Defamation

Defamation - Constitutional Elements

1. A Defamatory Statement that is either a: Private Concern, or b: Public Concern 2. About the Plaintiff that is a: Private person, or b: Public Person 3. That was published 4. That proximately caused harm to Plaintiff's reputation 5. Damages (The element of falsity is constitutionally required when the defamation refers to a public figure or involves a matter of public concern).

CLUB factors

1. Accused of CRIMINAL activity 2. LOAF some disease (Aids, STDS, Leprosy, highly contagious). 3. UNCHASED behavior (calling someone a "slut" or behavior as "unmoral") 4. BUSINESS wrongdoing (accusing client of cheating on his taxes

Defamation- Common Law Elements

1. Defamatory language on the part of the defendant? If so, was it libel or slander? 2. The defamatory language must be "of and concerning" the plaintiff (i.e., it must identify the plaintiff to a reasonable reader, listener, or viewer); 3. Publication of the defamatory language by the defendant to third person - recklessly/negligently or intentionally. Has to be published/ made to at least 1 other person that is NOT the Plaintiff; and 4. MUST HAVE BEEN THE PROXIMATE CAUSE. CAUSING DAMAGE (BELOW): 5. Damage to the reputation of the plaintiff. My Notes: Under common law: 1. Is there a defamatory statement. * Inducement and innuendo. 2. About the plaintiff * Colloquium and Group libel 3. That was published *Intentionally or negligently 4. That proximately caused 5. Plaintiff's damages . Libel and slander per se-presumed damages Slander per quod- special damages

5 Cases to know for Constitutional defamation

1. New York Times Co. v. Sullivan (p. 923). 2. St. Amant v. Thompson (p. 932). 3. Harte-Hanks Communications, Inc. v. Connaughton (p. 934). 4. Gertz v. Robert Welch, Inc. (p. 944) 5. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (p. 954).

Right thinking people

A right-thinking person has opinions and principles that you think are sensible and morally correct. He has the support of most right-thinking people in this country. (Not always right though).

Libel (Common Law)

A written defamation of a person's character, reputation, business, or property rights. Libel is the publication of defamatory matter by written or printed for. At common law, for libel, there is presumed damages. (No proof of damages) Libel considered more injurious because it is in writing/published. - May also be able to get punitive damages as well as general, actual and presumed.

Slander per quod (common law)

All other slanderous statements. Required proof of damages. Words that do not apparently and upon the face of the import such defamation...it is necessary that the plaintiff should aver some particular damage to have happened. For example: the loss of a job or promotion The damages must be of a pecuniary character- $ or a job.

Presumed Damages (defamation, CLUB, Common Law)

CLUB FACTORS for presumed damages: 1. Accused of CRIMINAL activity. (C) 2. LOAF some disease (STDs, HIV, AIDS, Leprosy, highly contagious). (L) 3. UNCHASED behavior (Accusing someone of being a "slut" or "immoral" --both men and women). 4. BUSINESS wrongdoing (Accusing a client of cheating on his taxes, etc).

Slander Per Quod (CL - Gatekeeper)

GATEKEEPER: Must be proved or dismissed. 1. Defendant must prove slander caused person to lose business/ get fired, lose clients, lost job, an economic loss due to the slander. If not proven = NO CASE. There must be CAUSATION. Example: "I was fired because of what he said about me to my colleagues." You could show that people now negatively react to person's business/job. If proven, you can get all damages. (nervous breakdown = damages & all general damages). MUST PROVE SPECIAL DAMAGES.

Chilling free speech

In a legal context, a chilling effect is the inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction. The right that is most often described as being suppressed by a chilling effect is the US constitutional right to free speech.

Group Libel

It's possible to identify multiple members of a group by referring to "a member" having done something wrong without identifying the specific individual. Example: A NYU professor who teaches at the NYU Law Campus hires prostitutes several evenings a week at 1010 Main St. -- In this example, All of the professor's can sue. The rule for group libel is 25 PEOPLE or LESS, each member can sue for group libel as an individual. Need to plead extra facts sufficient to establish the group necessary for group libel. 25 people or more, get's tricky. Less than 25= each member is considered identified 25-100= if it's a blanket slur then each is identified All class cheated. If it's a limited accusation no one is identified -Some cheated. 100+ = No identification

Wrong thinking people

May not be defamatory. Maybe only to me. (Subjective, well in my eyes, it was defamation). Depends on the Jury. For you see everything in life is interpreted by each person with their own thoughts. Someone can lead you to your truth but can never accept that as truth for you. That is a decision only you can make for yourself. Someone can tell you that you are wrong but at the same time they are wrong to someone else.

Opinions v. Statements (Defamation common law)

Must be statements --> Not generally opinions. But you may be able to PROVE an opinion that would be defamation. STATEMENTS unless OPINIONS are PROVEN.

Colloquium

Need to plead extra facts to establish that the defamatory statement is "of and concerning" Plaintiff. Example: The Professor who teaches Torts every Monday morning at NYU hires prostitutes several evenings a week at 1010 Main Street. The Plaintiff will have to prove that this defamation is about him. There are a lot of professors and there are a lot of others who teach the same class. Must plead facts that is if OF AND CONCERNING the Plaintiff.

Inducement (defamation)

Needing to plead extra facts (inducement) to explain defamatory statement (innuendo). Example: Professor A spends several evening a week doing "pro-bono" work at 1010 Main Street. -At least 1 other person HAS to have knowledge that 1010 Main Street is actually a brothel - except for the Professor. The Professor will have to explain what the clear meaning is. He and his buddies may know it is a brothel, but the rest of the world may not know.

Innuendo (defamation)

after explanation of why it is defamatory. It must hurt the reputation after another person hears it.

Defamatory Statement - Public/Private Concern? (Constitutional Laws)?

content and context to determine whether private or public concern. (NY Times Co. v. Sullivan) Private Concern: State Law will govern fault Either by negligence or KRD-knowledge with reckless disregard. Need to show falsity. Need to prove damages. Public Concern: If it is a private person with a public concern then state law will govern fault; must prove falsity and damages. If it is a public person with a public concern then the Plaintiff must prove falsity and KRD.

Slander (Common Law)

spoken defamation. Slander consists of the publication of defamatory matter by spoken words. At common law, men could not be sued unless they cheated on their wife.,

Slander per se (common law)

statements so inherently harmful that general damages are presumed. Very serious statements. At common law, we prefer "per se." They party will get presumed damages. Though no special loss or damage can be proved. Four kinds of slander are exceptions to the general common law rule and actionable without proof of special damages: C-L-U-B Factors for presumed damages.

Defamation (Common Law)

the action of damaging the good reputation of someone; slander or libel. Defamation has to do with injury to a person's reputation. That is to diminish the respect, good will, confidence or esteem in which he is held, or to excite adverse or unpleasant feelings about him. My Notes: A false statement that hurts someone's reputation. If true = not defamatory even if it hurts their reputation. It MUST be a FALSE defamatory claim. (Libel or Slander) At common law - falsity was PRESUMED that what the Plaintiff said was false. Plaintiff had the burden of DEFENSE by proving that the defamation was TRUE (slander or libel). TRUTH WAS A DEFENSE @ COMMON LAW. Another/ third party would have to witness or hear the defamation. Cannot just be between then 2 parties. If it is a game of "he said, she said," = NO ONE WINS - you don't know what's TRUE or NOT. Common law: falsity presumed benefited the plaintiff?