Julin, Thomas R.

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\u3cem\u3eLaw Of Defamation\u3c/em\u3e, by Rodney A. Smolla

University of Miami School of Law

University of Miami Law SchoolInstitutional RepositoryUniversity of Miami Entertainment & Sports Law Review4-1-1987Law Of Defamation, by Rodney A. SmollaThomas R. JulinFollow this and additional works at: http://repository.law.miami.edu/umeslrPart of the Entertainment and Sports Law CommonsThis Book Review is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of MiamiEntertainment & Sports Law Review by an authorized administrator of Institutional Repository. For more information, please contactlibrary@law.miami.edu.Recommended CitationThomas R. Julin, Law Of Defamation, by Rodney A. Smolla, 4 U. Miami Ent. & Sports L. Rev. 191 (1987)Available at: http://repository.law.miami.edu/umeslr/vol4/iss1/8BOOK REVIEWSLAW OF DEFAMATION. By Rodney A. Smolla.* New York: ClarkBoardman Co., Ltd., 1986. 544 pp. $85.00.REVIEWED BY THOMAS R. JULIN tOnce again we are advised that the law of defamation is "'aforest of complexities, overgrown with anomalies, inconsistencies,and perverse regidities [sic],' a veritable 'fog of fictions, inferences,and presumptions.' "I Such colorful cautionary quotations have be-come standard fare for modern text writers in the field of defama-tion. Yet, ironically, with each new exposition on the complexitiesof the law-and there are now quite a few from which tochoose'-many of the wrinkles are smoothed. In Professor Smolla'srecent contribution, Law of Defamation, the field is nearly ironedflat. The depth and breadth of research and straightforward writ-ing style of this book make a generally muddy topic comprehensi-ble and accessible to the practitioner, academician, and journalistalike.The introductory chapter provides a broad overview whichtraces the origins of the tort, discusses the common law cause ofaction, and the constitutionalization of the field of libel. It thengives a useful summation of the purposes which libel law tradition-ally has served and the countervailing free speech values whichconstitutional restrictions on the tort have served. It concludeswith a description of the modern cause of action which includes* Professor of Law, University of Arkansas School of Law.I University of Florida, B.A. 1978, J.D. 1981. Thomas R. Julin is a media defense attor-ney with Steel Hector & Davis in Miami, Florida. He edits The Calumny Report, a quar-terly newsletter regarding developments in the law of libel and slander.1. R. SMOLLA, THE LAW OF DEFAMATION 1-4 (1986) (quoting Eaton, The American Lawof Defamation Through Gertz v. Robert Welch, Inc. and Beyond: An Analytical Primer, 61VA. L. REV. 1349, 1350 (1975) and Coleman v. MacLennan, 78 Kan. 711, 740, 98 P. 281, 291(1908)).2. S. METCALF, RIGHTS AND LIABILITIES OF PUBLISHERS, BROADCASTERS AND REPORTERS(1984); M. NIMMER, NIMMER ON FREEDOM OF SPEECH (1984); R. SACK, LIBEL, SLANDER, ANDRELATED PROBLEMS (1980); B. SANFORD, LIBEL AND PRIVACY - THE PREVENTION AND DEFENSEOF LITIGATION (1985). The Practising Law Institute's annual Communications Law outlinealso provides an invaluable collection and organization of libel and slander cases.1Julin: Law Of Defamation, by Rodney A. SmollaPublished by Institutional Repository, 1987192 ENTERTAINMENT & SPORTS LAW JOURNALsome or all of nine distinct elements (more than any other authorhas yet identified)3 .Chapters two through six are the meat of the book. They ex-amine the public figure doctrine, fault requirements, defamatorymeaning, truth, and opinion, providing a thorough analysis of theconstitutional libel rules established by the Supreme Court's deci-sions from New York Times Co. v. Sullivan,4 through PhiladelphiaNewspapers, Inc. v. Hepps.3 They also integrate the common lawdoctrines that have survived these Supreme Court decisions. Indescribing the relevant Supreme Court decisions, Smolla pays par-ticularly close attention to the facts of each case and the rationaleof each decision. Rather than distilling the case into cold legalrules, he takes the time to set forth the circumstances of each casein a very readable story format and thereby gives meaning to therules the cases established.Where Smolla disagrees with the Supreme Court, he does notrefrain from saying so. In assessing a footnote in Wolston v.Reader's Digest Association,' he first labels it "a loose and ill-con-sidered bit of dicta,"' and then proceeds into a series of hypotheti-cals to show that the "illogic of the Wolston dicta is easily demon-strable."8 After discussing the Supreme Court cases, Smolla showshow the rules they establish have been applied in contemporarycases such as Westmoreland v. CBS, Inc.,9 Sharon v. Time, Inc.,' °and Burnett v. National Enquirer, Inc."He also takes a turn at the real problem of applying the con-stitutional rules in cases which have yet to be litigated. One of hismost interesting discussions along these lines examines whatSmolla calls the "context public figure.'