Defamation Flashcards

1
Q

what is defamation? (distinguish from PDPF)

A

o defamation: a tort designed to protect against harms to reputation (i.e. lowering plaintiff in the eyes of “a substantial and respectable community”)
 **the question is not whether the statement actually caused injury but whether it had a “tendency to do so” (look to how a RPP would interpret it)
 distinguish from tort of “public disclosure of private facts” (below)
• defamation needs publication to a 3p whereas PDPF needs mass dispersment
• PDPF is aimed primarily at the mass media
• defamation “lowers  in the eyes of the community,” whereas for PDPF, π can recover even if the disclosed facts painted  in a positive light

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2
Q

PF case for defamation

A

o ’s PF case: show that ∆ published a false, defamatory statement of fact concerning  and was guilty of some level of fault with respect to the falsity of the statement
 **may also have to show demonstrable harm
 Common Elements of State Law Claims (from Mulraine)
• (1) publication to a 3p,
• (2) defamatory communication, and
• (3) of and concerning 

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3
Q

SOR for defamation

A

 (1) the court must determine whether a statement is capable of a defamatory meaning
 (2) if the judge answers yes, the jury should be allowed to determine whether the statement was defamatory in the actual circumstances of the case

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4
Q

two key inquiries to determine if a statement was defamatory

A

 (1) what does the statement mean?
• courts usually will not distinguish between the implicit/explicit messages that a statement conveys
• libel by implication: where ∆ juxtaposes a series of facts so as to imply a defamatory connection between them OR creates a defamatory implication even if the particular facts are correct
o ex) name next to defamatory picture
o ex) “he was seen at L street” when everyone knows there is a brothel on that street
o when innocent on its face, plaintiff is allowed to show extrinsic facts (the “inducement”) that would explain why the statement would be understood in a defamatory sense by those who knew the unstated facts (the inference/ “innuendo”)
• innocent construction rule: if an ambiguous term can be reasonably construed innocently when the words are given their natural and obvious meaning, the statement is not actionable
o note that ambiguity is usually for the jury to examine to see if the statement would be understood as defamatory
• context is a key factor
 (2) is the imputation (i.e. the meaning ascribed to the statement by the outcome of the first inquiry) one the law makes actionable?
• generally not defamatory unless it would tend to prejudice  in the eyes of a “substantial and respectable minority of the community”
• humor and figurative speech are typically not actionable
o ex) fantastic statements, loose speech, rhetorical hyperbole

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5
Q

what is publication? republication?

A

o publication: the communication of defamatory material by any means (oral, written, broadcast, printed, photographic) to a third person (i.e. can’t just be to the person making the comment or the person being defamed)
 republication rule: anyone who repeats a libel “adopts” it as his own and is responsible as if he were the originator of the statement
• different rule applies to the internet (you can likely republish without liability based on the frequency and commonality of republication these days)

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6
Q

rule for opinions in defamation

A

o rule: for defamation, there is no categorical exclusion of suits for statements of opinion, but statements must at least imply an assertion of fact that can be shown to be false before a defamation finding can be upheld (Milkovich)
 **excluding statements that cannot reasonably be interpreted as asserting such fact (i.e. rhetorical hyperbole or satire) as well as other assertions that simply do not imply a fact

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7
Q

what are special damages

A

o special harm/special damages: the loss of something having economic/pecuniary value which must flow directly from the injury to reputation caused by the defamation (not from the emotional effects of defamation)
 round figures or a general allegation of a dollar amount do not suffice

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8
Q

general rule and exceptions (slander per se) for slander

A

 general rule: a plaintiff has no cause of action unless the statement is (1) defamatory and (2) causes demonstrable pecuniary loss, or “special harm”
 exception (slander per se): need not prove special damages if the allegation
• (1) is that  committed a crime
• (2) tends to injure  in his trade/business/profession
• (3) is that has contracted a loathsome disease
• (these exceptions are said to be inherently likely to cause material damage)

