Insult to Injury: Libel, Slander, and Invasions of Privacy
Youm, Kyu Ho
Insult to Injury: Libel, Slander, and Invasions of Privacy, by William K. Jones (University Press of Colorado, 2003) 376 pages, $45
Last March marked the 40th anniversary of New York Times Co. v. Sullivan, the landmark case in which the U.S. Supreme Court held that a public official cannot recover damages for a defamatory falsehood about his official conduct “unless he proves that the statement was made with ‘actual malice’-that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
Thus, the Sullivan rule-for the first time in American constitutional history-subjected defamation (libel and slander) law to First Amendment limitations. And it reflects the Supreme Court’s awareness of the self-censorship that would-be critics, including the news media, are likely to face in engaging in their “robust, uninhibited, and wide-open” debates on the government and public officials.
In Insult to Injun/, William K. Jones, professor emeritus of law at Columbia University, notes that the Sullivan decision was revolutionary because it dramatically altered the law of defamation. Criticism of the government and public officials is now a matter of “constitutional privilege” for Americans.
Jones undertakes to examine defamation and related “expressive transgressions” such as invasion of privacy and intentional infliction of emotional distress. The book is divided into six parts. Its first four relate to constitutional and common law on press freedom and defamation. Part 5 centers on intrusions and public disclosures of embarrassing facts. While Part 6 purportedly concludes the book, its two chapters probe the fact-fiction relations and the Internet law.
Although he discusses the U.S. Supreme Court’s rulings, Jones pays close attention to lower courts’ application of the Supreme Court’s guidelines on the balancing of freedom of expression with individual reputation. This is a refreshing departure from the often-unwarranted fascination of legal scholars with the Supreme Court’s free speech jurisprudence. As Judge A. Richard Posner of the 7th U.S. Circuit Court observed recently, the Supreme Court decisions receive disproportionate attention as compared with those of other appellate courts.
Jones considers the current libel law a “losing game.” And his book is a measured effort on his part to make the unsatisfactory, complex law more manageable. But he is no advocate of the wholesale revision of substantive principles. Instead, he prefers procedural reform. Jones’ three-stage proposal aims to make libel lawsuits “expeditious and largely cost-free” while vindicating plaintiffs’ reputations if their claims are merited.
Retraction or corrections to libel victims are first recommended as a moneysaving means to clear their names. If this pre-litigation approach does not work, Jones suggests that it move to the initial phase of the litigation. The first phase of the libel litigation revolves around the issue of “falsity,” not around whether the defendant was at “fault.” Under Jones’ formula, the second phase of the libel litigation kicks in where falsity is particularly complicated. Here, the plaintiff must prove falsity and the requisite degree of fault (“actual malice” or negligence) as well.
Jones fleshes out the benefits and drawbacks of his proposal from the general public’s perspective as well as from that of plaintiff vs. defendant. He also addresses how his proposed reform could be implemented and what kind of constitutional and practical obstacles it might encounter.
While privacy is separately dealt with in Insult to Injury, “false light” is not included in the book’s “privacy and the press” part. Jones explains: “Any reform applicable to the law of defamation is likely to apply with equal force to the doctrine of false light privacy.”
Jones’ position on public disclosure privacy is similar to what he thinks should be the First Amendment policy justification of the Sullivan doctrine. So he finds the media’s disclosure of private facts legitimate if the news story pertains to abuse of government authority or the need for social reform to correct a public evil.
The book highlights intrusion in the context of paparazzi. Intriguing is its discussion of the possible property right of people to veto or consent as the subject of their photographs. Also examined are various newsgathering issues such as “burning the source,” deception and illegal information.
In his Internet law discussion, Jones cogently points out that the Internet will not change the substance of the law of libel, privacy and intentional infliction of emotional distress. But he acknowledges its significant impact on the law’s application.
Insult to Injury concludes with Jones’ succinct comments on how courts apply the law on expressive torts to five types of expression: deliberate fabrications, negligent misstatements, innocent misinterpretations, true statements of fact and expression of opinion.
To newspaper reporters, editors and other media professionals, Insult to Injun/ is commendably readable. Its prose and writing are exceedingly accessible to laymen. The book is rarely cluttered with the kind of jargon usually associated with law treatises. When various terms of arts are used, they are clearly and concisely defined. Further, readers who look for human interest in law will find it in Insult to Injury. Jones’ lively discussion of court decisions tells many real-life stories behind the black-letter law.
Meanwhile, Insult to Injury will serve journalism and mass communication educators as a useful source book on libel and privacy law. Jones’ notes on case citations and his comments on library and computer accesses to court decisions are a good illustration. The book’s scholarly value is considerable, given its extensive documentation and its most up-to-date and comprehensive bibliography on libel, privacy and related torts.
No doubt Insult to Injury is a welcome addition to the journalism bookshelf. It is long on analysis and short on description. The author’s case discussion is perceptive and confident, based on his informed First Amendment criteria. The book should be an enjoyable read to those who want to rethink and update their understanding of libel and privacy law.
Kyu Ho Youm is the Jonathan Marshall First Amendment Chair and a courtesy professor of law at the University of Oregon.
Copyright Newspaper Research Journal, Department of Journalism, University of Memphis Winter 2005
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