From the 'Lectric Law Library's Stacks
We'll let the sunshine in and shine on us, because today we're happy and tomorrow we'll be even happier. -- Vice President Dan Quayle, 1988
from Arthur Plotnick's "The Elements Of Editing: A Modern Guide For Editors And Journalists" (New York: Macmillan, 1982)
In the section "Libel: A Miniglossary and Guide," he says:
DEFAMATION An act of communication that causes someone to be shamed, ridiculed, held in contempt, or lowered in the estimation of the community, or to lose employment status or earnings or otherwise suffer a damaged reputation. Such defamation is couched in "defamatory language"...
LIBEL Published material... meeting three conditions: (1) the material is *defamatory* either on its face or indirectly; (2) the defamatory statement is about someone who is *identifiable* to one or more persons; and (3) the material must be distributed to someone other than the offended party; i.e., published.
SLANDER Spoken, as opposed to written, defamation....
ACTUAL MALICE Publication of defamatory material "with knowledge that it was false or reckless disregard of whether it was false or not." The term originated in a landmark 1964 Supreme Court case in which "The New York Times", as defendant, prevailed over an Alabama public-affairs commissioner.
The court ruled that *public officials* could not recover damages from defamatory material unless they established that it was published with actual malice. The "Times-Sullivan," or actual-malice, argument has been applied to public figures as well as officials, but a 1974 Supreme Court decision ("Gertz vs. Welch") in effect narrowed the definition of "public figure."
Actual malice should not be confused with "legal" or "common law malice",
which connotes ill will, spite, etc.
from The Rights of Authors, Artists, and Other Creative People: The Basic ACLU Guide to Author and Artist Rights, 2nd edition, Kenneth P. Norwick and Jerry Simon Chasen, 1992, p. 170:
On whether Gertz was a public figure, the Court stated:
That designation may rest on either of two alternatives bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily inducts himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions. 
The Court Continued:
It is preferable to reduce the public figure question to a more meaningful context by looking to the nature and extent of an individual's participation in the particular controversy giving rise to the defamation. 
After applying that analysis, the Court concluded: "In this context it is plain that [Gertz] was not a public figure. He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public's attention in an attempt to influence its outcome." 
The law now recognizes two kinds of public figures: (1) the person who is a "public figure for all purposes an in all contexts" and (2) "more commonly," the person who "voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range is issues."
102. [Gertz v. Robert Welch, Inc.,] 418 U.S. at 351, 
103. Id. at 351-52.
104. Id. at 352.
105. Id. at 351.
Even before Milkovich, a leading authority on libel set forth what may still be the best guidance available:
The determination of what is fact and what is opinion (or "comment") is made on the basis of the effect which the communications may reasonable be expected to have on its recipient. Although difficult to state in abstract terms, as a practical matter, the crucial differences between a statement of fact and opinion depends upon whether ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker's or writer's opinion, or as a statement of existing fact. The opinion may ostensibly be in the form of a factual statement if it is clear from the context that the maker did not intend to assert another objective fact by only his personal comment upon the facts he had stated -- and vice versa. 
31. Sack [libel, Slander, and Related Problems (1980),] at 157; see
Rinaldi v. Holt, Rienhart & Winston, Inc., 42 N.Y.2d 369, cert.
denied, 434 U.S. 969 (1977) were a statement that a judge was
"incompetent," based upon disclosed facts or examples, was held to be
constitutionally protected opinion, while a statement that he was "probably
corrupt" was held to be a factual statement because it strongly suggested to
the ordinary reader undisclosed factual "undertones of conspiracy and
From New York Times Co. v. Sullivan, opinion by Justice Brennan:
"[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."
"[An] erroneous statement is inevitable in free debate [...] if the freedoms of expression are to have the 'breathing space' [that they need to survive]"
"What a state may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. The fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute...."
From Gertz v. Robert Welch, Inc. (1974), opinion by Justice Powell:
"In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such person assume special prominence in the resolution of public questions.
[The Court has] no difficulty in distinguishing among defmation plaintiffs.
The first remedy of any victim of defamation is self-help--using available
opportunities to contradict the lie or correct the error and thereby to
minimize its adverse impact on reputation. Public officials and public
figures usually enjoy significantly greater access to the channels of
effective communication and hence have a more realistic opportunity to
counteract false statements than private individuals normally enjoy. Private
individuals are therefore more vulnerable to injury, and the state interest
in protecting them is correspondingly greater."
