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•Causing harm to a person’s ‘fame’ or reputation through false statements (Black’s Law Dictionary)
•Causing damage a person’s standing the community through attacks on character or professional ability. Middleton & Lee
Tort in 50 States
1) Sedition laws
- 2) Defamation deemed likely to cause breach
- of the peace.
Both unconstitutional now. See NY Times v. Sullivan
(re: sedition) (first amendment)
and Ashton v. Kentucky,
1996 (re breach of the peace.) (unconstitutionally vague)
Two forms of Defamation + define them
- – written or printed defamation
- – spoken defamation
Who can be a plaintiff in a defamation suit?
•A living person or organization who was the target of the bad statements
•NOT units of government
Elements of prima facie case for defamation, p. 99
List the elements for burden of proof
- •defamatory statement
- •personal harm
In Texas, the elements of a defamation claim are
•publication of a statement;
- was defamatory concerning the plaintiff;
- the requisite degree of fault.
- Inc. v. McLemore, 978
- S.W.2d 568, 571 (Tex. 1998).
Defamatory Statements: Restatement (2nd) or Torts
•Statements that tend to expose a person to “hatred, ridicule or contempt.”
•Statements that reflect unfavorably on one’s morality or integrity or that discredit a person in his or her occupation.
Defamatory Statement cont'd:
- •Statements that restrict a person’s social contacts by asserting that the individual has a mental illness, is unpatriotic, alcoholic, incompetent or
- infected with a loathsome disease.
Defamatory Statement Examples
1.Statements suggesting criminal acts
2.Statements claiming serious moral failing.
3.Incompetence or dishonesty in business or profession
4.Product libel – false disparagement (hard case, though – malice and lost sales requirement)
•Control of content is key
- •“Common carriers” (telephone company, cell phone company, etc), no content control, therefore no
- defamation liability.
- •Ditto bookstores, and online bulletin board and discussion group operators. (The
- latter by act of Congress. See text p. 115)
1. Generally none required before 1964 (depending on the state).
2. Strict liability, generally speaking: publish defamation about plaintiff, become liable for Defamation.
•N.Y. Times v. Sullivan (1964): “public officials” (as plaintiffs) must prove actual malice (knowledge of falsity or reckless disregard of truth.)
•Curtis Publishing Company v. Butts(1967) Ditto for “public figures”
•Gertz v. Welch (1974) private plaintiffs must prove negligence.
Definitions (Times and Curtis)
- •“Public official” is an office holder or a government
- employee responsible for policy making or for public funds, health or safety. New York Times
- •“Public figure” is someone “intimately involved in the resolution of important public questions” or someone
- “who by virtue of their fame, shapes events in areas of concern to society at large.” Curtis
Two Types of "public figure" outlined in Gertz
1.“All purpose.” People of positions of such power and influence that they are public figures for all purposes. Must always prove “malice” to win defamation case.
2.“Limited” or “vortex.” People who “thrust themselves to the forefront of particular public controversy to influence” it. Only have to prove malice for falsehoods related to that controversy.
Explanations and examples of All purpose public figures
Someone of "widespread fame"
A "celebrity" whose name is a "household word"
Johnny Carson, William F. Buckley
Reliance Insurance Co.,
Carol Burnett, Jimmy Carteer, Colin Powell, Ted Turner
These and other folks must always prove New York Times malice
List all 3 Criteria for Limited Public Figures
1) The alleged defamation involves a public controversy
2) The person suing has voluntarily participated in that controversy
3) The person suing has tried to affect the outcome and in doing so, the person must have obtained prominence and regular access to the media.
Public Officials and Public Figures need to do what to win a libel suit?
1) they must prove with "clear and convincing evidence" that the defendant published a defamatory statement with "knowledge of falsity" or with "reckless disregard for the truth". New York Times "actual malice."
2) "actual malice" is much more than ill will or carelessness or "extreme departure" from common professional practices.
Actual Malice (New York Times) - knowledge of falsity problems / examples
Rare, hard to prove and usually takes evidence made up stuff, fabricated story
Contrell, reporter fabricated an interview, invented quotes from a lady who wasn't home when he went to interview her.
Goldwater, the plaintiff proved the publisher created false evidence, made up diagnoses, etc.
Reckless disregard for the truth:
High degree of awareness of probable falsity.
Proof the defendant had serious doubts of truth plus ill will or hatred, reliance on highly questionable sources and failure to investigate.
Open prejudice, ignoring denials and inconsistencies.
Combo showing defendant published something only a reckless person who didn't care about the truth would print.
Failure to act as a reasonable person would in similar circumstances.
example: failure to do check subject, verify with the best available source, resolve conflict over what source said
Must give a good faith effort to determine accuracy
Examples of Negligence
Note taking mistakes
Failure to check facts
Failure to contact defamed person
Failure to verify info with easily accessible good source
Unresolved disagreement between source and reporter over what was told to reporter
Reporter testimony regarding "standard of care."
Damages - Types and Definitions
- A. Compensatory damages - "to compensate"
- 1. Actual damages - impairment of reputation and standing in community; humiliation, mental anguish and suffering.
- 2. Special damages - lost income, etc.
- B. Punitive Damages - "to punish" Always requires malice
that the defamation was disseminated
that the defamation was published as a result of negligence or recklessness
that the statement was false, a burden only for persons suing for defamation related to matters of public concern
such as loss of reputation, emotional distress or loss of business revenues
define common law malice
intent to do harm
define actual malice
knowledge of falsity or reckless disregard for the truth