Defamation

Question 1

What is defamation?

Answer 1

Libel: Defamation in a written or other graphic/published form.
Slander: Spoken defamation.
Business/product disparagement: Defamation concerning a business or its product (product libel).

Question 2

Elements of Defamation Tort (Texas)

Answer 2

A defamation plaintiff must prove that the defendant:
Published a written (libel) or verbal (slander);
False statement;
That was defamatory;
Concerning the plaintiff;
While acting with actual malice (if plaintiff is a public figure) or negligence (if a private figure); and
Damages.

Question 3

Publication

Answer 3

Publication: When one person, in addition to the writer and the person defamed, sees or hears the material and that person understands the statement to be defamatory.

Question 4

Falsity

Answer 4

Truth is an absolute defense to defamation.
Standard is “substantial truth” – what’s the “gist”? Pg. 372, n.4.
Does the proven truth leave a different impression of the plaintiff in the minds of the jury than the impression created by the defamatory falsehood?

Question 5

Expressions of opinion

Answer 5

Opinions cannot imply false statements of objective fact.

Question 6

What is an opinion? See pg. 372, n.4. Courts consider:
Verifiability
Precision of language (phony, cheat, crook)
Context, including cautionary language
Type of writing or speech

Answer 6

Verifiability
Precision of language (phony, cheat, crook)
Context, including cautionary language
Type of writing or speech

Question 7

What is defamatory?

Answer 7

A communication is defamatory if it tends 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, or if it tends to expose him to public hatred, contempt, or ridicule.

Question 8

Injury to reputation:

1) defemation per se?
2) defamation per quod?

ALSO, What if parody or reputation already sucks?

Answer 8

Defamation per se (“of, in, or by itself”):
Defamatory on its face
Commission of a crime, loathsome disease, professional misconduct, sexual misconduct, racism.
Law presumes that reputation is damaged, so Plaintiff can recover without proof of injury.

Defamation per quod:
Requires some context to understand its defamatory meaning.

Reputation must be capable of being harmed (Kim Kardashian? Jon Edwards?). Pg. 371, n.2.
Parody/satire is protected. Pg. 371-72, n.3.

Question 9

Identification (“concerning the Plaintiff’)

Must one be objectively identifiable?

Answer 9

Others must reasonably understand that the Plaintiff is the one referred to.
Can be identified by:
Name
Nickname
Photograph
References that would identify only one person
Pg. 372-73, n.6.

Question 10

Actual malice/negligence

If public figure, Defendant must act with_______?

If private figure, Defendant must only be ______?

Answer 10

Depends on whether Plaintiff is a public official, public figure, or private figure.
If public, Defendant must act with actual malice – knowledge of falsity or with “reckless disregard” for the truth.
If private, Defendant must only be negligent – failing to do that which an ordinary reasonable person would do in similar circumstances.

Question 11

Actual malice:

focuses on …
Defedneant must have…
Must be proved by….

Answer 11

Focuses on the speaker’s attitude toward the truth.
Defendant must have actual, subjective doubt about the truthfulness of the statement.
Not synonymous with ill will, spite, or evil motive.
Must be proved by clear and convincing evidence.

Question 12

Negligence standard?

Answer 12

That which an ordinary, reasonable person would do under similar circumstances.
Jury or judge is to determine how the reasonable reporter/author/writer would have acted. If the defendant acted below that level, he/she will be negligent.

Question 13

Who is a public official?

Answer 13

Anyone elected will qualify.

Other governmental officials qualify if:
He/she has a substantial responsibility for or control over governmental conduct;
Public has an interest in the qualifications and performance beyond that for all governmental employees; and
Story is about the official’s job responsibilities or performance.

Question 14

Two Public figures categoris:

Answer 14

General-Purpose Public Figures
Those who achieve such pervasive fame or notoriety that they become public figures for all purposes and in all contexts (both voluntarily and involuntarily).
Limited-Purpose Public Figures
Those who thrust themselves into the forefront of particular public controversies in order to influence the resolution of the issues involved.

Question 15

General-purpose public figures

Answer 15

Achieved so much fame or notoriety that he or she is a public figure for all purposes and in all contexts.
Name must be a household word.
Examples from caselaw:
Johnny Carson
Wayne Newton
Judged from perspective of specific community in which story was published.

Question 16

Limited-purpose public figures

Answer 16

Those who thrust themselves into the forefront of particular public controversies.
Depends on three factors:
Whether the controversy at issue is “public” in that the issue’s resolution will have widespread effect.
The plaintiff has more than a trivial or tangential role in the controversy.
The alleged defamation is germane to the plaintiff’s participation in the controversy.
Ex: Grover Norquist, Edward Snowden

Question 17

Types of damages?

Answer 17

General damages:
Hurt feelings, mental suffering or anguish.
Within discretion of jury (or judge in bench trial).
If libel per se, can recover without proof.
Special Damages
Loss of employment, lost income, loss of earning capacity.
Always need to be supported by evidence in order to be entitled to special damages.
Punitive Damages
Must establish by clear and convincing evidence that defendant acted with actual malice, fraud, or gross negligence.

Question 18

What is Absolute privilege?

Answer 18

Cannot libel someone while speaking in a legislative or judicial forum.
Protects legislators, lawyers, and witnesses.
Official communications or statements by public officials are also privileged.
Also absolutely privileged – communications between employer/employee, report of credit rating, and personnel recommendations.

Question 19

What is qualified privilege?

Answer 19

An individual may completely, fairly, and accurately report what happens at a governmental or judicial proceeding.
Rationale: Publisher is acting as the eyes and ears of those not in attendance.

Question 20

What are Retraction statutes?

Answer 20

Laws that give defendant an opportunity to correct, clarify, or retract story before suit can be filed.
Typically requires that a plaintiff request retraction before filing suit.
Retraction must be as prominent as alleged defamation.
Texas has a retraction statute (Tex. Civ. Prac. & Rem. Code § 73.055).

Question 21

What are SLAPP suits?

Answer 21

Commentators have coined the term “Strategic Lawsuits Against Public Participation.”
Attempts by wealthy to silence press or critics through threat of litigation.
A majority of states have anti-SLAPP statutes (Texas passed one in 2011).
If the statement at issue arises from an issue of public concern, plaintiff must show a prima facie case before suit can proceed.
Attorneys’ fees to the defendant if case is dismissed.