Libel, Public Figures, and the Net by Mike Godwin, Internet World, 6/94
If you've ever expressed strong opinions online, the chances are you've been flamed.
And the more fervent the flamer, the more likely it is that he or she has said something defamatory about you--something that, if taken as a factual statement, would tend to injure your reputation or good name.
Which leaves us to wonder: Why hasn't the Net seen more libel lawsuits? As we all know by now, "flaming" (defined in Eric Raymond's HACKER'S DICTIONARY as posting e-mail or public messages "intended to insult and provoke" is an occupational hazard of net.surfers. Yet in spite of the millions of U.S. citizens engaged in online conversations (a population whose growth has accelerated rapidly in recent years), the number of libel lawsuits related to online media remains in the low single digits. In a previous INTERNET WORLD column ("Internet Libel: Is The Provider Responsible?" Nov./Dec. 1993), I suggested that there may be a reason for the lack of defamation suits on the Net. And explaining this phenomenon (or, rather, absence of a phenomenon) points us in the direction of an important aspect of libel -- the definition of "public figure."
You may already know that libel law (in the United States at any rate) distinguishes between "public figures" and private individuals. The reason for this distinction lies in a Supreme Court case that will be three decades old this year: New York Times Co. v. Sullivan. This case, decided by a 9-0 vote of the Court, was the first case to attempt to integrate the common law of libel with the First Amendment.
LIBEL AND THE NEW YORK TIMES
The facts of the case were straightforward: The New York Times had published an advertisement called "Heed Their Rising Voices," which promoted the civil-rights movement in the South, and which solicited donations. L.B. Sullivan, who was serving as elected commissioner of the city of Montgomery, Alabama, brought a civil libel suit against the Times and against certain individuals who were named as sponsors of the advertisement. Unfortunately for the Times, the advertisement contained a number of inaccurate statements of fact about civil-rights-related incidents in Montgomery, Alabama. The inaccuracies were not major ones--for example, the advertisement stated that certain students had been expelled for leading a protest on the steps of the Alabama state capitol; although they had been leaders of that protest, they were in fact expelled for another incident in which they had demanded service at a segregated lunch counter at the county courthouse.
But the traditional law of libel cut little slack for small factual errors. The trial judge instructed the jury that the statements in the ad were libelous on their face, that falsity and "malice" (a legal term of art, usually defined as "ill will" or "spite") on the part of the advertisers and the Times could be presumed, and that general and punitive damages could be awarded against each of the defendants, even in the absence of direct proof of pecuniary loss. This last instruction was particularly handy for local officials who had been involved in quelling civil-rights protests, since it would have been hard for them to prove that their reputations or businesses had been damaged--if anything, their anti-protest efforts *improved* their reputations in their conservative communities. The jury found the defendants liable for half a million dollars each. (Remember that $500,000 in 1964 was "real money.")
As Anthony Lewis has documented in MAKE NO LAW, his excellent book on the Times case, public officials had a strong incentive to resort to libel actions against major Northern newspapers like the Times: the financial pressure created by numerous lawsuits and large judgements would provide newspapers with a major disincentive to do critical reporting of civil- rights issues in the South. Which is why the Times fought the case all the way to the Supreme Court.
In a now-famous opinion by Justice William Brennan, the Court held that libel law, as applied by the courts of Alabama, conflicted with the First Amendment guarantee of freedom of the press. What, then, should the standards of libel law be? Justice Brennan first noted that "we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." He could easily have been describing Usenet in 1994.
Brennan went on to write that "erroneous statement is inevitable in free debate" (reporters and editors are only human, after all), and that therefore libel law must accommodate a certain amount of falsehood "if the freedoms of expression are to have the 'breathing space' " that they need to survive. Since discussion of public officials and their work is central to democratic debate, he reasoned, it follows that we should make special allowances for debate about such officials. A public official can win a libel lawsuit under the First Amendment, wrote Brennan, only if he or she can prove "actual malice" on the part of the defendant, where proof of "actual malice" is defined as proof that the statement was made with "knowledge that it was false or with reckless disregard of whether it was false or not." (In other words, the term "actual malice" is defined quite differently from the older term "malice" mentioned above.)
