Torts 2

Question 1

What are the four elements of a prima facie case for defamation?

Answer 1

• A false and defamatory statement concerning an identifiable, living person
• That is published to a third person (without privilege)
• That damages the person’s reputation
• That satisfies First Amendment requirements regarding falsity and level of fault

Question 2

In Belli v. Orlando Daily Newspapers, Inc., what does the jury determine?

Answer 2

Whether the material should be regarded as defamatory

Question 3

What must defamatory words tend to do according to Belli v. Orlando Daily Newspapers, Inc.?

Answer 3

Expose the plaintiff to distrust, hatred, contempt, ridicule, or obloquy

Question 4

What is the significance of the ‘right-thinking’ standard in Grant v. Reader’s Digest Ass’n?

Answer 4

Learned Hand rejected it; a statement is libelous if it is viewed as such by any group, not just the majority

Question 5

According to the Restatement (Second) of Torts § 559, what is required for a statement to be defamatory?

Answer 5

Its general tendency to have a prejudicial effect on the plaintiff in the eyes of a substantial and respectable minority of the community

Question 6

What is the defense of justification in defamation cases?

Answer 6

Truth is a defense; it must be shown that the statement was substantially true

Question 7

What must a plaintiff demonstrate in a libel claim according to Neiman-Marcus v. Lait?

Answer 7

That the statement refers to some ascertained or ascertainable person

Question 8

According to Restatement 2nd, Sec. 564A, what is the general rule regarding defamation of large groups?

Answer 8

No action lies for the publication of defamatory words concerning a large group or class of persons

Question 9

In Bindrim v. Mitchell, what is necessary for a cause of action for libel?

Answer 9

A reasonable person must be able to identify the statement as referring to the plaintiff

Question 10

What is required for slander to be actionable according to Terwilliger v. Wands?

Answer 10

The words must cause special damage and flow from the damage to character

Question 11

What is the likely outcome if a jury finds a plaintiff 60% responsible for their injury in a modified comparative fault jurisdiction?

Answer 11

The plaintiff will recover 40% of the damages

Question 12

What damages are most likely awarded in a derivative claim brought by a deceased person’s spouse?

Answer 12

• Loss of consortium
• Pat’s medical bills prior to death
• Pat’s pain and suffering

Question 13

In a trespassing case with no damage caused, what damages would most likely be awarded?

Answer 13

Nominal damages

Question 14

What is the holding in Economopoulos v. A.G. Pollard Co. regarding publication?

Answer 14

Publication is the communication of defamatory words to someone other than the person defamed

Question 15

What does 47 U.S.C. 230 (c)(1) provide for internet service providers?

Answer 15

They are immune from liability for content posted by users

Question 16

What is the ‘single publication rule’ in Ogden v. Assoc. of the U.S. Army?

Answer 16

The publication of a defamatory matter gives rise to one cause of action for libel, starting from the original publication date

Question 17

What must public officials prove in a defamation case according to NY Times v. Sullivan?

Answer 17

That the statement was made with actual malice

Question 18

What constitutes actual malice in defamation cases?

Answer 18

Knowledge that the statement was false or reckless disregard for whether it was false

Question 19

In St. Amant v. Thompson, what is the key question regarding malice?

Answer 19

Whether the speaker entertained serious doubts as to the truth of the publication

Question 20

What leads to problems regarding ‘actual malice’ according to St. Amant v. Thompson?

Answer 20

The reckless disregard of ‘actual malice’ leads to problems.

The essential question is the evidence which will show subjective state of mind.

Question 21

What is the standard for establishing malice in St. Amant v. Thompson?

Answer 21

Whether the speaker entertained serious doubts as to the truth of his publication.

Publishing with such doubts shows reckless disregard for the truth or falsity.

Question 22

How is actual malice proved according to Harte-Hanks Communications, Inc. v. Connaughton?

Answer 22

By consciously turning a blind eye to conflicting information.

Proof must be by clear & convincing evidence of actual malice.

Question 23

What must a plaintiff prove in an action against a public figure for defamation?

Answer 23

The plaintiff must prove actual falsity of the statement and that it was made with actual malice.

Actual malice requires clear and convincing evidence.

Question 24

What is the liability standard for a newspaper publishing defamatory falsehoods about a private individual according to Gertz v. Welch?

Answer 24

A lower standard than the NYT standard of actual malice, but not permitting liability without fault.

States may define the appropriate standard of liability for defamatory falsehoods injurious to a private individual.

Question 25

What are the two matters that influence the public/private distinction in Gertz v. Welch?

Answer 25

* Marketplace of ideas * Voluntary assumption of risk ## Footnote These matters diminish the reputational interests and advance free speech interests.

Question 26

What must a plaintiff show to recover presumed or punitive damages in a defamation case?

Answer 26

Knowledge of falsity or reckless disregard for the truth. ## Footnote This aligns with the NYT standard.

Question 27

What does the burden of proof shift to when the plaintiff is a public figure?

Answer 27

The burden of proof is on the plaintiff to prove actual falsity and actual malice. ## Footnote This includes showing that the false statement was made knowingly or with reckless disregard.

Question 28

What did the court state in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. regarding speech on matters of private concern?

Answer 28

Speech on matters of purely private concern is of less First Amendment concern. ## Footnote A state may permit recovery of presumed and punitive damages in defamation cases absent a showing of actual malice.

Question 29

What is the outcome for defamatory statements about private figures on public concern?

Answer 29

Cannot be penalized unless made knowingly or negligently regarding their falsity. ## Footnote This does not apply for private conduct.

Question 30

What is the holding in Philadelphia Newspapers, Inc. v. Hepps regarding the burden of proof?

Answer 30

A private-figure plaintiff cannot recover damages without showing that the statements at issue are false. ## Footnote The burden is on the plaintiff.

Question 31

What does the case of Milkovich v. Lorain Journal state about distinguishing fact from opinion?

Answer 31

* Type of language used * Meaning of the statement in context * Whether the implied fact can be verified * Circumstances in which the statement was made * Whether a factual basis of the opinion was disclosed ## Footnote These factors help determine whether a statement is actionable.

Question 32

What is the core limitation on defamation liability for opinion according to Professor Joseph King?

Answer 32

A statement of opinion relating to public concern must not contain a provably false factual connotation. ## Footnote Protected opinions include comments on information already known or understood.

Question 33

What is the definition of absolute privilege in defamation cases?

Answer 33

Publication of a defamatory statement may be conditionally privileged when fairly made by a person in the discharge of some public or private duty. ## Footnote The privilege can be lost if the statement is motivated by malice.

Question 34

What is qualified privilege in the context of defamation?

Answer 34

Protection of defamatory statements made in a reasonable effort to recover goods or protect one's interests. ## Footnote It applies when there is a common interest between the publisher and the recipient.

Question 35

What must be proven for the fair comment privilege in defamation?

Answer 35

The criticism must be based on true facts and express what an honest-minded person might conclude. ## Footnote It is not a privilege if it is not actual opinion or made solely for purposes of causing harm.