Defamation Essay

Question 1

Defamation

Answer 1

Defamation is a false defamatory statement made by the defendant with fault of or concerning the P, published to a third party that causes damages to the P.

Question 2

Defamatory Statement

Answer 2

A defamatory statement is one that tends to lower P’s reputation within the community.

Here, the D stated that P was a drug dealer. Accusing one of being a drug dealer would tend to lower one’s reputation within the community because drug dealing is a crime. Thus, it’s a defamatory statement.

Question 3

Of or Concerning the P

Answer 3

A reasonable person must have understood that the statement was of or concerning the P.

Here, D specifically used P’s first and last name in the statement. Thus, this element is met.

Question 4

Published to a 3rd Party

Answer 4

The statement must have been published to a 3rd party who understood the statement. Here, (insert analysis and then conclusion)

Question 5

Damages

Answer 5

General damages are presumed for libel per se. Libel is written defamation.

Question 6

Falsity

Answer 6

Plaintiff is required to prove falsity of the statement. Analysis. Conclusion.

Question 7

Fault

Answer 7

The type of fault that plaintiff must prove depends on whether plaintiff is a public or private figure.
A public figure is one who achieves fame or notoriety or is in government office.
If plaintiff is a public figure, he must prove New York Times malice, which requires a showing of knowledge that the statement was false, or reckless disregard as to whether it was false. This is a subjective test.
If the plaintiff is a private figure then he must prove Gertz negligence, which means he need only show negligence regarding the falsity of the statement.
Where defendant is only negligent, only actual injury damages are recoverable.
However, if a private plaintiff can show malice on the part of the defendant, damages may be presumed and plaintiff may be able to recover punitive damages.

Here . . .

Question 8

Defenses/Privileges

Answer 8

*(Finally, raise defenses and/or privileges to defamation and do so right after analysis of defamation elements. Only raise those that are at issue.) *

Consent
Consent is a complete defense. Here, . . .

Truth
Where plaintiff does not need to prove the element of falsity, D may prove truth as a complete defense. Here, . . .

Absolute Privilege
D may be protected by an absolute privilege for the following: remarks made during judicial proceedings, by legislators in debate, by federal executive officials, in “compelled” broadcasts, and between spouses. An absolute privilege can never be lost.

Qualified Privilege
Speakers may have a qualified privilege for the following: reports of official proceedings; statements in the interest of the publisher, such as defense of one’s actions, property, or reputation; statements in the interest of the recipient; and statements in the common interest of the publisher and recipient.
This privilege may be lost if
(i) the statement is not within the scope of the privilege, or
(ii) it is shown that the speaker acted with malice.
Defendant bears the burden of proving that a privilege exists.

Here, . . .