This rule about public officials was later extended to public figures in general--the Court recognized that sometimes news stories about highly public individuals is central to democracy even when the individual doesn't happen to be a public official. Ross Perot comes to mind as a recent example of such a public figure.
But this extension of the ruling of New York Times Co. v. Sullivan led to new problems--how can you tell whether someone's a public figure or not? Is anyone who's been written about in the press a public figure simply because some newspaper editor thought a story was newsworthy? If that were so, there'd be no distinction between public figures and anyone else--the minute your name appeared in print, you'd be a public figure, and you'd have to prove "actual malice" (and not, say, mere negligence on the part of the reporter) in order to win your case.
And in practical terms, proving "actual malice" can be difficult--the courts are put in the position of inquiring into how much a reporter knew or didn't know at the time of the story, and into the reporter's attitudes at the time of the story. That's why libel lawsuits involving public figures often turn on the evidence found in reporters' notebooks.
DEFINING PUBLIC AND PRIVATE FIGURES
The Supreme Court revisited the public-figure issue a number of times in the decade after the Times case, but didn't come up with a lasting answer to this problem until Gertz v. Robert Welch, Inc. (1974). Justice Powell, writing for the majority, outlined the basic distinction between public and private figures, and justified their different treatment in libel law.
First, the definition of public figure:
"In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such person assume special prominence in the resolution of public questions."
In short, if you're not famous, and if you haven't (in Powell's words) "thrust [yourself] into the vortex" of public debate, you're a private individual. And in most states private individuals bringing a defamation lawsuit face a less rigorous standard of proof than "actual malice."
But Gertz is also an interesting case because it goes into greater depth in explaining why it makes sense to give public figures less protection under libel law than we give private individuals. Powell writes that the Court has "no difficulty in distinguishing among defamation plaintiffs. The first remedy of any victim of defamation is self-help--using available opportunities to contradict the lie or correct the error and thereby to minimize its adverse impact on reputation. Public officials and public figures, he writes, usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater."
Under the First Amendment, in other words, the *preferred* response to a defamation problem is to fix it yourself. But since private individuals normally don't have the kind of access to mass media it takes to correct the record, the First Amendment allows the states to use libel law to level the playing field, making it easier for private individuals to counter the damage that can be done to their reputations by mass media.
These two factors--the definition of "public figure" and the rationale for treating public figures differently--play out in unique ways on the Net. First of all, far more people on Usenet and CompuServe (to take two examples) can be said to "thrust themselves into the vortex" of public debate. If online conferencing means anything, it means the fostering of outspokenness--in effect, every opinionated individual has a microphone and an audience, and regular participants in online discussions may even became generally famous in their "virtual communities." It's almost trivially easy to become a public figure on the Net.
Secondly, the comparative openness of access to the Net means that a lot more people who feel they've had their reputations besmirched have access to self-help. If some bozo writes 100 lines of false statement and innuendo about your sex life or personal habits, you can write 500 lines of point-by- point refutation.
These factors may make libel law increasingly irrelevant, at least as far as online conferencing is concerned. It's worth remembering that relatively few people ever actually sue for libel. For one thing, it's expensive, which means you either have to be rich, or you have to have such a convincing case that you can persuade a lawyer to take your case on a contingency-fee basis. For another, the long, drawn-out process of suing someone for damage to your reputation is almost always wearying and very rarely satisfying. (For an excellent discussion of the practical aspects and disincentives of libel lawsuits in the post-New York Times era, see L.A. Powe's recent book, THE FOURTH ESTATE AND THE CONSTITUTION.)
On the Net, in contrast, calling your defamer to account is comparatively easy--quite probably, if your message was online in some topical area, such as a mailing list or Usenet Newsgroup, so were the corresponding flames. And while few flame wars ever end in a clear win for one side or the other, there's still the deep satisfaction that comes of knowing you're in the right, and that you've responded to every false statement anyone has made about you. It's a "day in court" that you can have over and over again, and it normally comes cheap. (This assumes you're not stealing time from work to answer your critics.)
So, I'm going to stick my neck out and make a prediction: in spite of the fierce invective, strong feelings, and often-defamatory statements one tends to see in net.arguments, I predict that libel lawsuits will never be a significant factor when it comes to heated online discussions. It's far easier to hit the "reply" key.
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