Pg 42 Flashcards
What are the two major different types of public figures under defamation?
- All-purpose pervasive public figure
- Limited purpose public figure
What is the difference between an all purpose pervasive public figure and a limited purpose public figure under deformation?
– All purpose: someone that has pervasive fame/notoriety for all purposes and contexts. This is a household name who voluntarily thrusts themselves into the limelight.
– Limited: someone that voluntarily injects himself or is drawn into a particular public controversy. This is a public figure for a limited range of issues. Test: must be a public controversy and involvement must be voluntary.
Is a public controversy and public interest considered to be the same thing under defamation?
No. Appearing in the society pages does not make you a public figure, and the socialite that is going through a divorce is not a public figure. Remember that to be a limited public figure there must be a public controversy and the involvement must be voluntary.
How does defamation change when a private individual is involved?
Statements of a private nature about a private person do not require malice.
If it involves a public figure, public interest, or a public issue, then malice is required.
I.e.: a socialite that is getting a divorce is not public
How do you determine if speech is public or private under defamation?
Look at the content, form, and context based on the whole record and all the circumstances.
How are jokes treated under defamation?
There’s protection for statements that cannot reasonably be interpreted as stating actual facts. This includes: hyperbole, rhetorical speech, and figurative language.
Ie: Hustler case: with cartoon about guy and his mom in the outhouse
What is privacy?
This involves the accurate description of private facts, and can be claimed even if something is not defamatory
What are the four branches of privacy?
– false light
– appropriation of name or likeness for purposes of trade
– publicizing private details about a non-newsworthy event or person
– performer with a name that has commercial value claiming a right of publicity
If information is obtained from public records, can someone claim privacy?
No. Ie: case report, suit
If a defendant publishes confidential information that he stole, what is the right of action?
It would not be defamation, it would be privacy.
What is obscenity and lewdness?
Indecency, lewdness, or offensive behaviour in appearance or expression. This is not thought to have any redeeming social importance, and is not an area that is protected by the Constitution, so it can be regulated
What is the miller formulation test for obscenity?
ELEMENTS:
– Would the average person, applying contemporary standards, taken as a whole, determine that it applies to the prurient interest?
– Does the work depict or describe in a patently offensive way, sexual conduct that is specifically defined by the applicable state law to violate community standards?
- Does the work, taken as a whole, lack serious literary, artistic, political, or scientific value?
What is the prurient interest under obscenity question
Anything that appeals to a shameful or morbid interest in sex. This is an abnormal interest.
Violence and disgusting things are not considered to be obscene
What is considered to be the “community“ under the miller formulation test for obscenity?
Local standards in the community of all adults.
What are considered to be patently offensive representations of sexual conduct under the miller formulation test for obscenity?
Sexual conduct that goes beyond the customary limits of candour and an affront to contemporary community standards of decency. This is representations or descriptions of ultimate sexual acts, either normal or perverted, actual or simulated, representations or description of masturbation, excretory functions, lewd exhibition of genitals, etc.
I.e.: sadomasochistic acts