that he lied”.

Conclusion

Through analyzing the case, I think that Zervos has a strong case against Donald Trump, and that she could be able to prove slander. Some of the legal questions raised can be answered through the analysis of the elements of the Plaintiff’s case for Slander, and some would be answered if the case moved forward in the court.

Some of the challenges might be the power and influence possessed by President Trump, as well as the financial power which he could utilize for his defense team. I am interested to see further development of the case, and if it gets to the court, its final result.

It was interesting to individually analyze a real-life case, especially with this amount of complexity due to the position of the defendant and his relationship to the plaintiff. This case helped me gain more skillful and focused thinking about doctrines, and understanding the hierarchy of different categories of media law. Also, I think that this improved by ability to take different facts into consideration that might be relevant to the case, and the manner in which different circumstances would influence the outcome of the case as well.

Word Count: 1166 words

Reference:

Twohey, M. (Jan 17, 2017). Former ‘Apprentice’ Contestant Files Defamation Suit Against Trump. The New York Times. Retrieved from https://nyti.ms/2k1Bs8a. 

Chapter Five: Libel

Overview of the Topic:

In order for the plaintiff to prove libel in court, he or she has to be able to prove several elements as supporting the case in order to win a libel suit. In contrast, the defendant’s role in a libel suit is only to have only one suitable defense in order for the court to dismiss the case.

When it comes to protecting the reporters from being sued from defamation, the fair report privilege takes off the stress of accidental defamation. Namely, if the report published in the news was given by an official, or originated from some official document, the reporter is automatically protected from any defamation suit. The privilege is covered officials and proceedings in the executive, judicial and legislative branches of state, as well as local and federal governments. In addition, law enforcement agencies are also covered. It is crucial for citizens in a participatory democracy to have a right to such information.

In regards to published book and other reviews, the court applies fair comment and criticism criteria, which protect critics from being sued by the individuals in the public eye. Although similar to comment and criticism, the law differs opinion as constitutionally protected by the First Amendment. In order to determine opinion in court, the officials apply the Ollman Test.

Some of the libel defenses also allow for the republication, such as neutral reportage and the wire service defense. One of the main rules protecting the republication services is the single-publication rule, where the republication of some content is not seen as a new material.

In cases where the libel defendant files an appeal in order to dismiss a libel suit, the plaintiff usually cannot prove his or her case. Most of the aspect of a libel suit generally work in the defendant’s advantage. For instance, the section 230 of the Communications Decency Act offers relatively limited immunity to websites and ISPs in libel claims.

One of the more important elements to be aware of are retractions, apologies and corrections. Knowing how to demonstrate basic journalistic responsibility may present a great influence to avoid a libel case at all.

Defining Key Terms:

Fair Report Privilege: A privilege claimed by journalists who report events on the basis of official records. The report must fairly and accurately reflect the content of the records.

Absolute Privilege: A complete exemption from liability for the speaking or publishing of defamatory words of and concerning another because they were made within performance of duty.

Conditional (qualified) Privilege: Because the original statement was made within the performance of duty, this privilege is an exemption from liability for repeating defamatory words of and concerning another.

Fair Comment and Criticism: A common law privilege that protects critics from lawsuits brought by individuals in the public eye.

Innocent Construction: Allegedly libelous words that are capable of being understood to have an innocent meaning are not libelous.

Neutral reportage: A defense accepted in some jurisdictions that says that when an accusation is made by a responsible and prominent organization, reporting that accusation is protected by the First Amendment even if the accusation is false.

Single-publication rule: A rule that limits libel victims to only one cause of action even with multiple publications of the libel, common in the mass media and on websites.

Libel-proof Plaintiff: a plaintiff whose reputation is deemed to be so damaged already that additional false statements of and concerning the plaintiff cannot cause further harm.

Important Cases:

Ollman v. Evans – Evans’ published material was concluded to be fully protected by the First Amendment, as it was defined as opinion, hence constitutionally protected.

Milkovich v. LorainJournal Co. – After several appeals made by Milkovich, the Supreme Court ruled that the piece was not the opinion, therefore could be libel.

Relevant Doctrine:

Fair Report Privilege

1. The information must be obtained from a record or proceeding recognized as “official”.
2. The news report must fairly and accurately reflect what is in the public record or what was said during the official proceeding.
3. The source of the statement should be clearly noted in the news report.
4. Not all states recognize the fair report privilege.

