J385: Communication Law Home Page


J385-Communication law
Midterm #2 - KEY

1a. No, it will not be successful.

The Fair Comment or Protection of Opinion defense (see Homepage and Pember) defense protects statements of opinion when the statements concern the public performance of an individual or an individual's involvement in a matter of public concern. It does not protect opinion statements about private activities unrelated to public performance or matters of public concern.
The first requirement of the defense is that the statements be either "pure opinion," i.e. by definition the statement is so clearly non-verifiable that the only reasonable interpretion is that the statement is the speaker's "opinion," or that the "ordinary meaning" of the statement taken in context leads the reader to conclude that it is a statement of opinion.
Controversy sued Hotair, KWAK-AM and Fan. Hotair and Fan are responsible for the statements each made during the broadcast. KWAK-AM is reponsible for Hotair's statements since he hosts the show for the station. The station also may be held responsible for broadcasting Fan's statements since the standard practice in broadcasting is to broadcast callers' comments using a delay system that allows the station to screen for libelous or other offensive material.
Hotair makes several potentially defamatory statements. Some of them clearly fall into the category of "pure opinion" or rhetorical hyberbole:
A book review on a radio call-in sports show is a context in which the audience expects to hear highly opinionated statements and colorful language; therefore some the statements may be interpreted as opinion statements:
However, even in this context, several statements, while colorful, are assertions that the plaintiff lied. Frequently statements of this kind are interpreted as statements of verifiable fact that are not protected under the Fair Comment defense:
Finally, at least one statement clearly is a statement of fact that is not protected:
Fan's comments concerning the plaintiff's drinking habits are probably outside the Fair Comment defense as well. Certainly the assertion that he "gets tossed out of bars" is not a statement of opinion. Calling the plaintiff a "drunk" might be a statement of opinion; however, it could also be interpreted as a verifiable fact and it is a comment about his personal life with only a tenuous link to the book.

Based on the above, the Fair Comment defense will not be a successful defense for any of the defendants. At least two defamatory statements clearly are verifiable facts and several others may fall into the fact category.


1b. NO, Linebacker's suit will fail.
Larry Linebacker is not named in the broadcast; therefore he will have to show that he is identified by other information in the broadcast. Presumably his claim is based on the statement "half of the Duck football team are on steroids." Given the size of the identified group (approximately 80 to 100 players on the football team), and the sweep of the statement (half of the team), it is unlikely that Linebacker will be able to prove identification.

Also, Linebacker is suing the wrong parties. In the context of the broadcast, Hotair is asserting that the charge of steriod use is false. Hotair is defending Linebacker, not defaming him.


2. No, the public interest argument will fail.
(1) Under the Family Educational Rights and Privacy Act (the Buckley Amendment) and State Department of Education rules, a School may not release student "education records," including "directory information" absent prior consent. Since we do not know if the student or her legal guardians granted consent, it is possible that this unconditional exemption would eliminate the need to address the "public interest" question.

(2) Assuming consent to release directory information exists, the school is claiming the information is exempt under the personal privacy exemption of the state Public Records law. Under the public records law, the student's name is personal information that may be withheld if disclosure would be an unreasonable invasion of privacy. The requester has the burden to show that disclosing the information would not constitute an unreasonable invasion.
In this instance, the requester would have a difficult time showing that the public interest in disclosure outweighed the School's interest in withholding the information to protect the safety of the student. The Oregon State Court of Appeals has said that the public's interest in disclosure is directly related to information that will facilitate the public's "understanding of how public business is conducted." It is difficult to see how the requested information -- the name of a high school student -- would serve that interest.
When the lack of a clear public interest in disclosure is weighed against the School's interest in protecting the safety of a student, the requester's public interest claim fails.

3. Yes, the fact-finding team is a public body.

In a 1994 decision, Marks v. The Mckenzie High School Fact-Finding Team, the Oregon Supreme Court established a "FUNCTIONAL EQUIVILENT TEST" for determining the status of groups that perform public functions but are not clearly public bodies. The Court said the determination "will depend on the character of that entity and the nature and attributes of that entity's
relationship with government and governmental decision-making."
In that case the Court found that fact-finding team created by a school administrators association at the request of the school board was not a public body because it did not have final decision-making authority and it was neither supported nor controlled by the school.
In this case, the relation of the fact-finding team to the school board are sufficiently different and lead to a determination that the fact-finding team is a public body. Here the members of the team were directly appointed by the school board, received financial support from the Board and had a direct mandate to report its finding to the Board. When these factors are weighed using the "functional equivilent test," the scale tilts towards finding the fact-finding team to be a public body.


4. Yes, Dr. Scalpel will be able to prove falsity
The magazine is claiming that the gist of the story is true. While minor errors may be present, it argues that the sting of the defamatory statements is no greater as a result of those errors.
There are a number of factual inaccuracies or uncertainties:
The discrepancy between the actual and the reported number and frequency of the complaints may be a minor difference. Twenty-five complaints over two years might carry no greater sting than 17 complaints over four years.

The specific nature of the complaints, however, raises more troubling questions. The facts tells us that patients had been "harmed" and that the complaints relate to the doctor's "practice of medicine." We have no idea if the complaints concern her medical competence, yet the story reports that she was found to be "incompetent." Possibly, the complaints concern her billing practices or her personal relations with patients. There is no factual basis for the assertion that she is incompetent; therefore, based on the available information it is impossible to find the report to be substantially true.

Finally, the story reports that the Medical Board revoked her license when, in fact, Dr. Scalpel, voluntarily give up her license. A final action by an official body is significantly different from a voluntary action since it is a final judgment that leaves no room for question. While some readers might conclude that the doctor gave up her license before the Board could take it away, others might reach several alternative and less defamatory conclusions.

5. False.
(1) Richmond Newspapers concerned public, not camera, access to courts. In Chandler v. Florida (1981), the Court held that there is no constitutional right of access for cameras.
(2) In Oregon, a judge may deny requests for camera access when there is a "reasonable likelihood" that cameras would interfere with a defendant's right to a fair trial; affect the presentation of evidence; affect the outcome of the trial; detract from the decorum of the court; or, interfere with courtroom efficiency. Thus, a judge has far greater discretion than stated in the question.