* Professor of Law, John Marshall Law School. B.A., Loyola University of Chicago; J.D., Harvard Law School; Fulbright Scholar (Comparative Law), Christian-Albrecht University, Kiel, Germany; LL.M. (Intellectual Property), John Marshall Law School; co-author of Illinois Tort Law (3d ed. 2001); Professor-Reporter for the Illinois Judicial Conference. Professor Polelle gratefully acknowledges the research and editing assistance of Martin Osinski, Michelle Litavecz, and Margaret McGrath. He also appreciates the encouragement and assistance of Theodore W. Grippo, AIDA Chairperson, and Bill Dal Cerro, author of “Research Image Project,” Italic Institute of America.
1 See generally Catharine A. MacKinnon, Only Words (1993).
2 Id. at 51–52. MacKinnon also makes the point that “does any Black man doubt, upon encountering ‘Nigger Die’ at work, that it means him?” Id. at 52. Justice Frankfurter recognized that a legislature could rationally determine that individuals are socially affected for better or worse by the reputation of the racial group to which they belong. Beauharnais v. Illinois, 343 U.S. 250, 263 (1952).
3 Complaint for Declaratory Judgment � 1, AIDA v. Time Warner Entm’t Co., No. 01CH05819 (Cir. Ct. Cook County Ill. filed Apr. 5, 2001).
4 Ill. Const. art. 1, � 20. Victor Arrigo, the sponsor of Article I, Section 20, indicated his motivation for sponsorship in the legislative history:
As an American of Italian descent, I can speak with authority on this carcinoma of the soul that I became acquainted with at the age of twelve when I was stopped by a policeman on my way home from a public library branch with two books under my arm. The greeting was, “Hey, Wop, where did you swipe those books?” This was immediately followed by a kick in the backside and the parting remark, “Don’t tell me you Dagos are now learning to read,” when I showed him the library card and tried to prove my innocence of any wrongdoing in my possession of the books. The trauma of that experience and the feeling of degradation that followed has been a deeply engrained memory that has remained with me since.
Sixth Ill. Const. Convention, Verbatim Transcripts, No. 65, at 1637–38 (1970), reprinted in Record of Proceedings, Sixth Illinois Constitutional Convention, Verbatim Transcripts 1637–38 (John W. Lewis 1972).
5 343 U.S. at 251–52, 266, 267.
6 Bruce W. Sanford, Libel and Privacy � 4.12, at 129–30 (2d ed. 1999).
7 See Restatement (Second) of Torts � 571 (1977). Claim of “alleged mob ties” was enough for defamation. Bufalino v. Associated Press, 692 F.2d 266, 269 (2d Cir. 1982); see also Clemente v. Espinosa, 749 F. Supp. 672, 677 (E.D. Pa. 1990). However, statement that plaintiff had “mob connections” and would “order a hit” on defendant does not impute that plaintiff in fact committed any crimes for slander per se, even though the words may be obviously defamatory. Biondi v. Nassimos, 692 A.2d 103, 107–08 (N.J. Super. Ct. App. Div. 1997) (“It is not uncommon for the mass media to report that an entertainer or other celebrity has ‘mob ties’ or ‘mob connections.’”). In states equating libel per se to the slander per se categories, an imputation of a crime likewise does not require proof of special damage. See, e.g., Bryson v. News America Publ’ns, Inc., 672 N.E. 2d 1207, 1214–15 (Ill. 1996); Kevorkian v. AMA, 602 N.W.2d 233, 237 (Mich. Ct. App. 1999).
8 See Complaint � 13, AIDA (No. 01CH05819).
9 See id. � 13(d).
10 Id. �� 2, 4.
11 AOL Time Warner Inc., SEC Form 10-K 17, F-27, F-110, at http://www. sec.gov/Archives/edgar/data/1105705/000095013002001845/d10k405.htm.
12 The Sopranos has received four Emmy Awards, a George Foster Peabody Award, three Screen Actors Guild Awards, and three Golden Globe Awards. The show is the only television show to become part of the Museum of Modern Art’s permanent video collection. The Washington Post hailed the show as “one of the greatest pieces of auteurist television ever produced” and the New York Times called it “the greatest work of American popular culture in the past quarter century.” See Motion to Dismiss at 3, 4, AIDA v. Time Warner Entm’t Co., No. 01CH05819 (Cir. Ct. Cook County Ill. filed May 21, 2001).
13 David M. Chalmers, Hooded Americanism: The History of the Ku Klux Klan 6, 25–26 (3d ed. 1987).
14 David Robb, Showcase: Directors Drop Griffith Award, Chi. Sun-Times, Dec. 16, 1999, at 59.
15 AIDA v. Time Warner Entm’t Co., No. 01CH5819, slip op. at 4, 6 (Cir. Ct. Cook County Ill. Sept. 19, 2001).
16 AIDA v. Time Warner Entm’t Co., 772 N.E.2d 953, 960 (Ill. App. Ct. 2002), appeal denied by 202 Ill. 2d 597 (Ill. 2002).
17 The Blood Libel Legend: A Casebook in Anti-Semitic Folklore 233 (Alan Dundes ed., 1991). Even now the blood libel persists. The editor of a Saudi newspaper apologized for several articles that described Jews as “vampires who bake cookies with the blood of non-Jews” and a people admonished by the Torah to eat “pastries mixed with human blood.” Donna Abu-Nasr, Saudi Editor Retracts Anti-Semitic Articles, Chi. Trib., Mar. 21, 2002, � 1, at 10.
18 Binjamin W. Segel, A Lie and a Libel: The History of the Protocols of the Elders of Zion 25–27 (Richard S. Levy ed. & trans., 1995).
19 See Der Ewige Jude [The Eternal Jew] (UFA 1940). Another film depicted a grasping Jewish financier who is publicly executed. See Jud Suss [Suss the Jew] (1940). A defamation-by-association film of Jews being deloused was titled, Juden, Lause, Wanzen [Jews, Lice, Bugs]. See Juden, Lause, Wanzen [Jews, Lice, Bugs] (1941). The use of such propaganda extended to the Balkans, where a film portrayed a Jew who raped his servant and caused her death from an abortion and Jews who sold Croatian girls into Mideast slavery. See Kako Se Stvaraju Izlobe [How to Make an Exhibition] (Havatsk Slikopsis 1942).
20 Adolph Hitler, Mein Kampf 231–32 (Ralph Mannheim trans., Houghton Mifflin 1999) (1925).
21 See id. at 231. Although Hitler projects use of the “big lie” onto the Jews, he clearly endorses it as a “sound principle.” Id.
22 Id. at 231–32. The judicial distrust of group defamation is based on the assumption that the larger the group, the less likely a third person would rationally understand the defamation to refer to a particular person. But one court has noted that this psychological assumption, which isolates an individual from the group with which he or she is identified, has been challenged on the basis that when a third person thinks irrationally by harboring pre-existing prejudice against a group, the subsequent group defamation reinforces the prejudice, regardless of group size. Brady v. Ottaway Newspapers, Inc., 445 N.Y.S.2d 786, 788 n.2 (N.Y. App. Div. 1981).
23 D’Arcy Masius Benton & Bowles, Inc., Fears & Fantasies of the American Consumer: An American Consumer Report 34 (1986) (reporting the next highest category—being with friends—at 61%). The study was performed by mail, using the Consumer Panel of the advertising firm D’Arcy Masius Benton & Bowles, Inc. The panel consisted of 4,000 households, divided into four separate panels of 1000 households each, with each panel representative of U.S. households. Id. at 4.
24 Id. at 35 (reporting the next highest category—just relaxing—at 60%). Watching television is the most popular way to spend an evening—three times more popular than spending time with friends—according to a more recent television survey. Power in Your Hand, Economist, Apr. 13, 2002, at 3.
25 William F. Baker & George Dessart, Down the Tube: An Inside Account of the Failure of American Television, at xiv (1998).
26 See Michael Parenti, Inventing Reality 10–13 (1986) (contending that the news media distort public perceptions of race, class, and gender).
27 Thomas David Jones, Human Rights: Group Defamation, Freedom of Expression and the Law of Nations 38–40, 42 (1998) (“Group defamation is illegal conduct at international law, and it is punishable as a crime under the laws of the majority of nations in the world.”).
28 Id. at 39. The United States is one of 165 signatories to the Convention. See generally United Nations, Office of the United Nations High Commissioner for Human Rights, Status of Ratifications of the Principal International Human Rights Treaties (2002), at http://www.unhchr.ch/report.pdf.
29 Under the Shadow of Weimar: Democracy, Law and Racial Incitement in Six Countries 87 (Louis Greenspan & Cyril Levitt eds., 1993).
