Types of Nuisance
C. The statement must be one which can be believed to be truthful and reputation-harming 1 If its hyperbole
2. Pure opinion is not defamatory
EXAMPLE: Law school paper says that the food in the student center has gone from bad to worse. This is opinion and cannot be defamatory. If it says that it believes that week-old vegetables are used in the food, even though it is couched in opinion language, it can be proven true or false.
D. Must be defamatory in the eyes of a reputable group.
EXAMPLE: If the Nazi party paper publishes an article that says Prussia thinks that Hitler was a horrible person and Prussia is a proud neo-Nazi, the court will not uphold this as defamation.
2. Pleading problems
1. Where the π is not named, they must allege that it is of or concerning her.
EXAMPLE: Law school paper publishes an article saying that the female torts professor has been arrested for bank robbery. Professor Padding can sue that it is of and concerning her because she is the only female torts professor and people will associate her with the statement.
2. A large group cannot be defamed. (usually over 20 too big)
EXAMPLE: Article is published saying that today’s lawyers are unethical, greedy swine, there can be no defamation claim.
a. In a small group, every member can bring a claim.
EXAMPLE: If an article says that one of the surviving Beatles has been arrested for dealing crack cocaine, Paul and Ringo can both bring an action for defamation.
3. Some statements may not be defamatory on its face.
EXAMPLE: Acme Law School dean is marrying Jane Doe. This is not defamatory on its face, but other facts may make it so, such as the dean already being married.
1. Publication means:
a. Someone other than the π read , saw, heard the defamation 2. Π must show:
a. The ∆ either intentionally publish info or was negligent as to pblication
HYPOTHETICAL
Dina sends a sealed letter to Paykta, accusing her of plotting a murder. The letter is opened by Paykta’s new, very nosy roommate. The following week, Dina sends a postcard to Paykta containing the same accusation. Will Paykta be successful in a defamation action for the letter? for the postcard?
No publication. Dina was not negligent nor did she intend for someone other than π to read letter. Sealed letter it was unforeseeable that nosey roommate would open letter. Pakta cannot recover damages
When dina sends the postcard ther IS publication she may not have intended someone other than π she was negligent in creating the risk that someone other than π would read the postcard
3. Republication Rule:
a. Anyone who repeats defamation becomes republished and potentially liable for defamation
4. Type of defamation and damages
1. Libel definition:a. C/L any communication that has permanence writing, sculpture, photograph
b. Traditional rule Reputational harm is presumed and damages do not have to be proved. 2. Slander definition:
a. Oral defamation/Spoken. C/L spoken defamation was less harmful b. For π s to recover for defamation:
1. Have to prove special damages specific economic losses that flow from defamation c. Exceptions are called slander per se: Does not have to prove special damages and
treat it as libel
1. States π is unfit to perform in his trade or profession 2. Crime of moral turpitude
3. Falsely stating someone has a current loathsome disease 4. Lack of chastity in a woman
5. Common law Privileges
1. Trutha. Historically:Falsity was presumed and truth was a defense b. Today:Π has to prove falsity as part of prima facie case 2. Absolute Privilege
a. If applies ∆ is not liable for defamation no matter how bad ∆ is. Canno be loss even if motive was bad by ∆
b. Contexts in which absolute privilege applies: i. communication between spouses ii. statements on floor of legislature iii. high ranking executive officials iv. Statements in Judicial proceedings
EXAMPLE: Congressman Doofus stands up on the floor of the legislature and says “people, like my opponent in my last race, who are child molesters should be in jail.” Absolute privilege applies, no liability.
EXAMPLE: On cross-examination of a witness, attorney asks the witness if they are still a member of the Nazi party. Absolute privilege applies, no liability.
c. Privilege ends if someone repeats the defamatory statement in a non-privileged situation. i. Doofus goes to office and calls someone then the absolute privilege will not apply 3. Qualified Privilege
a. Defendant loses an otherwise available qualified privilege if: i. Bad intent
ii. Knows info is false iii. Reckless in truth of falsity
b. Gives greater leeway to speech, but qualified because they can be lost.
EXAMPLE: If X gets a call about a job reference for student A, but X gives a horrible recommendation because he is thinking of student B. A sues X for defamation. Qualified privilege applies because the information is of interest to a third person, but the privilege is lost if X is negligent or reckless as to the truth of the information or if the information is published.
6. Constitutional Issues 1
stamend issues of free speech
1.Prior to 1964, there was no First Amendment issue defamation and defamation was a strict liability tort. 2.Since NY Times v. Sullivan, four questions are considered: When dealing with public officials
a. What’s the status of π ( public official, figure, private b. Subject matter (public concern or private concern) c. Damages π seeks
d. Status of ∆ 3.Public official:
Defamation related to π in their capacity
∆ knew info was false or recklessly disregarded truth or falsity Clear and convincing evidence of actual malice
HYPOTHETICAL
The Daily falsely states in an article that Mayor Pacher has been embezzling funds. They based this on a source they had used before, who had proved to be reliable. Will Pacher be able to recover for defamation?
No because there is no evidencethat ∆ entertained doubts as to truth or falsity did not question nor did they know it was false.
His conduct may have been negligent but is NOT actual malice Cannot establish clear and convincing evidence of actual malice
d. Public figure:
Treated as officials to recover:
Clear and convincing evidence of actual malice
(1) All purpose public figures: Considered household names (2) Limited public figures:
Inject themselves in a particular controversy and try to have some effect on outcome e. Private figure:
Look at subject matter. Form, content, and context. (1) Public concern:
The more widely disseminated the information and to the degree there is a media ∆ more likely its public concern
Willing to prove reputational harm (actual damages) can setan standard of fault as long as it does not impose strict liability
(a) Presumed or punitive damages:
Actual malice is required. Clear and convingng evidene of actual malice
(2) Private concern:
Only shared with private people.
Π does not haveto prove actual malice to get punitive damages. Actual malice is not constitutionally required