Page 44 Flashcards
What are actual damages for defamation?
All injuries to the plaintiff’s reputation
What are special damages for defamation?
Quantifiable money losses due to injury to reputation, like loss of customers, job, etc.
What are general damages for defamation?
Nonpecuniary injury to reputation like humiliation, loss of friends, etc.
Why are general damages presumed in defamation?
Because of the nature of the statement
How does the jury estimate the amount of presumed general damages for defamation?
Based on the extent of injury to reputation
How has the constitution altered common-law defamation?
At common law defamation was a strict liability tort, but modernly the status of the individual is important
What is New York Times malice?
Deliberate falsity or reckless disregard for the truth of what was published
Is negligence enough for New York Times malice?
No, the defendant had to have actually entertained serious doubts about the truthfulness of the publication
What is the standard of proof for New York Times malice?
Actual malice with convincing clarity
What is the standard of convincing clarity for New York Times malice?
More than a preponderance of the evidence but less than beyond a reasonable doubt
Who has the burden of proof for modern defamation?
The plaintiff for all except private concert/private person
What are the different categories included in modern defamation?
- public OFFICIAL
- public FIGURE
- PRIVATE PERSON
Who are considered public officials for defamation?
People in positions that affect policy and have/appear to have substantial responsibility/control over government affairs
Why is the standard for defamation not as rigorous for public officials?
Because the public needs to be able to speak freely and criticize them without being liable
What was the New York Times v Sullivan case about?
An ad about police behavior and Martin Luther King that resulted in a Supreme Court ruling that a public official can only prevail in defamation if the defendant acted with malice which is shown by clear and convincing evidence
What status category for defamation are police in?
Public Officials
What are the different categories of public figure for modern defamation?
- all-purpose public figure
- limited public figure
- involuntary public figure
What is an all-purpose public figure?
Someone that has achieved fame and notoriety in all purposes and contexts
What is an example of an all-purpose public figure?
Bill Gates or Tiger Woods
What is a limited public figure?
Someone that voluntarily injects himself into or is drawn into a particular public controversy becomes a public figure for a small range of issues
What is an involuntary public figure?
Someone that becomes a public figure through no purposeful action of their own, they are just in the wrong place at the wrong time
What is an example of an involuntary public figure?
Someone involved in a famous accident
What do public figures have to do to prove defamation?
Must show actual malice or reckless disregard for the truth
Why is the standard higher for public figures for defamation?
Because they risk reputational harm by involving themselves important issues
What is the rationale for public figure defamation?
The public interest in good faith debate about public people outweighs the interest in protecting those people’s reputations, and no public interest is served if malice is present, so there’s no protection for that
If it can be shown that the defendant acted with spite, hatred, or ill will, does that count for malice for defamation?
No
What are the two categories of private persons for modern defamation?
public concern and private concern
What can a private person/public concern P recover for modern defamation?
Can recover for actual injury (impairment of reputation or standing in the community, humiliation, mental anguish)
Is actual malice necessary for private person/public concern for defamation?
Only if the plaintiff wants presumed damages or punitive damages
If a private person sues for a private concern for defamation, what do they have to do?
They do not have to prove actual malice and common-law rules of defamation apply, so strict liability is allowed
Is strict liability allowed for private person/public concern for modern defamation?
No, there has to be some degree of fault higher than strict liability, which is usually negligence
Why is there a lower standard for private persons under modern defamation?
Because private people are more vulnerable to injury from defamation and they don’t have the same opportunity for rebuttal that public people have, plus they haven’t voluntarily assumed the risk of adverse comments like public figures have
What does a private person have to prove that a publisher did for modern defamation to apply?
- he KNEW the words were false
- was RECKLESS about their falsity, or
- was NEGLIGENT about it
What are defenses to defamation?
- substantial truth
- absolute privilege
- qualified/conditional privilege
- consent
How is substantial truth a defense to defamation?
If the communication is true or substantially true, there’s no defamation
Do you have to show that something was literally true to be a defense to defamation?
No, you just have to show it was substantially true
If you say someone killed 12 people when he actually killed 11 people, is that defamation?
No, because what you said was substantially true
How is absolute privilege a defense to defamation?
Certain people are immune to liability
Who has the burden of showing that an absolute privilege applies for defamation?
D
What are the absolute privileges that excuse defamation?
- judicial privileges
- legislative privileges
- executive privileges
- spouses
- compelled by law
Who has a judicial privilege that is a defense to defamation?
Judges, jurors, lawyers, and witnesses during litigation
What is judicial privilege as a defense to defamation?
Judges, jurors, lawyers, and witnesses during litigation aren’t liable for what they say during the legal proceeding as long as it is relevant
If you were a witness in a trial, and you say during your testimony that someone is a communist, but that has nothing to do with what you’re testifying about, can you be guilty of defamation?
Yes, because judicial privilege wouldn’t apply in that case, because there was no relevancy
What is legislative privilege for defamation?
Legislators are not liable for anything said in the course of legislative activity
What is considered legislative activity for the defense of legislative privilege to defamation?
Anything that was said on the floor of the legislature, during hearings, or committee proceedings
Does it matter if what was said during legislative activity wasn’t relevant with regard to legislative privilege for defamation?
No, the privilege still applies
What are executive privileges for defenses to defamation?
Policymaking officials of the executive branches of state/federal governments are privileged for things said during the course of their duty
What is the spousal privilege for defamation?
Anything said between spouses is privileged
What is “compelled by law” as a defense to defamation?
Broadcast media are sometimes compelled to allow a third person to utilize their facilities, so they are privileged form anything said by the third-party
What are the different types of damages available for defamation?
- actual
- special
- general
- punitive
