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)
Killian RULE
In order to support a defense of truth, it is necessary to prove that it was substantially true. (statement must be substantially true). (Killian)
TRUTH
An affirmative defense under common law.
D must raise it and has the burden of proof.
Not always true as a constitutional matter.
Defense looks at the objective truth of the falsity.
Truth is a defense here if:
It were observed by the author and were an acoount of the events. (Killian)
“Substantial truth”
ex: story about 1 finger stretcher bearer, actually had 3 fingers - ok, substantially true
- Must be specific charges for “substantial” truths.
- Cannot be general “bad character” of plaintiff.
- Cannot prove truth of one offense by offering evidence of another (even related/similar) offense. (Killian)
Ex: Stole A’s watch cannot be proven by showing theft of B’s watch and clock.
P must prove falsity:
Some courts hold that the plaintiff must prove falsity (non-truth) as element of prima facie case.
1. Writer/author is responsible for the substantial truth of the report - even if they repeat a story told to them exactly (ex: can’t say “someone told me this story and I reported it exactly”) - puts a premium on fact-checking. (Killian)
Truth/Falsity
Truth/falsity is objective on the facts - doesn’t require the publisher to have a subjective knowledge of the truth/falsity (avoids “I didn’t know” arguments).
Neiman-Marcus v. Lait
Models and female sale staff accused of being hookers and whores, male sales staff accused of being homosexuals. Groups sued in classes (models, female & male sales staff). Court held that female sales staff was too large to be implicated by association and no one person was identifiable. (Neiman)
Neiman-Marcus RULE (Group Defamation Theory)
If statement is inclusive (references “all” or “the entire” group)
1. General Rule: Where the group or class is large then no individual member can sue.
a. Exception: If an individual is named, or language which refers to some ascertained or ascertainable person/individual.
2. General Rule: Where the group or class is small (generally 25 or less), then any individual member can sue. (Majority)
a. Minority: “Intensity of suspicion” - there can be recovery if a high degree of suspicion can inferred to a plaintiff.
i. Ex: 1 of 25 people stole a car
ii. Alt: 24 of 25 people are thieves
3. Depends on the size of the group defamed, not the size of the group suing.
(Neiman)
When some, or less than all of a small group is implicated (ex: “most of the sales staff):
There is a split:
1. Some courts will hold that action is allowed
2. Some courts will hold no cause of action
i. Neiman Marcus court held that those who were members of a group of 25 or smaller could recover.
(Neiman)
Defamation for the Dead RULE
Defamation cannot succeed for statements made after the defamed person’s death (because their reputation doesn’t “go on”)
1. Exception: If the defamation was suffered while plaintiff was alive, suit will survive but damages will be limited to harm suffered while alive (cut-off at death). (Neiman)
Corporation RULE
What if a private security company is defamed? A corporation can have no reputation in the personal sense and cannot be defamed. But a corporation can maintain an action for defamation that casts an aspersion upon its honesty, credit, efficiency, or other business or moral character. (Neiman)
Charitable/Benevolent Corporation
(No-profit) Good COA since defamation affecting its character/operations may deprive it of gifts or other sources of revenue. (Neiman)
Government Entities
Bodies open to “uninhibited public criticism” and thus holding that in contrast to corporations they should not enjoy a right to sue in libel. (Neiman)
Bindrim v. Mitchell
Psychologist held “nude group therapy marathons”, attended by author who later wrote a fiction novel of the same subject. P sued for defamation, claiming the character in the novel was identifiable as him. (Bindrim)
Bindrum RULE
Need not be identified by name, as long as a reasonable person would identify the plaintiff as the character.
1. Whether a reasonable reader, with knowledge of the surrounding circumstances/extrinsic facts, would understand the words to represent the plaintiff.
2. Reasonable reader would need to know enough extrinsic facts to make the connection (ex: Killian case - if someone only knew he was the general at the fort, it would still impute the defamation to him).
3. Publication to even one person is sufficient to support a defamation action - may limit damages if the number who can identify is small/low.
(Bindrim)
Bindrim Dissent
The support of defamation chills free speech - the point of fiction and to create non-factual characterization is to avoid defamation, not to create “actual malice” for lack of truth. : Less likely to write these books if charged with defamation. (Bindrim)
