Defamation

Question 1

What must P show to establish defamation?

Answer 1

• P must establish that D published defamatory material concerning P that caused reputational harm

Question 2

What are the elements of a defamation claim?

Answer 2

• Defamatory message
• Publication

Question 3

What constitutes a defamatory message?

Answer 3

• Subjects P to scorn, ridicule, or deters others from dealing with P causing reputational harm (Ex: accusing of heinous crime).

Question 4

May opinions constitute a defamatory message?

Answer 4

• Must be one that can be believed as truthful and reputation harming.
• Hyperbole and opinion are not defamatory.

Question 5

How might P pursue a defamation suit if P was not named in the defamatory message?

Answer 5

• Where P is not named, P must allege the message is of or concerning P and that P is identifiable by context.
  o EXAMPLE: Law School Paper publishes an article saying that the female torts professor has been arrested for bank robbery. Professor Peters can sue claiming that it is of and concerning her because she is the only female torts professor and people will associate her with the statement.

Question 6

What is the publication requirement for defamation?

Answer 6

• Someone other than P read, saw, or heard the defamation.
• P must show D either intentionally published the information or was negligent in publishing the information

Question 7

What is the republication rule for defamation?

Answer 7

• In addition to D, who originates the defamatory message, other persons who repeat the defamatory message are potentially liable as well.

Question 8

What are the two types of defamation?

Answer 8

• Libel
• Slander

Question 9

What is libel?

Answer 9

• Defamatory message embodied in any relative permanent form.
• Reputational harm is presumed, but the damages have to be proven.

Question 10

What is slander?

Answer 10

• Defamation in spoken rather than written in form.

Question 11

How can P recover for slander?

Answer 11

• To recover, P must prove special damages (specific economic losses that flow from the slander). P can also receive reputational damages

Question 12

What situations constitute slander per se?

Answer 12

• Slander which imputes to P behavior or characteristics that are incompatible with the proper conduct of P’s business, profession, or office.
• Slander that imputes to P commission of a crime involving moral turpitude or infamous punishment (prison/death).
• Allegations that P has some loathsome disease.
• Falsely imputing lack of chastity to a woman.

Question 13

Which common law privileges can be used against defamation claims?

Answer 13

• Truth
• Absolute privilege
• Qualified/conditional privilege

Question 14

How can truth be used to quell a defamation suit?

Answer 14

• P must prove falsity as part of P’s prima facie case.

Question 15

Under what exception would P not be required to prove the falsity of a defamatory message to satisfy their prima facie case?

Answer 15

• P is a private, not public figure, and the matter is a private concern.

Question 16

How can absolute privilege defend D from a defamation claim?

Answer 16

• D may not be held liable for an otherwise defamatory message as a matter of law. No matter how bad the D is. Blanket protection

Question 17

Under what contexts would absolute privilege protect D from defamation?

Answer 17

• Communications between spouses.
• Statements made on the floor of the legislature.
• Communications between high ranking executive officials.
• Statements made in conduct of judicial proceedings.
  o EXAMPLE: Congressman Dawson stands up on the floor of the legislature and says “people, like my opponent in my last race, who are child molesters should be in jail.” Absolute privilege applies, no liability.

Question 18

When would absolute privilege against defamation end?

Answer 18

• Privilege ends if someone repeats in a non-privileged situation.

Question 19

How would qualified/conditional privilege protect D from defamation?

Answer 19

• D is qualifiedly immune from liability for defamatory messages (among others) if:
  o Comments are made in a communication that appears reasonably necessary to protect or advance the D’s own legitimate interests;
  o Comments were communicated on a matter of interest to the recipient of the communication or a third person; or
  o Comments were communicated concerning a matter of public interest to one empowered to protect that interest.

Question 20

When would D lose their qualified privilege against defamation?

Answer 20

• D has a bad intent, acts out of malice, or is reckless as to the statement’s truth/falsity.
• D does not believe the truth of the defamatory communication

Question 21

What is the four question approach to analyzing constitutional issues that arise in defamation claims?

Answer 21

• What is the status of P (public official, public figure, private figure)?
• What is the subject matter of the statement (public or private concern)?
• What damages does P seek?
• What is the status of D?

Question 22

What is the defamation standard for public officials?

Answer 22

• If defamation is related to capacity as a public official, P must prove actual malice by clear and convincing evidence. (i.e. D knew it was false or recklessly disregarded the truth or falsity.)

Question 23

What is the defamation standard for public figures?

Answer 23

• Treated just like public official, same standard of clear and convincing evidence

Question 24

What are two kinds of public figures (aside from public officials)?

Answer 24

• All-purpose public figures: household names, e.g. Madonna.
• Limited public figures: People who inject themselves into a controversy.

Question 25

How is the defamation standard for private figures?

Answer 25

• Look at subject matter and determine whether it is of public or private concern. Consider form, content, and context.
  o Public Concern: If the subject matter of the defamation is a matter of public concern, D must be shown to have exhibited some degree of fault higher than strict liability, which presumably means negligence.
   Presumed or punitive damages require actual malice.
  o Private Concern: P does not have to prove actual malice to get presumed or punitive damages (note - not settled; not tested).