defamation

Question 1

defamation elements

Answer 1

a. False and defamatory stmt (libel or slander) concerning an identifiable, living person
b. Published to a third person (w/o privilege, eg. Consent)
c. That damages the persons reputation
d. Satisfies First Amendment requirements regarding falsity and level of fault

Question 2

defamatory

Answer 2

a. words must tend to “expose [the plaintiff] to distrust, hatred, contempt, ridicule, or obloquy”
b. what is measured is the effect of those words on a person’s ability to engage in normal social intercourse

Question 3

defamation standard

Answer 3

i. A statement is libelous if some people find it to be libelous, even if that group is the “wrong thinking” or minority group

Question 4

defamation standard restatement

Answer 4

It is enough that the communication would tend to prejudice him in the eyes of a substantial and respectable minority of the [community]
1. Does not need to ACTUALLY cause harm

Question 5

defamation judge

Answer 5

judge has the task of deciding whether the pleaded material is capable of having a defamatory meaning

Question 6

defamation jury

Answer 6

jury has the task of deciding whether the material should be regarded as defamatory

Question 7

defamation defense

Answer 7

An affirmative defense to an action to libel is that the publication is true.
i. Must merely be substantially true

Question 8

ascertainable living person

Answer 8

a. Statement must refer to some ascertained or ascertainable person
b. Stmts about a class must have some particular circumstances which point to the P as a person defamed
c. P must show that a rsbl person who read the publication could identify it as a stmt about the P

Question 9

ascertainable living person restatement

Answer 9

i. As a general rule no action lies for the publication of defamatory words concerning a large group or class of persons

Question 10

slander

Answer 10

a. Only actionable on the showing that the words caused special damage.
b. Damage must flow from the dimunition of reputation rendered by the slander

Question 11

slander per se

Answer 11

i. Facially damaging to the P
ii. If not SPS then the P must allege that some particular damage has happened & stmt must be disparaging to the character of the P and special damage must “flow” from the damage to the character

Question 12

what does it mean to be published

Answer 12

Publication is the communication of the defamatory words to someone other than the person defamed
i. Words must be spoken in the presence of others and they must understand it

Question 13

published

Answer 13

• Defamatory stmt must be published to a third person
• w/o an understandable communication of the accusation to third parties the P’s reputation cannot suffer

Question 14

single publication rule

Answer 14

i. Publication of a book, periodical, or newspaper containing defamatory matter gives rise to ONLY 1 cause of action for libel which begins at the time of the original publication
ii. Statute of limitations begins at date of first publication

Question 15

actual malice

Answer 15

• When the speaker had knowledge that the statement was false or acts with a reckless disregard to whether it was false or not
• Subjective state of mind
• Established by consciously turning a blind eye to conflict information
• Purden of proof is on the P when the P is a “public figure” to prove the actual falsity of the statement

Question 16

public officials

Answer 16

The Constitution prohibits public officials from recovering damages for a defamatory falsehood relating to their official conduct unless they prove that the statement was made with ACTUAL MALICE
- Proof must be clear and convincing of evidence of actual malice
- Failure to investigate alone will not suffice

Question 17

private individual standard

Answer 17

• Lower standard for private individuals
• States may define their own standard
• No punitive damages unless theres a discovery of knowledge of falsity or reckless disregard for the truth

Question 18

private v. public person

Answer 18

Turns on 2 matters that diminish the reputational interests and advance the free speech interests
1. Marketplace of ideas and the advantages that a public person has in accessing that marketplace, and
2. The voluntary assumption of risl that public person may be said to take on

Question 19

matters of public concern

Answer 19

damages may be presumed and punitive damages awarded w/o a showing of malice

Question 20

Public Concern & Private individual

Answer 20

Defaming stmts about private figures on “matters of public concern” cannot be penalized unless they were made knowingly or negligently with regard to their falsity

Question 21

Private Concern & Private Individual

Answer 21

Defaming stmts about private persons and purely private conduct receive no special procedural protections under the U.S. Constitution

Question 22

falsity

Answer 22

Where there is a matter of public concern, a private individual must establish that the stmts are false

Question 23

opinions

Answer 23

protected by free speech

Question 24

fact vs. opinion factors

Answer 24

1. Type of language used
2. The meaning of the stmt in context
3. Whether the allegedly implied fact can be verified
4. The circumstances in which stmt was made
5. Whether a factual basis of the opinion was disclosed

Question 25

absolute privileges

Answer 25

• judicial
• legislative proceedings
• public officials
• D must prove there was a proper interest or duty that justified publishing the stmt

Question 26

qualified privileges

Answer 26

• protection of publishers own interests
• protection of interests of a third person
• common interest

Question 27

common law privileges

Answer 27

• fair reporting
• privilege to provide means of publication
• fair comment (must be opinion)

Question 28

judicial privileges

Answer 28

applies to judges, attorneys, witnesses, as long as the stmt is relevant and pertinent to the litigation issues

Question 29

public officials

Answer 29

federal, w/in the scope of the federal officials office or employment & high state level

Question 30

legislative proceedings

Answer 30

members of congress and state legislatures in performance of their legislative functions

Question 31

proper interest

Answer 31

D must prove there was a proper interest or duty that justified publishing the stmt

Question 32

fair reporting

Answer 32

Privilege to report public proceedings, public records, & official acts.
i. Restriction: the report must be accurate and fair or disinterested.

Question 33

privilege to provide means of publication

Answer 33

When the author of the defamatory utterance is privileged to publish it, those who provide him with the appropriate means of publication are likewise privileged to do so

Question 34

fair comment

Answer 34

Allows publisher to offer criticism on matters of public concern including activities of public officials & figures & on subjects scientific, artistic, literary, & dramatic
i. Must be comment or opinion, not a misstatement of fact