After researching the Dominion lawsuit against attorney Sidney Powell, respond to the following questions. Then use the CREACC organizational structure to write an analysis. You must use specific information from your research to explain your analysis. Then review a peer's essay and provide feedback.
Writing for Pre-LawProfessor Diane Abdo Defamation/Libel: Dominion, Inc. v Powell After researching the Dominion lawsuit against attorney Sidney Powell, respond to the following questions. Then use the CREACC organizational structure to write an analysis. You must use specific information from your research to explain your analysis. · What elements for a cause of action for defamation does the Dominion lawsuit satisfy? Be specific in your explanation. · What defenses does Powell have, if any? · In your opinion, which party will likely prevail? Why? Writing the Analysis According to CREACC · Conclusion: Which party will likely prevail? Why? · Rule: What law applies to this case? Explain the law. · Explanation: Summarize the background information and issues in this case. · Application: Apply the relevant law to the issues in the case. · Counter-analysis: Explain the position of the party that is not likely to prevail. · Conclusion: Include any other information relevant to this case Requirements · This CREACC analysis will take approximately 2 to 3 pages. · Submit the analysis as a Word document along with your peer review. You may submit these documents in one file or in two separate files. · Organize the document according to the CREACC structure we discussed in class. DEADLINES · Writer sends draft to peer review partner no later than Saturday, July 31, 10:00 pm · Peer reviewer returns draft to writer no later than Monday, August 2, 10:00 pm · Student submits final draft to Professor Abdo (
[email protected]) no later than Tuesday, August 3, 10:00 pm The Law of Libel 1 THE LAW OF LIBEL I. TORTS - Defined (A) Physical Harms--actual, physical contact (B) Harms from Insult, Indignity, and Shock--no contact necessary but some injury or measurable damage results, e.g., defamation II. DEFINITIONS (A) Defamation: a communication which injures one in his good name or reputation; it is usually calculated to bring one into hatred, contempt or ridicule of his fellow man. (B) Libel: written or visual defamation; it can be seen or viewed. (C) Slander: oral defamation; it is spoken and heard. (D) Cause of Action: those facts which must be established or proven in order to support a right or to obtain a judgment. III. ELEMENTS* OF A CAUSE OF ACTION FOR DEFAMATION (LIBEL OR SLANDER): (A) The language must be defamatory--either on its face, for example-- (1) Words imputing a crime; (2) Words imputing a loathsome and communicable disease; (3) Words affecting one in his trade, business, or profession; (4) Words imputing unchastity; (5) Or, the language is defamatory when viewed by the reasonable reader in light of the surrounding circumstances. (B) The words must be published to a third person. (C) The words must be of or concerning the complaining party; i.e., the words or language must identify the individual to a reasonable reader, listener or viewer. (D) The complaining party's reputation must be injured among a substantial and respectable segment of the community. *Even if an individual can meet all the elements for a cause of action, there may be no recovery of money if the party alleged to have libeled someone (defamed them) has a good defense excusing the conduct. 2 IV. DEFENSES TO DEFAMATION (A) Truth is an absolute and complete defense to a civil action for defamation--libel or slander. (B) Accidental publication without negligence or intent to publish the defamatory material to a third person is a partial defense. (C) Consent to publish the defamatory material is a complete defense where the complaining party has caused the publication. (D) Privilege to publish defamatory material may be a partial or complete defense depending on the circumstances. (1) Absolute privilege* exists on the following occasions: (a) Judicial proceedings; (b) Legislative proceedings; or (c) Executive proceedings. * The absolute privilege does not usually extend beyond the judicial, legislative or executive forum, i.e., the reporter does not enjoy the same absolute privilege if the same defamatory material is published to the general public. Reporting the defamatory material outside of the privileged forum is actionable libel. (2) Qualified or conditional privilege exists when the publication is for a proper purpose and made in a reasonable manner or when there is a public interest in having the defamatory material published. If malice or ill-will is involved, i.e., publication for an improper purpose or for an improper motive, the privilege will be forfeited. ONE-YEAR LIMITATIONS PERIOD. A person must bring suit for malicious prosecution, libel, slander, or breach of promise of marriage not later than one year after the day the cause of action accrues. (Section 16.002 – Texas Civil Practice and Remedies Code.) (The above outline is meant only as a summary guide for understanding the law of defamation with an emphasis on libel. There are many exceptions and applications of libel which are not treated here. This is not an exhaustive study.) 