1. Traditional Defamation Elements
    • 1. D must make defamatory statement specifically identifying the P.
    • 2. D. Must "publish" the statement.
    • 3. Damages, Maybe
  2. Traditional Defamation Elements
    Defamatory Statement Specifically Identifying P
    “Defamatory”=tends to adversely affect the P’s reputation (reputation in sense of ability to earn a living; not mere social reputation).

    Mere name-calling (i.e. P is a bastard) generally not defamatory bc does not tend to affect P’s reputation. Doesn’t actually give the listener any reason to doubt P’s reputation.

    • Generally want to look for an allegation or representation of fact.
    • The big ones: money (stealing, embezzling, cheating on taxes); lack of peaceableness (he killed a man in Reno); impugning P’s loyalty (he’s selling secrets to Iran; he’s not faithful to his church); impugning morality (sexual morality; modesty).

    • Statements of opinion. They can be
    • defamatory if a reasonable listener would assume factual basis.

    Specific identification of P can be by name, but not necessarily (i.e. can identify by job title, etc).

    P must be alive at time statement is made.
  3. Traditional Defamation Elements
    Publish only=D sharing statement with at least one person other than the P himself.

    Of course, the wider the publication, the higher the harm, and the more you’ll be able to recover.

    Can be satisfied by negligent publication, not just intentional (misaddressing email; negligently allowing yourself to be overheard).
  4. Traditional Defamation Elements
    Damages, Maybe
    • Libel
    • Defamation embodied in a permanent format (i.e. written down; printed; stored on hard drive; on film; etc).

    • P need not show damages…
    • Unless statement is,
    • -Not within a per se category, and
    • -Not facially defamatory (i.e. defamatory impact not clear from face of statement).

    • Slander
    • An oral defamatory statement.

    Two subtypes:

    • Slander per se. Considered so bad that, like libel, P need not demonstrate damages. These are statements:
    • --that relate to P’s business or profession;
    • --that P has committed a crime of moral turpitude;
    • --that impute unchastity to a woman (and only a woman);
    • --that P has a loathesome disease (only leprosy and VD);
    • --that impute homosexuality.

    • Slander not per se. Must prove damages (lost job, revenues are down; not enough to show hurt feelings or impact on social life).
  5. Affirmative Defenses to Defamation
    • Consent
    • Truth
    • Privilege (Absolute and Qualified)
  6. Affirmative Defenses to Defamation
    See Consent under affirmative defenses to intentional torts.
  7. Affirmative Defenses to Defamation
    Absolute defense.

    D bears burden of proof.
  8. Affirmative Defensesto Defamation
    Absolute Privilege

    • Arises by function of identity of D:
    • --spouses talking to each other (H>W, even if overheard)
    • --govt officers engaged in conduct of official duties (most relevant to judicial branch (includes judge, lawyers, witnesses)).

    • Qualified Privilege
    • Arises based on when the speech is made, rather than who made the speech.

    • At most general level, arises when strong social interest in encouraging candor. Includes…
    • --Recommendations and references,
    • --Statements made to the police.

    But, reasonable belief requirement. Privilege requires that D had reasonable belief that what he is saying is accurate (and note, by definition, if you’re at qualified privilege, the statement is not truthful). Not a license to spread deliberately hurtful lies.
  9. Special Defamation—Matters of Public Concern
    Analysis where D’s speech relates to a matter of public concern (subject of ongoing political or public debate) (calling BP executives negligent for Gulf spill).

    Adds two elements to P’s case:

    4. Must prove the falsity of the statement.

    • 5. Must prove some degree/fault on part of D.
    • For public figures=intent (knowingly false statement) or recklessness (did not investigate truthfulness).

    For private figures=negligence (lack of reasonable care WRT investigation of truthfulness).
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