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

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

William K. Jones (Boulder: University Press of Colorado, 2003)

In this book, William K. Jones, the Charles Evans Hughes Professor Emeritus of Law,  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, Prof. Jones examines the many subtleties of the law, its interpretation, and its restrictions.  While accommodations struck by the courts are appropriate, Prof. Jones nevertheless argues that serious deficiencies exist in the complex legal edifice that has been erected.  He 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.   Insult to Injury, which also contains material covering the impact of the Internet and related electronic means of expression, is of vital interest to lawyers, law students, and journalists.

In this essay, adapted from his book, Prof. Jones explains why when a claim of injury is premised on speech, both the Constitution and common law must be consulted.  To view the First Amendment in isolation is to invite error.

Free Speech, The Constitution, and the Common Law

Discussions of free speech typically begin and end with the First Amendment. This is an unduly narrow and frequently misleading perspective. The First Amendment, and the Constitution of which it is part, were not written on a blank slate. Underlying both is an extensive body of common law - developed in England over the course of centuries, brought to this continent by English settlers, and embodied in the legal system of every state at the time of the adoption of the Constitution. Now, as then, the First Amendment cannot be understood without looking to the common law matrix with which it interacts. Consider, for example, cases involving breaches of promises of confidentiality.

Dan Cohen was an active Republican associated with Wheelock Whitney's 1982 campaign for  governor of Minnesota. Marlene Johnson was the Democratic-Farmer-Labor candidate for lieutenant governor. Cohen approached reporters for the Minneapolis Star & Tribune and the St. Paul Pioneer Press Dispatch with an offer to provide documents relating to a candidate in the upcoming election - but only if he were given a promise of confidentiality. Reporters from both newspapers promised to keep Cohen's identity a secret, and Cohen turned over court records showing that Johnson had been charged with three counts of unlawful assembly in 1969 and that she had been convicted of petit theft in 1970.

When the newspapers investigated, it turned out that the unlawful assembly charges arose out of Johnson's participation in a civil-rights protest; the charges were eventually dropped. The petit theft conviction was for leaving a store without paying for six dollars worth of sewing materials; the incident occurred at a time when Johnson was emotionally distraught. The conviction was later vacated.

The two newspapers decided to run the stories about Johnson's previous encounters with the law. But they also identified Cohen as the source of the court records, indicated his connection to the Whitney campaign, and reported denials by Whitney campaign officials that they had had any role in the matter. The same day the stories appeared, Cohen was fired by his employer.

Cohen sued the publishers of the Star Tribune and the Pioneer Press. The Minnesota Supreme Court found that a "promissory estoppel" claim was tenable. Cohen's disclosure had been induced by the promise of confidentiality and would not have been forthcoming absent the promise; the newspapers' breach of that promise had cost Cohen his job and diminished his future earning prospects. Even so, the Minnesota Supreme Court denied relief because enforcement of the promise in this case would infringe on the newspapers' First Amendment rights to publish truthful information about a matter of public concern.

In its 1991 decision in Cohen v. Cowles Media Co.,(1) the U. S. Supreme Court reversed. It ruled that this case was controlled by a "line of decision holding that generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news. " For example, the "press may not with impunity break and enter an office or dwelling to gather news.... [T]he Minnesota doctrine of promissory estoppel is a law of general applicability. It does not target or single out the press.... Minnesota law simply requires those making promises to keep them.

Following the ruling in Cohen, breaches of media promises have been held to be actionable under a number of theories.

Jill Ruzicka had been sexually abused by her therapist. She agreed to participate with Glamour magazine in writing an article about the sexual abuse of patients under such circumstances. Glamour promised that Ruzicka would not be identified or identifiable. Ruzicka's claim that Glamour had breached its promise was set for trial on a theory of promissory estoppel.

Kubach, an AIDS victim, agreed to appear on a televised talk show on WMAZ. In violation of its promise, WMAZ failed to disguise Kubach's appearance, and many people recognized him. The breach was held to be actionable as an unjustified invasion of privacy.

"Jane Doe" agreed to provide Univision Television with pictures and information about a botched plastic surgery procedure on condition that her face and voice be disguised. Univision failed to keep its promise and Jane Doe was recognized. The court found a triable issue on public disclosure of private facts and remanded for further consideration Doe's claims for breach of contract and for promissory estoppel.

