The First Amendment of the United States Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” In the world of television, the section of the First Amendment most often cited when legal issues arise is “abridging the freedom of speech, or of the press.” This portion of the First Amendment is likely to be used by a television show as an umbrella defense against charges like defamation, unauthorized use of likeness for commercial purposes, and intentional infliction of emotional distress, among others. While fictional television shows are meant as entertainment, when it comes to First Amendment issues, both plaintiffs and defendants usually feel certain the law is on their side.
Defamation is often the basis for a plaintiff’s lawsuit against a television show. In the context of the First Amendment, defamation refers to false statements of fact which harm another person’s reputation and which encompass both libel (written) and slander (oral). Television tends to be more concerned with slander since it is an oral and more prevalent medium than newspapers or magazines. There are four elements of defamation that have to be proven by a plaintiff. First, there must be a false and defamatory statement concerning the plaintiff. Second, the plaintiff must prove unprivileged publication of the statement to a third party (meaning someone other than the person defamed by the statement). Third, the plaintiff must prove that the publisher (not necessarily in print form) acted at least negligently in publishing the communication. Fourth, the plaintiff must show and prove damages incurred.
The major First Amendment case involving defamation was the Supreme Court ruling in 1964 of The New York Times v. Sullivan. In this case, an Alabama city official brought a libel action against four African-American clergymen and The New York Times regarding a story in the newspaper that claimed mistreatment by local law enforcement. Sullivan was never actually named in the article, but he believed it falsely inferred his complicity in police mistreatment of students during civil rights demonstrations. The court held that public officials are required to prove that a defendant had a “subjective awareness of the probable falsity” of the publication or actual malice when faced with defamation suits. In the Curtis Publishing Co. v. Butts case in 1967, the high court raised the actual malice standards to include “public figures” such as politicians, celebrities, etc. as well as people involved in “high profile” conduct of public concern or those engaged in actions generating notoriety within a small area of interest.
Based on the First Amendment, there are a variety of legal defenses in place that may protect a television show against a defamation suit. Common defenses against a charge include that the statements concerning the plaintiff are either true or an opinion, a fair comment on a matter of public interest, or innocent dissemination. A defendant may also attempt to illustrate that the plaintiff had a poor reputation in the community in order to diminish any claim for damages resulting from the defamatory statements. Status as a public figure, such as a celebrity or politician, or people in the spotlight briefly (limited public figures) would also be a defense against defamation.
The type of television show may sometimes plays a role in First Amendment issues and whether an individual has been portrayed negatively. For instance, news or documentary-style programs such as The Nightly News or Dateline NBC would seem to require a greater level of care when it comes to portraying people in a false light, which is related to defamation. If a story focuses on something illegal, and an innocent person is placed within the context of that topic, it could damage reputations by planting false links in viewers’ minds. It is generally why face pixilation is used to prevent recognition and avoid potential litigation.
Conversely, a scripted or reality show has their own First Amendment problems, as seen in 2010 when a Las Vegas woman sought damages after truTV’s Inside American Jail labeled her a “naughty girl” and showed her behaving provocatively while being held at the Clark County Jail. In this situation, using the defense of the First Amendment’s freedom of speech protection might be deemed suspect at best for the network. According to an article written by Steve Green of The Las Vegas Sun, the plaintiff sued for defamation and unauthorized use of her likeness. According to the lawsuit, the plaintiff was arrested on suspicion of DUI and taken to jail, where a camera crew was filming activity at the jail for use on the cable show. Producers included footage of the plaintiff being booked in jail on one of their episodes, although the plaintiff claimed not to remember signing any release giving permission to use her likeness. Her attorneys claimed that even if a release was signed, her intoxicated state at the time would invalidate the form due her having no understanding of what she signed.
According to an article by Jessie F. Beeber, in the case of Tamkin v. CBS Broadcasting in 2011, a California appeals court ruled that the First Amendment, through the state’s “anti-SLAPP” (strategic lawsuit against public participation which looks to stop or punish a party’s exercise of constitutional rights to free speech) law, insulates a television writer’s creative process from defamation and invasion of privacy claims. In Tamkin, plaintiffs claimed that a bad real estate deal with a writer from the show, CSI, resulted in the plaintiffs’ name being used in an early script for an episode of the show which portrayed the plaintiffs in a bad light. The last names were later changed when the episode aired. The importance of the case is that the court found that using the Tamkins’ names as placeholders in the early script and casting synopses were acts “in furtherance of free speech,” as guaranteed in the First Amendment. The court cited the reason that because the creation of a television show was in and of itself an exercise of free speech rights promised by the First Amendment, the “acts” of using the plaintiffs’ names in connection with “the creation, casting, and broadcasting of an episode of a popular television show” was in furtherance of that exercise of First Amendment free speech rights.
Ultimately, when a person is falsely depicted in an unflattering light, the First Amendment is a safety net for defendants. This is not to say that the defendant always wins, as sometimes the rights of individuals are violated or they are defamed. However, since the New York Times case, it has become much more difficult to prove defamation of individuals by media. The law now balances the rules of defamation law with the interests of the First Amendment. The result is that whether defamation is actionable depends on what was said, who it was about, and whether it was a subject of public interest and thus protected by the First Amendment.
By Tommy Stewart
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