defamation Flashcards
what are the two components of defamation?
libel (written) and slander (spoken)
who can be defamed?
any LIVING person, also a corp
how can a corp be defamed?
must go toward its financial condition, honesty, integrity, etc.
what’s the definition of defamation?
defamatory statement recorded in writing or spoken
if all members of a small group are defamed, can each recover?
each member can establish that the defamatory statement was made of and concerning him by alleging that he is a member of the group
if SOME members of a small group are defamed, can they recover?
if a reasonable person would view the statement as referring to the P
if all members of a large group are defamed, can they recover?
no member of that group can establish a cause of action
three categories of people liable for defamation
primary publisher (author, speaker, newspaper), republisher, secondary publisher
who’s a republisher re: defamation liability?
one who repeats a defamatory statement -
can a republisher defend against defamation by citing their source?
even if repeater states the source or makes it clear she doesn’t believe the defmatory statement, still liable
how does republishing relate to liability or primary publisher?
original defamer’s liability may be increased to encompass any new harm caused by the repetition if the repub was either intended by or reasonably foreseeable to the original defamer
who is a “secondary publisher” re: liability for defamation?
“reseller” of the content - newspaper or magazine vendor
when is a secondary publisher liable for defamation?
only liable if they knew or should have known they were selling specific defamatory content
what are the four elements of a prima facie defamation case for private P’s?
(1) defamatory lanauge by D, (2) “of or concerning” the P, (3) published by D to a 3rd person, (4) that causes damage to P’s reputation
what type of language is defamatory?
adversely affects reputation, attacked honesty, integrity, virtue, sanity, etc.
does P have to prove whether defamatory statement was true or false when they present their case?
P does NOT have to prove that the statement was FALSE when they put on their case
how does inducement and innuendo relate to defamatory statements?
with some statements, defamatory meaning only becomes apparent by adding extrinsic facts (Angelina + Tom isn’t bad unless she’s engaged to someone else)
what’s the diff between inducement and innuendo re: defamatory statements?
P pleads additional facts as inducement and establishes defamatory meaning by innuendo
are facts and opinion both actionable as defamatory statements?
facts are always actionable if they meet the four criteria, opinion is actionable only if it appears to be based on specific facts
how does a P establish that a statement is made “of and concerning the Plaintiff”
P must establish that a reasonable reader, listener or viewer would understand that the defam statement referred to P
if a statement doesn’t specifically name P, can they still prove statement is “of and concerning” them?
yes - P can plead additional facts that show that reasonable reader would know it was him through “colloquium”
define publication re: definition of defamation
communication to a 3P who understood it
when does publication of defamatory statement incur liability?
when publication was made intentionally OR negligently (intent to publish only - intent to defame is N/A)
what is the “single publication” rule?
all copies of a newspaper, magazine or book edition are treated as one publication, damages are calc on total effect of story on all readers
how is the amount of publications calculated in a statement?
each repetition of a defamatory statement is a separate publication for which P can recover damages (except “single publication” rule)
how are damages proven in libel?
general damages are presumed and need not be proven
what’s the constitutional limitation on damages re: libel?
constitutional free speech concerns may restrict awards when defamation involves matters of public concern
how are damages proven in slander?
general damages are NOT presumed - must be pled and proven unless slander per se in which damages presumed
what are the four categories of slander per se, in which damages are presumed?
professional abilities, suffering from venereal disease or leprosy, guilty of crime of moral turpitude, related to unchastity of a woman
what constitutes a prima facie case of defamation for public figures and public officials?
defamatory language “of or concerning” P, transmitted by D to a 3P that damages reputation, PLUS falsity of statement and fault on D’s part in transmitting statement
who has to prove malice?
public figures and public officials must additional prove by CCE that the statement was made with malice (N/A for private plaintiffs)
what are the two ways to be a “public figure” for purposes of defamation?
achieved “pervasive fame or notoriety” or voluntarily assumes a central role in a particular public controversy
once someone voluntarily assumes a central role in a partic public controversy, are they a public figure re: all topics?
only a public figure for the issue at hand
how can a public figure or public official prove that a statement was made with malice?
knowledge that the statement was false or reckless disregard as to it struth or falsity
what kind of standard is used in determining whether a statement was made with malice?
subjective - whether D in fact entertained serious doubts as to the truthfulness of his publication - very hard to prove!
what are the three complete defenses to defamation?
consent, truth, and absolute privilege
when is truth a defense to defamation (what kind of plaintiffs)?
private cases since P is not required to prove falsity as an element of the claim
what are the five ways in which absolute privilege arises?
all parties to official court proceedings, legislative proceedings, job-related statement by govt official, radio/tv compelled to allow speaker to use, spouses
what are the three mitigating factors in a defamation action, considered by trier of fact to reduce damages?
no actual malice in statement, retraction, anger of speaker if provoked by P prior to making the statement
what happened in the Lego Siciliana Social Club case?
letter from resident to Italian social club alleging mob ties
what was the outcome of the Lego Siciliana Social Club case?
D’s letter to P constituted libel per se so P wasn’t required to plead/prove actual damages
what happened in the Nieman Marcus case?
D’s wrote a book that made statements about groups of NM employees as well as indiv members
what was the outcome of the Neiman Marcus case?
large group can’t bring liebl claim unless specific defam statements made against indiv group membres, but in a small group each member can sue
what happened in the Lent v. Huntoon case?
former employer told customers that they guy who started his own business was not honest
what was the holding in the Lent v. Huntoon case?
libel is “actionable per se”
what happened in the New York Times v. Sullivan case?
P was police commission of AL, claimed he was defamed in a full page ad taken out in NYT re: behavior of police in civil rights movement
what was the holding in the New York Times v Sullivan case?
federal rules prohib a public official from recovering for defamation related to offical conduct unless statement made with actual malice or reckless disregard of its truth or falsity
how does self help relate to public officials and their higher standard for proving defamation?
private P’s dont’ have the same access to self-help so they can use media to directly respond to statements and clear the air
what happened in the Gertz v. Welch case?
P was an attorney who represented a cop killer, magazine article called him a Communist
what was the holding in Gertz v. Welch?
because P wasn’t a public figure, NYT standard didn’t apply - actual malice standard shouldn’t be extended to private P’s
what happened in the St. Amant case?
D made a televised political speech and quoted material from a 3P that falsely accused P of criminal activities -
what was the holding in the St. Amant case?
in order to prove reckless disregard for the truth, there must be suffic evidence to show that the D had serious doubts as to the truth of the publication - here, evidence against D was insuffic to meet reckless disregard standard
what happened in the Krinsky v. Doe case?
P tried to get identity of anonymous internet poster who was posting defam statements on message board
what was the holding in Krinsky v Doe?
applying the prima facie standard, Court held that anonymous speech on an internet message board was protected under First Amendment
what four factors are used to dteermine whether a statement is Fact or Opinion?
specific language used, whether statement is verifiable, general context of statement, and broader context in which statement appeared
what case generated the rule of four factors used to determine whether a statement is fact or opinion?
Milkovich v. Lorain Journal
what happened in the Milkovich v. Lorain Journal case?
LJ published an article which implied M had lied under oath in a judicial proceeding - wrestling coach, supposedly lied about what happened in fight
what was the holding in Milkovich v. Lorain Journal?
First Amend doesn’t preclude a newspaper from being sued for libel, when a P can show that statements published were an attack on reputation
