Download defamation scenario in india and its implications and more Summaries Law of Torts in PDF only on Docsity!
The John Marshall Law Review
Volume 29 | Issue 4 Article 24
Summer 1986
Brief for Respondent Fourth Annual Benton
National Moot Court Competition Briefs, 19 J.
Marshall L. Rev. 1165 (1986)
Maggi Pasquale
Evelyn Seeler
Eileen Westman
Follow this and additional works at: http://repository.jmls.edu/lawreview
Part of the Legal Education Commons, Legal Writing and Research Commons, and the Privacy
Law Commons
http://repository.jmls.edu/lawreview/vol29/iss4/
This Conference Proceeding is brought to you for free and open access by The John Marshall Institutional Repository. It has been accepted for inclusion in The John Marshall Law Review by an authorized administrator of The John Marshall Institutional Repository.
Recommended Citation
Maggi Pasquale, Brief for Respondent Fourth Annual Benton National Moot Court Competition Briefs, 19 J. Marshall L. Rev. 1165 (1986)
(^19861) Defamation
No. 85-
IN THE SUPREME COURT OF THE STATE OF MARSHALL
DAVID GORDON,
Petitioner, -against- RICHARD (^) DOUGLAS, D/B/A EZ CONSTRUCTION COMPANY, Respondent.
ON APPEAL FROM THE APPELLATE COURT OF THE STATE OF MARSHALL
BRIEF FOR RESPONDENT
Maggi Pasquale Evelyn Seeler Eileen Westman
COUNSEL FOR RESPONDENT St. John's University School of Law Jamaica, New York, 11439 (718) 969-
Defamation
TABLE OF CONTENTS
Page QUESTIONS PRESENTED .............................. i TABLE OF AUTHORITIES .............................. iv OPIN IONS BELOW ..................................... viii STATEMENT OF JURISDICTION ...................... viii STTEMENT OF THE CASE ............................. viii SUMMARY OF ARGUMENT .......................... 1 ARGUMENT I. PETITIONER GORDON, WHO PUBLISHED A FALSE STATEMENT DAMAGING TO RESPONDENT'S BUSINESS REPUTATION ON HIS COMPUTER "BULLETIN BOARD," IS STRICTLY LIABLE ACCORDING TO THE COMMON LAW OF THE STATE OF MARSHALL FOR PRESUMED DAMAGES ARISING FROM THE DEFAMATION 2 A. The statement which appeared on "Gordotalk" was defamatory per se because it disparaged Respondent's qualifications and skills in his construction business ........................... 3 B Petitioner, who controlled the entry and removal of messages on "Gordotalk," was the publisher of the libelous statement .......................... 9 II. BECAUSE THE FALSE AND DEFAMATORY STATEMENT PUBLISHED ON "GORDOTALK" DID NOT INVOLVE A PUBLIC FIGURE OR COMMENT UPON A MATTER OF PUBLIC CONCERN, AND IS THEREFORE UNWORTHY OF FIRST AMENDMENT PROTECTION, LIABILITY MAY CONSTITUTIONALLY BE ILMPOSED UPON PETITIONER ABSENT A SHOWING OF "ACTUAL M A L IC E " ......................................... 17 A. Because Respondent is neither a public official nor a public figure, he is not required to prove "actual malice" as a prerequisite to the recovery of damages for defamation ......................... 17 B. The prohibition on strict liability established in Gertz v. Robert Welch, Inc. does not apply to the defamation of a private individual by a non-media defendant ...................................... 20 C. Presumed damages may constitutionally be awarded absent a showing of "actual malice" where the contents of the defamation are not a matter of public concern ........................ 29 CO N CLU SIO N .......................................... 35
19861
1168 The John Marshall Law Review [Vol. 19:
A P P E N D IX ........................ .................... A -I CERTIFICATE OF SERVICE ............................ B-
The John Marshall Law Review
- 438 F.2d 433 (3rd Cir. 1971) 26, Grove v. Dun & Bradstreet, Inc.,
- Hanrahan v. Kelly, 269 Md. 21, 305 A.2d 151 (1973) - 361, 568 P.2d 1359 (1977) Harley-Davidson Motorsports, Inc. v. Markley, 279 Or.