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9
Q

general rule for libel and libel per se

A

 general rule: plaintiff need only prove defamation (no need to prove special harm)
 rule: defamation which is broadcast by means of radio/TV should be classified as libel (because it carries the same risk of widespread dissemination as writings, consequent on its permanence in form and assumed credibility – and thus need not meet the more rigorous standards of slander) (Matherson)
 libel per se: defamatory meaning is apparent on the face of the statement (i.e. we don’t have to worry about interpretation)

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10
Q

inquiry for IDing plaintiff and common problem areas

A

o the inquiry: was the statement understood to refer to ?
 **not whether ∆ intended to refer to  (that goes to fault)
o common issue areas
 identification by implication
 group libel
• look to (1) the size of the group and (2) the inclusiveness of the language
• ex) “Belmont law students” is likely not personalized enough, but “Belmont law review editors” likely is
 entities other than natural people
• an organization can sue if the matter tends to prejudice it in the conduct of its business or to deter others from dealing w it

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11
Q

gertz private v public distinctions

A

 **creates private vs public distinctions based on two concerns: (1) regular and continuing access to the media as a way to clear your name, (2) voluntariness of having your actions scrutinized by the public eye, and (3) the public cares about what these individuals have to say

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12
Q

what is a public official

A

 (1) public officials
• “a person empowered with significant responsibility and discretion in managing public affairs” – i.e. tethered to the gov’t
o ex) candidates, gov’t officials, former officials, court-apt psychologist
• the public official designation applies at the very least to those among the hierarchy of gov’t employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of govt’l affairs
o the employee’s position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy
o **courts are trending on allowing more and more officials to meet this standard (like police officers), but the USSC has not yet spoken on this

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13
Q

factors to determine public official status

A

o the inherent attributes of the position
o whether  has regular and continuing access to media
o whether  assumed the risk of public scrutiny through voluntary actions

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14
Q

common non-public official situations

A

o simply appearing in the newspapers in connection with some newsworthy story or stories
o social, professional or business prominence does not by itself
o forced involvement in a public trial
o those charged with defamation cannot by their own conduct in making their victims notorious thereby create their own defense
o merely applying for, receiving or benefiting from public research grants… does not make one a public figure

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15
Q

pf standard for public officials

A

• defamation actions brought by public officials regarding comments related to a public official’s official conduct or fitness for office are subject to the actual malice standard and must be shown with convincing clarity (more than a preponderance of the evidence) for alleged defamation relating to their official conduct (Sullivan)

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16
Q

what is actual malice

A

• actual malice:  must demonstrate that the statement was made with knowledge that it was false or with reckless disregard as to whether it was false or not
o mere negligence or genuinely not knowing that the statement was false is insufficient (thus actual malice is not shown)

17
Q

what is an all-purpose public figure; what PF standard applies to them

A
  • persons who occupy positions of such persuasive power and influence that they are deemed public figures for all purposes; individuals with significant fame and notoriety; household names
  • there is a presumption against finding a person to be an all-purpose figure – proving “all-purpose” status requires clear evidence of general fame/notoriety in the community and pervasive involvement in the affairs of society
  • actual malice standard applies in suits brought by these figures regarding any matter of their lives (i’m assuming convincing clarity standard applies here too)
18
Q

what is a limited-purpose public figure; what PF standard applies to them

A

• persons who have thrust themselves to the forefront of particular public controversies or the vortex of a public issue in order to influence the resolution of the issues involved, and in doing so, have assumed roles of especial prominence in the affairs of society
o Gertz test for “thrusting one’s self into area of controversy” – must be one that affects the general public in a material way (“access” to the media must be regular and continuing)
• for voluntary limited-purpose public figures, courts look at the following:
o whether a public controversy existed prior to the alleged defamation of the plaintiff
o whether the plaintiff “thrust” himself or herself into that controversy and played a significant role in it
o whether the alleged defamation was related to the plaintiff’s participation in the controversy

