Defamation Flashcards
Defamation Elements
- Defamatory statement
- About the P
- Falsity – statement must be substantially untrue
- Fact v. Opinion
- Published – statement must be conveyed and understood by at least one person other than P or D
- Damages
- State of mind
Note: Elements 3, 4, 6, and 7 impacted by 1st A
First Element Defamatory Statement
Rule: A defamatory statement is one that diminishes the respect, good will, confidence or esteem in which the P is held OR excites adverse or unpleasant feelings about the P.
Note: The statement must have an impact on any substantial minority of respectable (not anti-social) people.
Defamatory statement Hypos
“Mr. X, a grocer, sells bacon.”
“Ms. Y is getting a divorce.”
‘Ms. Y was seen drinking alcohol.”
“Mr. X is a Republican.”
“Mr. X is a police informant.”
Defamation Statement sub-Rules
Inducement: Where statement is not defamatory on its face, P must plead extrinsic facts – background information called the inducement.
Application: “Prof. X spends several evenings a week doing ‘pro bono’ work at 5050 Main Street.”
This does not appear defamatory without pleading inducement: 5050 Main Street is a brothel.
Defamatory Sub-Rules Continued
Innuendo: Where the statement is not defamatory on its face, P must explain why the statement, along with the inducement, injures P’s reputation. This explanation is called the innuendo.
Application: Regarding the 5050 Main Street statement and Prof. X - The innuendo would be that the statement indicates that P frequents a brothel as a customer.
Second Element About the P
Rule: P must establish that a reasonable person would understand the defamatory statement referred to the P.
Where group mentioned is large, none can sue.
Where group mentioned is small, each member can sue.
Problems occur when group mentioned but statement refers to only “some“ members of the group.
About the P Sub-rule
Colloquium: Where statement does not explicitly refer to P, P must plead extrinsic facts, known as colloquium, to demonstrate that a reasonable person would understand the statement as referring to the P.
Third Element: Falsity
Rule: The statement must be substantially untrue.
Application: Where details between truth and the statement differ, ask whether the “essential sting” or “thrust” of the defamatory communication is the same as what actually happened. Where there is a difference between the statement and what actually happened, falsity is established.
Falsity Continue - Hypos
Statement: “Prof. B-R killed 12 people.”
What really happened: Prof B-R robbed 12 people.
Statement: “Prof. B-R killed 12 people.”
What really happened: Prof. B-R killed 11 people.
In which case, 1 or 2 above, will the statement be considered false?
Fourth Element: Fact v. Opinion
This element has been so substantially affected by Constitutional law that we will defer studying it until later in our defamation unit!
Fifth element Publication
Rule: Publication takes place where the statement is communicated to a third person, a person other than P or D, and that third person hears or reads it and understands it.
Sub-rule: Publication must take place via an intentional or negligent act. In other words, D must intend the third person to receive the communication OR be negligent in allowing the communication to reach the third person.
Fifth element: Publication cont.
Communications Decency Act of 1996
§230(c)(1): “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
This grants immunity from defamation liability to Internet services so long as the content was provided by another party.
Fifth element: Publication - Common Law - Outside of the Internet
Sub-rule 1: Each entity taking part in making the initial message is charged as a primary publisher (author, editor, newspaper, tv station)
Sub-rule 2: Those who transmit the message more passively are secondary publishers and are liable only if they know or should know of defamatory matter (bookstores, libraries, magazine stand)
Sixth Element Damages
General damages: Presumed by law and need not be proven. Provides compensation for general injury to reputation (e.g. humiliation, wounded feelings, loss of friends).
Special damages: Must be proven. Covers pecuniary loss as a result of defamation (e.g. lost job, loss of prospective gift, destruction of advantageous business relationship).
Sixth Element: Damages Cont
must prove specials* gen’l presumed
Slander Yes After proving specials
Slander per se No Yes
Libel No Yes
Libel per quod No (Restatement)** Yes (Restatement)**
- All Ps must prove special damages in order to recover special damages.
** Some states disagree with the Restatement.
Seventh Element: state of mind
U.S. Constitution: First Amendment
“Congress shall make no law…[establishment clause deals with religion] abridging the freedom of speech, or of the press…”
Sub-rule: Through the operation of the Fourteenth Amendment, the First Amendment binds not only the federal government but also the states.
Sub-rule: First amendment claims require state action; private actors not subject to restrictions
Seventh element: state of mind
Rule for public official, public figures, candidates for public office:
P must prove actual malice; ie. P must prove D made the defamatory communication with knowledge that it was false or with reckless disregard for truth or falsity.
Seventh element: State of Mind - actual malice subrule
What is the definition of “reckless disregard,” the second half of the actual malice standard?
Reckless disregard means D subjectively entertained serious, serious doubts about the truthfulness of the statement.
Seventh element; state of mind - subrule standard of proof
What is the standard of proof for actual malice?
Public officials and public figures must prove actual malice by “clear and convincing evidence.”
Sometimes this standard of proof is thought of as equivalent to proof beyond a reasonable doubt. Sometimes it is conceptualized as an intermediate standard – in between a preponderance of the evidence and proof beyond a reasonable doubt.
Seventh element: State of Mind - sub rule Is the P a public official?
Whether someone is a public official is an issue of federal NOT state law.
How do we tell if the P is a public official?
Ask whether P is a government employee who has or appears to have substantial responsibility for or control over government affairs. If yes, then P is a public official.
