Defamation

Question 1

In General

Answer 1

A prima facie case at common law required the publication to a third person of a statement that harmed P’s reputation, thereby causing P to suffer damages. On First Amendment grounds, the Supreme Court has eroded the common law framework, thus prohibiting states from following their common law rules on strict liability and burdens of proof in certain actions for defamation

Question 2

Defamation Elements

Answer 2

1. Publication
2. Harm to Reputation
3. False Facts
4. Damages
5. Defenses

Question 3

Publication

Answer 3

1. Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed
2. Any third party sufficient
   
   1. Publication to any third person is sufficient regardless of the relationship between the parties
3. Manner of publication
   
   1. Publication can be by words, gesture, or conduct
   2. The focus is on how the words were reasonably understood by some third person to whom the statement was published, rather than on what the speaker meant
      
      1. If the statement was in a foreign language which the third party did not understand, the statement cannot be defamatory (Economopoulos v. A.G. Pollard)

Question 4

Publication must have been intentional or negligent – RS §577

Answer 4

1. D must have reason to foresee that a third party would overhear or see the statement (FN: Hall v. Balkind)
2. When the words are spoken so loudly that D can expect that someone may overhear, D has published the defamatory imputation (FN: McNichol v. Grandy)
3. No liability if defamatory matter is sent to P and unexpectedly opened by a third party, unless D could reasonably foresee it
4. Cases are split on whether there is a publication when the defamed person is forced by circumstance to repeat the defamation

Question 5

Single and multiple publications – RS §577A

Answer 5

1. Each of several communications to a third person by the same defamer is a separate publication
2. A single communication heard at the same time by two or more third persons is a single publication
3. Any one edition of a book or newspaper or television broadcast is a single publication
   
   1. Gives rise to only one cause of action

Question 6

Who is a publisher?

Answer 6

1. Original publishers
   
   1. This includes anyone having a part in the original publication
2. Republishers – RS §578
   
   1. Except as to those who only deliver or transmit defamation published by a third person, one who repeats or otherwise republishes defamatory matter is subject to liability as if he had originally published it
   2. One who unintentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or chattels in his possession or under his control is subject to liability for its continued publication (FN: Tidmore v. Mills)
   3. Original defamer’s liability is increased by whatever harm is caused by republication if republication was intended by original defamer or reasonably foreseeable
      
      1. If P created a larger extent of harm by bringing a lawsuit and attention to the defamation, he may not be entitled to the extent of the harm
   4. One who is under a legal duty to publish has an absolute privilege to do so
3. Disseminators
   
   1. Persons who circulate, sell, or otherwise deal with the physical embodiment of defamatory matter are liable only if they had reason to know of the defamatory nature of material they handle
   2. Newspapers and book publishers do not qualify because they generally have people who go through the information contained in the material to make sure it is not defamatory
4. Internet companies have enormous immunity from internet defamation unless they create the content (Carafano v. Metrosplash.com)
   
   1. Unfeasible for internet companies to regulate everything that is posted on the internet

Question 7

Harmt to Reputation: Defamatory meaning – RS §559

Answer 7

1. A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him
   
   1. Older definition required that P be exposed to hatred, contempt, or ridicule (FN: Parmiter v. Coupland)
2. The statement must injure P in the eyes of a substantial and respectable minority of the community (Grant v. Reader’s Digest)
3. In determining meaning attached to a statement, courts look at the fair and natural meaning the statement will be given by reasonable persons of ordinary intelligence
   
   1. Publications are generally read as a whole in light of the context in which the statement appears
4. The language used by D is not controlling, as long as third persons could reasonably interpret it as defamatory to P
5. The jury determines whether a communication, capable of a defamatory meaning, was so understood by its recipient (Belli v. Orlando Daily Newspapers)
6. Whether something is to be regarded as defamatory is determined by time, place, and culture (FN: Jones v. R. L. Polk)
7. A defamatory statement must have an element of disgrace or discredit

