1. What is defamation?
    False reputation harm causing speech
  2. What are the steps of analysis for defamation?
    • Defamatory language
    • Pleading problems
    • Publication
    • Libel or slander
    • Are there common law privileges
    • Constitutional first amendment issue (always last)
  3. When is a message defamatory?
    If it subjects the plaintiff to scorn or ridicule or deter others from dealing with the plaintiff thus creating reputational harm
  4. What are examples of defamatory messages?
    Accusing someone of a heinous crime or of cheating on an exam
  5. What are requirements of qualifying defamatory messages?
    • The statement must be one which can be believed to be truthful and reputation-harming
    • Can't be opinion
    • Must be defamatory in the eyes of a reputable group
    • Must be believed
  6. What are pleading problems of defamatory language; who can or cannot bring a defamation suit?
    • Where the plaintiff is not named, they must allege that it is of or concerning her
    • A large group cannot be defamed
    • In a small group, every member can bring a claim
    • Some statements may not be defamatory on its face
  7. What does publication mean in the context of defamation?
    Someone other than the plaintiff read/saw/heard the defamation
  8. What must a plaintiff show to prove publication for purposes of a defamation claim?
    The defendant intentionally or negligently published the defamatory language
  9. What is the republication rule?
    Anyone that repeats defamation is a publisher and potentially liable
  10. What are the types of defamation?
    • Libel
    • Slander
  11. What is the definition of libel?
    Any sort of publication that has a sense of permanence
  12. What is the definition of slander?
    Spoken defamation
  13. How do plaintiffs recover for libelous defamatatory statements?
    Reputational harm is presumed and damages do not have to be proved. Libelous statement is sufficient to collect damages.
  14. How do plaintiffs recover for slanderous defamatory statements?
    Slander general requires proof of special damages unless the slander per se exceptions
  15. What are the four slander per se exceptions?
    • Plaintiff is unfit to perform in his trade or profession
    • Crime of moral turpitude
    • Falsely stating that some one has a current loathsome disease
    • Lack of a woman's chastity
  16. How have jurisdictions expanded the slander per se rule for "lack of a woman's chastity?"
    They have expanded to "general sexual misconduct"
  17. What are the common law privileges?
    • Truth
    • Absolute Privileges
    • Qualified Privileges
  18. What is the historical and present approaches to the privilege of truth?
    • Historically: Defendant had to prove truth
    • Presently: Plaintiff has to prove false
  19. What is the protection afforded by absolute privileges?
    The defendant is not liable for defamation no matter how bad the defamation
  20. What are absolute privileges?
    • Spousal communications
    • Statements made on the floor for legislative purposes
    • Statements by high-ranking government officials
    • Statements in a judicial context
  21. When is absolute privilege lost?
    When a third party republishes the defamatory statement
  22. What are qualified privileges?
    • Defendant has bad intent
    • Defendant knows information is false
    • Defendant is reckless as to truth or falsity
  23. What are the questions we ask regarding constitutional issues and defamation (as established by SCOTUS in 1964 case NY Times v. Sullivan?)
    • Status of the plaintiff: Public official, public figure, or private figure?
    • Subject matter of the statement: Public concern or private concern?
    • Damages sought by plaintiff: What does plaintiff want?
    • Status of the defendant: Who is the defendant?
  24. What is the threshhold for determining whether statements about public officials are defamatory since Sullivan?
    • For any recovery of damages, plaintiff must show actual malice by clear and convincing evidence
    • Plaintiff must show that the defendant knew that the information was false or recklessly made the statement (actually entertained thoughts that it was false)
    • Falsity
  25. What is the threshold for determining whether statemetns about public figures are defamatory after Sullivan?
    • Same as public officials
    • Plaintiff must show actual malice by clear and convincing evidence
    • Falsity
  26. What types of public figures are there?
    • All purpose public figures
    • Limited public figures
  27. Who are all purpose public figures?
    Those people that are a household name?
  28. Who are limited public figures?
    People who inject themselves into a particular controversy and try to influence that controversy
  29. What does SCOTUS consider in determining the threshold of evidence for defamation claims by private figures?
    Whether the subject matter is of public or private concern
  30. What are the factors in differentiating between private and public concern?
    Look to form, content and context
  31. What is of public concern?
    The more widely disseminated, the more people care and the degree to which we have a media defendant
  32. What is of private concern?
    Slander, private matters
  33. What is the threshold for general damages for public matters involving private figures?
    Willingness to prove reputational harm, the state can set any standard of fault as long as it doesn't impose strict liability; most states use negligence
  34. What is the threshold for punitive and presumed damages for public matters involving private figures?
    Actual malice with clear and convincing evidence
  35. What is the threshold for damages for private matters involving private figures?
    Plaintiff does not have to prove actual malice for presumed or punitive damages, no further guidance, so go to common law, which is in flux
Card Set
Defamation flashcards from Kaplan Torts Lecture