Torts and the 1st Amendment

Question 1

Defemation

Answer 1

• Tending to harm reputation
  *at common law, fault was irrelevant
  *Can be libel or slander

Question 2

Defamation elements

Answer 2

1. Statement both false AND defamatory (damaging)
2. Intent to publish OR reasonable likelihood that statement will be received and understood.
3. Fault
4. Need 3 people (Defamer, person that was defamed and at least one audience).
5. Damages

Question 3

Libel Defamation

Answer 3

A. a written defamation which does not need to show harm to reputation because it is implied and has the potential to spread

C. Plaintiffs can recover without showing quantifiable damages.

Question 4

Libel defamation (Private Figure but matter of public concern)

Answer 4

A. P can recover compensatory damages if there is proof that the statements were false and of negligence by the defendant.

B. May award Presumed or Punitive damages if there is Actual Malice. D knew statement was false or acted with reckless disregard if the fact was even true.

Question 5

Libel Defamation (Private Figure but matters NOT of public concern)

Answer 5

A. Punitive and Presumed damages do NOT require actual malice.

B. Court unclear who had burden of proof.

Question 6

Libel Defamation (Public Official)

Answer 6

A. P can recover if he meets the NY. Times requirement:

1. P must be a public official or running for office
2. P must prove their case with clear and convincing evidence
3. P must prove statement is false ; and
4. P must prove actual malice (D knew statement was false or acted with reckless disregard if the fact was even true.

Question 7

Libel Defamation (Public Figure)

Answer 7

1. General Public Figure
   A. Actual Malice applies
   B. People with sufficient fame or treated as “public for all purposes”
2. Limited Public Figure
   A. People who enter the public sphere for a limited time or in connection with a particular controversy.
   B. Actual Malice but only for those controversies.

Question 8

Slander

Answer 8

A. Oral/ Spoken defamation and must show some kind of reputation harm.

Question 9

Defenses to defamation

Answer 9

1. Truth
2. Consent
3. If a government official acted in connection with official duties.

Question 10

Intentional Infliction of Emotional Distress

Answer 10

(1) D intentionally or recklessly, (2) Causes P (3) Severe Emotional distress (4) by D’s extreme and outrageous conduct.

Question 11

IIED Public officials

Answer 11

Public officials must show that publication contains false statements which were made with actual malice and caused IIED (Hustler Magazine)

Question 12

IIED Public Interest

Answer 12

A. Protests on matters of public interest are protected, so no IIED claim.