30 Id. at 48–49. A 1990 reform makes it a criminal offense to deny the Nazi genocide of the Jews. Id. at 56. A federal court has held that the First Amendment bars enforcement in the United States of a French court order seeking to compel Yahoo! to either prevent its French subscribers from viewing Nazi memorabilia or pay a fine of $13,000 per day. Yahoo!, Inc. v. La Ligue Contre Le Racisme et L’Antisemetisme, 169 F. Supp. 2d 1181, 1184–85, 1193 (N.D. Cal. 2001).
31 Thomas David Jones, Human Rights: Freedom of Expression and Group Defamation Under British, Canadian, Indian, Nigerian and United States Law—-A Comparative Analysis, 18 Suffolk Transnat’l L. Rev. 427, 428–31 (1995).
32 [1990] S.C.R. 697, 713, 782 (Can.); see MacKinnon, supra note 1, at 99. (“We argued that group defamation is a verbal form inequality takes, that just as white supremacy promotes inequality on the basis of race, color, and sometimes ethnic or national origin, anti-Semitism promotes the inequality of Jews on the basis of religion and ethnicity.”). See generally Alan Borovy et al., James McCormick Mitchell Lecture, Discussion on Language as Violence v. Freedom of Expression: Canadian and American Perspectives on Group Defamation (Nov. 4, 1998), in 37 Buff. L. Rev. 337 (1988/1989) (comparing Canadian and United States perspectives on group defamation).
33 Joshua Aronson, et al. When White Men Can’t Do Math: Necessary and Sufficient Factors in Stereotype Threat, 35 J. Experimental Soc. Psychol. 29, 36–37, 39 (1999).
34 Id. at 39–40.
35 Claude M. Steele, A Threat in the Air: How Stereotypes Shape Intellectual Identity and Performance, 52 Am. Psychol. 613, 618 (1997).
36 438 U.S. 265, 292 n.32 (1978).
37 United States v. Biaggi, 673 F. Supp. 96, 101 (E.D.N.Y. 1987) (stating that Italian Americans constitute a “cognizable group” for Batson challenges), aff’d, 853 F.2d 89 (2d Cir. 1988).
38 Richard Gambino, Vendetta: The True Story of the Largest Lynching in U.S. History, at ix (2d ed, Guernica 2000).
39 Pub. L. No. 106–451, � 2, 114 Stat. 1947 (2000). For further information, Stephen Fox provides a rare and excellent account of the wartime restrictions on Italian-Americans and on the effect of those restrictions. See Stephen Fox, The Unknown Internment: An Oral History of the Relocation of Italian Americans during World War II, at xv (1990) (noting that accounts of wartime relocation on the West Coast during World War II, which have focused completely on the Japanese, provide an incomplete story because they ignore the effects of relocation on Italians and Germans).
40 Wartime Violation of Italian American Civil Liberties Act � 2.
41 See id. �� 2, 3. The effect of World War II and the restrictive measures taken against Italian-Americans induced a sense of shame in Italian-Americans about their heritage. Lawrence Di Stasi, How World War II Iced Italian American Culture, in Una Storia Segreta: The Secret History of Italian American Evacuation and Internment During World War II, at 306 (Lawrence Di Stasi ed., 2001).
42 Scelsa v. City Univ. of N.Y., 806 F. Supp. 1126, 1128 (S.D.N.Y. 1992).
43 Id. at 1131.
44 See St. Francis Coll. v. Al-Khazraji, 481 U.S. 604, 611 (1987) (stating that encyclopedias in the nineteenth century defined race in terms of ethnic groups); see also Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 627 (1987) (holding that Jews can state a � 1982 claim of racial discrimination because, at the time the statute was passed, Jews were one of the groups considered to be a distinct race). Italian-Americans were specifically allowed to sue under 42 U.S.C. � 1981. Bisciglia v. Kenosha Unified Sch. Dist. No. 1, 45 F.3d 223, 230 (7th Cir. 1995); DeSalle v. Key Bank of S. Me., 685 F. Supp. 282, 284–85 (D. Me. 1988). It appears that a � 1983 claim for violation of equal protection can also be raised by an Italian-American if the evidence is sufficient. See Benigni v. City of Hemet, 879 F.2d 473, 477–78 (9th Cir. 1988) (finding that plaintiff had only presented thin evidence of discrimination based on his Italian ancestry).
45 Enemy of the State (Touchstone Pictures 1998). “I have argued that the burden placed on the Italian immigrants was, in fact, an aspect of American racism, naturalizing (as based on a brute fact of race) the structural injustice of abridging basic human rights on grounds of dehumanizing stereotypes that arose from that abridgement.” David A. J. Richards, Italian American: The Racializing of an Ethnic Idenitity 199 (1999).
46 See, e.g., Celeste Garrett, Toyota to Spend $8 billion to Increase its Diversity, Chi. Trib., Aug. 10, 2001, � 3, at 2 (describing how Toyota pulled an offensive advertisement, showing a black man smiling with a gold front tooth highlighted with the shape of Toyota’s RAV 4 sports utility vehicle). In a Title VII case, however, no valid claim existed, even though the Italian-American plaintiff produced affidavits that union managers had stated, “all the Italians were going to be fired” and “all the Italians were nothing but mobsters and gangsters.” Indurante v. Local 705, Int’l Bhd. of Teamsters, 160 F.3d 364, 366 (7th Cir. 1998). In her dissent, Judge Rovner stated,
Indeed, I am aware of no case from this circuit suggesting that a remark akin to “We’re going to fire all of the Blacks,” or “We’re not going to hire any women” would not amount to direct evidence of discrimination solely because it does not single out the plaintiff for individual mention.
Id. at 369 n.1 (Rovner, J., dissenting).
47 Mafia membership peaked around five thousand in the 1960s. By 1999 it had dropped to about 1,150, with 750 members in New York. The national “commission” of mob bosses that resolved mob disputes has not met in twenty years. Rick Hampson, Death of the Mob, USA Today, July 28, 1999, at 1A. Even if all five thousand criminals in the heyday of organized crime were hypothetically all Italian-American, that would have constituted only .0025% of the estimated 20 million Italian-Americans in the United States. H.R. Con. Res. 141, 107th Cong. (2001) at 2, available at http://thomas.loc.gov/cgi-bin/query/ z?c107:H.CON.RES.141:.
48 See Richards, supra note 45, at 189–90, 193–95.
49 See id. at 5–8; Di Stasi, supra note 41, at 306–09.
50 Zogby Int’l, Teen Survey: Testing the Influence of Media on Racial Stereotypes 16 (2000).
51 Id. The criminal stereotype of Italian-Americans increases to 44.2% if the 9.9% of those who associate Italian-Americans with “gang members” is added to the “crime boss” category. See id. The report states, “[T]he National Italian American Federation is then, on the right track in trying to lobby for a better image of Italians through protests and in school curriculum, although such teachings need to involve families.” Id. at 5.
52 Id. at 4–5.
53 See Am. Acad. of Pediatrics et al., Joint Statement on the Impact of Entertainment Violence on Children, Congressional Public Health Summit �� 2, 4 (July 26, 2000), at http://www.aap.org/advocacy/releases/jstmtevc.htm; see also Am. Amusement Mach. Assoc. v. Kendrick, 115 F. Supp. 2d 943, 987 Exhibit B (S.D. Ind. 2000).
54 Jefferey G. Johnson et al., Television Viewing and Aggressive Behavior During Adolescence and Adulthood, 295 Sci. 2468, 2468 (2002) (assessment over a seventeen-year period with a community sample of 707 individuals); see also Craig A. Anderson & Brad J. Bushman, The Effects of Media Violence on Society, 295 Sci. 2377, 2377 (2002) (“Despite the consensus among experts, lay people do not seem to be getting the message from the popular press that media violence contributes to a more violent society.”).
55 Response Analysis Corp., Americans of Italian Descent: A Study of Public Images, Beliefs, and Misperceptions 5 (Jan. 1991). (“Notice that about three out of every four adults make the connection between Italian-Americans and organized crime. None of the other groups are associated with this item by more than about one out of four adults.”).
56 H.R. Con. Res. 141, 107th Cong. (2001) at 1, available at http://thomas.loc.gov/cgi-bin/query/z?c107:H.CON.RES.141:.
57 See generally Italic Stud. Inst., Image Res. Project, Italian Culture on Film (1928–1999) (1999).
58 Id. at statement of purpose.
59 Id. at pie chart labeled “Individual Categories.”
60 Id. at pie chart labeled “Influence of ‘The Godfather.’”
61 Id. at pie chart labeled “Mob Movies.” The increasing tendency of Hollywood to fictionalize characters and events and the rise of litigation claiming that these fictionalized movies distort history and damage reputations is discussed in Richard Willing, Can Hollywood handle the truth?, USA Today, Jan. 8, 2002, at 1A.