In each of these cases, the court conceded that the topic addressed was one of legitimate public concern. But identification of the person depicted had been precluded by the media's promise.

Enforcement of promises by the media normally enhances the media's credibility in negotiating with sources and thus facilitates the news-gathering aspects of journalistic expression. Since the media have control over the terms of their promises, they are well positioned to determine whether in particular cases inhibitory promises will advance or restrict their journalistic mission. The courts need not intervene under the aegis of the First Amendment.  

Very different issues are posed if the promises at issue are in agreements to which the media are not parties. This problem is illuminated by an episode involving the CBS television program 60 Minutes. In October 1995, CBS scheduled an interview with Jeffrey Wigand, a former executive of Brown & Williamson Tobacco Company. Wigand was prepared to discuss a number of incidents of questionable conduct by his former employer, including allegations that Brown & Williamson had knowingly added a carcinogenic agent to flavor its cigarettes, that the company had abandoned plans to develop a safer cigarette and had altered documents pertaining to the project, and that one of the company's officers had lied in testimony before a congressional committee. Brown & Williamson warned CBS that if Wigand gave the interview he would breach a confidentiality agreement with the company and that Brown & Williamson would sue CBS for inducing that breach of contract. Fearing substantial liability under Cohen, CBS capitulated and cancelled the program. No legal action was brought against CBS in connection with the episode; the interview was subsequently aired after disclosure had been made in other media.(2)

A promise of confidentiality that serves a legitimate social purpose (such as protection of trade secrets) is normally enforceable against any person who obtains information in violation of the promise and knowingly participates in dissemination of that information. But promises of this character may have to yield in particular cases to an overriding public or private interest such as a serious threat to the health, welfare or safety of others. When an initially innocuous promise is employed to deprive persons of information important to their well-being, the balance shifts in favor of disclosure. The law on this issue is clear.

The Restatement of Torts provides: "Illegal agreements and those in violation of public policy are commonly held to be void and so not contracts at all."  Accordingly, an inducement of the breach of such agreements cannot be a basis for liability. The point is amplified in the Restatement of Unfair Competition: "The existence of a privilege to disclose another's trade likely to be connection with the disclosure of information that is relevant to public health or safety, or to the commission of a crime or tort, or to other matters of substantial public concern."

Viewed from this perspective, the capitulation of CBS was without rational foundation. Some of Wigand's allegations concerned criminal behavior by Brown & Williamson personnel (perjury before a congressional committee) and some concerned behavior that was both unlawful and a threat to public health (the addition of carcinogenic flavoring to cigarettes). Wigand was privileged to make these disclosures to the authorities, to the public directly, or to the media - subject only to liability for deliberate or reckless falsehoods. Similarly, the media were free to further publicize these allegations. Everyone, including Wigand, was free to make disclosures of criminal, unlawful or dangerous conduct.

In both Cohen and CBS, the First Amendment, considered as an isolated icon, gave erroneous signals. In Cohen, the newspapers ignored valid contractual inhibitions on disclosure - a common type of miscalculation on their part. The media have a hard time grasping the simple truth that laws applicable to the general public apply to them as well.  In CBS, the network - not trusting the First Amendment's protective cloak - retreated in the face of a threat that was utterly without merit.

The interaction between the Constitution and the common law is pervasive. At common law a statement is defamatory if it exposes a person to hatred, contempt or ridicule, or causes him to be shunned by his fellows, or tends to injure him in his trade or occupation. In its landmark decision in New York Times Co. v. Sullivan, (3) the Supreme Court ruled that the common law did not afford sufficient protection for speech about public figures and public affairs. Additional safeguards were adopted in that case and in subsequent opinions. But these decisions did not start from scratch. Every measure of additional protection was grounded on common law antecedents, extending them where necessary to provide adequate "breathing room" for speech of public concern.

When, however, speech relates neither to a public figure nor a public issue, it gains no special protection under the First Amendment. But the common law is not indifferent to the need for free expression. To be actionable a defamatory statement must surmount a number of barriers:

1. It must have a core of factual content capable of being proved true or false. Nonactionable "opinions" have included statements that a firm published a newspaper "by paranoids for paranoids"; that an athlete's agent was a "sleaze-bag" who had "slimed his way from the bayou;" and that an author was "Guilty of Misleading the American Public."

2. The statement must identify its target with specificity: an individual or one or more of a small group. Defamation actions will not lie for derogatory comments about gun-owners in general, or about Moslems, or about any other ethnic, religious or occupational group (lawyers are favorite targets). The common law does not recognize a cause of action for "group libel."