Question 8

Harm to Reputuation: Of and concerning the plaintiff

Answer 8

1. Some third person must have reasonably interpreted the statement to refer to P
2. Colloquium: defamed person unnamed (Bindrim v. Mitchell)
   
   1. Where publication is clearly defamatory of somebody, yet on its face does not refer to P, P must establish the colloquium
   2. At least one person reasonably interpreted it as applying to P
3. Who may be defamed in general
   
   1. Any living person (including a child), corporation, partnership, or other legally recognized entity may be defamed
   2. No action will lie for defamation of a dead person, however defamation of the dead may also defame the living, which is actionable (FN: Merrill v. Post)
4. Group defamation – RS §564A (Neiman-Marcus v. Lait)
   
   1. One who publishes defamatory matter concerning a group or class of persons is subject to liability to an individual member of it if:
      
      1. The group is so small that the matter can reasonably be understood to refer to the member, or
      2. The circumstances of publication reasonably give rise to the conclusion that there is particular reference to the member
   2. Where the group is large, none can sue even though the language used is inclusive
   3. If a group is small enough, a charge against “some” may be a charge against all
   4. Numerical approach – too large if over 25

Question 9

False Facts: falsity

Answer 9

1. At common law, the burden was on D to prove the statement was true
2. The general view is that truth of the defamatory matter is a complete defense – RS §581A (Kilian v. Doubleday)
   
   1. In order to support a defense of truth, it is necessary to merely prove that it was substantially true, doesn’t have to be exactly true
3. Where the statement involves a matter of public concern, the First Amendment requires P to bear the burden of proving the statement is false (Philadelphia Newspapers v. Hepps)

Question 10

False Facts: Assertion of facts

Answer 10

1. Statement cannot be false unless it contains assertions of fact
2. To meet the burden of proving falsity, P must show that the alleged defamation contained statements of fact or implied unstated facts that were false

Question 11

False Facts: Opinion

Answer 11

1. No automatic protection for opinion
   
   1. Only pure opinion is constitutionally protected
2. An opinion may be defamatory if it can be reasonably interpreted by the recipient as being based on underlying defamatory facts
   
   1. Severely limits the ability to express opinion without being subject to defamation
3. The more specific the language, the more likely it is to be reasonably interpreted as either a statement of fact or a statement based on underlying facts
4. Merely saying “in my opinion” does not limit liability
5. The court will decide whether a statement is opinion or fact
6. If an entire article is opinion, but one sentence alleges a fact, by implication, the entire article can be considered defamatory
   
   1. Allows courts to take the sentence out of context
7. Restaurant reviews will be held to an actual malice standard because they are thought of as public officials (FN: Mr. Chow of New York v. Ste. Jour Azur)

Question 12

Damages

Answer 12

The kind of damages depends on the form of the publication – libel or slander – as well as on the motives with which it was uttered

Question 13

Libel v. Slander

Answer 13

1. Libel consists of the publication of defamatory matter by written or printed words, or by its embodiment in physical form, or by any other form of communication which has the potentially harmful qualities characteristic of written or printed words
   
   1. Under more recent view, all radio and TV publications are libel, but state statutes are split (Shor v. Billingsley)
   2. Reading something out loud would be libel
2. Slander consists of the publication of defamatory matter by spoken words, transitory gestures, or by any form of communication other than those constituting libel
3. The area of dissemination, the deliberate and premeditated character of its publication, and the persistence of the defamation are factors to be considered in determining whether a publication is a libel rather than a slander

Question 14

Damages for slander

Answer 14

1. Slander is not actionable without a showing of special damages, unless deemed “actionable per se”
2. Special damages (Terwilliger v. Wands)
   
   1. These are pecuniary damages actually suffered and not presumed by law
3. Slander per se (proof of special damages not required)
   
