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Welcome to my Law blog specifically intended as an aid to law students. I will post comments and white papers, from time to time, and I am happy to carry on conversations with students who are in need of help in law school.


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I am a Professor of Law at Concord Law School, an Internet Law School located in Los Angeles, though I live, teach and otherwise work out of Lakewood, Colorado, resting up against the foothills just west of Denver.

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Wednesday, June 23, 2010

1 - Defamation (Part 1)

DEFAMATION (Part 1)

PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL.  IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR.  IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.

Generally, defamation is aimed at protecting one's good reputation or name. The elements are:

     1. False and defamatory statement (of fact) – that would tend to diminish P’s reputation in the community)
     2. “Of and concerning” the plaintiff
     3. Publication of the statement to a 3rd person
     4. Causing damage to plaintiff’s reputation (remember to talk about the different types of damages depending on whether or not we are talking about slander (and slander per se) or libel (and libel per quod)).

1. False or defamatory statement of fact

A statement is defamatory if the recipient reasonably understands that the statement was meant to defame. This can be shown by extrinsic facts and circumstances. In fact, the CL rule was that if a statement was not defamatory on its face, the plaintiff would have to specifically plead (show in the pleadings – complaint) the extrinsic circumstances that explains or shows the defamatory meaning. This is called "inducement." It was also required that the plaintiff set forth the specific communication, verbatim, and then explain why it was defamatory. This is called "innuendo." Finally, plaintiff would have to show the facts and circumstances and the manner in which they are connected to the plaintiff. This is called "colloquium."

A good example that I have seen is where a defendant writes a fictitious novel when a widow of a US President marries a Greek shipping magnate after the President is assassinated. In this case the plaintiff would have to show that those reading the story would reasonably understand that the novel was "of and concerning" the actual person/widow.

Historically, at C/L, an unprivileged defamatory statement of opinion was actionable in the same manner as a statement of fact. However, Gertz v. Welch (U.S. 1974) says that the First Amendment protects ones opinion even if the defamatory opinion is based entirely on fact. Gertz was followed by Milkovich v. Lorain Journal Co. (U.S. 1990) that said that a statement of opinion could be actionable if it implies or states that facts are the basis of the opinion.

Then Hustler v. Falwell (U.S. 1988) said that humorous writings, cartoon or caricatures that may be understood as statements about the plaintiff are protected by the /constitution to the extent that they represent merely negative opinions, not connected to false facts.

2. "Of and concerning” the plaintiff

Note that only a living "person" may be defamed. This would include business entities and other similar types of associations. Some jurisdictions allow a deceased person to be defamed.

     Public Official/Public Figure:
New York Times v. Sullivan (U.S. 1964): One who publishes a false and defamatory communication concerning a Public Official or a Public Figure regarding his conduct, fitness or role in his capacity will be subject to liability only if the defendant (a) knows that the statement is false and that it defames plaintiff or (b) acts in reckless disregard of these matters.

This is what is called "constitutional" or "actual malice." All this means is knowledge that the statement is false and defamatory or a reckless disregard of its truth or falsity. This is the "New York Times Standard."

     Private Person/Private Matter:
The Gertz standard is that one who publishes a false and defamatory statement concerning a private person or private matter is liable for defamation only if the defendant (a) knows that the statement is false and defamatory to plaintiff, or (b) acts in reckless disregard of these matters or (c) acts negligently in failing to ascertain them.

3. Publication of the statement

Publication:
All this means is that the defamatory statement is communicated to someone other than the defendant. A "republisher" – one who takes the defamatory statement and passes it on – repeats it – is liable to the same extent as the original publisher. The same is true for one who delivers or transmits the defamatory statement, but only if he knows or has reason to know of the statement’s defamatory character. Broadcasters are excepted.

The defendant is liable for a republished statement if the defendant authorized or intended the statement to be republished or if the republishing of the statement was reasonably foreseeable (except for a republishing by the plaintiff).

4. Causing damage to plaintiff’s reputation and in some cases, proof of special damages

If the defamation does not fit in any of these categories, then it is slander "per quod."

So "per se" means, "by itself." Intrinsic – on its face. No deed for extrinsic evidence. "Per quod" means "not intrinsic" – not on its face. Extrinsic evidence is needed.

     Libel:
The majority rule is that libel is actionable per se, meaning that there is no need to prove that plaintiff sustained any special harm or damage from the publication and that harm can be inferred to award compensatory or nominal damages. The minority rule is that libel that is not defamatory on its face is not actionable unless plaintiff can prove special harm. This is often referred to as "libel per quod."

     Slander:
Here, without a showing of special damages, slander is not actionable unless the defamatory statement falls in one of four categories to be labeled "slander per se."

These categories are:
     1. Crimes of moral turpitude (now, crime punishable by imprisonment or crimes involving moral turpitude);
     2. Loathsome disease (now, plaintiff has a venereal or other loathsome disease);
     3. Adversely affecting one’s fitness for proper conduct of business, trade, profession or office; or
     4. An unchaste woman (now, unchastity or serious sexual misconduct).

Defenses:
     1. Consent, but a defendant may be liable for the republication.
     2. Absolute Privilege:
          a. Judicial Proceedings
          b. Legislative Proceedings
          c. Executive and Administrative Officers
          d. Husband and Wife
          e. Required by Law
     3. Qualified or Conditional Privilege
          a. Publisher's Interest
          b. Family Relationships
          c. Matters of Public Interest
     4. Lost of Privilege
          a. C/L – No reasonable grounds to believe the statement is true
          b. Gertz – But not clear if this applies.

Types of Damages:
     1. Nominal – For libel or slander per se plus other damages, below.
     2. General
          a. C/L – general damages for harm to reputation whether plaintiff proves actual harm or not. In most jurisdictions these are known as "presumed" damages. If there is no proof of actual harm to reputation, the standard is "harm to reputation that would normally flow from the publication of the defamatory statement. Gertz now requires proof of knowledge of falsity or reckless disregard of its truth or falsity. If the Gertz standard is not met, then proof of actual harm is required.
          b. Dun & Bradstreet v. Greenmoss Builders (U.S. 1985) allows presumed damages if the plaintiff was a private figure and the statement did not involve a matter of public interest.
     3. Special
          a. These are economic or pecuniary losses that result from the defamatory statement. Special damages are always allowable. If the case involves slander per quod, special damages are a prerequisite to liability. The same is true for libel per quod, in some jurisdiction.
     4. Emotional Distress and Physical Harm
     5. Punitive
          a. Allowable if "actual malice" is shown. This means "an intent to harm plaintiff or a reckless disregard of whether or not plaintiff will be harm.
          b. Constitutional prohibition against medial defendants unless there is proof of defendant's knowledge or reckless disregard of truth or falsity.
     6. Mitigation – A retraction by the defendant is not a defense, but may be a consideration in determining damages.
     7. Right to Reply – Media is not compelled to allow plaintiff to reply to the statement.


Professor Doug Holden
(c) 2010.  Douglas S. Holden.  All Rights Reserved

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