62 Restatement (Second) of Torts � 559 (1977); see Murdock v. Penn., 319 U.S. 105, 115 (1943) (stating freedom of speech has a preferred position); Chaplinksy v. N.H., 315 U.S. 568, 571–72 (1942) (stating that lewd, obscene, profane, libelous, insulting, or fighting words are not protected speech); John E. Nowak & Ronald D. Rotunda, Constitutional Law � 16.7 (4th ed. 1991).
63 250 U.S. 616, 630 (1919) (Holmes, J., dissenting); see also Thomas v. Collins, 323 U.S. 516, 537 (1945) (“‘Free trade in ideas’ means free trade in the opportunity to persuade to action, not merely to describe facts.”); Lee C. Bollinger, The Tolerant Society 18 (1986) (“[W]ithin the legal community today, the Abrams dissent of Holmes stands as one of the central organizing pronouncements for our contemporary vision of free speech.”).
64 Thomas I. Emerson, The System of Freedom of Expression 627 (Vintage Books 1971) (1970); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 390 (1974) (White, J., dissenting) (“The communications industry has increasingly become concentrated in a few powerful hands operating very lucrative businesses reaching across the Nation and into almost every home.”). In a case of non-actionable group defamation, the Florida District Court of Appeal nonetheless criticized the commercial motivations of television news. See Thomas v. Jacksonville Television, Inc., 699 So. 2d 800, 805–06 (Fla. Dist. Ct. App. 1997).
65 Emerson, supra note 64, at 627–28.
66 Baker & Dessart, supra note 25, at 27, 138.
67 Ben H. Bagdikian, The Media Monopoly, at x (6th ed. 2000).
68 Id.
In 1983, 50 companies controlled more than half of the media in the United States. On paper at least, a mere 50 companies controlling most of American media would seem to be a cause for concern. But today, just 20 years later, the number has dropped to six. Six gigantic corporations control the vast majority of television, cable, radio, newspapers, magazines and the most popular Internet sites--and consequently, the majority of information, public discourse, and even artistic expression--in the United States. We have on our hands what one might very well call a “merger epidemic” in the media industry. And like any other epidemic, this is an unhealthy one.
Hearing on Media Concentration: Before the Senate Committee on Commerce, Science & Transportation, 107th Cong. � 4, 5 (2001) (statement of William Baker, President & CEO, Thirteen/WNET, New York), 2001 WL 808314 (citations omitted). Twenty years ago, thousands of family-operated stations dominated cable television. Yochi J. Dreazon et al., Why the Sudden Rise in the Urge to Merge and Form Oligopolies?, Wall St. J., Feb. 25, 2002, at A1. On November 18, 2002, a deal made between Comcast and AT&T broadband left three companies in control of 65% of the cable market. Comcast Prospectus S-1, at http://www. sec.gov/Archives/edgar/data/1166691/000104746903000769/a2100239z424b2.htm. By comparison, what might happen in the United States if present trends continue is illustrated in Italy, where one company, Mediaset, controls about half of the television market. Tom Hundley, Italian leader eyes media in Germany, Chi. Trib., Apr. 1, 2002, � 1, at 4.
69 280 F.3d 1027, 1051 (D.C. Cir. 2002). See generally AIDA v. Time Warner Entm’t Co., 772 N.E.2d 953 (Ill. App. Ct. 2002).
70 Fox Television Stations, Inc., 280 F.3d at 1035 (additional rule prohibiting any entity from controlling TV stations if control resulted in an audience reach beyond 35% of the TV households in the United States remanded to FCC for further consideration). The former radio-television cross ownership rule generally prohibited joint ownership of a radio and television station in the same local market. The new rule permits more joint ownership of radio and television stations in the same market than the former “one-to-a-market” rule. In re Review of the Commission’s Regulations Governing Television Broadcasting, Television Satellite Stations Review of Policy and Rules, Report & Order, 14 F.C.C.R. 12,903, 12,947 (1999). Meanwhile, the cross-ownership limitations on a newspaper owning a radio or television station remain in place for the time being. In re Amendment of Sections 73.34, 73.240, & 73.636 of the Commission’s Rules Relating to Multiple Ownership of Standard, FM, and Television Broadcasting Stations, Second Report & Order, Docket No.18110, 50 F.C.C. 2d 1046, 1075 (1975). However, the FCC is considering the revision of even this limitation. See generally In re Cross Ownership of Broadcast Stations and Newspapers, 66 Fed. Reg. 50991 (proposed Oct. 5, 2001) (to be codified at 47 C.F.R. pt. 73).
71 Press Release, FCC, FCC Eliminates the Major Network/Emerging Network Merger Prohibition from Dual Network Rule, 2001 FCC LEXIS 2165, at *1 (Apr. 19, 2001).
72 In re Kentuckiana Broad., Inc. & Independence Television Co., 16 F.C.C.R. 6974, 6974 n.1 (2001).
73 See 395 U.S. 367, 380 (1969).
74 Id.
75 Telecomm. Research & Action Ctr. v. F.C.C., 801 F.2d 501, 505 (D.C. Cir. 1986). Based on an extensive hearing, the FCC concluded that the fairness doctrine did not serve the public interest, but the agency did not definitively resolve the doctrine’s constitutionality and continued to enforce the agency doctrine because of uncertainty as to whether the doctrine had been codified by federal statute. In re Inquiry into Section 73.190 of the Commission’s Rules and Regulations Concerning General Fairness Doctrine Obligations of Broadcast Licensees, Report, 102 F.C.C. 2d 145, 147, 155 (1985). In Meredith Corp. v. F.C.C., the federal appellate court ordered the FCC to re-evaluate both the constitutional and public policy bases for the doctrine. 809 F.2d 863, 874 (D.C. Cir. 1987). In Syracuse Peace Council against Television Station WTVH, Syracuse, NY, the FCC found that the fairness doctrine chilled speech and disserved the public interest, even though the FCC admitted that broadcasting still had an allocational scarcity of more applicants for stations than spectrum space available. Memorandum Opinion & Order, 2 F.C.C.R. 5043, 5054–55 (1987). The federal appellate court upheld the repeal of the fairness doctrine as within the FCC’s authority without reaching any constitutional issues. Syracuse Peace Council v. F.C.C., 867 F.2d 654, 655–56 (D.C. Cir. 1989).
76 Red Lion Broad. Co., 395 U.S. at 373–74. The political editorial rules were later codified in 47 C.F.R. � 73.1930 (1981).
77 Red Lion Broad. Co., 395 U.S. at 373–74. The personal attack rule was later codified in 47 C.F.R. � 73.1920 (1981).
78 Nat’l Ass’n for Better Broad. v. F.C.C., 591 F.2d 812, 820 (D.C. Cir. 1978). The allied fairness doctrine did not provide for monetary recovery based on group libel. Provisional Gov’t of the Republic of New Afrika v. ABC, 609 F. Supp. 104, 108 (D.D.C. 1985). A fairness doctrine claim could not be raised in federal court until administrative remedies had been exhausted. Mich. United Conservation Clubs v. CBS News, 485 F. Supp. 893, 903 (W.D. Mich. 1980) (group libel claim).
79 Polish Am. Cong. v. F.C.C., 520 F.2d 1248, 1256 (7th Cir. 1975). The Seventh Circuit has historically taken a dim view of the fairness principle. See Radio Television News Dirs. Ass’n v. United States, 400 F.2d 1002, 1020 (7th Cir. 1968) (prematurely concluding that the First Amendment precluded political editorial rules and the personal attack rule in a pre-Red Lion decision).
80 Radio-Television News Dirs. Ass’n v. F.C.C., 229 F.3d 269, 272 (D.C. Cir. 2000).
81 See Columbia Broad. Sys., Inc. v. Democratic Nat’l Comm., 412 U.S. 94, 110–11 (1973).
82 See Dan B. Dobbs, The Law of Torts � 406 (2000). “Thus far, any civil remedy for such broadside defamation has been lacking.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts � 111 (5th ed. 1984).
83 Alexis v. District of Columbia, 77 F. Supp. 2d 35, 41 (D.D.C. 1999). One perceptive decision summarizes well the untidy “rules of thumb” that often divide “large” from “small”:
In short, the cases surveyed from other federal and state jurisdictions do not establish a “bright line” above which a defamed group is “too big” for an unnamed individual member to sue for defamation. The cases do evince a consistent rule of thumb, however, that unnamed group members generally are not permitted to sue for group defamation if the group has more than 25 members; they will almost invariably not be permitted to sue if the group has more than 100 members.
Id.
84 William E. Francois, Mass Media Law and Regulation 105 (5th ed. 1990) (offering criminal libel as a possible solution to the doctrinal barrier of group size).
