DEFAMATION, PRIVACY & PUBLICITY SUMMER 2011

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1 SOUTHWESTERN LAW SCHOOL SYLLABUS, COURSE REQUIREMENTS AND GRADING CRITERIA DEFAMATION, PRIVACY & PUBLICITY SUMMER 2011 PROFESSOR DEBORAH DROOZ REQUIRED TEXT: None. The reading materials for this class will be posted on TWEN. In addition, you will receive an outline of the course prepared by Prof. Drooz. CLASS PREPARATION: Students are expected to read the assigned case law and statutes. Class discussion will proceed on the assumption that everyone is passing familiar with these materials. Class participation is appreciated and encouraged. Students who consistently contribute thoughtful ideas, questions or comments to class discussion will benefit the most. ATTENDANCE: Regular and punctual attendance is required. A student may be administratively withdrawn from this course if he or she is absent from more than 20% of the regularly scheduled class sessions. Each student is responsible for keeping track of his or her absences. Attendance will be taken at the start of class through distribution of an attendance sheet. If you are not in your seat at the beginning of class and do not personally initial the sign-in sheet at that time, you are considered absent. The Student Honor Code remains in effect. Students may initial only their own names, not those of other students. Lack of preparation, early departure, or inappropriate behavior may result in a student being marked absent. GRADING CRITERIA AND FINAL EXAMINATION: The grade for the course will be determined by the final examination. The final examination will be two hours long and will be closed book/closed notes. It will consist of three equally weighted parts: (1) a short essay question, (2) a practical application question, and (3) multiple choice questions. The essay and practical application questions will be graded on the basis of the thoroughness and effectiveness of the analysis they contain. The repetition of theories, rules or conclusions will receive little credit. To receive full credit, you must be able to apply the legal principles you have learned to the facts presented by the question. EXAMINATION REVIEW AND PROCEDURE: Grades for this course will be awarded based upon an alphabetical system and will strictly follow Southwestern s grading policies. After a grade is awarded for the course, I am happy to discuss ways to improve a student s performance. In accordance with law school policy, however, assigned grades will not, and cannot, be changed except for mathematical/clerical errors. No grade can be changed, for any reason, ninety days after the final grade has been posted or the examination has been made available to the student in the Registration Office, whichever is later. SPECIAL RULES REGARDING ELECTRONIC DEVICES: Recording of class meetings is permitted only if the professor is first asked and gives permission. Recording a class without

2 permission is prohibited. If a professor grants permission, recording is condition upon your agreement to share any recording with any classmate who makes a reasonable request. STATEMENT OF REASONABLE ACCOMMODATIONS: Students who need accommodations due to disabilities should contact the Dean of Students and Diversity Affairs Office. The office is located in W102 and can be reached at (213) or disability@swlaw.edu. It is the policy and practice of Southwestern Law School to comply with the Americans with Disabilities Act of 1990 as amended by the ADA Amendments Act of 2008, Section 504 of the Rehabilitation Act, and state and local requirements regarding students and applicants with disabilities. Southwestern will make every effort to provide reasonable accommodations for students with medical, attentional, psychological, learning, or temporary disabilities. Accommodations are not provided to give a student an unfair advantage over other students, but simply to allow a student with disabilities to have an equal opportunity to be successful. A student has the responsibility to meet with the Dean of Students and Diversity Affairs Office as early as possible to discuss his or her request for special accommodations. Students who do not seek accommodations need not make their disabilities known. Further information regarding procedures, policies and documentation required is available in the Student Handbook. OFFICE HOURS: By appointment. Professor Drooz can be reached at ddrooz@bhfs.com or during office hours at COURSE OUTLINE The reading topics covered in this class are set forth below. The assigned readings are due before class. Assignments are subject to change or supplementation. I. DEFAMATION 1. Introduction: Origins of defamation law; the Constitutionalization of defamation law; the tension between defamation law and 1 st Amendment interests. 2. Elements of a Cause of Action. 3. Libel v. Slander/ Per se v. Per quod. 4. Publication: (General rules, liability for republication, Wire Service defense, publication on the Internet and the Communications Decency Act, Single Publication Rule. 5. Who May Sue? The Of and Concerning Requirement: General rule, Constitutional component, Of and Concerning analysis, burden of proof, Group defamation, no vicarious defamation, personal tort reputational interests not inheritable/transferable.

