Libel law has been around for many centuries, but in the United States, beginning in the 1960's, it underwent major revisions.In many key cases, the U.S. Supreme Court and other courts attempted to fashion libel law that would support the democratic ideal of freeand open discussion of matters of public importance. As you read chapters four through six of the Pember text, you should keep in mind some of the free expression theories that we discussed in the first two weeks of class.

We have five objectives with regard to libel law:

• Learn the key elements of libel suits
• Understand the relationship of libel law to free expression theory
• Be familiar with the key cases in the evolution of libel law
• Be aware of the misconceptions -- there are many -- regarding U.S. libel law
• Learn some specific features of Utah libel law

Much of Utah's libel law is set forth in the Utah Code. To view the relevant sections on civil libel law go to: http://www.le.state.ut.us/cgi-bin/foliocgi.exe/utcode. Then click on Title 45 ("Newspapers and Radio Broadcasting"). Next, click on Chapter 2 ("Libel"). Compared to civil libel law, criminal libel law tends to be applied less frequently to journalists and other mass communication practitioners in the U.S. However, if you are interested in Utah criminal libel law, go to Title 76 ("Criminal Law")of the Utah Code and view Chapter 9, Sections 501-509.

To win a libel suit, the plaintiff must prove each of the following:

• The libel was published
• The words were about the plaintiff
• The material is defamatory
• The material is false
• The defendant was at fault

These elements are the main parts of the plaintiff's case. If you understand Pember's explanations of them, you should be in good shape. Fault is addressed in the next chapter.

Key Terms:

• SLAPP suits ("Strategic Lawsuits Against Public Participation")
• Scienter ("guilty knowledge")
• Single Mistake Rule
• Trade Libel

Common Belief:Correctly quoting someone constitutes a truthful statement and always protectsyou from liability.
Wrong. As we will see later, some sources are "privileged" and reporting them accurately does insulate you from libel claims. But many other sources are not privileged. As Pember points out, in such cases it is the truth of the libelous charge itself that is at issue, not the accuracy of the quote in the story.

After reading this chapter, you should understand the standards offault that are usually applied in libel suits. These standards began to emerge with the Supreme Court's New York Times Co. v. Sullivan decision in 1964. There are now two, crucial issues in establishing fault in a civil libel case: whether the plaintiff is a "public" or "private" figure, and the circumstances under which a defamatory news story is written. Make sure you understand how these twoissues are related. Also, make sure you understand the cases that established the distinctions for "public" and "private" figures and for "actual malice" and "negligence." Finally, you should understand how the New York Times Co. v. Sullivan decision seemed to follow the Meiklejohnian theory of free expression, as did some subsequent libel decisions.

Key Terms:

• Public Person
• Private Person
• All-purpose public figure
• Limited public figure
• Negligence
• Actual malice
• Reckless disregard for the truth

Common Belief: A person involuntarily becomes a "limited public figure" oncethey become the subject of attention in a public controversy.
Wrong. Media cannot generate a controversy and then label a formerly "private" person ensnared in the controversy as a "limited public figure." In libel cases, courts have generally rejected such "bootstrapping" of a private person into a limited public figure, a change of status that would alter the standards of fault in favor of media defendants.

This chapter explains the conditions under which the publication or broadcast of defamatory material is privileged and thus protected under libel law. When we are finished with this section, you should have a general understanding of what kinds of stories are privileged and of how you must report them so that you will retain privilege as a protection in a libel suit.

Key Terms:

• Summary Judgment
• Civil/Libel Statute of Limitations (one year in Utah)
• Truth (who bears the burden of proving it in a libel suit)
• Absolute Privilege
• Qualified Privilege
• Fair Comment
• Consent
• Right of Reply
• Rhetorical Hyperbole (in libel law)
• Actual Damages
• Punitive Damages

Common Belief: Publication or broadcast has "conditional privilege" as soon as a complaint is filed with a court.
Not quite, at least in Utah. Under Utah law, the complaint must be followed by a warrant being issued or an arrest made. This standard varies from state to state. However, in terms of other (non-court), official proceedings, conditional privilege extends to reportage of offical statements "...whether proceedings are ongoing or completed." Russell v. Thompson Newspapers, Inc., 842 P.2d. 896, Utah 1992.Here is how this particular form of conditional, privileged communication is defined in Title 45, Chapter 2, Section 3, Subsection 4 of the Utah Code:
"By a fair and true report, without malice, of a judicial, legislative, or other public official proceeding, or of anything said in the course thereof, or of a charge or complaint made by any person to a public official, upon which a warrant shall have been issued or an arrest made."
Bear in mind that this is a conditional, not an absolute privilege. Reportage of public proceedings must be "fair and true," otherwise a defamatory publication or broadcast is no longer privileged.

See what you can find in primary sources?
Once again, if you want to look at Utah's libel laws, you can go to http://www.le.state.ut.us/cgi-bin/foilocgi.exe/utcode and click on either Title 45, Chapter 2 (civil libel) or Title 76, Chapter 9, Sections 501-509 (criminal libel).

You might also look at several key defamation rulings by the Utah Supreme Court (no online links available). They are:

• Seegmiller v. KSL, Inc., 626 P.2d 968 (Utah 1981) This case established that: individuals cannot become defamation "public figures" simply because they are guilty of misdemeanors; that the degree of fault in a defamation suit brought by a private individual against media is negligence, not actual malice; that the standard of negligence is whether the defendant acted reasonably in checking out the truth; and that in establishing negligence, journalists will be held to the standards and skills of their profession.
• Van Dyke v. KUTV, 663 P.2d 52 (Utah 1983) The Utah Supreme Court ruled that a director of financial aid at a state university was a "public official" for defamation purposes because he had considerable discretion over federal student aid funds and because KUTV's reports that he sexually harrassed female applicants were related to his official conduct. KUTV's reports enjoyed qualified (conditional) privilege.
• Russell v. Thompson Newspapers, Inc., 842 P.2d 896 (Utah 1992) Utah's fair report statute 45-2-3(4) protects the press's right to report on all official government proceedings, not just criminal proceedings resulting from a warrant. Publication of statements by officials in an investigation of a doctor and nurse were protected under Utah's fair report privilege, even though the official's statements were inaccurate, because the newspaper accurately reported them. Plaintiffs would have to prove actual malice.