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Torts2 > defamation > Flashcards

defamation Flashcards

1
Q

what are the two components of defamation?

A

libel (written) and slander (spoken)

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2
Q

who can be defamed?

A

any LIVING person, also a corp

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3
Q

how can a corp be defamed?

A

must go toward its financial condition, honesty, integrity, etc.

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4
Q

what’s the definition of defamation?

A

defamatory statement recorded in writing or spoken

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5
Q

if all members of a small group are defamed, can each recover?

A

each member can establish that the defamatory statement was made of and concerning him by alleging that he is a member of the group

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6
Q

if SOME members of a small group are defamed, can they recover?

A

if a reasonable person would view the statement as referring to the P

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7
Q

if all members of a large group are defamed, can they recover?

A

no member of that group can establish a cause of action

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8
Q

three categories of people liable for defamation

A

primary publisher (author, speaker, newspaper), republisher, secondary publisher

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9
Q

who’s a republisher re: defamation liability?

A

one who repeats a defamatory statement -

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10
Q

can a republisher defend against defamation by citing their source?

A

even if repeater states the source or makes it clear she doesn’t believe the defmatory statement, still liable

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11
Q

how does republishing relate to liability or primary publisher?

A

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

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12
Q

who is a “secondary publisher” re: liability for defamation?

A

“reseller” of the content - newspaper or magazine vendor

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13
Q

when is a secondary publisher liable for defamation?

A

only liable if they knew or should have known they were selling specific defamatory content

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14
Q

what are the four elements of a prima facie defamation case for private P’s?

A

(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

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15
Q

what type of language is defamatory?

A

adversely affects reputation, attacked honesty, integrity, virtue, sanity, etc.

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16
Q

does P have to prove whether defamatory statement was true or false when they present their case?

A

P does NOT have to prove that the statement was FALSE when they put on their case

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17
Q

how does inducement and innuendo relate to defamatory statements?

A

with some statements, defamatory meaning only becomes apparent by adding extrinsic facts (Angelina + Tom isn’t bad unless she’s engaged to someone else)

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18
Q

what’s the diff between inducement and innuendo re: defamatory statements?

A

P pleads additional facts as inducement and establishes defamatory meaning by innuendo

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19
Q

are facts and opinion both actionable as defamatory statements?

A

facts are always actionable if they meet the four criteria, opinion is actionable only if it appears to be based on specific facts

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20
Q

how does a P establish that a statement is made “of and concerning the Plaintiff”

A

P must establish that a reasonable reader, listener or viewer would understand that the defam statement referred to P

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21
Q

if a statement doesn’t specifically name P, can they still prove statement is “of and concerning” them?

A

yes - P can plead additional facts that show that reasonable reader would know it was him through “colloquium”

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22
Q

define publication re: definition of defamation

A

communication to a 3P who understood it

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23
Q

when does publication of defamatory statement incur liability?

A

when publication was made intentionally OR negligently (intent to publish only - intent to defame is N/A)

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24
Q

what is the “single publication” rule?

A

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

25
Q

how is the amount of publications calculated in a statement?

A

each repetition of a defamatory statement is a separate publication for which P can recover damages (except “single publication” rule)

26
Q

how are damages proven in libel?

A

general damages are presumed and need not be proven

27
Q

what’s the constitutional limitation on damages re: libel?

A

constitutional free speech concerns may restrict awards when defamation involves matters of public concern

28
Q

how are damages proven in slander?

A

general damages are NOT presumed - must be pled and proven unless slander per se in which damages presumed

29
Q

what are the four categories of slander per se, in which damages are presumed?

A

professional abilities, suffering from venereal disease or leprosy, guilty of crime of moral turpitude, related to unchastity of a woman

30
Q

what constitutes a prima facie case of defamation for public figures and public officials?

A

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

31
Q

who has to prove malice?

A

public figures and public officials must additional prove by CCE that the statement was made with malice (N/A for private plaintiffs)

32
Q

what are the two ways to be a “public figure” for purposes of defamation?

A

achieved “pervasive fame or notoriety” or voluntarily assumes a central role in a particular public controversy

33
Q

once someone voluntarily assumes a central role in a partic public controversy, are they a public figure re: all topics?

A

only a public figure for the issue at hand

34
Q

how can a public figure or public official prove that a statement was made with malice?

A

knowledge that the statement was false or reckless disregard as to it struth or falsity

35
Q

what kind of standard is used in determining whether a statement was made with malice?

A

subjective - whether D in fact entertained serious doubts as to the truthfulness of his publication - very hard to prove!

36
Q

what are the three complete defenses to defamation?

A

consent, truth, and absolute privilege

37
Q

when is truth a defense to defamation (what kind of plaintiffs)?

A

private cases since P is not required to prove falsity as an element of the claim

38
Q

what are the five ways in which absolute privilege arises?

A

all parties to official court proceedings, legislative proceedings, job-related statement by govt official, radio/tv compelled to allow speaker to use, spouses

39
Q

what are the three mitigating factors in a defamation action, considered by trier of fact to reduce damages?

A

no actual malice in statement, retraction, anger of speaker if provoked by P prior to making the statement

40
Q

what happened in the Lego Siciliana Social Club case?

A

letter from resident to Italian social club alleging mob ties

41
Q

what was the outcome of the Lego Siciliana Social Club case?

A

D’s letter to P constituted libel per se so P wasn’t required to plead/prove actual damages

42
Q

what happened in the Nieman Marcus case?

A

D’s wrote a book that made statements about groups of NM employees as well as indiv members

43
Q

what was the outcome of the Neiman Marcus case?

A

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

44
Q

what happened in the Lent v. Huntoon case?

A

former employer told customers that they guy who started his own business was not honest

45
Q

what was the holding in the Lent v. Huntoon case?

A

libel is “actionable per se”

46
Q

what happened in the New York Times v. Sullivan case?

A

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

47
Q

what was the holding in the New York Times v Sullivan case?

A

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

48
Q

how does self help relate to public officials and their higher standard for proving defamation?

A

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

49
Q

what happened in the Gertz v. Welch case?

A

P was an attorney who represented a cop killer, magazine article called him a Communist

50
Q

what was the holding in Gertz v. Welch?

A

because P wasn’t a public figure, NYT standard didn’t apply - actual malice standard shouldn’t be extended to private P’s

51
Q

what happened in the St. Amant case?

A

D made a televised political speech and quoted material from a 3P that falsely accused P of criminal activities -

52
Q

what was the holding in the St. Amant case?

A

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

53
Q

what happened in the Krinsky v. Doe case?

A

P tried to get identity of anonymous internet poster who was posting defam statements on message board

54
Q

what was the holding in Krinsky v Doe?

A

applying the prima facie standard, Court held that anonymous speech on an internet message board was protected under First Amendment

55
Q

what four factors are used to dteermine whether a statement is Fact or Opinion?

A

specific language used, whether statement is verifiable, general context of statement, and broader context in which statement appeared

56
Q

what case generated the rule of four factors used to determine whether a statement is fact or opinion?

A

Milkovich v. Lorain Journal

57
Q

what happened in the Milkovich v. Lorain Journal case?

A

LJ published an article which implied M had lied under oath in a judicial proceeding - wrestling coach, supposedly lied about what happened in fight

58
Q

what was the holding in Milkovich v. Lorain Journal?

A

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

Torts2 (5 decks)

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