3. The statement must be unprivileged. The common law recognizes a wide array of privileges.  Some are absolute (such as statements made in the course of a judicial proceeding); others are qualified (such as those made in job recommendations, credit reports and the like). As its name indicates, absolute privilege affords indefeasible protection. To invoke a qualified privilege, the speaker must show either good faith or due care, depending on the particular privilege. Interestingly, the "constitutional privilege" that is the cornerstone of First Amendment protection under New York Times v. Sullivan is a qualified privilege: the privilege is defeasible if the speaker acts in bad faith in attacking a public figure (e.g., use of deliberate fabrications), or proceeds negligently in impugning the reputation of a private person in the course of a discussion of a public issue.

4. To be actionable, a defamatory statement must be false. Truth is always a defense no matter how devastating the disclosure to the target's reputation. Furthermore, "substantial truth" will suffice. Errors are ignored if they do not exacerbate the "sting" of a defamatory comment. If a union treasurer is accused of embezzling $45,000, the defense of truth is unaffected if the sum happens to be $15,000 or $65,000.

In every instance both common law and constitutional aspects must be considered. In many cases the Constitution is unavailable (as in "purely private libels"); and in other cases the common law may afford greater protection for the speaker (an absolute privilege in lieu of the qualified constitutional privilege).

The plaintiff's theory is not critical. The interaction between Constitution and common law runs through all the cases in which speech is challenged because of its offensive and injurious character. One example is the clash between Jerry Falwell, the outspoken leader of the "Moral Majority," and Larry Flynt, publisher of Hustler magazine.

Hustler carried a fictitious advertisement entitled "Jerry Falwell talks about his first time." It was modeled on a well-known Campari ad and carried the legend "Ad parody - not to be taken seriously." In the spoof Jerry Falwell was depicted as having sex with his mother in an outhouse with his first drink of Campari. The ad concluded with Falwell saying, "I always get sloshed before I go out to the pulpit. You don't think I could lay down all that bullshit sober, do you?"

Falwell sued Hustler on a number of theories. His defamation action aborted when the jury found that the parody could not be understood as describing "actual facts about [Falwell] or actual events in which he participated." The parody was mere "opinion" not actionable under the law of defamation. But Falwell also invoked a claim of intentional infliction of emotional distress. In its 1988 opinion in Hustler Magazine v. Falwell, (4) the Supreme Court rejected this theory as applied to comments about public figures such as Jerry Falwell. Absent the utterance of facts known to be false or made with reckless disregard for the truth, public figures must endure criticism no matter how outrageous or extreme. The ruling has had a particularly devastating impact on female public figures, who can be portrayed in pornographic caricatures or in obviously false pictures combining the public figure's face with models engaged in pornographic acts or poses.

But private persons are not barred from suing for intentional infliction of emotional distress under circumstances paralleling the Hustler case and its pornographic counterparts. But even at common law, a challenge to speech based on emotional distress must meet demanding requirements. First, the speaker must act intentionally or recklessly to inflict harm on another. Second, the speech must be "extreme or outrageous," exceeding the most liberal boundaries of acceptable conduct. Third, the speech must be capable of inflicting "severe emotional distress" upon a reasonable person (unless the speaker acts with knowledge of a victim's peculiar vulnerability). Finally, the speech in fact must inflict severe distress on the complaining party.

Most common law courts are aware of the value of uninhibited discourse. Most emotional distress claims based on words are rejected even in the absence of constitutional protection. Isolated statements are rarely subject to challenge. But patterns of racial epithets or of unwanted sexual advances are likely to succeed if the requisite severe distress can be shown. The same is true of any continuing verbal persecution of a targeted individual.

The message is a simple one, although one frequently ignored. When a claim of injury is premised on speech - whether the theory is defamation, invasion of privacy or intentional infliction of emotional distress - both the Constitution and common law must be consulted (including, of course, any pertinent statutes). To view the First Amendment in isolation is to invite error.
1.  1501 U.S. 663 (1991)
2.  For an illuminating discussion, see Lawrence K. Grossman, CBS, 60 Minutes, and the Unseen Interview, Columbia Journalism Review, Jan.-Feb. 1996, 39.
3.  3376 U.S. 254 (1964)
4.  4485 U.S. 86 (1988)