Defamation

Question 1

Defamation (CL): elements only

Answer 1

(1) Defamatory Statement (that turns out to be false)
(2) of and concerning P
(3) Published to 3rd Party
(4) Damages

Question 2

Defamatory Statement

Answer 2

Any statement that injures P’s reputation. Mere name calling not enough.

CL - D bears burden of proving truth, and it is a defense.

Question 3

Of and Concerning

Answer 3

Statement must reasonably be understood to refer to the P.

Think groups - if identifiable small group, likely can show statement refers to P. If large group, NO.

Question 4

Publication

Answer 4

Statement must be communicated to third person, who is capable of understanding it.

Intentional or negligent publication

Question 5

Damages

Answer 5

Spoken (slander) = P proves special damages.
Written or broadcast (libel) = Damages presumed

However - Slander per se (presumed damages) if:

1. statement adversely reflects on profession or trade
2. loathsome disease (leprosy, STD)
3. accuse P of serious crime
4. Unchastity to a woman

Question 6

Defenses (CL)

Answer 6

Consent

Truth (d proves)

Absolute privilege (even if made intentionally and is nasty)

1. Judicial proceedings
2. legislative proceedings
3. communications between spouses

Qualified Privilege- i.e ask professor to write recommend letter, he can write bad stuff; but if writes false or malice, no longer qualified.

Question 7

Defamation Elements for Constitutional Limitations

Answer 7

Applies when speech is on “matters of public concern.” (news story)

(5) Falsity of statement
(6) Fault on the part of defendant.

Question 8

Const. : Falsity

Answer 8

Plaintiff must prove statement was false

Question 9

Const.: Fault - Public v. Private

Answer 9

Plaintiff must prove some level of fault.

Public Persons - P must prove actual malice (knowledge of falsity or reckless disregard for its truth)

Private Persons - P must prove at least negligence. (should have known)