- He lar v. Bianco, 111 Cal. App. 2d 424, 244 P.2d - (19 5 2 )
- Herbert v. Lando, 441 U.S. 153 (1979) - 715, 438 N.Y.S.2d 730 (1981) Hewlett- Woodmere Pub. Libr. v. Rothman, 108 Misc.2d - 276 Md. 580, 350 A.2 688 (1976) 22, Jacron Sales Co. v. Sindorf,
- Karaduman v. Newsday, Inc., 51 N.Y.2d 531, - N.Y.S.2d 556, 446 N.E.2d 557 (1980) - 186 Cal. Rptr. 184 (1982) 9.............. Kelly v. General Telephone Co., 136 Cal. App. 3d 278,
- Miller v. Hubbard, 205 Pa. Super. 111, 207 A.2d - (19 6 5 ) 4..
- Mueller v. Rayon Consultants, Inc., 271 F.2d - (D .C .N .Y 1959) - 376 U.S. 254 (1964) 17, 18, 19, 20, 21, New York Times, Inc. v. Sullivan,
- Plendl v. Beuttler, 253 Iowa 259, 111 N.W.2d 669 (1961)
- Rosenblatt v. Baer, 383 U.S. 75 (1966)
- Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971)
- Roth v. United States, 354 U.S. 476 (1957)
- Rowe v. Metz, 195 Colo. 424, 579 P.2d 83 (1978)
- Sewell v. Brookbank, 119 Ariz. 422, 581 P.2d 267 (1978)
- 251 So.2d 405 (La. App. 1971) 15, 31, Snowdon v. Pearl River Broadcasting Corp.,
- Sorge v. Parade Publications, 20 A.D.2d 338,
- N .Y .S.2d 317 (1964)
- 19 8 0 ) Stuempges v. Parke, Davis & Co., 297 N.W. 252 (Minn.
- Taskett v. King Broadcasting Co., 86 Wash. 2d 439,
- Tavoulareus v. Piro, 759 F.2d 90 (D.C. Cir. 1985)
- Terwilliger v. Wands, 17 N.Y. 54 (1858)
- Time, Inc. v. Firestone, 424 U.S. 448 (1976)
- Time, Inc. v. Pape, 401 U.S. 279 (1971)
- 425 U .S. 748 (1976) 27, Virginia Pharmacy Board v. Virginia Consumer Council,
- Western Union Telegraph Co. v. Lessesne, 182 F.2d - (4th C ir. 1950)
- Windsor Lake, Inc. v. WROK, 94 Ill. App. 2d 403,
- N .E.2d 913 (1968) - [Vol. 19:
1986] Defamation 1171
Youmans v. Smith, 153 N.Y. 214, 47 N.E.^265 (1897)^ ....^^10
OTHER AUTHORITIES Page 73 A Corpus Juris Secundum, Libel and Slander (1983) 9 33 ALR 4th 212 (1984) ............................... 22 Eaton, The American Law of Defamation Through Gertz v. Robert Welch, Inc. and Beyond: An Analytical Primer, 61 Va. L. Rev. 1349 (1975) ........................ 5, 26 Prosser, The Law of Torts (4th ed. 1971) ............... 3 Prosser & Keeton, The Law of Torts (5th ed. 1984)4, 5, 6, 7, 9 Restatement (Second) of Torts (1976) ............. 3, 7, 8, 14 State Court Reactions to Gertz v. Robert Welch, Inc.: Inconsistent Results and Reasoning, 29 Vand. L. R ev. 1431 (1976) .................................. 22
Defamation
STATEMENT OF THE CASE
This is an appeal from the reversal of an order granting Peti- tioner's motion for summary judgment. (R.1) The present contro- versy arose from a defamation action brought by the Respondent, Richard Douglas, owner of the EZ Construction Company, alleging that the Petitioner, David Gordon, published a defamatory state- ment impugning his reputation and the workmanship of his com- pany. (R.2)
Petitioner, David Gordon, controls and operates an electronic bulletin board network called "Gordotalk". (R.2) Gordon advertises this computer program in several trade magazines inviting persons interested in home repairs and carpentry to communicate through his "host" computer. R.2) Anyone utilizing a computer equipped with a "modem", a device which connects the computer with tele- phone lines, may call Gordon's computer to read the messages. (R.2) In order to post messages on the electronic board, the users pay an annual fee of twenty dollars in exchange (^) for a password which allows them access into the program. (R.2) Passwords are limited to two hundred in number. (R.2)
