Defamation Flashcards
What is a defamatory statement?
one that injures the plaintiff’s reputation (mere name calling insufficient)
(hypo: TV show host calling doctor a buffoon ≠ defamatory; TV show host saying doctor has performed unnecessary surgeries = defamatory)
What are the elements of a common law prima facie case for defamation?
- defamatory statement that turns out to be false
- of and concerning the plaintiff
- statement published to third party
- damages
In a common law case for defamation, who has the burden of proving the truth of the statement?
Defendant
What is the test for when a defamatory statement is “of and concerning” the plaintiff?
When the statement is reasonably understood to refer to the plaintiff.
When do references to a group qualify as defamatory statements that are “of and concerning” an individual plaintiff?
When the group is small
What is the test for the publication requirement of defamation?
The statement must be communicated to a third person capable of understanding the statement.
In defamation, what mental state is required for publication?
At least negligence on the part of the defendant. (Trying to avoid others hearing the statement is probably sufficient to show no liability.)
For defamation, what damages must be proven?
For slander (spoken defamation), plaintiff must prove special damages (monetary loss). For libel (written or broadcast defamation), damages may be presumed.
When are damages presumed for slander?
In cases of slander per se.
4 categories:
(1) statements that impugn one’s trade or profession
(2) statements that accuse plaintiff of committing a serious crime
(3) suggestions that plaintiff has a loathsome disease
(4) statements that impute unchastity to an unmarried woman
What are the three categories of defenses to common law defamation?
Truth, absolute privilege, qualified privilege
Is absolute privilege a defense to common law defamation when the act is malicious or spiteful?
Yes
For defamation, what are the categories of absolute defenses?
- statements in the course of judicial proceedings
- statements in the course of legislative meetings and executive meetings
- communication between spouses
When is one protected by the qualified privilege against defamation?
- matters concerning legitimate public debate
* statements made for purposes of a recipient (e.g., reference letter)
How does the First Amendment change the law of defamation?
It protects speech on matters of public concern
What additional elements are required to prove defamation when the statement regards a matter of public concern?
- plaintiff must prove falsity of the statement
* plaintiff must prove some level of fault
