Defamation Constitutional

Question 1

1st amendment

Answer 1

States that Congress shall make no law abridging the Freedom of Speech

Question 2

Speech of a public concern

Answer 2

Determined by the statement’s content, form, and context.

Question 3

What is a public controversy?

Answer 3

Typically a publicly debated issue with foreseeable or substantial consequences for non participants.

Question 4

Two main categories for plaintiff

Answer 4

Public and private person

Question 5

What is a public official?

Answer 5

A person who holds a position in government or other sector which has such apparent importance that the public has an independent interest in who holds it. Does not necessarily have to be an elected official (i.e. NY Times wasn’t plaintiff wasn’t), but can apply to people who are running for an office.

Question 6

Two types of public figures

Answer 6

Limited and universal (general purpose)

Question 7

Limited public figures

Answer 7

One who voluntarily injects themselves into a particular public controversy and therefore becomes a public figure for that SPECIFIC issue. Can also be involuntary if it is reasonable foreseeable that the public interest would arise.

Question 8

5 elements for voluntary public figure

Answer 8

AVIPS!!!
A - access to channels of efficient communication
V - Voluntarily assumed the role
I - influence (sought to influence the outcome of the controversy)
P - prior to the publications of the defamatory statement the controversy existed
S - Statues (plaintiff retained the public figure status at the time of the alleged defamatory statement was made

Question 9

What is a general purpose figure?

Answer 9

A person who has such pervasive fame and/or notoriety that they become public figures for MOST purposes and MOST contexts.

Question 10

What three common law elements are changed when analyzing through a constitutional framework?

Answer 10

Fault, Burden of proof, and damages.

Question 11

Actual Malice

Answer 11

Is a fault change from the common law analysis. Requires that the defendant knew of the false statement or had reckless disregard as to the truth of falsity of the statement.

Question 12

Reckless disregard defined

Answer 12

Comes from St. Amant.

Where the defendant has serious doubts as to the content in the publication, yet still made the publication.

Question 13

Types of damages allowed in a constitutional analysis for defamation.

Answer 13

Actual (actual monetary loss that is quantifiable), presumed, and punitive (punishing to lessen the chance of future similar behavior)

Question 14

What do we balance (policy wise) when doing a constitutional analysis for defamation?

Answer 14

What the first amendment aims to protect versus the state’s interest (i.e. the individual being defamed)

Question 15

What damages are awarded when using a negligence standard in constitutional defamation?

Answer 15

Actual

Question 16

If we prove actual malice what damages are allowed?

Answer 16

Actual, presumed, and pecuniary.

Question 17

If we have a media defendant who has the burden to prove the falsity of the statement?

Answer 17

The plaintiff (Hepps case). Policy reason for this is to not deter media defendants from publishing stories because of fear of having to prove falsity after the fact.

Question 18

Public plaintiff with a matter of private concern

Answer 18

• Common law of state is applied
• Presumed damages
• Defendant must prove truth

Question 19

Private plaintiff with a matter of private concern

Answer 19

• Common law is applied
• Actual, presumed, and pecuniary damages are allowed
• There is the option of a rebuttable presumption and the defendant must prove the truth (Dunn and Bradstreet case)

Question 20

IIED in defamation

Answer 20

Hustler case. NY Times actual malice standard is extended and the burden of falsity is on the plaintiff

Question 21

Typically can statements of opinion be said to be defamatory?

Answer 21

No. Milkovich case said that unless it can be verified as proveably false, then a mere expression of opinion cannot be defamatory.

Question 22

Public plaintiff with a matter of public concern.

Answer 22

NY Times. Must prove actual malice and all damages are allowed. Plaintiff has the burden of proof.

Question 23

Private plaintiff with matter of public concern.

Answer 23

Negligence standard is applied (knew or should have known). If libel do NOT have to prove special damages. If slander DO have to prove special damages. Defendant bears the burden of proof.