In most instances Gordon is unaware of the identities of his subscribers; subscribers may, and usually do, leave messages anony- mously. (R.3) Although is computer system may be programmed to permit screening of the messages, Gordon refuses to perform that function. (R.3) Gordon, as the system operator, is the only person who is capable of manually removing the messages. (R.3) Ordinarily, messages are automatically deleted and replaced with newer ones when the computer memory is full. (R.3)
On March 17, 1984, a defamatory message appeared on Gordon's system. (R.2) The message warned readers against doing any business with EZ Construction Company because the owner was unlicensed and performed substandard work. (R.2) A friend called Douglas to inform him of the defamatory statement. (R.2) Respon- dent promptly attempted to contact Gordon, but was unable to reach him since Petitioner had left that day for a vacation. (R.2) Gordon did not return until the evening of March 25, 1984, having left "Gordotalk" unattended for eight days. (R.3) By that time the defamatory statement had been automatically deleted by the com- puter. (R.2)
Richard Douglas filed suit for defamation seeking presumed damages of $400,000. (R.1) Gordon filed a motion for summary judg- ment alleging that he was not the publisher of the statement and that presumed damages were inappropriate since Douglas did (^) not allege that the statement was published (^) with "actual malice." (R.4) The Appellate Court of the State of Marshall reversed and held that
1986]
The John (^) Marshall Law Review
Gordon was the publisher of the defamatory statement. (R.4) The Court also found that Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), was inapplicable because Douglas was not a public figure nor was the defamatory statement a matter of public concern. (^) (R.4)
SUMMARY (^) OF ARGUMENT
The false message posted on "Gordotalk" was defamatory (^) per se because it impugned the Respondent's reputation as a qualified and skillful construction contractor. (^) Therefore, under the common law of the State (^) of Marshall, the publisher of the statement is strictly lia- ble for the presumed (^) damages flowing from such defamation. Re- spondent is not required to plead (^) or prove any fault on the part of the publisher, or to allege that he (^) suffered actual injury.
Although he is not the author of the (^) false and derogatory mes- sage, Petitioner Gordon is its "publisher," since his active participa- tion in receiving, storing, and relaying (^) the message through his com- puter bulletin board program was an indispensable step in the communication of the injurious statement (^) to third parties.
The delineation of constitutional limitations upon the (^) ability of public officials or public figures to recover (^) in defamation absent a showing of "actual malice" does not preclude the (^) Respondent, who is a private individual, from seeking relief in the form of presumed damages. Although the Supreme Court in Gertz (^) v. Robert Welch, Inc., 418 U.S. (^) 323 (1974), prohibited a private plaintiff from recover- ing presumed damages (^) without proof of "actual malice" and actual injury, (^) it did so only in the context of a defamation published by a media defendant. Id. at 350. Gertz, therefore, has no application (^) to the present (^) case, which involves a non-media defendant. The Su- preme Court has recently (^) reaffirmed the applicability of the com- mon law rule of presumed damages (^) to defamations of private plain- tiffs which do not involve matters of public concern. Dun & Bradstreet,Inc. v. Greenmoss Builders, Inc., - U.S. -, 105 S. Ct. 2939, 2948 (1985).
