Torts: Defamation

Question 1

Defamation generally

Answer 1

1. If the defendant is a private person and the defamatory statement concerns a private matter, tort law governs the dispute.
2. If the defendant is a public official or public figure or the defamatory statement involves an issue of public concern, the dispute is governed by tort law and the First Amendment.

Question 2

Plaintiff is a private figure and the issue is not of public concern (e.g., a purely private dispute, such as a person accusing his neighbor of being “a drunk”):

Answer 2

In such cases, the plaintiff has the burden of proving:

i. defendant made a defamatory statement about plaintiff

a statement is defamatory if it exposes the plaintiff to public hatred, contempt, scorn, shame, or ridicule

the statement must concern facts or opinions implying underlying facts (“A committed perjury in last week’s hearing”); pure opinions (“A is a very poor lawyer”) or name-calling (“A is a racist”) will not suffice

the plaintiff must show that a reasonable person would think that the statement concerns the plaintiff and would understand the defamatory nature of the statement, unless the defamatory nature of the statement is clear on its face (i.e., defamation per se)

ii. published by defendant to a third person who understands the statement and the language

publication may be intentional or negligent

iii. damages; but damages are presumed for harm to the plaintiff’s reputation for:

all libel (written defamation, radio, TV, tape-recordings, most communications by computer)

slander per se (oral defamation concerning (1) plaintiff’s trade or profession; (2) accusing plaintiff of a serious crime; (3) alleging that plaintiff currently has a loathsome disease (e.g., VD, Leprosy); or (4) alleging that plaintiff is unchaste

for all other slanders, plaintiff must prove actual money losses (e.g., lost job, lost customers)

if the plaintiff is able to prove actual money losses, the plaintiff may also obtain damages for reputational harm

iv. affirmative defenses
1. consent (e.g., plaintiff consented to release of investigative report)
2. truth (defendant must prove truth)
3. absolute privileges:

statements by federal or state legislators on the floor of the legislature or in committee sessions;

statements by executive officials in the course of their duties;

statements made in judicial proceedings by judges, jurors, attorneys, parties, and witnesses if in any way related to the proceeding;

statements between spouses

if an absolute privilege exists, defendant may not lose it, regardless of malice

4. qualified (or conditional) privileges:

answering requests for information from prospective employers (e.g., references) or credit agencies;

reporting a crime to the police;

testifying in administrative hearings

defendant will lose a qualified privilege if he makes false statements intentionally, recklessly, maliciously, or over-publishes the statement

Question 3

Plaintiff is a public official, candidate for public office, or public figure (issue if of public concern)

Answer 3

a public official is an elected or appointed government official with substantial responsibility over government affairs (e.g., governor, state senator, mayor, police officer)

a public figure is someone who has general notoriety (e.g., Brad Pitt, Michael Jordon) or someone who has asserted herself into a controversy

the spouse of a public figure is not automatically treated as a public figure

To prevail, a public official or figure must prove:

i. a defamatory statement about the plaintiff
ii. published by defendant (to a third person)
iii. in addition, the plaintiff must prove the following two factors:

the statement is false (probably by clear & convincing evidence)

Actual Malice: the defendant made the statement knowing it was false or with reckless disregard for the truth–i.e., a subjective belief that it was false (by clear and convincing evidence)

Question 4

Plaintiff is a private figure and the issue is of public concern

Answer 4

When is it a matter of public concern:

a matter is of public concern if the public has a legitimate interest in the subject (e.g., a private lawyer accused of overbilling the government for legal work)

To prevail, the plaintiff must prove:

i. a defamatory statement about plaintiff
ii. published by defendant (to a third person)

iii. in addition, the plaintiff must prove the following two factors (by a preponderance):
• the statement is false
• the defendant made the statement (at least) negligently

iv. plaintiff must also prove actual damages (but actual damages are not limited to out-of-pocket losses)
v. to recover presumed or punitive damages, plaintiff must prove that defendant made the statement knowing it was false or with reckless disregard for the truth (i.e., a subjective belief that it was false)

Question 5

If no defamation under the 1st amendment

Answer 5

If the First Amendment bars plaintiff’s recovery for defamation, plaintiff may not use other torts, such as IIED or Right to Privacy, to recover.

Question 6

When defamation suits can’t be brought

Answer 6

Defamation and Right to Privacy suits are “personal” and thus end at the plaintiff’s death (in most states) and cannot be brought on behalf of someone who is already dead (with the possible exception of Misappropriation of Plaintiff’s Name or Likeness).