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March 2020

Articles & Reports – MLRC Report

in this issue

Ontario’s Anti-SLAPP Law: “We’ve Got Five Years … My Brain Hurts a Lot”

Ontario’s Anti-SLAPP Law: “We’ve Got Five Years… My Brain Hurts a Lot”[1] By Iris Fischer, Kaley Pulfer & Justin Manoryk[2] Introduction In 2015, Ontario, Canada introduced legislation specifically aimed at encouraging expression and participation in debates on matters of public interest by providing a mechanism to weed out meritless claims at an early stage in…

Key Points on DOJ Policy

 Download Publication On February 27, 2014, the Department of Justice’s revisions to its Policy Regarding Obtaining Information From, or Records of, Members of the News Media; and Regarding Questioning, Arresting, or Charging Members of the News Media—which had been preliminarily issued by the Department on Friday, February 21, 2014—were published to the Federal Register. The…

Law of “Opinion” Practice Guide: 2013 Supplement

 Download Publication Prepared by Kelli L. Sager, Karen A. Henry, Tim Fleming, Jeremy Chase, Ben Planchon Davis Wright Tremaine James E.Stewart, Leonard M. Niehoff, Elizabeth Gotham, Scott C. Milligan Honigman Miller Schwartz and Cohn We hope MLRC members will find this 2013 Supplement to the 2004 “Law of ‘Opinion’ Practice Guide” to be a valuable…


2006 Actual Malice Practice Guide

When defamation plaintiffs face the onerous task of surmounting the public figure actual malice standard, they usually resort to a standard refrain: the reporter relied on biased sources, the reporter was negligent, the reporter failed to investigate, the reporter had ill-will towards plaintiff, the reporter had knowledge of plaintiff’s denials, the reporter relied on a…


Reporting on the War on Terror: The Espionage Act and Other Scary Statutes

 Download Publication There are a number of statutes scattered throughout the United States Code of which a media law practitioner should be aware in counseling his or her clients on issues relating to national security. They include both broad and amorphous provisions and others that are far more narrow and specific. This article will first…


The Substantial Truth Defense and Third Party Allegations

 Download Publication As plaintiffs have exercised increased ingenuity in framing libel actions, the print and broadcast media have compiled in tandem an increasingly varied arsenal of privileges and other defenses with which to combat allegations of defamation. Among the thorniest claims defendants have been forced to confront over the years are those arising under the…


Reporter’s Privilege: Distinguishing Civil and Criminal Contempt

 Download Publication As the Supreme Court has recognized, “‘[i]t is not the fact of punishment, but rather its character and purpose, that often serve to distinguish’ civil from criminal contempt.” Shillitani v. United States, 384 U.S. 364, 369 (1966) (citation omitted). While civil contempt is viewed as a coercive measure meant to secure compliance with…

Law of Opinion Practice Guide

The opinion doctrine is one of the most potent defense tools in media law. The defense has immunized a wide variety of expression, including the hyperbolic charge of “blackmail” in Greenbelt Co-op. Publ’g Ass’n v. Bresler, 398 U.S. 6 (1970), the well-known satirical advertisement of the Rev. Jerry Falwell in Hustler v. Falwell, 418 U.S….


Bench Media Project

Download Publication Last year, the Defense Counsel Section highlighted the need for programs focused on improving relations between the judiciary and members of the press. In response, the LDRC decided to learn more about those efforts undertaken in different states for such purposes, and to identify those which have been successful. The purpose of this…

Trials Of A Generation

Download Publication   MLRC report.


Tortious Interference: A Practical Primer for Media Practioners

Download Publication I . OVERVIEW OF THE TORT A . The Common Law Roots of Tortious InterferenceB . Elements of a Cause of Action II . LIMITS ON PRESS LIABILITY CONTAINED IN THE TORT ITSELF A . The Prerequisite of a “Valid Contract”B . Intentional and Improper InterferenceC . Proximately Caused Damages III . ARTICULATING…

Annotations To LDRC DCS Survey and Report on Special Procedures and Innovative Techniques for Trying Media Libel Actions Before Juries

Download Publication In August 1988, the LDRC Defense Counsel Section issued its Survey and Report on “Special Procedures ana Innovative Techniques for Trying Media Libel Actions Before Juries.” The Survey had inquired as to the use of “innovative” procedures and techniques by media defense attorneys in five general areas: (1) trial preparation; ( 2 )…

Special Procedures and Innovative Techniques for Trying Media Libel Actions Before Juries: A Survey and Report

Download Publication Background: Recognizing The Need for New Approaches To Jury Trial Practice in Media Libel Actions Data developed by the Libel Defense Resource Center (LDRC) presents a powerful empirical case for reform of the jury trial process in media libel actions — -both from the point of view of libel defendants -and libel plaintiffs.


Jury-Related Information in Recent Libel Trials: A Survey of Attorney Awareness

Download Publication Recently, LDRC has undertaken several studies of juror attitudes examining what factors have the most impact and motivate jurors to decide libel cases in a particular way — all to0 often in favor of the plaintiff. Unfortunately, time and financial constraints make it difficult to interview in-depth the jurors in as many cases…


Reflections on Westmoreland v CBS: An Interview with Jurors and Defense Counsel

Download Publication After 68 days of trial , the jury which had heard each side’s evidence and arguments in the libel case brought by General William C. Westmoreland against CBS and the producer of its documentary, “The Uncounted Enemy,” George Crile, was deprived of the opportunity to deliberate and render a verdict. Immediately preceding the…


Juror Attitudes Study 1

Download Publication Over the past  several years LDRC has systematically monitored the results of jury trials in media libel actions. Indeed, LDRC data documenting the fact that jurors have Seen voting as a inst media defendants in the great majority of recent libel trials, has been one of the central features of the ongoing debate…

Juror Attitudes Study 2: Private Figure/Broadcast

Download Publication This is LDRC’s second juror attitudes study. Since the first study dealt with a major newspaper defendant in a public official’s libel action, this study sought to examine the attitudes of the jurors who heard a case involving a major television defendant in a private figure’s libel (and privacy) action, to serve as…

Juror Attitudes Study 3: Private Figure (Gross Irresponsibility)/Newspaper/Defense Win

Download Publication This is the Libel Defense Resource Center’s third Juror Attitudes Study. The first LDRC Jury Study dealt with a major newspaper defendant in a public figure’s libel action. (See LDRC Bulletin No. 14 at 1-33.) That case was lost at trial and the jury awarded damages approaching one million dollars, based on an…