ARGUMENT
I. PETITIONER (^) GORDON, WHO PUBLISHED A FALSE STATEMENT DAMAGING TO RESPONDENT'S BUSINESS (^) REPUTATION ON HIS COMPUTER "BULLETIN BOARD", IS STRICTLY LIABLE ACCORDING TO THE COMMON LAW OF THE STATE OF MARSHALL FOR PRESUMED (^) DAMAGES ARISING FROM
[Vol. 19:
The John Marshall Law Review
his services, but in the eye of the public at large, who might own or occupy such buildings. Moreover, where readers were admonished to "[a]void doing any business with EZ Construction Company" (R.2), it was precisely (^) the intent of the message to deter people from deal- ing with Douglas. Statements which disparage a person's ability or integrity in his occupation (^) or calling have traditionally been viewed with utmost disfavor by the law. Prosser & Keeton, The Law of Torts, 790-92, §112 (5th ed. 1984). Consequently, utterances tending to harm the plaintiff's reputation in his business or profession are generally held to be defamatory. Tavoulareas v. Piro, 759 F.2d 90, 109-110 (D.C. Cir. 1985) (Washington (^) Post article which stated that a corporate president had misused his position and (^) influence to "set up" his son in business (^) was false and defamatory). Furthermore, such state- ments are often deemed to be defamatory per se, that is, actionable without pleading or proving special damages. (^) Davis v. Ross, 754 F.2d 80, 82 (2d Cir. 1985) (unsolicited statements in letter by former em- ployer that plaintiff's personal and (^) work habits were unacceptable and were susceptible of defamatory meaning.) This principle has been applied to defamation actions brought by contractors for statements disparaging to their construction skills or ethics. The Superior (^) Court of Pennsylvania held that a letter from an insurance adjuster informing claimants that a contractor was unreliable was actionable per se. Miller v. Hubbard, 205 Pa. Super. 111, -, 207 A.2d 913, 916 (1965). Similarly, where a de- fendant wrote a letter to general contractors (^) in which he stated that plaintiff's work on all projects was unsatisfactory, and that floors laid by them buckled and bulged and had to be relaid, it was held by the Supreme Court of Iowa to be libelous per se. Plendl v. Beut- tler, 253 Iowa 259, (^) -, 111 N.W.2d 669, 671 .(1961). The "Gordotalk" message concerning Douglas' unlicensed and substan- dard contracting was by its very nature defamatory, and is actiona- ble by him although he has neither alleged nor proven actual damages. As Chief Judge Mason stated in the opinion of the court below, the common (^) law of the State of Marshall provides for strict liability for the publication of a defamation. (^) (R.4) In their vigilance of repu- tation, (^) English and American courts early imposed a rule of strict liability upon the utterer of a defamatory statement. See generally Prosser & Keeton, The Law of Torts §112 (5th ed. 1984). Generally, liability (^) arose on the plaintiff's showing that the defendant pub- lished a statement to a third party, the contents of which tended to injure the plaintiff's reputation. The falsity of the defendant's asser- tions was presumed. Thus, one who cast aspersion upon the good name of another spoke entirely at his own risk; he must either prove
[Vol. 19:
Defamation