3 Special Of and Concerning problems in the context of fictional works. 6. Defamatory Meaning: Ideas/Opinions vs. statements of fact, the pre-milkovich approach, Milkovich and the ostensible elimination of the fact/opinion dichotomy, the Totality of Circumstances test (context, language, plausibility, verifiability), the rule of ambiguity, the role of the court. Mixed Opinion Rule (Restatement (Second) of Torts Sec. 566): Mixed vs. pure opinion. 7. Fault: No strict liability, Negligence vs. Constitutional Malice (as distinguished from common law malice). Standard of fault determined by Plaintiff s status as public/private figure: New York Times v. Sullivan, Public officials, Gertz v. Welch, public figures. Who is a public figure? Limited and unlimited public figures; constitutional rationale for higher fault standard. Proving Constitutional Malice: Subjective standard proved by objective evidence, cumulative approach. Evidence of failure to investigate, failure to check obvious sources, reliance on biased sources, purposeful avoidance of truth, reliance on anonymous tips, acts done during news-gathering and editorial process, deadline pressures, common law malice toward plaintiff - - all relevant and admissible. Constitutional malice and headlines, magazine covers and pull-quotes. 8. Special problems posed by defamation on the Internet. 9. Privileges and Defenses: Absolute vs. qualified privileges. Absolute Privileges: A. The Fair Report Privilege (Reporter s Privilege) and Shield Laws. B. The Judicial Proceedings Privilege. C. The Legislative Proceedings Privilege. D. Statements Made in the Exercise of Official Duty E. Statements Made Pursuant to Legal Requirement. F. Statements Between Husband and Wife. G. Statements Made with the Consent of the Plaintiff. Qualified Privileges: A. Fair Comment.

4 B. The Common Interest Privilege C. Neutral Reportage D. Other Qualified Privileges: statements made to protect one s own legitimate interests (self defense), statements made to retrieve stolen property, statements made in the course of collecting bona fide debt. Defenses: A. Truth and Substantial Truth. B. Libel-proof plaintiff defense C. Incremental Harm Doctrine D. Other defenses. 10. The Anti-SLAPP Statute, CCP : Rational underlying statute, broad applicability, the two-part anti-slapp analysis (defendant s initial burden/plaintiff s burden), procedural effects of anti-slapp motion, strategies for movants and opponents (the use of specified discovery, immediate appealability). 11. Where to Sue? Personal jurisdiction in defamation cases (Calder v. Jones/Keeton v. Hustler Magazine). 12. Damages: Four categories of damages potentially available: (1) general, (2) special, (3) presumed and (4) punitive damages. Constitutional malice requirement for presumed and punitive damages. Retraction Statutes and damages: Applicability of Cal Civil Code Sec. 48(a) (Burnett v. National Enquirer.) II. PRIVACY & PUBLICITY 1. Introduction: Four branches of the tort, 4 th Amendment origins, personal tort, matters common to all branches of the tort. 2. Intrusion Upon Seclusion: Restatement Second of Torts Sec. 652 B, what constitutes an intrusion? What places are considered private? What kinds of information are considered private? The reasonable expectation of privacy standard. What kinds of activities give rise to Intrusion claims? (consideration of wire-tapping and other surreptitious recordings, police ride-alongs, reality shows). Shulman, Bartnicki, Saunders, Wilson.

5 3. Public Disclosure of True But Intimate Private Facts: What constitutes a public disclosure? What constitutes an intimate private fact? The newsworthiness defense. Sipple, Food Lion. 4. False Light Invasion of Privacy: Distinguished from Defamation, protection of plaintiff s sensibilities, New York Times fault standards applicable. What is a highly offensive statement? Under what circumstances does a cause of action arise? 5. Misappropriation of Name, Likeness or Identity: The Right of Publicity. Proprietary right, Rationales underlying protection, tension w/1 st Amendment, distinction between statutory and common law claims, Cal. Civil Code 3344, commercial v. non-commercial uses, the transformative work test. White, Waits, Wendt, Comedy III, Winter. Protection for Dead Celebrities, Cal Civil Code First reading assignment: 1. Cal. Civil Code Sections 44, 45, 45(a) and 46; 2. Restatement (Second) of Torts, Sec (Single Publication Rule); 3. Newcomb v. Adolf Coors, Co., 157 F. 3d 686 (9 th Cir. 1998); 4. Condit v. Dunn, 317 F. Supp. 2d 344 (S. D.N.Y. 2004); 5. Communications Decency Act, 47 U.S.C. 230 (section of Telecommunications Act of 1996); 6. Zeran v. America Online, 129 F.3d 327 (4 th Cir. 1997).