When is humor outrageous enough to appear unreasonable? And how does that affect a statement’s defamatory nature? In this post we’ll look into these questions, the nature of defamatory opinions, and a few cases that demonstrate recent changes in media and defamation law the Digital Age.
1988 – Defamation Via Parody (Hustler Magazine v. Falwell)
In Hustler Magazine v. Falwell, the Supreme Court ruled that a parody advertisement claiming Jerry Falwell had engaged in an incestuous act with his mother in an outhouse, while false (and deeply disturbing), could not allow Falwell to win damages for emotional distress. Falwell was a public figure at the time and the statement was so obviously ridiculous that it was clearly not true (phew). The ad featured a headshot photo of Falwell along with a fake interview disguised as a Campari ad, with a small parody disclaimer at the bottom. The Court held that the emotional distress inflicted on Falwell by the ad was not a sufficient reason to deny the First Amendment protection to speech that is critical of public officials and public figures. The facts of this case were later incorporated into a major motion picture, The People vs. Larry Flynt.
1990 – Defamation Through Opinion (Milkovich v. Lorain)
The U.S. Supreme Court determined in Milkovich v. Lorain Journal that there is no wholesale exemption from defamation claims for all statements alleged to be opinions. The court wrote: “We are not persuaded that, in addition to these protections, an additional separate constitutional privilege for ‘opinion’ is required to ensure the freedom of expression guaranteed by the First Amendment.” So, if you know your defamatory opinion is false or absolutely baseless, it might be best to keep it to yourself. Look out social media warriors!
1995 – Moving into the Digital Age: Liability of Online Service Providers (Stratton Oakmont, Inc. v. Prodigy Services Co.)
The year was 1995: Enter “Chat Rooms.” Remember them? The New York Supreme Court held that online service providers could be liable for the speech of their users after a user of an online forum created a post claiming that a Long Island securities investment banking firm (Stratton Oakmont, subject of Martin Scorsese’s The Wolf of Wall Street) and its president had committed a number of criminal and fraudulent act.
In response, Congress enacted legislation to specifically reverse this holding, stating “no provider or user of an interactive computer shall be treated as a publisher or speaker of any information provided by another information content provider.” This act essentially gave immunity to forums for statements provided by third parties.
2010 – No More Libel Tourism (S.P.E.E.C.H. Act)
What is libel tourism? Basically, it is a form of “shopping around” for the most favorable court in which to bring a libel suit. In 2010, President Obama responded to this trend and signed the Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act. The SPEECH Act made foreign libel judgments unenforceable in U.S. courts unless the foreign law complied with First Amendment standards or the defendant would have been found liable if their case had been heard under U.S. law. The act was primarily inspired by the legal battle over “Funding Evil,” when Saudi businessmen alleged to be terror financiers sued the author for libel in London.
2014 – Bloggers Are Equal To Reporters (Obsidian Finance Group v. Crustal Cox)
In 2014, the 9th Circuit Court of Appeals ruled that liability for a defamatory blog post involving a matter of public concern could not be imposed without proof of fault and actual damages. This ruling essentially lets bloggers use the First Amendment defense to the same extent that professional journalists can; they can write about private citizens concerning public matters and will only be successfully sued if the plaintiff can prove the blogger negligently posted the statement.
Thanks for taking this brief tour with us. We’ll be following this timeline series with more in-depth pieces detailing the specific factors that play a role in defamation law today.
Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation and privacy.