Defamation Common Law Flashcards
Old Definition of “Defamatory”
tends to hold P up to any publication which exposes a person to distrust, hatred, contempt, ridicule, obloquy. - HARDER FOR P TO PROVE: NARROW
(Belli)
Modern Definition of “Defamatory”
Broadens the definition: a communication that tends to damage P’s reputation, more or less in the popular sense- that is, to diminish the respect, good will, confidence or esteem in which he is held or to excite adverse or unpleasant feelings about him. (Belli)
Policy for jury question
Since one’s reputation is the view which others take of him- whether an idea injures a person’s reputation depends upon the opinions of those whom it is published- logical function of the jury. (Belli)
Belli v. Orlando Daily Newspaper, Inc.
Nationally known lawyer sued for defamation when article published that implied he had “took” the FL. Bar by charging hundreds of dollars of clothes to his hotel room, which was paid for by the Bar. Trial court dismissed because statement wasn’t defamatory - appellate court held that statement was for a jury to decide if the statement was defamatory.
Common Law Elements of Defamation Claim
- Statement presumed false (Defense can be proof the statement is true)
- Statement is unprivileged
- Is published
- Is capable of a defamatory meaning (jury/judge issue depends)
- “Of and concerning”- Colloquim requirement- statement is of or concerning the plaintiff
- Statement damages plaintiff
If statement is capable of only one meaning:
the judge may decide a matter of law if the statement is defamatory or not. (Belli)
If statement is capable of more than one meaning:
it is for a jury to decide if the statement is defamatory or not. (Belli)
Ordinary Standard
Judge will look to the ordinary common meaning of the word, phrase, term, etc. to determine if it is capable of one or more meanings. A publication claimed to be defamatory must be read and construed in the sense in which the readers to who it is addressed would ordinarily understand it. (Belli)
Example of Ordinary Standard
“Slut” - generally understood to be a slur or insult, so even a joking statement is likely actionable. (Belli)
Policy for Ordinary Standard
Allowing a term to be deemed derogatory (ex: “homosexual”) promotes the power of the term as a disparaging remark (validates the “hurt” of the term), especially in the light of non-applicable terms (ex: racial slurs to someone clearly not of the race, etc.) (Belli)
For meaning of a word:
Can look to dictionary definitions, etc. Likely can use common usage. Looks to time, place and culture for context. Courts also look to punctuation. (Belli)
Example of time, place and culture for context:
Published statement that “Mr. Woodard enjoyed a bottle of wine in the countryside”.
- During Prohibition, and Mr. Woodard is a well-known self-help author for recovering alcoholics?
a. Defamatory, accusation of breaking law, harms rep. as author - During today’s time and he’s just Woodard?
a. Unlikely - not harmful
Example of punctuation:
- Today - Ms. X associated with a lot of men.
a. Maybe - may depend on the context - Ms. X “associated” with a lot of men
a. Probably - emphasis on alt. meaning of “associated”
What if intended in a joking or complimentary way?
NOT A DEFENSE:
1. Unless it is clear from the context that the term could not be taken in a defamatory way (ex: “You’re as much of a slut as Mother Theresa”), then it may be a defense
2. Also, not a defense to repeat and disagree with the defamation
(Belli)
Grant v. Reader’s Digest Ass’n
Newspaper article accused legislative rep. of being a member of the Communist Party in 1940s. Court held that “right-thinking” people wouldn’t shun leg. On this basis, but P had a right to be free from defamation to even “wrong-thinking” people.
“Right thinkers” v. “wrong thinkers”
Hand says “wrong thinking” people can still be enough to cause defamation. (Grant)
Example 1 of “Right thinkers” v. “wrong thinkers”
Anarchists think it is horrifying to be accused of holding public office. Anarchists are “wrong thinking” people - unlikely to be defamatory b/c the prejudice is so outside the normal belief.
Example 2 of “Right thinkers” v. “wrong thinkers”
: Criminals horrified by being accused of being an informer. Not defamatory - don’t want to advance the standards of a group so far outside the norms.
Damage to rep. for abrogate “wrong-thinking” people:
May reduce damages award
POLICY
Don’t want to encourage behavior or reputations that are so far outside the social norms. Criminals for “snitch” - don’t want to encourage criminals, as viewers, to be protected. Don’t want to discourage either ideological party in Dem. v. Rep., so don’t allow it to be actionable. Etc.
Grant RULE
The interest at stake in all defamation is the reputation of the person assailed; and any moral obliquity of the opinions of those in whose minds the words might lessen that reputation, would normally be relevant only in mitigation of damages. A man may value his reputation even among those who do not embrace the prevailing moral standards; and it would seem that the jury should be allowed to appraise how far he should be indemnified for the disesteem of such persons. (Grant)
Grant HOLDING
We do not believe therefore that we need say whether “right thinking” people would harbor similar feelings toward a lawyer because he had been an agent for the Communist Party, or was a sympathizer with its aims and means. It is enough if there be some, as there certainly are, who would feel so, even though they would be wrong thinking people if they did. (Grant)
Pleading Defamation: Restatement 563
Defamatory matter may be communicated “by innuendo, by figure of speech, by expressions of belief, by allusion or by irony or satire…or by words spoken in jest if not so understood.
Where the meaning is not clear, P must plead the context that renders the words or conduct defamatory.
P must plead:
1. The defamatory words
2. The publication: communication of the words to a third person
3. Extrinsic facts, because of which the words were reasonably understood to convey a meaning defaming the P. This is called the “inducement.”
4. A formal allegation that the words were spoken of and concerning the P. This is called the “colloquium.”
5. An allegation of the particular defamatory meaning conveyed by the words. This is called the “innuendo.”
6. Special damages, when they are necessary to the COA.
(Grant)
Killian v. Doubleday & Co., Inc.
Personal recollection was re-written for dramatic effect to imply author had personally witnessed several horrors at army base run by General, but author was never at base and only heard stories from third persons. General sued for characterizations of him as a dictator, abusive of power and of soldiers. Court held that since author wasn’t actually there, couldn’t be “true” witness story. (Killian)