85 At least one court appears to have extended the notion of group libel to a product disparagement claim brought as a class action by 4,700 Washington state apple growers against the CBS television program 60 Minutes for airing a program alleging that a growth chemical used on the apples was a carcinogen. Auvil v. CBS 60 Minutes, 800 F. Supp. 928, 930–31, 936 (E.D. Wash. 1992) (“Blindly applying the concept [group defamation limitation] to all disparagement cases, however, would be tantamount to counseling potential disparagors [sic] that they are home free if only they succeed in wreaking damage on a sufficient number of manufacturers.”). The expansive nature of group libel has also served to protect actors acting under color of state law in federal civil rights actions. For example, at least one court has used the group defamation concept to bar a lawsuit against defendants in a federal civil rights action under 42 U.S.C. � 1983. See Sacco v. Pataki, 114 F. Supp. 2d 264, 265, 271 (S.D.N.Y. 2000). Qualified privilege applied to civil rights lawsuits because pre-1997 group defamation precedents raised serious doubt as to whether an unnamed individual had a right to sue for group defamation, even if a listener could find out the group members’ identities. Alexis, 77 F. Supp. 2d at 44, 46.
86 Restatement (Second) of Torts � 564A (1977). A standard tort treatise seems to juggle the specificity of the statement with the size of the group: (1) defamation generally disparaging an entire group; (2) a more specific defamation about a “rather definite number of persons”; and (3) defamation involving only some members of a “relatively small group.” Keeton et al., supra note 82, � 111; see also Action Auto Glass v. Auto Glass Specialists, No. 1:00-CV-756, 2001 WL 1699205, at *10 (W.D. Mich. Aug. 21, 2001) (issue of whether group defamation referred to plaintiff was left to jury).
87 Restatement (Second) of Torts � 564A cmt. b (1977).
88 N.Y. Life Ins. Co. Agents’ Class Claimants Solicitation Litig., 92 F. Supp. 2d 564, 569 (E.D. La. 1997) (stating that “most authorities” require a group of twenty-five or fewer members); see Gintert v. Howard Publ’ns, Inc., 565 F. Supp. 829, 833, 839–40 (N.D. Ind. 1983) (upholding ruling finding no cause of action for group defamation involving more than twenty-five persons); Thomas v. Jacksonville Television, Inc., 699 So. 2d 800, 805 (Fla. Dist. Ct. App. 1997) (holding that a defamatory reference to plaintiff is not possible if defamed group is over twenty-five persons); see also Lins v. Evening News Ass’n, 342 N.W.2d 573, 578 (Mich. Ct. App. 1983) (finding seven group members a small enough group). Sometimes, however, courts have found a group too large, even though it contained fewer than twenty-five persons. See, e.g., Bujol v. Ward, 778 So. 2d 1175, 1180 (La. Ct. App. 2001) (finding twenty-three members of a street crimes unit of forty-six persons who were allegedly defamed too large a group); Coker v. Sundquist, No. 01A01–9806-BC-00318, 1998 WL 736655, at *2–4 (Tenn. Ct. App. Oct. 23, 1998) (three named group members insufficient to state defamation claim as to one of the three who was adjudged libel-proof anyway because of his “Death Row” status). At least one court has found groups of persons under twenty-five too large when the group consists of public officials, for fear of violating the constitutional rule of New York Times Co. v. Sullivan, which prevents government from suing for defamation in the guise of a group of public officials who do the suing. See Dean Jr. v. Town of Elkton, No. CL00–1958, 2001 WL 184223, at *5 (Va. Cir. Ct. Feb. 21, 2001) (five to eight police officers of Elkton Police Department could not sue because of New York Times, even though the group was small). See generally New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
89See, e.g., Holtzscheiter v. Thomson Newspapers, Inc., 506 S.E.2d 497, 514 (S.C. 1998) (“family” considered a small group); Hoffman v. Roberto, 85 B.R. 406, 412 (W.D. Mich. 1987) (size of “relatively small group” was unclear). Sometimes the reverse occurs; a court considers a group too large without giving exact numbers. See Price v. Viking Press, Inc., 625 F. Supp. 641, 645–46 (D. Minn. 1985) (even though as few as ten assigned special agents formed part of group, judicial notice was taken that the number of agents “exceeded the number typically assigned” to bar the lawsuit).
90 Alexis, 77 F. Supp. 2d at 41 (“The courts traditionally have required quite a small group—no more than twenty or thirty members—before they will hold that defamation of the group should be deemed to have particular application to a group member who is not named in the defamatory remarks.”).
91 Tex. Beef Group v. Winfrey, 11 F. Supp. 2d 858, 860, 864 (N.D. Tex. 1998), aff’d, 201 F.3d 680 (5th Cir. 2000).
92 See Weatherhead v. Globe Int’l, Inc., 832 F.2d 1226, 1228–29 (10th Cir. 1987) (class of 955 dog breeders was too large and was also not an identifiable small subset within the class of “dog breeding farms”).
93 13 F.R.D. 311, 313, 315–16 (S.D.N.Y. 1952) However, fifteen salesmen out of twenty-five suing on their own behalf and on behalf of the others was a small enough group for a lawsuit, even though only “most” were referred to in a defamatory manner. The dispute revolved around 382 saleswoman who were accused of prostitution and “most” of the twenty-five salesmen whom defendant termed “fairies.” Defendant apparently conceded that nine Neiman-Marcus models had a cause of action for his assertion that “some Neiman models are call girls.” Id. at 313, 316 n.1; see Michael F. Mayer, What You Should Know About Libel & Slander 104 (1968) (criticizing the ruling of Neiman-Marcus v. Lait).
94 Restatement (Second) of Torts � 564A cmt. c (1977); see Chapman v. Byrd, 475 S.E.2d 734, 737 (N.C. Ct. App. 1996) (alleged defamation referring to “someone” in a group of nine insufficient). A member of a group has no claim for defamation aimed at some or less than all of the group if there is nothing to single out the plaintiff. Evans v. Dolcefino, 986 S.W.2d 69, 77 (Tex. Ct. App. 1999).
95 Restatement (Second) of Torts, � 564A cmt. d (1977). If the plaintiff is not part of a “small” group under � 564A (a), then subsection (b) is to be used for a “large” group. Bolanin v. Guam Publ’ns, Inc., 4 N. Mar. I. 176, 184 (N. Mar. I. 1994); see Gintert v. Howard Publ’ns, Inc., 565 F. Supp. 829, 835 (N.D. Ind. 1983); see also Provisional Gov’t of the Republic of New Afrika v. ABC, Inc., 609 F. Supp. 104, 108 (D.D.C. 1985) (actionability of a lawsuit depends on a defamatory statement reasonably applicable to the plaintiff).
96 Conceivably, the defamation of racial slurs made toward an African-American worker in the workplace could become individualized actionable defamation through “group defamation” if the worker was the only member of the racial group present when the statement was made or if the words are reasonably understood to refer to the worker, but the worker lost the claim on other grounds. L & D of Or., Inc. v. Am. States Ins. Co., 14 P.3d 617, 620 (Or. Ct. App. 2000) (alleged defamatory statements included: “big, black and round like your d—-k,” “nigger work,” “being asked what’s long and hard on a black man and being told the answer was the ‘second grade,’” and similar racist and derogatory jokes and comments).
97 Church of Scientology v. Flynn, 744 F.2d 694, 697 n.5 (9th Cir. 1984). “This approach [of the Restatement (Second) of Torts � 564A(b) (1977)] is not analytically different from our conclusion that the group libel rule does not apply.” Id. Compare Gintert v. Howard Publ’n, Inc., 565 F. Supp. 829, 832–33, 837 (N.D. Ind. 1983) (prohibiting a member of a large defamed group from suing for that defamation under the Indiana non-group rule “unless he can show special application of the defamatory matter to himself”), with Restatement (Second) of Torts � 564A(b) (prohibiting the same thing unless “the circumstances of publication reasonably give rise to the conclusion that there is a particular reference to the member”). Aside from semantic parsing, what is the practical difference?
98 Restatement (Second) of Torts � 564A(b) (1977). In Eyal v. Helen Broadcasting Corp., the owner of a corporation and the corporation itself, which operated a delicatessen in Brookline, Massachusetts, sued for a media defamation when the defendant reported that “the owner of a Brookline [d]elicatessen and seven other people [were] arrested in connection with an international cocaine ring.” 583 N.E.2d 228, 229 (Mass. 1991). Because the reference was to only one unnamed delicatessen owner and not to a group, the Supreme Judicial Court of Massachusetts disagreed with the trial court’s view that the owner’s claim was one of group defamation. Id. at 230 n.6. Thus, the order dismissing the complaint was reversed. Id. at 223. Apparently it was unimportant how many delicatessens operated in Brookline or that other media outlets had referred to operation of the cocaine ring by an “Israeli Mafia.” See id. at 229 n.5; cf. Auvil v. CBS 60 Minutes, 800 F. Supp. 928, 936 n.5 (E.D. Wash. 1992). In Auvil v. CBS 60 Minutes, the court posed the following hypothetical: if pineapples instead of apples had been the subject of the derogatory statement, the public would suspect the producer as Dole Pineapple Co. because of its extensive market share. Id. Thus, Dole would be able to sue, despite the prohibition against group defamation. See id. Further, the court expressed uncertainty over this hypothetical outcome when the Washington apple growers would not be able to sue because of the group problem. Id.
