DEFAMATION

Question 1

Elements

Answer 1

1) publication w/fault
2) “of and concerning plntf” identification w/fault
3) expression CDM
4) fault as to falsity AND
5) Harm
most juris:
6) falsity.

Question 2

Publication

Answer 2

a term of art describing
transmission of expression (a communication)
requires at least negligence

Question 3

Identification

Answer 3

“of and concerning plaintiff”
reference by name OR by facts reasonably id/infer plaintiff
negligence at least

Question 4

Can the reasonably identified party be a small group?

Answer 4

YES

Question 5

CDM

Answer 5

capable of defamatory meaning if it hold plaintiff to public opprobrium. public scorn, ridicule, diminished community respect, etc or deters others from doing business w/plaintiff.

Question 6

does the public or community for CDM have to be the general public?

Answer 6

NO, may be “any considerable and respectable segment of the community”

Question 7

Fault as to Falsity

Answer 7

requires at least negligence.

if 1st amendment than “actual malice” required.

Question 8

will failure to fact check suffice for fault to falsity/actual malice?

Answer 8

NO, not w/out something more

Question 9

Will ill will suffice as to fault?

Answer 9

NO (need more)

Question 10

actual malice

Answer 10

When 1st amend/public figure:
intent, knowledge that was false, Reckless Disregard as to the truth or falsity of the statement. (a higher form of recklessness)

Question 11

Harm

Answer 11

must be:
physical (rare) or
economic ( limited in negl by economic loss rule)
OR 
reputational (dignity)

Question 12

what about damages in defamation per se?

Answer 12

“Reputational “damages are presumed

Question 13

When are emotional distress damages available?

Answer 13

only as consequential damages to presumed or actual damages

can still get to consequential if waived predicate actual damages

Question 14

When can plntf get presumed damages in 1st amendment issue cases?

Answer 14

ONLY when actual malice AS TO FALSITY is proven

Question 15

what did pltf have to prove at historic c/l to get punitive damages?

Answer 15

common law malic

Question 16

what is/was common law malice?

Answer 16

ill will or malevolent intent

Question 17

Modern c/l, when can get punitive damages?

Answer 17

by common law malice (some state law) or upon actual malice as to falsity
if 1st amendment……p/d only if actual malice as to falsity

Question 18

Falsity

Answer 18

statement implies a factual basis. (a statement of opinion is not actionable)

Question 19

fair comment privilege

Answer 19

an opinion is non-actionable

required in 1st amendment cases

Question 20

Fact-Opinion Dichotomy Four Factors

Answer 20

1) specific LANGUAGE used
2) whether statement is VERIFIABLE
3) general CONTEXT of statement
4) BROADER context of statment

Question 21

written?

Answer 21

Libel

Question 22

spoken?

Answer 22

slander

Question 23

Broadcast tv is usually ____?

Answer 23

libel, regardless if written or spoken. (expression in a fixed medium is more enduring, so more damaging and also more susceptible of proof)

Question 24

At historic c/l all libel was _____?

Answer 24

per se (defamatory on its face, w/out need of extrinsic evidence)

Question 25

If not libel per se than is libel __ ____?

Answer 25

per quod

Question 26

per quod

Answer 26

statements required extrinsic facts to show meaning

Question 27

expressions that assert per se……….?

Answer 27

(from Muzikowski v. Paramount Pictures Corp.):
Defamation per se exists when a statement is so harmful to a person’s reputation that damages are presumed, and typically exists only when the statement is made about commission of a
-criminal offense;
-infection with a venereal disease;
-inability to perform or want of integrity in the discharge of duties of public office;
-fornication or adultery; or
- words that prejudice a party in her trade, profession, or business.

Question 28

why diff btwn per se & per quod important?

Answer 28

CUZ per se get presumed damages for reputational injury EVEN W/out proof of actual damages (of any kind)

Question 29

Big game winner/def.

Answer 29

Failure of CAUSATION`

Question 30

1st amendment

Answer 30

defamation vs. FREEDOM OF EXPRESSION

Question 31

prove actual malice then…..

Answer 31

First amendment hurdles fall away

Question 32

Don’t do bad true things

Answer 32

cuz in most jurisdictions, if its true then wont make it (defendant has burden to prove true at c/l; but in 1st amend plaintiff must prove its false)

Question 33

can organizations be plaintiffs?

Answer 33

usually yes.

plaintiff need not be named, but must be reas. identifiable toa personor small group

Question 34

opprobrium

Answer 34

reproach, harsh criticism or censure

Question 35

1st amendment raises 2 issues

Answer 35

WHEN:
-public or private plaintiff &
-pubilc or private status of mater/concern
WHAT: the special rules are

Question 36

3 Factors guiding distinction between public & private concern: (1st amend)

Answer 36

• CONTENT (subject matter of suit)
• FORM (telephone conversation or newspaper story)
• CONTEXT (overarching public controversy)

Question 37

Plaintiff PRIVATE/PUBLIC Concern (1st amend/lower tier)

Answer 37

1st amendment requires:

(i) at least negligence as to falsity for any damages
(ii) Actual Malice as to falsity for presumed damages
(iii) Actual Malice “ “ for punitive damages; and
(iv) PROOF of actual malice by CLEAR & CONVINCING EVIDENCE

Question 38

PUBLIC plaintiff (1st amend/higher tier)

Answer 38

1st amendment requires:
(i) expression “of & concerning plntf”
(ii)Actual Malice as to falsity for any damages
(iii)Actual Malice as to falisty by CLEAR &CONV. EVID.
(iv) PLAINTIFF has burden of proof as to falsity of fact
AND
(v)indpendent appellate review of factual record to ensure that actual malice as to falsity is supported by SUBSTANTIAL evidence

Question 39

First amendment rubric was extended to ____ & ____?

Answer 39

• IIED (Hustler v.Falwell)

- False Light/Invasion of Privacy (Time v. Hill)