defemation

Question 1

What is needed to create liability for defamation? (2nd restatement)

Answer 1

• A false and defamatory statement of and concerning another,
• an unprivileged publication to a 3rd party,
• fault at least amounting to negligence,
• and either actionability of the statement or special harm.

Question 2

When is a communication defamatory?

Answer 2

If it harms the reputation of another and lowers their standing in the community

Question 3

Common law defamation

Answer 3

publication of defamatory material of and concerning the plaintiff to a 3rd party.

Question 4

What are the three common law presumptions about defamatory remarks?

Answer 4

1) It was presumed false so D had the burden of proving truth as an affirmative defense

2) Damages were presumed

3) The publication was presumed malicious

Question 5

What are the plaintiff’s burdens under modern rules for defamation

Answer 5

falsity and fault, damages, lack of privilege, or some combination of these elements.

Keep in mind the common law presumptions have not been abolished

Question 6

What is a publication?

Answer 6

Any communication to a 3rd party

Question 7

Slander

Answer 7

Spoken defamatory remarks

Question 8

Libel

Answer 8

Defamatory remarks that are written or in any other permanent form

Question 9

What makes a remark actionable for defamation?

Answer 9

that people can reasonably take the
statement as referring to the Plaintiff.

Question 10

meaning of defamatory

Answer 10

the publication carries a negative connotation

Question 11

Slander per se

Answer 11

1) a serious crime
2) a loathsome disease
3) remarks about profession or business reputation
4) Serious sexual misconduct

Question 12

When is a statement materially false?

Answer 12

when the statement had a different effect on the mind of the listener than the truth would have.

Question 13

What types of people have qualified immunity form defamation suits?

Answer 13

judges, lawyers, witnesses, legislators, executive officers,

Question 14

What types of communications are privileged?

Answer 14

Communications in your own interest or in the common interest of the publisher and the recipient.

Question 15

What must a public figure show to prevail in a defamation case?

Answer 15

That the statement was false or there was reckless disregard for whether the statement was false or not. (the New York times standard)

Question 16

What makes someone a public figure?

Answer 16

pervasive fame or notoriety or voluntarily injected themself or is drawn into a particular public controversy and thereby become a public figure.

This is something proved by the plaintiff

Question 17

does committing a crime make you a public figure

Answer 17

No

Question 18

What was the decisision in NYT v. Sullivan?

Answer 18

In suits brought by public officials, the official can’t recover unless they prove knowing falsehood to reckless disregard of the truth

Question 19

Who did the original NYT decision apply to?

Answer 19

Only public officials that were appointed or elected, in ‘67 this was expanded to all public figures.

Question 20

What is Malice for defamation of pubic figures? (knowing falsehood or reckless disregard)

Answer 20

the defendant knew the publication was false or, just short of this, that the defendant published ‘recklessly.

A high degree of awareness that a statement is probably false or that the publisher had serious doubts as to its publication

Question 21

When can a court enforce a foreign defamation judgment?

Answer 21

The law applied in the foreign court provided at least as much protection as the 1st amendment

Question 22

What did Gertz add to defemation?

Answer 22

Private individuals can recover if they prove fault and damages, most states use negligence as the standard

And that private individuals do not need to show malice

Question 23

When is a public employee a public figure?

Answer 23

When their position invites public scrutiny and discussion about the person holding it

Question 24

What might be needed to reveal the identity of an online poster?

Answer 24

A prima face case for defamation

Question 25

What are the four qualities of the internet?

Answer 25

1) everybody has a press
2) everyone has a cloak
3) Everybody has a personal curation service
4) Everybody has a paparazzi