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
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.