The Ollman Test

In order to prove opinion, it must pass:

• Verifiability
• Common meaning
• Journalistic context
• Social context

Neutral Reportage

The First Amendment is a defense in a libel case if:

• The story is newsworthy and related to a public controversy.
• The accusation is made by a responsible person or group.
• The charge is about a public official, public figure or public organization.
• The story is accurate, containing denials or other views.
• The reporting is neutral.

The Wire Service Defense

It can be applied if:

• The defendant received material containing the defamatory statements from a reputable news-gathering agency.
• The defendant did not know the story was false.
• Nothing on the face of the story reasonably could have alerted the defendant that it may have been incorrect.
• The original wire service story was republished without substantial change.

A Test for Jurisdiction

1. Whether the defendant purposefully conducted activities in the state
2. Whether the plaintiff’s claim arises out of the defendant’s activities there, and
3. Whether the exercise of jurisdiction would be constitutionally reasonable.

Section 230 Immunity

The application of the Immunity is possible if:

• The ISP/Website is a content distributor and not a content creator
• The ISP/website did not interact directly with the content

It also applies if:

• ISPs/websites correct, edit, add or remove content, as far as the meaning of the content is not manipulated.
• ISPs/websites solicit or encourage users to submit content
• ISPs/websites pay a third party to create or submit content
• ISPs/websites provide neutral drop-downs and forms to facilitate content submission.

Current Issues/ Controversies:

With the inauguration and other political events revolving around the Trump family, all of the media has been heavily focused on the family and its members.

Earlier in the summer of 2016, a blogger from Maryland called Melania Trump a “high end escort”, for which Mrs. Trump filed a libel suit and won a couple of days ago.

Although the defendant’s lawyers appealed to the judge by claiming that there was no proof of actual malice in the libel suit, the judge still ruled in favor of Melania Trump.

Even though there might not be actual malice present in the blogger’s post, the issue was around the actual phrase used (high-end escort), which is most commonly associated with the word prostitute. Hence, the immediate social content of the phrase used in describing Melania Trump was one of the key elements that directed the court’s final decision.

My Questions/ Concerns:

1. How dependable is the definition of opinion on individual officials’ discretion?
2. If the libel case was so hard to prove for the plaintiff’s win in the court, is it even worth bringing a libel case to the plaintiff?

References:

Gerstein, J. (Jan 27, 2017). Melania Trump wins round inlibel suit over blogger's 'escort' claims. Politico.Retrieved from http://www.politico.com/story/2017/01/melania-trump-libel-suit-blogger-234263.

Trager, R., Russomanno, J. & Ross, S.D. (2016), The law of journalism and mass communication. Thousand Oaks, CA: Sage Publications.

Chapter Four: Libel and Emotional Distress

Topic Overview:

Defamation is defined as untruthful communication that damages an individual’s reputation. It is the umbrella term under which the law categorizes libel and slander. Libel is false, written information that damages a person’s reputation. Generally, the laws against defamation, particularly libel, serve as a preventative measure for future cases of libel.

When it comes to an actual lawsuit, the plaintiff’s duty is to bring about an assertion of fact, because the expression of opinion cannot be libelous. Furthermore, the statement must have been made public prior to the case, otherwise it will not be considered libelous. In the case of libel, the re-publisher of the libel can be held as responsible as the author of the libel.

When it comes to differing defamatory against the non-defamatory statements, some expressions are seen as defamatory by default, depending on their content. Usually, those are accusations of criminal activity, unethical and immoral activities and unprofessional behavior.

In libel law, there is a distinction in fault standards, depending whether the case involves a matter of public concern. The ruling in this manner minimized the possible chilling effect of libel suits and offers more space for freedom of expression in journalism and the media.

Any form of extreme or outrageous conduct that causes an individual’s emotional distress or harm is illegal, and can be brought to court, especially if the plaintiff is a public official or figure. The plaintiff can sue the defendant for infliction of emotional distress even if that harm was cause by accident. Still, plaintiff has to be able to prove that the harm was done and that it was an immediate result of the said infliction. In the media, there are rarely the cases that can prove infliction, since the media has no duty to use due care.

Defining Key Terms:

Sedition Act of 1798: federal legislation that made it illegal to oppose or resist any law imposed by the U.S., and to publish, write or print any kind of criticism directed at the Congress or the President.

SLAPP (strategic lawsuit against public participation): A lawsuit whose purpose is to suppress critics’ First Amendment rights by harassing them into silence.

Communication Decency Act (CDA): One of the government’s greatest attempts to regulate online content.