   1. Where D charges that P committed a serious, morally reprehensible crime involving moral turpitude (FN: Sipp v. Coleman)
   2. Where D imputes to P a presently existing loathsome communicable disease
   3. Where D imputes to P conduct associations, or characteristics incompatible with proper performance of P’s business, trade, office, or profession (FN: Terry v. Hooper)
   4. Where D imputes unchastity to a female plaintiff

Question 15

Damages for libel

Answer 15

Where the statement is defamatory on its face, in most jurisdictions special damages need not be shown, and general damages are presumed

Question 16

Nominal damages – RS §620

Answer 16

One who is liable for a slander actionable per se or for a libel is liable for at least nominal damages

Question 17

General damages – RS §621

Answer 17

One who is liable for a defamatory communication is liable for the proved, actual harm caused to the reputation of the person defamed

Question 18

Punitive damages

Answer 18

Most states allow punitive damages if the defamation can be shown to have been made with common law malice, such as hatred, ill will, or spite

Question 19

Retractions

Answer 19

Several states by statute preclude recovery of general damages from news media if a retraction is promptly published

Question 20

Injunctions

Answer 20

Courts traditionally have refused to enjoin defamatory speech because of First Amendment concerns

Question 21

Defenses/Privileges: Consent and Truth

Answer 21

1. Consent
   
   1. consent is a complete defense
2. Truth
   
   1. truth is a complete defense

Question 22

Defenses/Privileges: Absolute privileges

Answer 22

1. Absolute privileges are complete defenses regardless of malice or abuse
2. Legislative privilege – RS §590
   
   1. Federal and state legislative members are constitutionally privileged to utter defamations during the performance of their legislative functions
   2. There is no relevancy requirement
3. Judicial privilege – RS §585-88 (FN: Hutchinson v. Proxmire)
   
   1. Any participant in a judicial proceeding is privileged to publish defamatory matter relevant to the issue at hand
   2. Some authority extends to communications preliminary to proposed judicial proceeding and administrative hearings
   3. The statement must be found to have some reasonable bearing upon or relation to the subject of inquiry
      
      1. This is very broad language
      2. Want to encourage people to speak up in court
4. Executive privilege
   
   1. Top-rank, policymaking executive officers are privileged if the matter is relevant to performance of official duties
   2. The higher up the official, the more permission they have

Question 23

Defenses/Privileges: Conditional/Qualified privileges

Answer 23

1. Protection of private interests
   
   1. Reasonable belief that an important interest is threatened
      
      1. Interest can be own interest, interest of third person, or interest of person to whom statement is published
   2. Statement is reasonably relevant to interest protected
   3. Reasonable belief that person to whom statement is published can protect the interest
   4. There must be some relationship between the publisher and the person to whom the statement is published
      
      1. If no relationship, then it must be in response to a request
2. Protection of public interest
   
   1. A statement is privileged if D reasonably believes utterance is necessary to protect public interest and the person to whom it is published is empowered to protect the interest
3. Conditional privilege may be lost through bad faith or abuse
   
   1. There is no privilege where:
      
      1. Statement is motivated solely by malice and intent to injure P
      2. There is excessive publication
      3. There is a lack of honest belief in truth

Question 24

Constitutional Privileges

Answer 24

1. Under the First Amendment, in certain instances, the interest in freedom of expression is held to outweigh the interest in protecting reputation, and hence the defamation is privileged
   
   1. Courts balance the First Amendment right to criticize the government against the right to sue for defamation
2. The constitutional protection available in defamation cases depends on whether P is a public official, a public figure, or a private person

Question 25

Public Plaintiffs

Answer 25

1. The highest level of protection has been granted for statements concerning public officials or public figures
2. Public officials
   
   1. Public officials are persons who have substantial responsibility over government affairs
   2. The defamatory statement must pertain to their business
      