. 2 Here, he points out that"public figures" usually are regarded as persons such as Jerry3. R. SMOLLA, supra note 1, at 1-23.4. 376 U.S. 254 (1964).5. 106 S. Ct. 1558 (1986). Unfortunately, the Supreme Court rendered Hepps, a deci-sion which holds that the first amendment places the burden of proving falsity on the plain-tiff, after Professor Smolla's September 1, 1985 discovery cutoff and so his discussion of themajor impact this case will have is limited to a brief insert at the conclusion of chapter 5.6. 443 U.S. 157 (1979).7. R. SMOLLA, supra note 1, at 2-46.8. Id. at 2-47.9. 596 F. Supp. 1170 (S.D.N.Y. 1984).10. 599 F. Supp. 538 (S.D.N.Y. 1984).11. 144 Cal. App. 3d 991, 193 Cal. Rptr. 206 (1983), appeal dismissed, 465 U.S. 1014(1984).12. Professor Smolla first argued for development of the "context public figure" in hisarticle Let the Author Beware: The Rejuvenation of the American Law of Libel, 132 U. PA.L. REV. 1, 64-77 (1983).[Vol. 4:1912University of Miami Entertainment & Sports Law Review, Vol. 4, Iss. 1 [1987], Art. 8http://repository.law.miami.edu/umeslr/vol4/iss1/8LAW OF DEFAMATIONFalwell, Ralph Nader, William F. Buckley, or Dan Rather, but that"[v]ery few people purposefully inject themselves into an arena ofnational attention." Is He then argues persuasively that anyoneshould be classified as a "public figure" for libel purposes if he orshe is well known in the community to which the libel is published."There are, in short, national marketplaces of ideas and local mar-ketplaces of ideas, and for many citizens the local marketplaces areevery bit as important as speech in a national context."14At several points in the treatise, Smolla interweaves subsec-tions dealing with litigation strategy. These sections provide usefulsuggestions regarding how to posture a defense or claim in light ofuncertainties in the law. At the conclusion of his discussion regard-ing classification of public figures, Professor Smolla suggests thatstrategically it might be wise to argue that whether an individual isa public figure or not is a matter of state law rather than firstamendment analysis. Smolla observes that[iun light of the Supreme Court's current conservatism in its for-mulation of the public figure doctrine ... as well as the expres-sion of doubt by some Justices as to the soundness of the wholeNew York Times line of precedent.., there is a danger that anylower court adopting a more flexible approach to the public fig-ure definition will be reversed on appeal. To the extent that thecontext public figure concept is treated as an elaboration oncommon law conditional privileges, however, this danger may besubstantially diminished.1"Not content with describing history or providing guidelines forfuture litigation, Smolla at several points turns to predicting howthe Supreme Court will elaborate on existing doctrine. He takes adaring stab at prognostication in Chapter 3 where he suggests thatthe Supreme Court will allow the states to apply strict liability incases which do not involve speech about a "matter of public con-cern." He deduces this conclusion from a variety of "clues" and"signals"1 6 which he finds in Justice Powell's opinion in Dun &Bradstreet, Inc. v. Greenmoss Builders, Inc.1"Chapter 7 should be mandatory reading for any lawyer who iseven considering filing or defending a libel or slander suit or anyjudge who presides over such a case. It gives a concise description13. R. SMOLLA, supra note 1, at 2-56.14. Id.15. R. SMOLLA, supra note 1, at 2-60-61.16. R. SMOLLA, supra note 1, at 3-10-14.17. 