99 O’Brien v. Williamson Daily News, 735 F. Supp. 218, 223 n.4 (E.D. Ky. 1990) (The three factors of the “intensity of suspicion” test are definiteness and composition of the group, the prominence of the group, and the prominence of each individual member within the group.). The Restatement (Second) test has been referred to as the “so-called ‘majority rule.’” McCullough v. Cities Serv. Co., 676 P.2d 833, 836 (Okla. 1984).
100 See 377 P.2d 42, 48 (Okla. 1962). The Oklahoma Supreme Court distinguished early Anglo-American cases, which had confused group criminal defamation with civil cases. See id. at 51 (group size alone inconclusive of liability). The court cited a Canadian appellate precedent that allowed a Jewish plaintiff in Quebec, home to seventy-five Jewish families out of a city population of 80,000, to sue in defamation for the entire Jewish group, even though only the group was defamed and not the plaintiff individually. Id. at 51. This “intensity of suspicion” test has been called the “true” test in which group size is not controlling. Brock v. Thompson, 948 P.2d 279, 292 (Okla. 1997). Accord Gaylord Entm’t Co. v. Thompson, 958 P.2d 128, 147 (Okla. 1998).
101 676 P.2d 833, 837 (Okla. 1984).
102 Id.
103 Id. at 836–37.
104 445 N.Y.S.2d 786, 793 (App. Div. 1981). Twenty-seven unindicted city police officers out of fifty-three in 1972 could sue for defamation of unindicted officers. Id. at 787, 794.
105 Id. at 793. The plaintiff’s success in Brady occurred because of key factors regarding the group: it was limited to unindicted officers, was a highly visible group into which entry was limited, and was a locally prominent group easily identified by the public. Houbigant, Inc., 182 B.R. 958, 975 (Bankr. S.D.N.Y. 1995).
106 Brady, 445 N.Y.S.2d at 793.
107 See 800 F. Supp. 928, 930–31 (E.D. Wash. 1992).
108 Id. at 935.
109 Id. at 936.
110 Keeton et al., supra note 82, � 111.
111 Khalid Abullah Tariq Al Mansour Faissal Fahd Al Talal v. Fanning, 506 F. Supp. 186, 186 (N.D. Cal. 1980).
112 Anyanwu v. CBS, 887 F. Supp. 690, 691, 693 (S.D.N.Y. 1995).
113 Pawelek v. Paramount Studios Corp., 571 F. Supp. 1082, 1084, 1085 n.9 (N.D. Ill. 1983) (complaint dismissed on other grounds) (citing Brewer v. Hearst Pub. Co., 185 F.2d 846, 848–49 (7th Cir. 1950); McGuire v. Jankiewicz, 290 N.E.2d 675, 676 (Ill. App. Ct. 1972)).
114 Dobbs, supra note 82, � 406, at 1137.
115 Id. � 403, at 1130 (“Beyond ridicule and name-calling, many assertions can cause harm to the plaintiff’s reputation but are not defamatory.”).
116 See Mich. United Conservation Clubs v. CBS News, 485 F. Supp. 893, 900 (W.D. Mich. 1980). “Statements about a religious, ethnic, or political group could invite thousands of lawsuits from disgruntled members of these groups claiming that the portrayal was inaccurate and thus libelous.” Id. In that case, an organization of hunters and several of its members, who belonged to a group of more than one million hunters, could not sue as a matter of law for defamation of Michigan hunters because, under the Restatement (Second) of Torts � 564A, the only way for a group member to sue is “if the circumstances surrounding publication give rise to the conclusion that the member was being focused on.” Id. at 899.
117 N.D. Cent. Code � 32–44–03 (1997). Undoubtedly, a two-year statute of limitation helps prevent a floodgate of litigation. See id. � 32–44–04. A similar Texas statute was found inapplicable in Texas Beef Group v. Winfrey, 11 F. Supp. 2d 858, 862–63 (N.D. Tex. 1998), aff’d, 201 F.3d 680, 687 (5th Cir. 2000) (Texas statute passed in 1995 on heels of Alar apple scare). These “veggie libel laws” allow all producers of a general food to sue if the food is wrongly said to be dangerous. Dobbs, supra note 82, � 406, at 1136–37.
118 Besides North Dakota, one authority has found some eleven states with statutes relating to agricultural food product disparagement. Megan W. Semple, Veggie Libel Meets Free Speech: A Constitutional Analysis of Agricultural Disparagement Laws, 15 Va. Envtl. L.J. 403, 404 n.13 (1995–1996). Some of these substantially expand the group of potential parties who can sue by defining “producer” to include the whole market chain from grower down to consumer. Id. at 413. No reported cases dealing specifically with these laws, however, are noted. See id. The author of this Article has found no cases decided under the North Dakota statute mentioned. See N.D. Cent. Code � 32–44–03.
119 See, e.g., Wilkinson v. Fed. Bureau of Investigation, 99 F.R.D. 148, 156 (C.D. Cal. 1983) (finding that a class action against officers and agencies of the federal government was the “superior method” of litigating false stigmatization claims, which were “closely analogous” to group defamation claims). Neiman-Marcus v. Lait, 13 F.R.D. 311, 317 (S.D.N.Y. 1952) (holding that a “spurious” class suit is appropriate where “there are common questions of law and fact affecting the several rights of members of the ‘spurious’ class and common relief is sought against the defendants”). If a defendant were to defame thousands of Irish-Americans in a city by picking likely Irish-American names out of a telephone book and personally defaming each person by reason of their Irish ancestry, the law has no concern about a floodgate of litigation because each plaintiff is named. Yet the same potential for mass litigation exists as though it were a group defamation case. The Supreme Court has indicated that group defamation is not an automatic defense to a civil defamation lawsuit brought by an individual plaintiff from the group. Rosenblatt v. Baer, 383 U.S. 75, 82 n.6 (1966).
120 Restatement (Second) of Torts �� 561, 562 (1977); see also La Luna Enters. v. CBS Corp., 74 F. Supp. 2d 384, 387 (S.D.N.Y. 1999) (actionable claim by restaurant for “Russian mob” assertion); McConathy v. Ungar, 765 So. 2d 1214, 1218 (La. Ct. App. 2000) (actionable claim by corporation as a separate legal entity based on Restatement (Second) of Torts � 561). Libel of a partnership trade name is considered a libel of all the partners. Poorbaugh v. Mullen, 653 P.2d 511, 520 (N.M. Ct. App. 1982). Investors in an unincorporated business venture cannot directly sue, however, for defamation to the business venture. AIDS Counseling & Testing Ctrs. v. Group W Television, Inc., 903 F.2d 1000, 1005 (4th Cir. 1990).
121 See Auvil v. CBS 60 Minutes, 800 F. Supp. 928, 935 (E.D. Wash. 1992). “It would matter not a whit whether all of the apple orchards in the state were owned by a single corporation or, as here, by thousands of ‘ma and pa’ operations. The injury would be the same.” Id.
122 Beauharnais v. Illinois, 343 U.S. 250, 263 (1952).
123 See Auvil, 800 F. Supp. at 935–36 (discussing the dilution problem).
124 The determination of whether defendant’s act has caused an injury precedes and is analytically different from the question of what damages should be compensated. Leon Green, Rationale of Proximate Cause 193 (Rothman Reprints, Inc. 1976) (1927).
125 See generally Dobbs, supra note 82, � 422; Keeton et al., supra note 82, � 116A.
126 Auvil, 800 F. Supp. at 930–31.
127 Henry L. McClintock, McClintock on Equity � 159, at 430 (2d ed. 1948) (Missouri judicial dicta suggesting injunctive relief against defamation if prior judgment at law is uncollectible); accord Dobbs, supra note 82, �� 402, at 1124, � 422, at 1193–94. Ohio, Georgia, and Minnesota have been named as states no longer following the equitable maxim that equity will not enjoin a libel. Kramer v. Thompson, 947 F.2d 666, 677 (3d Cir. 1991).
