truth not a defense to libel???

[James Lindgren]

People on this list seem to argue as if libel cannot involve true information.  In
the  mid-1980s in an IL case, a student who later went to law school put up posters in
bars that his circle frequented, describing his female ex-lover's favorite sexual
positions, sexual history, etc.  He was prosecuted, not for invasion of privacy, but
for criminal libel--even though everything was true.  In IL, the statute said that
truth was not a defense to criminal libel.  Very competent counsel (and a leading con.
law professor) argued that truth had to be a defense to defamation.  His argument was
rejected by the IL Supreme Court, and the US Supreme Court denied cert.  Sorry, I
don't know the case name.

Has the IL law changed since the mid-1980s, or are people just assuming that truth
must be a defense to libel without regard to what some courts actually do?  Obviously,
this is NOT my area and I may have missed important parts of this debate.

Jim Lindgren
Northwestern

Eugene Volokh wrote:

>         I certainly sympathize with Prof. Dow's view on the matter -- indeed, a
> surreptitious video of someone having sex seems so far removed from any
> possible public debates, and so egregiously offensive, that we'd like some
> way of suppressing it.  In my Freedom of Speech and Information Privacy
> piece, http://www.law.ucla.edu/faculty/volokh/privacy.htm (text accompanying
> notes 180-181), I acknowledge that the case for restricting this speech
> seems quite strong.
>
>         The danger is that such restrictions will have precisely the effect that
> they seem to be having in this thread:  That they will be used as
> justifications for far broader restrictions of speech that -- like reports
> on someone's allegedly botched abortion -- may have a good deal more
> relevance to debates about the moral propriety of abortion, the possibility
> that abortions will lead to complications, or for that matter the moral
> worth of the person getting or performing the abortion.
>
>         While there may be a narrow zone of fairly uncontroversially
> non-public-concern topics, the danger is that the vague, subjective "public
> concern," "newsworthiness," or "legitimate public interest" test will flow
> far beyond this zone; and as some of the private facts tort cases show, this
> danger has materialized.  This risk may be enough to reject a "private
> concern" exception and abandon the private facts tort altogether, and it is
> certainly enough to demand that the test be rephrased as something much
> clearer and narrower before it is accepted.
>
>         It's tempting to pooh-pooh such "slippery slope" concerns, but the slippery
> slope is a very real risk, and of course these concerns have helped mold
> many of the valuable protections that modern First Amendment law provides.
> For instance, we can all think of examples of entertainment that has no
> connection to public issues, but Winters v. New York was right to conclude
> that entertainment should be protected despite this, because "[t]he line
> between the informing and the entertaining is too elusive for the protection
> of [the] basic right [of free speech]."  If the word "fuck" were forcibly
> expurgated from public debate, discussion would likely not be substantially
> impoverished, but Cohen v. California was right to conclude that the word
> should be protected despite this, because otherwise "no readily
> ascertainable general principle [would] exist[] for stopping short of" far
> broader restrictions.  If vitriolic, relatively nonsubstantive parodies such
> as the one in Hustler v. Falwell were banned, "public discourse would
> probably suffer little or no harm," but the Court correctly refused to
> uphold such a ban, since it could find no "principled standard to separate"
> them from speech that had to be protected.
>
>         Likewise, the notion that otherwise protected speech should be restrictable
> when it doesn't relate to matters of public concern strikes me as so
> potentially broad and so vague that it deserves to be abandoned, even if it
> would yield the right results in a narrow subset of the cases in which it
> would be applied.
>
> David Dow writes:
>
> > consistent with marty's point: the case referred to by someone
> > else (sorry,
> > i get the digest, so i am not sure who it was) involving the male who
> > videotaped himself having sex with his girlfriend and then showed
> > the video
> > to his friends did result in both an injunction against further screenings
> > as well as damages. eventually the texas supreme court reversed
> > the damages
> > award b/c the girlfriend's theory was negligent infliction of emotional
> > distress (on remand she amended her c/a to allege intentional infliction),
> > and the texas supreme court held that there is no c/a for damages for
> > negligent infliction of emotional distress.  855 sw2d 593 (1993).  but
> > there was never any question as to whether the owner of the
> > videotape had a
> > first amendment interest that would shield him from damages, and i cannot
> > imagine that the result would be different if CNN rather than the
> > boyfriend
> > had shown the video.
> >
> > -- d.dow