the truth of his statements or compensate (^) the plaintiff for the re- sulting harm. See Eaton, The American Law of Defamation Through Gertz. v. Robert Welch, Inc. and (^) Beyond: An Analytical Primer, 61 Va. L. Rev. 1349, 1351 (1975). The so-called "defense of truth" plays no role in the case at bar, since Petitioner Gordon has admitted the falsity of the accusations displayed on his computer bulletin board. (R.2) Plaintiff is not required to prove the defendant's knowledge of the falsity of his assertions. Indeed, (^) one may be liable in defamation though he acted in good faith and without the least (^) intention to de- fame anyone. Thus, in the well-known case of Corrigan v. Bobbs- Merrill Co., 228 N.Y. 58, 63, 126 N.E. 260, 262 (1920), a book pub- lisher who reproduced a manuscript, purported by its author to be fictitious, was found liable where the book contained identifiable ref- erences to a living city magistrate. Because Marshall retains the common law rule of strict liability, it does not avail the defendant Gordon that he was unaware of the falsity of the message (^) that was "posted" during (^) his absence (^) or that he possessed (^) no intention (^) to defame Douglas. A second manifestation of the common law's (^) traditional willing- ness to facilitate a defamed individual in his quest for relief is the doctrine of presumed damages. By this (^) device, an aggrieved plaintiff may recover, without proof of actual harm, for whatever (^) injuries would normally be expected (^) to result from certain classes of defama- tion. The distinction between the "twin torts" of libel and slander is significant mainly (^) with respect to the availability of presumed dam- ages to the plaintiff. Where a defamation takes the form of libel, and the danger of reputational injury is apparent (^) on its face, the plaintiff need not present any evidence that his reputation suffered impair- ment. (^) Prosser & Keeton, The Law of Torts, 785-86, §112 (5th ed. 1984). Such injury is presumed to occur as a consequence of written or printed publication. Speaking (^) ill of one's neighbor, however, was historically (^) viewed as a spiritual transgression, requiring proof of special - "temporal" - injury. Id. When a plaintiff is slandered, therefore, he must allege "special damage" aside from mere reputa- tional impairment or be foreclosed from recovery. Hewlett-Wood- mere Pub. Libr. v. (^) Rothman, 108 Misc.2d 715, 717, 438 N.Y.S.2d 730, 733 (1981); Terwilliger v. Wands, 17 N.Y. 54, 57 (1858). As defined in the Restatement (Second) of Torts, (^) §568(1) (1976), "libel" (^) refers to the communication of defamatory matter "by written or printed words" or any other physical embodiment having the potentially harmful qualities of a writing. "Slander" is the publication of a defamation by "spoken words, transitory ges- tures" and other forms not constituting libel. Restatement (^) (Second) of Torts, (^) §568(2) (1976).
1986]
Defamation
ing to the common law of the State of Marshall.
However, since defendant Gordon was not the original author of the libel, liability may not be imposed upon him unless he is a pub- lisher (^) of the message.
B. Petitioner, who controlled the entry and removal of messages on "Gordotalk", was the publisher of the libelous statement.
In order for a defamatory utterance to be actionable there must be publication of the derogatory matter.^ Prosser^ &^ Keeton,^ The^ Law of Torts, 797, §113 (5th ed. 1984). Since the substance of a defama- tion action is injury to the plaintiff's reputation, it is crucial that the statement be communicated to a third person, that is, to someone other than the subject of the disparaging comment. 73 A Corpus Juris Secundum, Libel and Slander, §79 (1983); See Kelly v. Gen- eral Telephone Co., 135 Cal. App. 3d 210, -, 186 Cal. Rptr. 184, 187 (1982). An act of communication is deemed sufficient as a publi- cation "if it gives notice to the public of any matter desired to be brought to its attention." Estille County v.Noland, 295 Ky. 753, -, 175 S.W.2d 341, 346 (1943).