Seventh element: State of mind – sub-rule – Types of public figures
All purpose public figures: People who have such pervasive fame that they are public figures for all purposes (Beyonce, Jay-Z, Lin-Manuel Miranda, Lady Gaga, Brad Pitt, Tiger Woods, Oprah, Ellen DeGeneris, the Kardashians, Will Smith, Megan Thee Stallion, Jennifer Lopez)
Limited purpose public figures: A person who typically injects themself into a particular controversy and is a public figure for the issues related to that controversy.
Seventh element: State of mind – sub- rule – Limited purpose test
There must be a public controversy – an issue publicly debated with substantial ramifications;
Typically P must thrust themself into the controversy (akin to assumption of the risk); and
The defamatory communication must concern the issues related to the public controversy.
Seventh element: State of mind – Private figures
What is the test for state of mind where P is a private figure?
“So long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher…of defamatory falsehood injurious to a private individual.”
What does the above statement mean?
Sixth element: Damages – Private figures
Where no showing of actual malice, may a private P defamed on a matter of public concern recover presumed or punitive damages?
No. Such a P may only collect compensation for actual injury.
What is actual injury? Proven damages not limited to out-of-pocket loss, and covering impairment of reputation, humiliation, mental anguish.
Impact of Constitution on CL of Defamation
Impact of Constitution on CL of Defamation
Sixth Element: Damages Private Figures
Does the Gertz rule on damages (see slide 10) apply where a private P is defamed on a matter of private concern?
No. But how does one distinguish between a matter public and a matter of private concern?
Test: Look to the “content, form, and context as revealed by the whole record.”
Sixth element: Damages – Private figures – public v. private concern
What is a matter of public concern?
“Speech deals with matters of public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community.’”
Snyder v. Phelps, 562 U.S. 443 (2011).
Sixth element: Damages private figures public v. private concern
D & B Content (What speech is about): Private credit information
D & B Form (How speech transmitted): Private letter to subscribers
D & B Context (How many did it reach? Where?): 5 subscribers in private settings
Sixth element: Damages – Private figures – public v. private concern
Snyder v. Phelps, 562 U.S. 443 (2011)
Content: (What speech is about): Political and moral conduct of the US & its citizens; gay soldiers serving in the military
Form: (How speech transmitted): On signs
Context: (How many did it reach? Where?): Many saw it; protest on public land, 1000 ft. from funeral
Wrap up NY Times, Gertz, and D& B
Public P defamed on matter of public concern must prove actual malice for state of mind.
Private P defamed on matter of public concern must prove at least negligence for state of mind.
What must private P defamed on matter of private concern prove for state of mind? Supreme Court has not ruled. Almost all states make such Ps prove negligence.
Third element revisited – Falsity
Rule: The statement must be substantially untrue.
Which party, P or D, must prove this issue?
Hepps holds that P must prove the issue, at least where a private P is defamed on a matter of public concern. (Public Ps must prove falsity too.)
Open issue: What about private Ps defamed on matters of private concern?
Fourth Element Fact v. Opinion
Is there a Constitutionally required opinion exception to the application of defamation law? In other words, is an expression of opinion absolutely protected by the First Amendment? NO.
Fourth element: Fact v. Opinion
When is a statement of opinion actionable in a defamation suit?
Opinion is actionable when it implies an assertion of objective false facts.
Fourth element Facts v. Opinion
In what way does the following sentence imply false facts?:
“In my opinion, John Jones is a liar.”
Compare: “In my opinion, John Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin.” (Assume JJ is a Marxist.)
Fourth Element Facts v. Opinion
Opinion is actionable in a defamation suit if:
The opinion implies false, defamatory facts; e.g. “I think Professor Bisom-Rapp is an alcoholic” is a statement that implies known, false, reputation- harming facts about me.
The speaker offers an opinion as true when it is not an opinion actually held by the speaker. In other words, it is a false opinion; e.g. “I thought the food in Restaurant X was disgusting” – but the speaker loved the food!
Defamation Defenses
Two important defenses:
Consent: An absolute defense so long as it is not exceeded.
Truth: Even though public Ps and private Ps defamed on a matter of public concern must prove falsity, substantial truth, if proven by the D, is an absolute defense.
Absolute Privileges
Participation in government processes
Judicial proceedings
Legislative proceedings
Executive proceedings
Conditional/Qualified Privileges
Three Types of Conditional/Qualified Privileges
The “interest” privileges
Reports of public proceedings
The privilege of fair comment
The Interest Privileges
- Protection of publisher’s own interests
- Protection of a third party’s interests
- Protection of common interests
- Public interest
Ways of losing Interest Privileges
- Where D has no reasonable basis for believing the statement is true (P proves D acted with reckless disregard due to Const. standards);
- Where D’s statement was not solicited;
- Where D’s statement was not made to a proper person;
- Where D excessively published the statement;
- Where D used inflammatory words;
- Where D had improper state of mind
Reports of Public Proceedings
There is a qualified/conditional privilege to report on public proceedings, public records, official acts but the report must be verbatim OR an accurate and fair (disinterested) summary.
To defeat the privilege, P must show fault by D in failing to make the report accurate and fair.
Privilege of Fair Comment
D may offer criticism on matters of public concern, including the activities of public officials/figures and on subjects scientific, artistic, literary, and dramatic.
The criticism must be comment or opinion not a misstatement of fact. It must be fair and based on true facts.
Interpret the privilege by referencing Milkovich.
