18) Defamation

Question 1

defamation: checklist

Answer 1

1) is it defamatory?
2) pleading issues
3) publication
4) libel or slander
5) common law privileges
6) 1A issues

Question 2

defamation: def

Answer 2

published false defamatory material concerning P, that caused reputational damage

Question 3

defamatory material: def

Answer 3

defamatory if:

1) subjects P to scorn/ridicule/contempt, OR
2) deters 3rd persons from dealing w her

either way must cause reputational harm

Question 4

defamatory material: exceptions

Answer 4

1) hyperbole
2) pure opinion

neither is defamatory

Question 5

defamatory material: exceptions: pure opinion: ojo!

Answer 5

if provably true or false it’s not an opinion, even if couched in opinion language, so this dn apply

Question 6

defamatory material: in whose opinion?

Answer 6

must be defamatory in the eyes of a repuable group (not: you defamed me to the nazis)

Question 7

pleading problems – issue

Answer 7

were the right facts alleged?

Question 8

pleading problems – list

Answer 8

1) P not named in language
2) can’t defame a large group
3) st not defamatory on its face

Question 9

PP: P not named: how to fix

Answer 9

allege that it is of or concerning her

still ok if it’s a small group of ppl (3 female torts professors) – all can sue

Question 10

PP: large group: how to fix

Answer 10

can’t fix! result: claim fails

Question 11

PP: st not defamatory on its face: how to fix

Answer 11

allege other facts (like the person whose wedding you’re announcing is already married)

Question 12

publication: def

Answer 12

someone other than P read, saw, or heard the defamation

Question 13

publication: elements

Answer 13

1) someone other than P read, saw, or heard the defamation AND
2) D intended that 3rd person would come in contact with it, OR was negligent that 3rd person would come into contact w it

Question 14

republication rule

Answer 14

anyone who repeats the defamation is also a proper D, even if they attribute it

republication can also increase damages owed by orig D

Question 15

type of defamation: kinds

Answer 15

1) libel

2) slander

Question 16

type of defamation: result

Answer 16

affects what ko damages are available

Question 17

libel: def

Answer 17

defamatory message in a relatively permanent form

Question 18

libel: def: permanent form: exs

Answer 18

(written, sound recording, video, picture, sculpture, etc)

Question 19

libel: damages rule

Answer 19

reputational harm is PRESUMED and damages do not have to be proved

Question 20

slander: def

Answer 20

defamation is not preserved in permanent form (often spoken)

Question 21

slander: damages rule

Answer 21

in order to recover, P must prove special damages (specific economic losses that flow from defamation)

OR
slander per se

Question 22

slander per se: result

Answer 22

an exception to the nl slander damages rule –> spl damages not required, can proceed on claim of reputaitonal harm

Question 23

slander per se: kinds

Answer 23

1) suggesting P not fit for their profession/role
2) imputing to P the commission of a crime involving moral turpitude or punishable by imprisonment/death
3) alleging P has current loathsome disease (incurable, persisted over time)
4) lack of chastity in a woman (maybe broader now)

Question 24

common law privileges: kinds

Answer 24

1) truth
2) absolute privilege
3) qualified privilege

Question 25

truth privilege: def now

Answer 25

P generally must prove falsity as part of case | maybe unless P is private P and matter is of private concern

Question 26

truth privilege: old CL rule

Answer 26

falsity was presumed and truth was substantial defense

Question 27

absolute privilege: result

Answer 27

D may not be held liable for the otherwise defamatory message as MOL!

Question 28

absolute privileges: lists

Answer 28

1) coms btwn spouses 2) sts made on floor of legislature 3) sts btwn high ranking gvt officials 4) sts made in conduct of judicial proceedings

Question 29

absolute privilege: limits

Answer 29

privilege ends if someone REPEATS the defamatory st in non-privileged situation

Question 30

qualified privilege: result

Answer 30

gives greater leeway to speech, but D can lose it

Question 31

qualified privilege: how D loses

Answer 31

acts out of malice, knows accusation is false, OR is reckless about truth or falsity of st OR excessive publication

Question 32

qualified privilege: situations

Answer 32

1) communication nec. to advance D's own legit interests 2) matter of interest to the recipient or 3rd person 3) communicated re a matter of public interest, to one empowered to protect that interest

Question 33

constitutional issues: qs to consider

Answer 33

1) status of P 2) subject matter of st 3) damages P seeks 4) status of D

Question 34

status of D: kinds

Answer 34

1) media | 2) nonmedia

Question 35

status of P: kinds

Answer 35

1) public official 2) public figure 3) private figure

Question 36

subject of st: kinds

Answer 36

1) public concern | 2) private concern

Question 37

special rule for public officials

Answer 37

P must prove by clear and convincing evidence (higher burden than preponderance) that actual malice

Question 38

actual malice: def

Answer 38

recklessly disregarded truth or falsity (actually entertained serious doubts)

Question 39

public figures: rule

Answer 39

same as public officials -- must prove actual malice by C+C

Question 40

public figure: kinds

Answer 40

1) all-purpose | 2) limited

Question 41

all-purpose public figure: def

Answer 41

household name

Question 42

limited-purpose public figure: def

Answer 42

person who injects themselves into a particular controversy, hoping to affect the outcome

Question 43

private figure + public concern: rule

Answer 43

usually negligence for PROVEN damages of reputational harm presumed or punitive damages require actual malice

Question 44

1A concerns started in

Answer 44

1964, so no old common law

Question 45

public or private concern? consider

Answer 45

1) form 2) content 3) context

Question 46

private figure + private concern: rule

Answer 46

dnn to prove actual malice