Libel per se: A statement whose injurious nature is apparent and requires no further proof.

Libel per quod: A statement whose injurious nature requires proof.

Deposition: testimony by a witness conducted outside a courtroom and intended to be used in preparation for trial.

Bootstrapping: the forbidden practice of a defendant claiming that the plaintiff is a public figure solely on the basis of the statement that is the reason for the lawsuit.

Strict liability: A defendant is automatically responsible for damages.

Intentional inflict of emotional distress: extreme and outrageous intentional or reckless conduct causing plaintiff’s severe emotional harm.

Reckless: word used to describe actions taken with no consideration of the legal harms that might result.

Important Cases:

New York Times Co. v.Sullivan – The court ruled that the evidence brought to the court was not sufficient to prove the plaintiff’s case, as well as the State court of Alabama did not provide sufficient safeguards for the freedom of expression for the defendants.

Hustler Magazine Inc.v. Falwell – Initially, the jury ruled on the infliction of Falwell’s emotional distress claim. In the appeal, the court affirmed the case against the petitioners.

Relevant Doctrine:

Plaintiff’s Libel Case

In order to be libelous, the plaintiff’s case must be:

• A statement of fact
• That is published,
• That is of and concerning the plaintiff,
• That is defamatory,
• That is false and
• That causes damage or harm and
• For which the defendant is at fault.

The Dendrite Test

In order for the plaintiff’s anonymous case to be seen as libelous, the plaintiff must:

• Undertake efforts to notify the anonymous party that he or she is the subject of a subpoena or order of disclosure.
• Identify the precise, alleged actionable speech made by each anonymous poster.
• Show prima facie evidence that the case is strong enough to withstand a motion to dismiss.
• If the case is strong enough, the court must then balance the defendant’s First Amendment right to anonymous speech against the strength of the case presented by the plaintiff and the need to identify the defendant for the case to proceed.

Actual malice

• Knowledge of falsity or
• Reckless regard for the truth

”Reckless disregard” Criteria

• Urgency of the story (if there is time to check the information)
• Source reliability (if the source is trustworthy)
• Story believability (if some further examination is necessary)

Limited-Purpose Public Figure

In order for the case to be libelous:

1. A public controversy must exist before the publication of the allegedly libelous statement.

2. The plaintiff must have in some way participated voluntarily in trying to resolve this controversy.

3. The plaintiff’s participation actively sought to influence public opinion regarding the controversy.

Intentional infliction of emotional distress

In plaintiff’s case, in order to win, the defendant:

1. Was extreme and outrageous

2. Involved actual malice, if plaintiff is a public official or public figure, and

3. Caused plaintiff’s severe emotional distress.

Negligent infliction of emotional distress

Plaintiff’s case must prove that:

• The defendant had a duty to use due care
• Negligently breached that duty
• Causing the plaintiff’s severe emotional distress, and
• The breach was the proximate cause of the plaintiff’s emotional distress.

Current Issues/ Controversies

Recently, the U.S. president Donald Trump was sued for libel and won.

The issue revolving around this case is the timing of the lawsuit, followed by the court’s decision to rule it in favor of Mr. Trump. Namely, the results from the case have been made known only ten days before Mr. Trump’s inauguration January 20^th.  Additionally, the 2017 lawsuit Jacobus v. Trump had very similar arguments to a case Chicago Tribune v. Trump, which Trump lost.

So, one of the main questions, aside from the timing, is the determination of the standards in the cases. Naturally, the courts and officials are often times ruling according to their right to discreteness, however, it has its limits. In the Jacobus case, Mr. Trump’s tweets were dismissed as libel, and defined as a part of political and campaign speech, hence being further defined as opinions rather than falsely spread facts. On the other hand, as Mr. Trump’s tweets would often become viral depending on their context, it is hard to say whether or not those were intended to cause harm to the plaintiff in the Jacobus case.

Regardless, there is a high possibility that the results of the case were directly influenced by Mr. Trump’s position as a powerful public figure and his political impact among different officials.

My Questions/ Concerns

1. Do the anonymous cases get the same priority as public figure libel cases?

2. How many successful cases of tracing down the anonymous sources and lawsuits against them are there?

3. Are there a consistent and stable standards among courts for proving emotional distress?

References:

Trager, R., Russomanno, J. & Ross, S.D. (2016), The law of journalism and mass communication. Thousand Oaks, CA: Sage Publications.

Sableman, M. (2017). Trump libel win based on Trump libel loss. Thompson Coburn LLP.