3 ANALYSIS OF ANY MATERIAL FOR LIBELOUS CONTENT Two step process to determine if there is a libel problem (apply the following test): FIRST: Regardless of any defense, explanation or excuse--IS THE WRITING, PRESENTATION OR PHOTOGRAPH LIBELOUS OR POTENTIALLY LIBELOUS? Evaluate by using the elements in the outline. If it is not libelous or even arguably libelous, that's the end of it. People may not like it but you can't be successfully sued for misquoting someone or because they wished they wouldn't have done or said something that was reported. Misquotes shouldn't happen and when they do, they should be corrected–immediately. Even if someone is misquoted, if the alleged quote is representative of what was said or at least an accurate gist is conveyed, there is really no complaint or need to do anything else. If the speaker is quoted accurately but the speaker is incorrect or made a mistake, then no retraction or correction is required unless the quote could be libelous. If the inaccurate quote could be libelous and the reporter knew it was untrue at the time the quote is published, then both the speaker and the reporter/newspaper are liable for the libel. If the inaccurate quote could be libelous and the reporter did not know of the inaccuracy and could not have reasonably known or suspected the inaccuracy, then a correction of the inaccurate statement should be made. The publisher should give attribution to the original speaker who was the source of the misinformation and reveal that only later was the statement discovered to be inaccurate. (Note: Corroboration by another knowledgeable source would have avoided the problem altogether!) SECOND: If the article, photo or caption is libelous or possibly libelous--IS THERE A DEFENSE TO A CLAIM OF LIBEL OR IS THERE SOMETHING THAT CAN BE DONE TO MITIGATE (REDUCE) THE DAMAGES? Even if an article or item is libelous, truth is usually a complete defense. There may also be conditional defenses depending upon the circumstances. In short you may be able to raise a complete or partial shield to defend against a claim of libel even when you know the statement is libelous before you print it. However, if you know the statement is libelous (or you suspect it might be), you run the risk of waiving or giving up your privilege (or defense) to publish the libelous matter. Malice may be implied if you knew what you were doing was risky and you still published the libelous material. WARNING: If you are in doubt or something just doesn’t seem right (“smells funny”), ALWAYS, ALWAYS investigate further and get legal advice. 4 INVASION OF PRIVACY I. TORTS - Defined (A) Physical Harms--actual, physical contact (B) Harms from Insult, Indignity, and Shock--no contact necessary but some injury results, e.g., invasion of privacy (Note: damages for mental suffering are recoverable without the necessity of showing actual physical injury in a case of willful invasion of the right of privacy.) II. DEFINITIONS (A) Right of Privacy--the right of an individual to be left alone, to live a life of seclusion, to be free from unwarranted publicity (B) Cause of Action--those facts which must be established or proven in order to support a right or to obtain a judgment (C) Plaintiff--the person who alleges to have been injured; Defendant—the person alleged to have caused the injuries (D) Injury--to be compensable, i.e., to merit getting money for what happened, the injury must foreseeably outrage normal sensibilities--mere disappointment, anger resentment or embarrassment is not sufficient; injury must be one that would be offensive and objectionable to a reasonable person of ordinary sensibilities. The law is not for the protection of the hypersensitive. III. AREAS RECOGNIZED AS PROTECTED (i.e., PRIVATE) (A) Intimate personal relationships or activities (B) Right of an individual to make choices concerning one's self, family and relationships with others (C) Marriage (D) Procreation (E) Contraception (F) Child rearing and education IV. CAUSES OF ACTION FOR INVASION OF PRIVACY (A) Unreasonable intrusion upon the seclusion or private affairs of another 5 (B) Unreasonable publicity (or disclosure) given to an aspect of one's private life in which the public has no legitimate concern (C) Publicity that unreasonably places another in a false light before the public (D) Unwarranted appropriation of one's name or likeness V. THEORIES AND ELEMENTS FOR INVASION OF PRIVACY (A) Intrusion - one who intentionally intrudes upon the private affairs or solitude of another, in a manner which would be highly offensive to a reasonable person, is liable in tort to the other for the form of invasion of privacy known as intrusion. ELEMENTS (1) there must be a showing of conduct in the nature of any intentional intrusion; (2) for liability, the thing or place into which an intrusion has been made must be private; and (3) the intrusion into a person's seclusion must be substantial and must be conduct which would be highly offensive or objectionable to a reasonable person. (B) Disclosure (Publicity) - the distinctions between defamation (libel) and the tortious public disclosure of private information are twofold: first, the disclosure involves the publicity of private facts, not untruths, and therefore, truth is not a defense; second, an invasion of privacy action requires public disclosure whereas a defamation action may be based upon a single communication to third party. ELEMENTS (1) publicity was given to matters