105 S. Ct. 2939 (1985).198713Julin: Law Of Defamation, by Rodney A. SmollaPublished by Institutional Repository, 1987194 ENTERTAINMENT & SPORTS LAW JOURNALof the common law rules which classified libel and slander as "perse" and "per quod." There perhaps is no greater confusion in thisarea of the law than the meaning of these terms.18 At the conclu-sion of the chapter, Smolla advances a proposal for a simplified,fair reform which would abolish the distinction between libel andslander, eliminate all special harm rules, require special harm in allcases, and permit a jury to weigh all relevant factors in assessingdamages."9Chapter 8 discusses and catalogs common law privileges. Quiteproperly, emphasis is placed on the privilege or lack of privilege forcredit reporting. The Supreme Court's Dun & Bradstreet decisionplainly stripped much, if not all, first amendment protection awayfrom such speech as well. Here, Professor Smolla predicts that theDun & Bradstreet dicta will substantially undermine common lawprotection afforded for such speech. "Given the Supreme Court'sgeneral denigration of the social importance of credit reporting in-formation in Dun & Bradstreet, it seems reasonable to surmisethat a spillover influence will be that credit reports will receive lessfavorable common law conditional privilege protection as well." 20Damages and other remedies are addressed in Chapter 9. Animportant issue addressed here is whether plaintiffs may rely onemotional distress as their sole source of damages. Here, Smollaspells out in plain terms that which the Florida courts have neverexpressly recognized-that the common law requires damage toreputation as an element of the tort, although the first amend-ment, in cases where it is applicable, requires a plaintiff only toprove "actual injury" which may be any injury actually shown bythe evidence.2'In addressing whether a court could order a libel defendant topublish a retraction, Smolla reaches the somewhat startling conclu-18. Confusion over the meaning of these terms is manifested in the recent FloridaSupreme Court decision Mid-Florida Television Corp. v. Boyles, 467 So. 2d 282 (Fla. 1985).19. R. SMOLLA, supra note 1, at 7-15-17.20. Id. at 8-26. In states such as Florida, where the vitality of the common law privi-lege is hotly contested, this is particularly important. Compare Putnal v. Inman, 76 Fla. 553,80 So. 316 (1918), with Vinson v. Ford Motor Credit Co., 259 So. 2d 768 (Fla. 1st DCA1972).21. R. SMOLLA, supra note 1, at 9-6-7. Ignoring common law rules, the Florida Su-preme Court upheld a compensatory damage award of $100,000 notwithstanding that theplaintiff had waived all claims for damage to reputation and claimed only injury to hermental state in Time, Inc. v. Firestone, 305 So. 2d 172 (Fla. 1974). The United States Su-preme Court subsequently affirmed that award, concluding that the first amendment posedno barrier to such an award as long as it was supported by the evidence. 424 U.S. 448, 460(1976).[Vol. 4:1914University of Miami Entertainment & Sports Law Review, Vol. 4, Iss. 1 [1987], Art. 8http://repository.law.miami.edu/umeslr/vol4/iss1/8LAW OF DEFAMATIONsion that the landmark decision Miami Herald Publishing Co. v.Tornillo,22 does not foreclose the possibility that a retraction couldbe ordered by a court as a remedy for defamation. In Tornillo, theSupreme Court of the United States held a Florida statute provid-ing political candidates a "right-to-reply" abridged the firstamendment.2 3 Smolla points out, however, that acompulsory retraction (or compulsory equal space) after a full-fledged defamation trial with all appeals exhausted could sur-vive the holding in Tornillo, since the defendant would have re-ceived the full protections of due process of law and applicablefirst amendment liability rules prior to being forced to retract oryield equal space.24Chapters 10 and 11 sprint through the torts of invasion of pri-vacy, infliction of emotional distress, and publication of injuriousfalsehood, providing the reader with only a well-organized glimpseat these actions which frequently appear either along side of or inlieu of libel actions.Chapter 12 is a very brief description of special problemswhich arise in litigation, touching on jurisdiction, conflict of laws,pleading, discovery, summary judgment practice, and post-trialmotions. The brevity of the chapter does not allow the author toexposit his own theories or to provide a thorough discussion of therelevant case law as is found in other chapters; however, the chap-ter does provide a good overview of these particular problems anddiscusses the major cases and literature in the area. Particular at-tention is paid to the Supreme Court's recent decisions in Calderv. Jones2" and Keeton v. Hustler Magazine, Inc.26 No attempt,however, is made to discuss how to try a libel case. Chapter 13essentially is a short essay on how libel lawyers should deal withtheir clients, offering a variety of practical suggestions whichshould minimize misunderstandings between lawyers and clients.The final chapter of the book touches on media insurance, butreally makes no effort to cover this area thoroughly, providing littlemore than the names of the major carriers, a description of thetypes of policies available, and the factors which a carrier is likely22. 