128 CBS, Inc. v. Davis, 510 U.S. 1315, 1318 (1994) (civil or criminal proceedings subsequent to defamation, rather than prior restraints, ordinarily preferred as more appropriate sanctions, even for calculated defamation because of First Amendment considerations). Accord Near v. Minn. ex. rel. Olson, 283 U.S. 697, 701–02, 722–23 (1931) (rejection of injunctive relief, even where defamation is a continuing nuisance and violates a criminal statute). “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). See Near, 283 U.S. at 701–02, 722–23 (striking down a statute that treated a “malicious, scandalous and defamatory newspaper or other periodical” as a public nuisance subject to injunction). “It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable.” Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558–59 (1975) (presumption against prior restraints heavier and speech protection broader than judicial limitations set for criminal penalties affecting speech).
129 See Kramer v. Thompson, 947 F.2d 666, 676 (3d Cir. 1991), vacated by 947 F.2d 935 (3d Cir. 1991) (four Missouri cases cited for dicta that injunctive relief is permissible to prevent further publication once prior jury verdict has been obtained). The Supreme Court has also warned that it has never held that all injunctions against the press would violate the First Amendment. Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 390 (1973) (“The special vice of a prior restraint is that communication will be suppressed, either directly or by inducing excessive caution in the speaker, before an adequate determination that it is unprotected by the First Amendment.”).
130 Ill. Rev. Stat. ch.38 � 471 (1949); David R. Miller, 1970 Illinois Constitution Annotated for Legislators 17, 115 n.195 (4th ed. 1996).
131 343 U.S. 250, 266–67 (1952).
132 Id. at 251–52. “No one will gainsay that it is libelous falsely to charge another with being a rapist, robber, carrier of knives and guns, and user of marijuana.” Id. at 257–58.
133 See id. at 258, 266.
134 Id. at 254–55.
135 Id. at 263.
136 578 F.2d 1197, 1207 (7th Cir. 1978).
137 Id. at 1204.
138 See id. at 1204–05.
139 See Beauharnais, 343 U.S. at 266. The Beauharnais majority rejected use of the clear-and-present danger test, which would be expected had a tendency toward violence been a constitutional necessity for the criminal libel statute. Id. The defendant was allowed to offer evidence on the truth of the charges, which would have been irrelevant if fear of social unrest had the dominant concern, just as it had been in the early days of common law libel. See id. at 253–54. Most importantly, the case went to the jury as a libel case, whether or not the words threatened violence or breach of the peace. Id. at 253. Even the text of the criminal libel statute under which the case was tried was worded in the disjunctive (“contempt, obloquy or derision or which is productive of breach of the peace or riots.”). Ill. Rev. Stat. ch. 38 � 471 (1949). The Beauharnais majority cited Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942), for the separate delineation of the categorical exceptions to the First Amendment: “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting words’—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Id. at 256.
140 206 A.2d 591, 595 (N.J. Super. Ct. App. Div. 1965). Browne states that:
While recognizing the common law breach-of-the-peace theory, the courts have not required a factual showing of violence; either actual or potential. In most modern criminal libel statutes that element is omitted, thereby indicating that such legislation is not solely designed to prevent violence. The trend is away from considering a threatened breach of the peace as a singular basis for criminal prosecution, and it has moved toward placing the emphasis upon the tendency of the publication to damage the individual regardless of its effect upon the public.
Id.
141 149 N.E. 466, 469 (1925), cited in Beauharnais, 343 U.S. at 254 n.3, further cited without name in Collin v. Smith, 578 F.2d 1197, 1204 (7th Cir. 1978) (limiting the Beauharnais holding to cases where the criminal libel has a strong tendency to provoke a violent reaction). “[S]uch a libel is punishable even though its application to individual members of the class or group cannot be proved.” Id.
142 The “heckler’s veto” concept in First Amendment jurisprudence is the ability of an audience hostile to the speaker’s message to stop the speech, either by violence or threat of violence against the speaker. The Supreme Court has severely limited, if not entirely abolished, the “heckler’s veto” over unwanted speech. See Lee C. Bollinger, The Tolerant Society 183–84 (1986).
143 See, e.g., Forsyth County v. Nationalist Movement, 505 U.S. 123, 134–35 (1992) (finding it improper to base administrative costs for demonstrations on the degree of hostile listeners’ reaction to the demonstration); accord Terminiello v. Chicago, 337 U.S. 1, 4–5 (1949) (speech protected by First Amendment even if causing unrest, social dissatisfaction, anger, or public dispute); Chicago Acorn v. Metro. Pier & Exposition Auth., 150 F.3d 695, 701 (7th Cir. 1998) (finding it improper to waive administrative fees for established politicians and parties, because such a policy would be a form of the “heckler’s veto”); Collins v. Chicago Park Dist., 460 F.2d 746, 754 (7th Cir. 1972) (clearly improper to consider possibility of a hostile audience as a factor in denying permit for a public demonstration).
144 384 U.S. 195, 200 (1966) “This kind of criminal libel ‘makes a man a criminal simply because his neighbors have no self-control and cannot refrain from violence.’” Zechariah Chafee, Free Speech in the United States 151 (1954), cited in id.; accord Williams v. State, 295 S.E.2d 305, 306 (Ga. 1982) (libel limited to that which “tends to provoke breach of the peace” unconstitutionally vague); Boydstun v. State, 249 So. 2d 411, 413–14 (Miss. 1971) (statute punishing publication of a “libel” without statutory definition and no case precedent since 1910 unconstitutionally vague). But see People v. Henrich, 470 N.E.2d 966, 970 (Ill. 1984), appeal dismissed for want of jurisdiction, 471 U.S. 1011 (1985) (holding a communication “which tends to provoke a breach of the peace” constitutional because legislative history showed phrase limited to “fighting words”).
145 See generally 376 U.S. 254 (1964).
146 Id. at 279–80; accord Fitts v. Kolb, 779 F. Supp. 1502, 1514 (D.S.C. 1991); Ivy v. State, 821 So. 2d 937, 946 (Ala. 2001); Weston v. State, 528 S.W.2d 412, 415 (Ark. 1975); Eberle v. Mun. Court for Los Angeles Judicial Dist., 127 Cal. Rptr. 594, 597–98 (Cal. Ct. App. 1976); State v. Browne, 206 A.2d 591, 598 (N.J. Super. Ct. App. Div. 1965); Madison v. Yunker, 589 P.2d 126, 131 (Mont. 1978); see Garrison v. Louisiana, 379 U.S. 64, 77–78 (1964); see also Moity v. Louisiana, 379 U.S. 201, 209 (1964). Sometimes a court will save a criminal defamation statute by construing it to incorporate New York Times actual malice. See Phelps v. Hamilton, 59 F.3d 1058, 1070–71 (10th Cir. 1995), rev’g 828 F. Supp. 831 (D. Kan. 1993); People v. Ryan, 806 P.2d 935, 938–39, 940 (Colo. 1991).
147 See State v. Helfrich, 922 P.2d 1159, 1161 (Mont. 1996) (citing precedent indicating that the “vast majority” of courts refuse to judicially narrow qualified-truth statutory defenses to save them from constitutional invalidity).
148 Fitts, 779 F. Supp. at 1515–16.
149 See Dean v. Town of Elkton, No. 11958, 2001 WL 184223, at *5 (Va. Cir. Ct. Feb. 21, 2001). “It would appear after this holding in New York Times v. Sullivan that the ‘small group theory’ cannot be constitutionally utilized to prove the ‘of and concerning’ element of a defamation action if the defamatory statement is directed at a government or governmental agency, no matter what its size.” Id.; see also Andrews v. Stallings, 892 P.2d 611, 617 (N.M. Ct. App. 1995), citing Saenz v. Morris, 746 P.2d 159, 163 (N.M. Ct. App. 1987) (holding that impersonal criticism of government is not libel of government official).
150 Laurence H. Tribe, American Constitutional Law � 12–12, at 863 (2d ed. 1988).
151 See Ryan, 806 P.2d at 940–41; People v. Heinrich, 470 N.E.2d 966, 972 (Ill. 1984).
152 See Heinrich, 470 N.E.2d at 972.
153 See State v. Powell, 839 P.2d 139, 145 (N.M Ct. App. 1992). Some of the authorities supporting this view are pre-Gertz cases, which cite the earlier view of Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 42–43 (1971), that the First Amendment requires proof of New York Times actual malice on all public issues and events of general interest, regardless of the plaintiff’s status. See, e.g., Commonwealth v. Armao, 286 A.2d 626, 629–30 (Pa. 1972).
154 Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974). Presumably, these courts would not constitutionally extend New York Times actual malice to private persons not involved in a matter of public concern because in a civil defamation context the Supreme Court has refused to hold that the First Amendment requires such a purely private plaintiff to prove New York Times actual malice in order to recover punitive damages. See generally Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985).