In the case at bar, the statement impugning the Respondent's reputation was retained in a computer memory bank to which an unknown number of persons had access. Although the record does not state how (^) many viewers actually saw the message, it is evident that it was communicated to at least one third party; namely, the Respondent's friend who informed Douglas of the existence of the "Gordotalk" message. (R.2) This single communication was suffi- cient to constitute a publication. The novel method of communication in the instant case should not obscure its status as a publication. Although the defamatory matter was conveyed from the "host" computer to the recipients' terminals via ordinary telephone connections, the electronic signals were ultimately deciphered in printed form upon computer screens. The printing of defamatory material is "regarded as a publication when possession of the printed matter is delivered with the expecta- tion that it will be read by some third person, provided that result actually follows." Sorge v. Parade Publications, 20 A.D.2d 338, 340, 247 N.Y.S.2d 317, 320 (1st Dep't 1964), quoting Youmans v. Smith, 153 N.Y. 214, 218, 47 N.E. 265, 266 (1897). Gordon, whose advertise- ments encouraged home improvement enthusiasts to exchange messages through his "host" program, not only expected but desired that the items posted would be read by third persons. In similar instances, courts have found publication to have oc- curred where the utterer of defamatory material delivers it with the
19861
The John Marshall Law Review
expectation that (^) it be read by others. Id. Thus, dictation to a typist stenographer (^) has been held to constitute a publication for the pur- poses of a libel or slander action. See Hanrahan (^) v. Kelly, 269 Md. 21, 305 A.2d 151 (1973); Mueller v. Rayon Consultants, (^) Inc., 271 F.2d 591 (D.C.N.Y. 1959). The filing (^) of a false or misleading credit report with a credit organization has been (^) deemed to constitute a publication. Bracker (^) v. Pecos Motors, Inc., 408 S.W.2d 722, 723 (Tx. Civ. (^) App. 1966). The closest analogy to the present case can be found in the (^) ac- tual posting of written messages upon standard bulletin (^) boards. In Fogg v. Boston & Lowell (^) R.R. Co., 148 Mass. 513, 20 N.E. 109 (1889), a defamatory article clipped (^) from a newspaper was posted in a railroad ticket office. (^) The act of posting the libelous extract was a publication. Id. at -, (^20) N.E. at 110. The defendant railroad company was held liable in defamation (^) since it should have been aware of the types of notices (^) posted in its office. By allowing the message to remain on its bulletin board for forty (^) days, the company was held to have ratified the act of posting (^) it. Id. Likewise, in Davis Co. v. United Furniture Workers, Etc., 674 F.2d (^557) (6th Cir. 1982), a statement that (^) an employer had cheated employers out of thousands of dollars, posted on a bulletin (^) board in the context of a labor dispute, (^) was assumed to have been published. Id. at 564. In (^) essence, "Gordotalk" (^) differs (^) from a traditional (^) bulletin (^) board only in that written messages are electronically programmed into the system, rather than attached with a thumbtack. (^) Clearly then, the posting of a defamatory statement concerning respondent (^) Rich- ard (^) Douglas on "Gordotalk" constituted a publication within the (^) law of defamation. However, Gordon himself, who was (^) neither the au- thor nor originator of the message, must qualify as its "publisher", (^) if liability is to be imposed upon him in the (^) instant case. As the Circuit Court of Plymouth County (^) correctly determined, Gordon is a publisher of the material which appears on (^) "Gordotalk" because he authorizes and controls the (^) entry and removal of messages. (R.4) Gordon has (^) voluntarily chosen to program his per- sonal home computer to function as host (^) for the electronic bulletin board network. (R.1-2) Without (^) Gordon's host program, computer- ized messages (^) concerning home repairs and carpentry could not be conveyed from the senders' to the recipients' (^) personal computer ter- minals. Therefore, Gordon's active participation in (^) relaying the de- famatory statement was absolutely essential (^) in its communication to third persons. While the author's act of typing (^) the defamatory mes- sage on his own computer keyboard may or may (^) not have been an act of publication in itself, (^) it cannot be gainsaid that the storage and retrieval of the (^) message through "Gordotalk" was an indispensable step in the communication, (^) or publication, of the material to other
[Vol. 19:
The John Marshall Law Review
programmed to permit the screening of undesirable or defamatory messages before they are stored in the computer's memory bank. (R.3) Although (^) it is inconvenient for him to do so and still operate "Gordotalk" as a hobby, Gordon could reasonably reduce the num- ber of passwords sold, thereby restricting the traffic of messages to a manageable quantity. A public telegraph or telephone company, on the other hand, cannot restrict the number of customers, and the screening of the thousands of calls it is required to transmit each day is simply not feasible. Western Union Telegraph Co., 182 F.2d at 137. For this reason, a telegraph company which merely transmits or delivers defamatory matter is not liable for its publication unless it knows or has reason to know of its defamatory character. Restate- ment (Second) of Torts, §581(1) (1976). A telephone company is not considered a "transmitter." It is merely a supplier of equipment or facilities necessary for general communication purposes, and is therefore not subject to liability. Restatement (Second) of Torts §581(1) (comment f) (1976). In contrast, Gordon does much more than transmit or deliver messages posted in "Gordotalk." His computer program does not simply convey messages from a single sender to a single recipient; it stores them over a period of time, and keeps them available for the perusal of anyone who might later desire to read the messages.
