Defamation

Question 1

Slander vs. Libel

Answer 1

Slander- spoken defamation (must show economic harm, except if slander per se)
Libel- written form of defamation (no need to show economic harm)

Question 2

Defamatory Statement

Answer 2

A statement is defamatory if it tends to so harm the reputation another as to lower them in the expectation of the community or deter a third party from associating with him

MUST BE CONSIDERED IN CONTEXT

Question 3

Proof of harm?

Answer 3

No proof of actual harm to reputation is necessary

Question 4

Of and Concerning

Answer 4

The reading public acquainted with the parties and the subject would recognize the plaintiff as a person to whom the statement refers (those who know the plaintiff)

Even if the reader is REASONABLY MISTAKEN as to who the statement refers to, the statement can still be defamatory

Question 5

Small Group Defamation

Answer 5

Each member of a small group may maintain an action for INDIVIDUAL injury from a defamatory comment about the group (If the group is so small that it can reasonably be assumed that the statement implicated each individual member)

Question 6

Recoverable Damages for Defamation

Answer 6

1. Damage to reputation
2. Emotional distress
3. Economic harm
4. Physical harm

Question 7

Slander per se categories

Answer 7

Plaintiff is relieved of duty to show “special harm “ if the statement accuses someone of…

1. A criminal offense
2. A loathsome disease
3. A matter incompatible with his business, trade, profession, or office
4. Serious sexual misconduct

Question 8

Presumed damages

Answer 8

Recovery without any evidence of injury Sometimes permitted where P established that defamation consisted of libel or slander per se

Question 9

What’s the role of truth/falsity?

Answer 9

SUBSTANTIAL truth is an absolute defense

Sometimes P bears burden of proving statement was false; sometimes D has an absolute/affirmative defense to prove that it was true

Question 10

When is a statement substantially true?

Answer 10

A statement is “true” if the literal truth would produce the same effect on the reader (slight inaccuracies are immaterial)

Question 11

Liability for opinions?

Answer 11

No.

“A statement on matters of public concern must be PROVABLE AS FALSE before there can be liability under state defamation law”

“Protection for statements that cannot reasonably be interpreted as stating actual facts”

Question 12

New York Times v. Sullivan

Answer 12

Actual Malice Standard for Public Officials (and now public figures):

If the plaintiff is a public official, she must prove that the defendant acted with actual malice:
‣ D KNEW the statement was false or acted with RECKLESS DISREGARD that the statement was false

Question 13

Who is a Public Official?

Answer 13

A public official has “such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all govt. employees” a.k.a. POLICY MAKERS
◦ Note: Just because you’re a govt. employee doesn’t make you a public official

Question 14

Private Figure/Public Concern must show…

Answer 14

1) A false, defamatory statement
2) Of and concerning you
3) Made with some degree of fault (not actual malice)
◦ BUT, for presumed or punitive damages, must show actual malice (otherwise, just compensation for actual injury)

Question 15

Private Figure/Private Concern must show…

Answer 15

1) A false, defamatory statement
2) Of and concerning you
3) Made with some degree of fault (not actual malice)

Question 16

Public Figure/Private Concern

Answer 16

Supreme court hasn’t ruled on this. If they are an all-purpose public figure, their “matters of private concern” are matters of public concern

1) A false, defamatory statement
2) Of and concerning you
3) Made with actual malice

Question 17

Public Figure/Public Concern

Answer 17

1) A false, defamatory statement
2) Of and concerning you
3) Made with actual malice

Question 18

Actual Malice

Answer 18

Statements made with knowledge that the statement was false or with reckless disregard as to their falsity

Question 19

Reckless Disregard

Answer 19

‣ Evidence of an intent to avoid the truth
‣ Evidence that the defendant entertained serious doubts as to the truth of his publications
‣ Evidence that defendant acted with high degree of awareness of a statement’s probable falsity

Question 20

Limited-Purpose Public Figure

Answer 20

Someone who has thrust themselves to the forefront of a public controversy, often in order to influence its resolution

‣ 1) Must be a public controversy already being talked about

‣ 2) Look at the extent of the plaintiff’s participation in the public controversy
• Did the plaintiff purposely thrust themself into the public spotlight?
• How prominent a role did the individual play in the public controversy?

‣ 3) Does the statement relate to the issue for which the individual would be a limited-purpose public figure?

Question 21

All-Purpose Public Figures

Answer 21

A very small group, “household names,” who have such a level of notoriety that makes all statements about them matters of public concern – (must prove actual malice for any statement)

Question 22

Involuntary Public Figure

Answer 22

‣ 1) Be a central figure in a significant public controversy, AND
‣ 2) Have assumed the risk of publicity, even if one did not seek to publicize her views or influence discussion on an issue of public controversy

Question 23

Absolute Privileges

Answer 23

‣ Truth
‣ Consent (just need to know something bad could be said)
‣ Judicial proceedings privilege (protects statements made in the course of litigation, “some relation to the proceeding”)

Question 24

Qualified Privileges

Answer 24

‣ Common Interest Privilege
‣ Public Interest Privilege
‣ Privilege to Protect One’s Own Interest/Interest of Another
‣ Fair Comment Privilege

Question 25

You can lose protection of a qualified privilege if…

Answer 25

1) Communicator primarily motivated by ill-will
2) Excessive publication of defamatory statement
3) Statement was made without belief or grounds for belief in its truth

Question 26

Common Interest Privilege

Answer 26

Protects communication made on matters in which the parties have a common interest of duty.

“If the communication was made in good faith to serve the interests of the publisher and the person to whom it is addressed”

Question 27

Public Interest Privilege

Answer 27

Affords protection to a private citizen who publishes defamatory matter to a third person, even though he is not a law enforcement officer, under circumstances which, if true, would give to the recipient a privilege to act for purposes of preventing a crime or of apprehending a criminal or fugitive

Question 28

Fair Comment Privilege

Answer 28

Protects statements made by D when, after expressing an opinion, he discloses the facts upon which the opinion is based (as long as the facts are true)

Question 29

Media Privileges

Answer 29

‣ Fair Reporting Privilege

‣ Neutral Reporting Privilege

Question 30

Fair Reporting Privilege

Answer 30

Protects a fair/true/impartial account of:
‣Judicial proceeding (unless prohibited)
‣Official proceeding
‣Executive/legislative proceeding
‣Proceedings of a public meeting dealing with a public purpose

(courts are split on whether malice defeats this privilege)

Question 31

Neutral Reporting Privilege

Answer 31

Protects the press from liability for reporting newsworthy statements, even if the publisher harbors serious doubts about their truth