19
Q

what is an involuntary public figure; what PF standard applies to them

A
  • persons who are drawn into a particular public controversy and become a public figure through no purposeful action of their own
  • invariably a matter of public concern will be implicated, and the actual malice standard will apply (doesn’t look much different than “limited purpose” to me)
  • (not the black letter, just a note – courts will typically require the otherwise private individual’s involvement in the matter of public concern to be more than tangential or trivial)
20
Q

what is the rule for defamation actions brought by private figure plaintiffs; what PF standard applies to them

A

• if the speech regarding a private individual is on a matter of public concern, plaintiff must prove damages and negligence (not actual malice)
o **must also prove actual injury (unless they can also prove actual malice)

21
Q

rule for punitive damages and media defendants

A

o **note: in a case concerning a media defendant, presumed or punitive damages must be conditioned upon a showing of actual malice, otherwise, a plaintiff’s compensation is limited to actual damages

22
Q

rule for proving the truth/falsity of defamatory statements

A

o rule: if speech is on a matter of public concern, public and private-figure plaintiffs bear the burden of showing that the speech at issue is false (Hepps)
 the truth is presumed, so as not to chill free speech
 **so plaintiff need not prove actual falsehood if the matter is not one of public concern
 lower courts have held this to apply to non-media defendants as well

23
Q

rule regarding couching facts in opinion

A

o rule: simply couching statements in terms of opinion does not dispel implications of false assertions of fact – it would be destructive of the law of libel if a writer could escape liability for accusations of defamatory conduct simply by using, explicitly, or implicitly, the words “I think” (Milkovich)
 so the threshold inquiry is whether the statement is sufficiently factual to be susceptible to being proved true/false
 a statement of opinion relating to matters of public concern, which does not contain a provably false factual connotation, receives full constitutional protection (Hepps)
 but where the statement is the author’s POV and the facts are accurately stated, these statements can still be actionable if they imply factual assertions that are defamatory and untrue

24
Q

neutral report privilege

A

o neutral report privilege: when a responsible, prominent organization makes serious charges against a public figure, the 1st Am protects the accurate and disinterested reporting of those charges, regardless of the reporter’s private views regarding their validity (Edwards)
 ex) you can’t hold the NY Ties liable for accurately reporting a group’s defamatory accusations against another (b/c the report has significant informational value for the public)

25
Q

fair comment privilege

A

o fair comment/report: protects literary, artistic, and similar kinds of criticism, regardless of its merit, as long as it is made honestly (with honesty being measured by the accuracy of the critic’s descriptive observations)
 if the critic describing the work gives the facts accurately and fairly, the critic’s honest conclusions are privileged as fair comment
 rationales:
• the press acts as an “agent” of the public
• allows media to serve as a check on govt power by giving the public the right to be informed
• general public interest in learning about important matters generally
 rule: false assertions of facts relating to matters of public interest are privileged if they were honestly believed to be true, and comments based on those facts are privileged if honestly believed (Sullivan)

26
Q

fair and accurate report privilege

A

o fair and accurate report: protects journalists when they report someone else’s defamatory statement in a court proceeding, a city council meeting, or a legislative hearing)
 premise: the need, in a self-governing society, for free-flowing info about matters of public interest outweighs concerns over the uncompensated injury to a person’s rep.
 rule: this privilege extends to initial court pleadings and filings because it is critical for the press to be able to report fairly and accurately on every aspect of the admin of justice, including the complaint and answer (Salzano) – reasoning:
• the filing of a complaint is a public act
• the privilege serves the public’s interest in the judicial system (and this interest starts with the complaint)
• simply because a suit has proceeded to the point where judicial action of some kind has taken place does not necessarily mean that the suit is less likely to be groundless and brought in bad faith

27
Q

four unresolved areas of fair report privilege

A

 unresolved areas
• circuit split regarding whether the journalist must actually rely on the official report to get this privilege
• most courts hold that the journalist must attribute info to an official source in order to qualify for the privilege
• **in most states the fair report privilege is not “qualified” in the usual sense; the defendant need not believe the truth of the defamation and does not lose the privilege by publishing too widely
• most courts insist that a distinction must be made between accuracy in repeating an allegation contained in an official government and the truth of the underlying matter asserted