Petitioner's computer bulletin board service is more closely analagous to radio or television broadcasting since broadcasters are generally under no duty to disseminate the material which they se- lect to put on the air. Broadcasting companies are therefore consid- ered primary publishers, subject to the same liability as the origina- tor of the defamatory matter. Restatement (Second) of Torts §581(2) (1976). While broadcasting entities very often rely on pro- grams pre-prepared by others, they often make their facilities avail- able for the airing of live, unedited communications. In Snowdon v. Pearl River Broadcasting Corp., 251 So.2d 405 (La. App. 1971), a radio station invited listeners to call in and speak freely on its live program. A caller announced on the air that a cer- tain doctor and pharmacist were illegally dispensing drugs. Id. Al- though the station broadcast the call without the use of any moni- toring or delay device, the court held that the publication of the defamatory allegation was done by the station. Id. at 410. As in the instant case, the radio station could have utilized a screening device, but could not bear the expense of a monitoring procedure. Id. The court found that by its failure to provide for the screening of calls, the radio station "encouraged the utterance of de- famatory statements with utter disregard of their truth or falsity," and placed itself in a position "fraught with the imminent danger of broadcasting anonymous unverified, slanderous remarks based on
[Vol. 19:
Defamation
sheer rumor, speculation and hearsay." Id. at 411. In the same way, Gordon permitted his computer bulletin board network to be uti- lized for the communication of a defamatory statement prepared by another, without providing himself the opportunity to screen its contents to prevent inevitable harm to Respondent's reputation. Gordon, who invited the public "into" his computer bulletin board program to write and to read the messages displayed, owed a duty to the public to prevent the program from being utilized in any manner likely to cause injury to others, just as those who invite the public onto their property may not permit their premises to be occu- pied with defamatory matter. Heller v. Bianco, 111 Cal. App. 2d 424, 244 P.2d 757 (1952) (bar owner liable for republication of a libelous remark written on a restroom wall when he failed to remove it within a reasonable time). Since Gordon possessed exclusive control over the entry and re- moval of messages on "Gordotalk," he is liable for the publication of any defamatory statement appearing on the system. As the pub- lisher of the injurious and false accusations (^) concerning Respondent's conduct of his construction business, Petitioner is strictly liable for the presumed damages resulting from the defamation, providing such liability under the common law of the State of Marshall is con- sistent with the constitutional protections afforded to publishers under the first amendment.
II. BECAUSE THE FALSE AND DEFAMATORY STATEMENT PUBLISHED ON "GORDOTALK" DID NOT INVOLVE A PUBLIC FIGURE OR A COMMENT UPON A MATTER OF PUBLIC CONCERN, AND IS THEREFORE UNWORTHY OF FIRST AMENDMENT PROTECTION, LIABILITY MAY CONSTITUTIONALLY BE IMPOSED UPON PETITIONER ABSENT A SHOWING OF "ACTUAL MALICE."
Beginning with the landmark decision of New York Times, Inc. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court has struggled to define appropriate constitutional boundaries on the traditional laws of defamation, in keeping with our society's fundamental first amendment rights of free speech (^) and press. Hence, where the indi- vidual's reputational interest has come into conflict with the right of the news media to gather and disseminate information vital to our self-governing society, the Court has justly and wisely placed para- mount importance upon first amendment concerns. To this end, the Court's decisions in New York Times and its progeny have re- stricted the ability of an injured plaintiff to recover in defamation
1986]