155 379 U.S. at 72 n.8 (stating, “We recognize that different interests may be involved where purely private libels, totally unrelated to public affairs, are concerned; therefore, nothing we say today is to be taken as intimating any views as to the impact of the constitutional guarantees in the discrete area of purely private libels.”).
156 485 F.2d 1087, 1096 (8th Cir. 1973). The court concluded that, unlike in other contexts, it was merging the concepts of vagueness and overbreadth in striking down the statute because the statute dealt with a First Amendment activity. Id. at 1096 n.22.
157 Id. at 1097.
158 Id. at 1097, citing Ashton v. Kentucky, 384 U.S. 195, 198 (1966).
159 Tollett, 485 F.2d at 1095–96.
160 United States v. Handler, 383 F. Supp. 1267, 1278 (D. Md. 1974).
161 575 P.2d 289, 289–90 (Alaska 1978).
162 Id. at 292. The court stated:
What is defamatory or scandalous is not defined in AS11.15.310; therefore, the common law definition must be relied on. At common law, any statement which would tend to disgrace or degrade another, to hold him up to public hatred, contempt or ridicule, or to cause him to be shunned or avoided was considered defamatory. In our view this falls far short of the reasonable precision necessary to define criminal conduct.
Id.
163 Id. at 294. The Alaska Supreme Court left open the possibility that a narrowly drawn statute with more precise definitions related to breach of the peace might be upheld. Id. at 295.
164 See Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1200 (9th Cir. 1989).
165 Am. Booksellers Ass’n v. Hudnut, 771 F.2d 323, 331 n.3 (7th Cir. 1985) (“In Collin v. Smith, [we] concluded that cases such as New York Times v. Sullivan had so washed away the foundation of Beauharnais that it could not be considered authoritative.”) (citation omitted). Accord Dworkin, 867 F.2d at 1200 (“We agree with the Seventh Circuit that the permissibility of group libel claims is highly questionable at best.”).
166 Sambo’s Rests., Inc. v. City of Ann Arbor, 663 F.2d 686, 694 n.7 (6th Cir. 1981) (citing cases questioning Beauharnais).
167 See New York v. Ferber, 458 U.S. 747, 763 (1982) (“Leaving aside the special considerations when public officials are the target, New York Times Co. v. Sullivan, a libelous publication is not protected by the Constitution. Beauharnais v. Illinois”)(citations omitted). In R.A.V. v. City of St. Paul, the Court cited Beauharnais as an example of a traditional limitation on freedom of speech. R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992) (“We have recognized that ‘freedom of speech’ referred to by the First Amendment does not include a freedom to disregard these traditional limitations.”).
168 Beauharnais, 343 U.S. at 255. Eight states punished criminal libel by common law; twelve made statutory “libel” a crime without defining the term. The remaining jurisdictions used the common law definition in their statutes. Id. at 255 n.5. Even as late as Tollett v. United States, which struck down a federal libel statute as unconstitutionally vague, the federal appellate court conceded that most states had some type of criminal libel statute. 485 F.2d 1087, 1088, 1094 (8th Cir. 1973).
169 See Beauharnais, 343 U.S. at 258.
170 (1) Colo. Rev. Stat. � 18–13–105 (2002). This statute survived constitutional challenge in People v. Ryan, 806 P.2d 935, 941 (Colo. 1991); (2) Fla. Stat. ch. 836.01 (2002); (3) Ga. Code Ann. � 16–11–39 (1999). In State v. Linakis, the statute’s applicability was limited to defamatory remarks with the direct tendency to cause acts of violence by the person to whom defamation is addressed. 425 S.E.2d 665, 670 (Ga. Ct. App. 1992); (4) Idaho Code �� 18–4801 to –4809 (1997); (5) Kan. Stat. Ann. � 21–2004 (1995). This statute survived constitutional challenge in Phelps v. Hamilton, 59 F.3d 1058, 1061 (10th Cir. 1996); (6) Ky. Rev. Stat. Ann. � 432.280 (1999) (limiting criminal defamation to libel or slander of a judge); (7) Mass. Gen. Laws ch. 272, � 98C (2000); (8) Mich. Comp. Laws �� 750.97, 750.389 (West 2002) (regarding false statements about financial condition of certain financial institutions; � 750.370 (regarding attribution of crime, infamous or degrading act, or unchastity of a female); (9) Minn. Stat. �� 609.77, 609.765 (2002); (10) Mont. Code Ann. � 45–8–212 (2001); (11) N.H. Rev. Stat. Ann. � 644:11 (1996); (12) N.C. Gen. Stat. � 14–47 (2002); (13) N.D. Cent. Code � 12.1–15–01 (1997); (14) Okla. Stat. tit. 21, �� 777–781 (2003); (15) Tenn. Code Ann. � 40–13–214 (1997) (apparently basing indictment for criminal libel on common law criminal libel); (16) Utah Code Ann. � 76–9–404 (1999); (17) Wash. Rev. Code �� 9.58.010 to –.020 (2003); (18) State v. Clifford, 52 S.E. 864 (W. Va. 1906) (reviewing apparent common law criminal defamation cause of action); (19) Wis. Stat. � 942.01 (2001–2002).
171 See Nev. Rev. Stat. 200.510 (West 2002); Libel Def. Res. Ctr., Inc. (LDRC) 50-State Survey 2001–2002: Current Developments in Media Libel Law, at Nevada, � I (LDRC ed., 2001).
172 Ky. Rev. Stat. Ann. � 432.280 (1999).
173 Oklahoma has had only one reported case since 1931. Pegg v. State, 659 P.2d 370, 372–73 (Okla. Crim. App. 1983) (affirming conviction under “false rumor” statute for accusing a person of being a prostitute). Tennessee’s last case seems to be Melton v. State, 22 Tenn. (3 Hum.) 389 (1842). West Virginia’s last common law case appears to be State v. Clifford, 52 S.E. 981 (W. Va. 1906).
174 Georgia limits application to threat of direct violence by the subject of the defamation, Ga. Code Ann. � 16–11–39 (1999); Kentucky, to defamation of a judge, Ky. Rev. Stat. Ann. � 432.280 (1999); and Michigan, to various isolated kinds of criminal libel situations, Mich. Comp. Laws �� 750.97, 750.370, 750.389 (West 2002). See generally Ashton v. Kentucky, 384 U.S. 195 (1996) (striking down Kentucky’s general criminal libel statute on vagueness grounds).
175 The statute upheld in Beauharnais, Ill. Rev. Stat. ch.38 � 471 (1949), was repealed on January 1, 1962. The separate general criminal defamation statute, 720 Ill. Comp. Stat. 5/27–1 (1993), was repealed July 1, 1986. The general criminal defamation statute had been interpreted to provide sanctions against group defamation as well as individual defamation. Id.
176 Robert A. Leflar, The Social Utility of the Criminal Law of Defamation, 34 Tex. L. Rev. 984, 985 (1956). Gottschalk v. State, 575 P.2d 289, 294–95 (Ala. 1978) relied substantially on the article’s findings in striking down Alaska’s criminal libel statute. Id.
177 See Libel & Slander, 2001 Eleventh Decennial Digest Part I �� 141–62, at 838; Libel & Slander, 1998 Tenth Decennial Digest Part II �� 141–162, at 291–92; Libel & Slander, 1992 Tenth Decennial Digest Part I �� 141–162, at 1078–79; Libel & Slander, 1988 Ninth Decennial Digest Part II �� 141–162, at 1539–40; Libel & Slander, 1983 Ninth Decennial Digest Part I �� 141–162, at 1645; Libel & Slander, 1978 Eighth Decennial Digest �� 141–162, at 1680–82; Libel & Slander, 1968 Seventh Decennial Digest �� 141–162, at 709–12. Like Professor Leflar, the author based his research on West’s Decennial Digests. The author used the keynote system by researching under Libel and Slander, Criminal Responsibility, �� 141–162. Like Leflar, the author eliminated duplicate citations to the same case and went further by eliminating civil cases and Wisconsin criminal slander of title cases, which had been misclassified as criminal defamation cases.
178 New York Times Co. v. Sullivan, 376 U.S. 254, 276 (1964). (“Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.”). New York Times cited City of Chicago v. Tribune Co., in which the lllinois Supreme Court concluded free expression prevented a city, as a governmental entity, from suing its citizens for defamation. 139 N.E. 86, 90 (Ill. 1923); see also supra notes 122, 124. Professor Leflar noted that public figures, such as Hollywood movie stars, as well as government officials, are apt to use their influence to initiate criminal defamation charges. See Leflar, supra note 176, at 985. See generally Eberle v. Mun. Court, 127 Cal. Rptr. 594 (Cal. Ct. App. 1976), in which the state unsuccessfully brought criminal libel charges against defendants for publishing negative comments about actress Angie Dickinson.
