Thursday, May 20, 2010

The LOST Art of Citizen's Arrests

"I saw what you did!  I'm making a citizen's arrest!" -- Benjamin Linus

I was hoping I would be able to write about LOST before the series finale (!) on Sunday.  Thanks to Mr. (err...Dr.) Benjamin Linus, I have an excuse!  For fans of the show, you know there are many important questions central to the mysteries of the show that still need answering and, likewise, there are many, many, many resources with which to analyze those questions and theorize the outcome.  I, however, will attempt to answer a question that is utterly banal and insignificant (I mean, I am a lawyer) . . . could Ben have made a citizen's arrest of Desmond?

Previously on LOST, time-traveling heartthrob Desmond Hume drives his car into wheelchair-ridden John Locke for various complicated (but well-meaning!) LOST mythology reasons.  In this penultimate episode "What They Died For," Desmond returns to the scene of the crime, the parking lot of the high school where Ben and Locke (their off-island versions, anyway) both teach.  Ben, who witnessed Locke getting run over, immediately recognizes Desmond, yells for someone to call the police, and states that he is making a citizen's arrest.

I was surprised the first time I learned that citizen's arrests were actually allowed.  It just seems like something that sounds cool on tv and movies, but couldn't possibly be real.  As it turns out, the practice of citizen's arrests is alive and well in every state except for North Carolina (as per Wikipedia).  A private citizen has the privilege to arrest someone for a felony if (1) the felony was actually committed and (2) the citizen reasonably believes that the person he arrests was the one who committed it.  (Basically, the citizen doesn't have much room for error and could face a lawsuit for the tort of false imprisonment if he is wrong.)  The degree of force allowed is that which is reasonably necessary to make the arrest, and deadly force is only allowed when the suspect poses a threat of serious harm.

While Ben's valiant threat to make a citizen's arrest was great in theory, in reality it did not work out quite so well.  Desmond ends up beating Ben to a bloody pulp...enough to justify the use of deadly force when arresting him, but it ultimately proves too much for the sweater-vest wearing teacher of European History.  Ironic when you realize this is the same man whose on-island persona killed his own father in cold blood.

Did Desmond succeed in shocking Ben into awareness of the island?  Ben's insistence that the school nurse call him "Dr." Linus felt like a return of the evil, calculating Ben we've come to know.  Overall, I thought this episode did a great job setting up what is sure to be an unforgettable finale.  I can't wait!

Monday, May 10, 2010

Glee-gal Issues: Slander and Libel

"That glee club stole my private property and posted it online and as soon as I figure out the difference between slander and libel, I'm filing a lawsuit." -- Sue Sylvester

As the topic for this post is Glee, I thought I would start by announcing that I passed the Colorado Bar Exam!  Although I am now free to forget all the black-letter law I learned, in the name of analyzing television I press on!

Glee is a delightful musical tv show about a high school glee club called "New Directions."  The glee club geeks (or "Gleeks") are the joke of the school and actively despised by the head coach of the school's cheerleading squad, Sue Sylvester (played by the hilariously awesome Jane Lynch).  At the beginning of last week's episode "Bad Reputation," the Gleeks are watching a video that was carefully confiscated from Sue's office without her knowledge in which Sue channels her inner Olivia Newton-John and jazzercises to the song "Physical."  The Gleeks decide to post the video on youtube for the world to see and it quickly generates three million hits and over 170,000 comments.  Sue gets wind of what has happened and storms into the principal's office threatening to file a lawsuit . . . once she figures out the difference between slander and libel.


Slander and libel are forms of the tort of defamation.  The law of defamation includes two parts:  the common law elements and the constitutional requirements.  The common law elements are:  (1) defamatory language, (2) "of or concerning" the plaintiff, (3) publication thereof by defendant to a third person, and (4) damage to plaintiff's reputation.  Anytime the defamation involves a "matter of public concern," the Constitution requires that the plaintiff prove two additional elements:  (1) falsity of the defamatory language and (2) fault on the part of the defendant.  Statements about public figures are typically considered "matters of public concern" and require proof of the two constitutional requirements.  Given that one of the youtube commenters notes that "the man in this video looks like the champion cheerleading coach Sue Sylvester," it is likely that Sue would be considered a public figure and would have to establish the two additional elements.

Libel and Slander

To answer Sue's question, libel occurs when there is a written or printed publication of defamatory language, while slander is spoken defamation.  The main reason for distinguishing between slander and libel relates to the fourth element of defamation: damage to plaintiff's reputation.  In a slander case, the plaintiff must prove "special damages", i.e. that she has suffered some sort of pecuniary loss as a result of the defamation.  In a libel case, however, plaintiff does not need to prove special damages and harm is often presumed.  The reason for this distinction is the fact that spoken words will only reach a small audience when compared to a publication.  In cases where it is unclear whether the defamation is libel or slander, factors to consider are the permanency, area of dissemination, and deliberate character of the publication.  Defamation on radio and television programs are generally treated as libel if it is sufficiently permanent, premeditated, and broadly enough disseminated.  It seems that a youtube video would be considered libel, given that it is recorded and can be easily viewed by a wide audience.   

However, it is doubtful that Sue Sylvester's libel claim would get off the ground.  I'm not sure that a dance routine she performed (and recorded) herself could be construed as "defamatory language," even though it was posted without her permission.  Rather than figuring the difference between libel and slander, perhaps Sue should look into the elements for the tort of invasion of right to privacy.  In the end, Sue Sylvester winds up benefiting from the viral video when Olivia Newton-John herself invites Sue to participate in a video re-make of "Physical."

Slander Per Se

Even though Sue Sylvester has no viable defamation lawsuit, it occurred to me that other characters in this episode might.  Emma Pillsbury, the loveable OCD-afflicted school counselor approaches glee club director Mr. Schuester in the cafeteria and yells repeatedly in front of the entire school, "You're a SLUT, you're a SLUT."  Mr. Schu might have a case if this statement is considered slander per se, i.e. slander that does not require the plaintiff to prove the element of harm.  The traditional four categories of slander per se are statements that:  (1) adversely reflect on one's conduct in a business or profession, (2) one has a loathsome disease, (3) one is or was guilty of a crime involving moral turpitude, or (4) a woman is unchaste.  The modern trend has transformed the "unchaste woman" category into statements of serious sexual misconduct or perverse behavior, as judged by the moral standards of the community.  Depending on the community standards in Lima, Ohio, Mr. Schu might have some legal retribution after being publicly labeled a man-whore.   


Also at issue in this episode was the anonymously written "Glist," or weekly ranking of the glee club based on a hotness quotient of sexual promiscuity, where a point is earned for each act of perpetuated depravity. (The Glist is perhaps art imitating life in light of the "Slut List" controversy at a New Jersey high school last fall.)  Given the publication and damaging nature of the list, students on the Glist might have a libel action.  However, none of the Gleeks seemed too eager to file a lawsuit as the ones who felt most damaged by the Glist were those whose names were left off.