torts 2 lecture 14 VIPs constitutional privilege

Question 1

defamation per se

Answer 1

If words “tend to injure a person in his reputation” or to “ bring him into public contempt.”
As defined by the state court, words that “injure him in his public office, or
impute misconduct to him in his office, or
want of official integrity, or
want of fidelity to a public trust.”

Question 2

Punitive Damages

Answer 2

must show actual malice under Alabama law

Question 3

power of the 1st amendment

Answer 3

“Erroneous statement is inevitable in free debate, and

it must be protected if the freedoms of expression are to have the ‘breathing space’ they ‘need to survive.’”

Question 4

the rule

Answer 4

What does the Constitution require?

1. A federal rule
2. that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with –
3. “actual malice.”

Question 5

actual malice

Answer 5

What is “actual malice”?
Knowledge that the statement is false or reckless disregard of whether the statement is false or not.
It cannot be presumed.
Plaintiff has to prove it.
With “convincing clarity”

Question 6

how is recklessness measured

Answer 6

A subjective standard

The reasonable man (objective standard) does NOT control.

Question 7

not the reasonable man

Answer 7

We do not ask whether a reasonably prudent man would have published or would have investigated before publishing.
We ask:
Whether the defendant has a good faith belief in the truth of his statements.

Question 8

the question

Answer 8

Did the defendant make the statements with a “high degree of awareness of probable falsity” or . . .
Did the defendant “in fact entertain serious doubts as to the truth of his publication”?

Question 9

Private Conduct/Public Officials

Answer 9

The Supreme Court held “as a matter of constitutional law”
that a charge of criminal conduct, “no matter how remote in time or place,”
can never be irrelevant to an official’s or a candidate’s fitness for office
for purposes of the “knowing falsehood or reckless disregard” rule of NY Tmes v. Sullivan.
What does this mean?
Plaintiff still has to prove actual malice.

Question 10

public figure determined by

Answer 10

By actions
With “purposeful activity amounting to a thrusting of his personality into the ‘vortex’ of an important public controversy

Question 11

the rule

Answer 11

Public figures must prove actual malice.

The same standard as NY Times v. Sullivan.

Question 12

“Limited basis” public figures

Answer 12

For conduct subjected to public scrutiny and review
Research scientist at the National Cancer Institute?
Yes, because he injected himself into the public arena with publications
Reuber v. Food Chemical News, Inc. (4th Cir. 1991), note 6, p. 1017
Donald Trump/Trump University?
Yes, for the limited purpose over its educational practices on account of its “large scale, aggressive advertising.”
Makaeff v. Trump Univ. (9th Cir. 2013), note 6, p. 1017

Question 13

proof of actual malice

Answer 13

With “clear and convincing” evidence
Anderson v. Liberty Lobby, Inc. (US 1986), note 3, p. 1015
How can a plaintiff prove it?
Defendant’s mental state
Herbert v. Lando (US 1979), note 4, p. 1015
Plaintiff may examine the editorial process of those responsible for the publication.

Question 14

what is actual malice

Answer 14

Reliance on “unverified anonymous telephone calls”
Reliance on “inherently improbable” story
Fabrication by defendant
Product of imagination
Sources?

Question 15

the rule

Answer 15

“[S]o long as they do not impose liability
without fault,
the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious
to the private individual.”

Question 16

2 limitations

Answer 16

States may not impose liability without fault
No strict liability
Is negligence enough?
“States may not permit recovery of presumed or punitive damages . . .
at least when liability in not based on a showing of knowledge of falsity or reckless disregard for the truth.”

Question 17

required proof

Answer 17

A private plaintiff suing a media defendant must prove either:
Actual malice
Or
Actual injury

Question 18

what is actual injury

Answer 18

Not limited to “out of pocket loss.”
The “more customary types of actual harm inflicted by defamatory falsehood include
Impairment of reputation and standing in the community
And also, personal humiliation, mental anguish and suffering.”

Question 19

focus of the court

Answer 19

“In defamation cases,
The public-figure status of a plaintiff and
The public importance of the statement at issue—
Not the identity of the speaker—
Provide the First Amendment touchstones.”
In this case:
Private plaintiffs
Defendant who may (or may not) be a media defendant

Question 20

The publication of false statements that are of public concern . . .

Answer 20

Require the plaintiff to prove what?
That the defendant published the statements negligently.
If the plaintiff proves that the defendant published the statements with actual malice, what follows?
The plaintiff would be entitled to presumed damages.