179 See generally City of Chicago v. Lambert, 197 N.E.2d 448 (Ill. App. Ct. 1964) (affirming conviction for distribution of leaflets attributing to African-Americans and Jews criminal tendencies, unchastity, and degrading sexual inclinations).
180 See generally Model Penal Code (1985); Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law (2d ed. 1986). Another criminal law treatise writer suggests libel should be left to the civil law. Rollin M. Perkins & Ronald N. Boyce, Criminal Law 492 (3d ed. 1982).
181 28 U.S.C. � 2201 (2000); Dan B. Dobbs, Law of Remedies � 2.1(2), at 53 (2d. ed. 1993).
182 Restatement (Second) of Torts � 623 (1977). Declaratory judgment provides a judicial vindication of reputation while avoiding the problems of converting harm to reputation into money damages, of the frequent unavailability of any damage remedy, and of the chilling speech effect of substantial damages. Id. at 327–28.
183 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 771 (1985) (White, J., concurring) (“At the very least, the public official should not have been required to satisfy the actual malice standard where he sought no damages but only to clear his name.”); Gertz v. Robert Welch, Inc., 418 U.S. 323, 393 (1974) (White, J., dissenting) (“I have said before, but it bears repeating, that even if the plaintiff should recover no monetary damages he should be able to prevail and have a judgment that the publication is false.”).
184 See Gertz, 418 U.S. at 347, 349–50.
185 H.R. 2846, 99th Cong. (1985). The avoidance of the New York Times actual malice standard makes a plaintiff’s case much easier. The empirical evidence indicates that the New York Times standard has reduced a plaintiff’s likelihood of success in a libel case by as much as 60%. Larry J. Sabato, Feeding Frenzy: How Attack Journalism Has Transformed American Politics 70 (1991).
186 Libel Reform Project of the Annenberg Wash. Program, Proposal for the Reform of Libel Law � 4, at 16 (1988). North Dakota has adopted the Uniform Correction or Clarification of Defamation Act, which provides that a defendant who makes a timely and sufficient correction or clarification can only be sued for provable economic loss, mitigated by the correction or clarification. N.D. Cent. Code � 32–43–05 (1996).
187 New York Times Co. v. Sullivan, 376 U.S. 254, 283 (1964) (“We hold today that the Constitution delimits a State’s power to award damages for libel in actions brought by public officials against critics of their official conduct.”). The threat of imprisonment under a criminal libel statute is remote. In fact, in New York Times, Justice Brennan thought that a civil defamation action potentially chilled the First Amendment even more than a criminal defamation action because of the greater procedural and constitutional safeguards built into the criminal law. Id. at 277; see also Gertz, 418 U.S. at 349 (noting the uncontrolled discretion of juries in awarding damages, both compensatory and punitive).
188 Dobbs, supra note 82, � 1.1, at 7.
189 2 Walter H. Anderson, Actions for Declaratory Judgments �457, at 1070 (2d ed. 1951).
190 See Edward D. Re & Joseph R. Re, Remedies: Cases and Materials 347 (5th ed. 2000).
191 A state violates the First Amendment by requiring a newspaper to provide a “right of reply” by a political candidate who was attacked by the newspaper. See generally Miami Herald Publ’n. Co. v. Tornillo, 418 U.S. 241 (1974) (holding that an intrusion into editorial judgment and control over size and content of the newspaper violates the First Amendment). The Supreme Court has not expressly extended the Tornillo doctrine to the electronic media and, in fact, distinguished newspapers from cable television in Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 656 (1994).
192 See generally, supra notes 68–75 and accompanying text. The FCC cited Tornillo, 418 U.S. at 241, in explaining why its fairness doctrine should be abandoned as to broadcasters. In re Inquiry into Section 73.190 of the Commission’s Rules and Regulations Concerning General Fairness Doctrine Objections of Broadcast Licensees, Report, 102 F.C.C.2d 145, 151–52 (1985) (stating that the Tornillo “right of reply” statute is less speech-inhibiting than the fairness doctrine); In re Inquiry into Section 73.1910 of the Commission’s Rules and Regulations Concerning Alternatives to the General Fairness Doctrine Obligations of Broadcast Licensees , 2 F.C.C.R. 5272, 5283, 5300 n.87, 5301 n.92 (1987) (arguing that increased public access would inject government into day-to-day operations and erode editorial discretion).
193 Laws that inhibit the First Amendment can be facially attacked by the vagueness doctrine. City of Chicago v. Morales, 527 U.S. 41, 55–56 (1999); accord Smith v. Goguen, 415 U.S. 566, 573 (1974) (“Where a statute’s literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the [vagueness] doctrine demands a greater degree of specificity than in other contexts.”).
194 When a criminal law implicates the First Amendment, the law must be so clear that persons of ordinary intelligence have a reasonable opportunity to know what is prohibited. Humanitarian Law Project v. Reno, 205 F.3d 1130, 1137 (9th Cir. 2000). The other peculiar criminal law concern is that a vague law impermissibly delegates basic policy to police officers, judges, and juries for resolution on a subjective basis, with the consequent dangers of arbitrary and discriminatory law enforcement. Grayned v. City of Rockford, 408 U.S. 104, 108–109 (1972). Vagueness and overbreadth attacks in a First Amendment setting more drastically invalidate on a facial basis, while if done on a Due Process basis, they usually invalidate only on an as-applied basis to a specific defendant. Kathleen M. Sullivan & Gerald Gunther, Constitutional Law 1299 (14th ed. 2001).
195 Village of Hoffman Estates v. Flipside, 455 U.S. 489, 498–99 (1982) (“The Court has also expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.”).
196 481 U.S. 465, 485 (1987); accord Block v. Meese, 793 F.2d 1303, 1313 (D.C. Cir. 1986) (“We know of no case in which the first amendment has been held to be implicated by governmental action consisting of no more than governmental criticism of the speech’s content.”). Every time a court allows a civil defamation judgment for damages against a defendant, government is being “critical” of the defendant’s defamatory speech. See also Richey v. Tyson, 120 F. Supp. 2d 1298, 1324–25 (S.D. Ala. 2000) (upholding “political committee” statutory label imposed on plaintiffs by government).
197 Keene, 481 U.S. at 480–82.
198 926 F.2d 573, 579–80 (6th Cir. 1991).
199 Id. at 579.
200 497 U.S. 1, 21 (1990).
201 Id. at 17.
202 Id. at 18–19.
203 Khalid Abdullah Tariq al Mansour Faissal Fahd Al Talal v. Fanning, 506 F. Supp. 186, 187 (N.D. Cal. 1980) (“If the court were to permit an action to lie for the defamation of such a multitudinous group we would render meaningless the rights guaranteed by the First Amendment to explore issues of public import.”); accord Brady v. Ottaway Newspapers, Inc. 445 N.Y.S.2d 786, 789 (App. Div. 1981) (“Thus the incidental and occasional injury to the individual resulting from the defamation of large groups is balanced against the public’s right to know.”). Fanning involved a claim for $20 billion on behalf of 600 million Muslims, a remedy far more likely to chill First Amendment rights than simple declaratory relief. Fanning, 506 F. Supp. at 186–87. Although Milkovich requires that, even for a defamatory opinion a public figure must still prove New York Times “actual malice” and that a private figure of public concern must prove some level of fault, unincorporated racial and ethnic groups who are usually the gratuitous victims of group defamation simply cannot reasonably be deemed “public figures,” let alone a “private figure,” even if such cases are not distinguishable on the more basic ground that these requirements were designed for defamation cases seeking damages. Milkovich, 497 U.S. at 9.
204 Am. Booksellers Ass’n v. Hudnut, 771 F.2d 323, 332 (7th Cir. 1985) (striking down an Indianapolis ordinance for impermissibly prohibiting protected “pornographic” speech that went beyond the “obscenity” exception to the First Amendment because “[t]he definition of ‘pornography’ is unconstitutional.”).
205 See id. at 331, 332. The Court in Hudnut stated, “We come, finally, to the argument that pornography is ‘low value’ speech, that it is enough like obscenity that Indianapolis may prohibit it.” Id. at 331. The Court also noted that “the Indianapolis ordinance, unlike our hypothetical statute, is not neutral with respect to viewpoint.” Id. at 332.
206 See generally Mari J. Matsuda et al., Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (1993).
207 Hudnut, 771 F.2d at 329 (“Even the truth has little chance unless a statement fits within the framework of beliefs that may never have been subjected to rational study.”).
208 Randall P. Bezanson, et al. Libel Law and the Press 78 (1987); see Donald M. Gillmor, Power, Publicity, and the Abuse of Libel Law 11 (1992).
209 See, supra note 126 and accompanying text.