**This is the second article in our mini-series on the history of US defamation law. If you missed the first part, click here.**
In the 1970s, US defamation law continued to mold itself to changing societal norms. And today, because of the Internet, libel and defamation legislation is, once again, taking center legal-stage.
The Supreme Court Clears up the Difference between an Opinion and Defamation
Elmer Gertz was a well-respected, civil rights attorney. Famous, too. He’d represented Nathan Loeb (of Leopold and Loeb fame) and also played a part in Henry Miller’s Tropic of Cancer obscenity trial.
In 1968, the notoriously radical John Birch Society publicly labeled Gertz a communist sympathizer. As one would expect, attorney Gertz filed a libel suit. And after 14 years of trials and appeals, Elmer prevailed. Moreover, the decision in his case set case law precedence.
In Gertz, the Supreme Court established:
“Under the First Amendment, there is no such thing as a false idea.”
In other words, you can’t cry defamation if the offending statements are a matter of opinion.
In the end, Gertz was awarded $500,000 and promptly boarded a cruise around the world with his wife. At nearly every port, Mr. and Mrs. Gertz sent “wish you were here” postcards to the John Birch offices.
Hustler Magazine, Inc. v. Falwell
If you’ve never seen The People vs. Larry Flynt, queue it on Netflix. A riveting film, it details one of the most important cases in the history of US defamation law — the First Amendment feud between Hustler Magazine founder Larry Flynt and televangelist Jerry Falwell.
A cartoon anchored the Falwell v. Flynt turned Flynt v. Falwell legal saga: A depiction of Falwell, his mother, and an outhouse — the parody appeared in Hustler Magazine. Outraged, Falwell sued the publication for defamation — and won. An appeals court, however, overturned the decision, and then the Supreme Court of the United States upheld that:
- Public figures, who sue for defamation, cannot collect damages for emotional distress. (This is not the same for privacy citizens); and
- The cartoon in question was not libelous because most people would recognize it as a parody and therefore not reasonably believable.
Attempting to Tame the Internet
The defamation status quo prevailed for decades; then, like the Borg, the Internet crashed into our lives. When America first “plugged in,” the so-called “Information Superhighway” was something akin to the Wild West. As zombo.com reminded us: “online, the infinite was possible” and rules were few and far between.
One of the first cases to tackle the emerging legal arena of Internet defamation law was Stratton Oakmont, Inc. v. Prodigy Services Co. The plaintiffs, Stratton Oakmont (Yes! It is the same Stratton Oakmont depicted in The Wolf of Wall Street), went after Prodigy over smack-talk on Prodigy’s financial forum. Stratton Oakmont lawyers argued that under common law defamation standards, Prodigy should be considered the publisher of the comments and therefore held liable.
It’s hard to believe today — now that we know what we know about Stratton Oakmont — but in 1995, Prodigy was found guilty of defamation.
The case birthed a backlash; free speech advocates and Internet pioneers rightly argued that the Stratton v. Prodigy ruling couldn’t stand. If it did, the Internet would not be able to grow into a bustling hub of international e-commerce.
Ultimately, politicians agreed with the backlash, and the case was effectively nullified by the 1996 Communications Decency Act, which essentially absolves search engines and webmasters of defamation liability over user comments.
What Will Be The Next Chapter In The History of US Defamation Law?
As we continue to push technological fronteirs, expect to see the nation’s libel and defamation laws change — right alongside the Web.
For more information on Internet defamation, go here.
To read the first “History of US Defamation” blog post, go here.
In This Article:
The history of U.S. defamation law is just as entertaining as a troll’s exasperated threat to “sue you for slander because you called them a ‘%^$#@!-hat'” on Twitter.
Andrew Hamilton Schooled Bill Cosby on What Constitutes Libel and Defamation
Between 1732 and 1736, Sir William Cosby (yes, his name was Bill Cosby) was the British head-honcho of New York. Billy was not well liked; people thought he rigged the 1734 elections and siphoned tax dollars for personal use.
In 1733, John Peter Zenger, Editor of the New York Weekly Journal, angered Cosby by printing an anonymous opinion pieces criticizing the Governor. In response, Bill demanded permission to burn copies of Zenger’s New York Weekly (because that’s how they rolled back then), but the Assembly refused Cosby’s request.
No matter, Cosby was a fan of totalitarian oppression, so he just convinced one of his cronies, Chief Justice James Delancey, to disbar Zenger’s attorneys. Then, Cosby threw Zenger in prison. Done and done, right!?
Unfortunately for ole’ Cosby, not quite.
Benjamin Franklin heard about the situation; he wasn’t impressed. So, Ben convinced his buddy, Andrew Hamilton, to represent Pete Zenger.
In those days, you were guilty until proven innocent. Moreover, to win, Hamilton had to convince the jury that the defamation laws needed changing. So, the fact that he won, was, and still is, impressive.
How did Hamilton win this seminal case in the history of US defamation law? He argued that truth should be an absolute defense against libel charges — a judicial principle that still applies today.
History of US Defamation Law 1960’s: The Supreme Court Makes it Really, Really Difficult to Prove Defamation or Libel
In the 1960s, at the height of the civil rights era, many northern papers shied away from printing articles about the situation in the south. Why? Because, at the time, libel and defamation laws were written in such a way that public figures could easily sue a paper for libel — and win — despite a lack of evidence. In a short period of time, southern groups and leaders had managed to file over $300-million worth of lawsuits against news outlets they claimed were printing libelous and defamatory statements.
The New York Times decided to tackle the issue head-on in the groundbreaking 1964 trial, New York Times Co. v. Sullivan. The legal details of the case are complex, but the most important thing to remember about the case is that it drastically altered federal slander and libel laws.
The Supreme Court of the United States ruled that plaintiffs in a defamation case must prove that either:
- the offender knew that his or her statement was false, or
- the defendant didn’t engage in proper due diligence when vetting the information before publication or broadcast.
In the 1970s, defamation jurisprudence took center legal stage. At times, it was like a three-ring circus. Jerry Falwell sued Hustler Magazine for libel over a cartoon, and the advent of the Internet brought with it an entirely new set of legal uncertainties that are still being hashed out in the court system today.