418 U.S. 241 (1974).23. Id.24. R. SMOLLA, supra note 1, at 9-40. Smolla concedes, however, that the "draconianremedy of compulsory retraction or right of reply is probably best kept a theory." Id. at 9-41.25. 465 U.S. 783 (1984).26. 465 U.S. 770 (1984).198715Julin: Law Of Defamation, by Rodney A. SmollaPublished by Institutional Repository, 1987196 ENTERTAINMENT & SPORTS LAW JOURNALto use in setting policy provisions. This remains an area of criticalconcern to publishers, yet seems to defy attempts at analysis. s7Many of the modern libel treatises are written from the per-spective of defending libel claims. Accordingly, they reflect abias-or perhaps more fairly a belief-on behalf of the author thatlibel law should be done away with altogether or, at the very least,restricted as much as possible." While these treatises provide opti-mal defense arguments, they sometimes can be deceptive. Even themost pessimistic of defense lawyers tend to paint a bleak portraitof any plaintiff's libel claim and highlight the possibility for de-fense coups.No such bias is reflected in Professor Smolla's treatise. It pro-vides as much a guide for plaintiffs as defendants and, from a de-fense standpoint, the piercing analysis is in many ways alarming.For example, although most defense lawyers have taken the posi-tion that a statement of pure opinion, particularly in such necessa-rily subjective contexts as restaurant and movie reviews,29 is abso-lutely protected by the first amendment," Professor Smolla findsroom in constitutional as well as common law analysis for liabilitybased upon such traditionally hallowed statements. For example,Smolla advances the following hypothetical:Suppose a movie critic sets out to pan a film, telling her readersnot to see it, when in fact the critic loved the movie. LikeAntonio Salieri, who (as portrayed in the movie Amadeus) setout to sabotage the career of Mozart by demeaning Mozart'scompositions, though in fact Salieri thought they were works ofgenius, a modern critic might, out of jealousy, envy, or spite,choose to pan a film. Should such a 'dishonest evaluative opin-ion' be actionable?31Pointing out that some commentators have found there should beno liability because of the difficult proof problem encountered inshowing whether the defendant believed her opinion, Smolla takesthe opposite view. "In the rare case of hard evidence that the opin-27. A slightly more elaborate discussion of insurance is found in R. SACK, supra note2, at 563.28. See, e.g., R. SACK, supra note 2, at xxix (conceding the inevitable bias of a mediadefense lawyer).29. See Mr. Chow of New York v. Ste. Jour Azur S.A., 759 F.2d 219 (2d Cir. 1985).30. The conclusion is drawn largely from the dicta in Gertz v. Robert Welch, Inc., 418U.S. 323, 339 (1974), that "[U]nder the First Amendment there is no such thing as a falseidea. However pernicious an opinion may seem, we depend on its correction not on theconscience of judges and juries but on the competition of other ideas." Id.31. R. SMOLLA, supra note 1, at 6-20.[Vol. 4:1916University of Miami Entertainment & Sports Law Review, Vol. 4, Iss. 1 [1987], Art. 8http://repository.law.miami.edu/umeslr/vol4/iss1/8LAW OF DEFAMATIONion was misrepresented-a memorandum by the critic, or a telltalestatement to the contrary in the presence of witness- the suitshould be permissible. ' 32 These ideas and others which might wellbe advocated by the most creative of plaintiffs' lawyers simplyhave never been well articulated in the existing treatises.The book is not as drenched in citations as Slade Metcalf'sRights and Liabilities of Publishers, Broadcasters and Reporters,it does not provide cross-citations to BNA's Media Law Reporter(the most essential basic resource for serious students of libel law),it is not as dedicated to freedom of speech as Robert Sack's Libel,Slander and Related Problems, and it undoubtedly will comeunder attack from the media defense bar as offering up too many"anti-speech" theories for plaintiffs. Notwithstanding these criti-cisms, Professor Smolla's Law of Defamation should become astandard in the field.32. Id. at 6-21.1987]7Julin: Law Of Defamation, by Rodney A. SmollaPublished by Institutional Repository, 1987

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\u3cem\u3eLaw Of Defamation\u3c/em\u3e, by Rodney A. Smolla

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