      1. The more senior the public official, the more broad the scope of the defamation can be
3. Public figures
   
   1. A person may be deemed a public figure if (a) he has achieved such pervasive fame or notoriety that she becomes a public figure for all purposes and contexts, or (b) he voluntarily enters or is drawn into a particular public controversy, and thereby becomes a public figure for that limited range of issues
   2. Limited purpose public figures
      
      1. Courts tend to use three steps in identifying limited purpose public figures: (a) isolating the particular public controversy, (b) deciding if P has voluntarily assumed a central role in that controversy, and (c) finding the alleged defamation germane to P’s participation in the controversy
      2. Not every person who seeks government aid or draws attention by some voluntary behavior becomes a public plaintiff
   3. Involuntary public figures
      
      1. It is possible for people to become public figures through no purposeful action of their own
4. Actual malice (New York Times v. Sullivan)
   
   1. Public P’s must prove that the false defamatory statement was published with actual malice – knowledge of falsity or reckless disregard for the truth
      
      1. Must show that D was subjectively aware that the statement was false
   2. Motive to harm insufficient
      
      1. It is not enough that D is shown to have acted with spite, hatred, ill will, or intent to injure P
   3. Negligence insufficient
      
      1. Reckless conduct is not measured by a reasonable person standard
      2. There must be sufficient evidence to permit the conclusion that D in fact entertained serious doubts as to the truth of his publication (St. Amant v. Thompson)
   4. Actual malice applies to everybody, not just the media

Question 26

Private Plaintiffs

Answer 26

1. P who is neither a public official or a public figure is a private person and a lower constitutional standard applies
2. Constitutional limitation
   
   1. Liability without fault cannot be imposed where a matter of public concern is involved
   2. It is unconstitutional to require actual malice standard to apply in situations involving private plaintiffs
   3. States are free to apply actual malice standard if they wish, but they do not have to
3. Matters of private concern
   
   1. If matter is of purely private concern, a private P may recover presumed and punitive damages without proving actual malice
4. Communication involving private individuals regarding matters of private concern should not be given the same constitutional protection as public issues (Dun & Bradstreet v. Greenmoss)
   
   1. There is a limited constitutional value here
   2. However, it is difficult to distinguish between matters of public and private concern
5. Standard of liability
   
   1. States must determine standards for liability to private P’s in matters of public concern, as long as they do not apply strict liability
   2. Almost all states have set the standard for liability at the level of negligence
      
      1. A few states require knowledge of falsity or reckless disregard for the truth
6. Burden of proving falsity
   
   1. A private P has the burden of proving falsity, at least where the speech is of public concern

Question 27

Constitutional breathing space (Harte-Hanks Communications v. Connaughton)

Answer 27

1. Want to allow constitutional breathing space to offer a buffer around speech that is clearly protected, even though the speech itself may not be protected
2. Courts want to encourage aggressive active discussion and discourse, not to chill open discussion and criticism
3. Want to protect the ability of a newspaper to run a story even if they are not 100% certain about the truth of it
4. Want to discourage self-censoring
   
   1. As long as you are not acting with actual malice, you can say something about the government that you aren’t 100% certain is true

Question 28

Reporter’s privilege – RS §611

Answer 28

1. A reporter is not liable for a defamatory statement as long as it is a verbatim transcript or an accurate representation of what was said
2. If the reporter fails to use the word “alleged” or asserts that the quote is truthful, defamation can result

Question 29

Doctrine of neutral reportage

Answer 29

1. When a responsible, prominent organization makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter’s private views regarding their validity (FN: Edwards v. Nat’l Audubon Soc’y)
   
   1. The charges in the article must either relate to a current public controversy or create one in their own right
   2. The charge must be made by a public official or public figure
   3. The charges must be about a public figure or a public official
   4. The reportage of the charges must be neutral, that is, accurately and disinterestedly republished

Question 30

Fair index rule

Answer 30

If a headline is not a fair index of the substance, the headline must be examined independently to determine its actionability in libel