Defamation

Question 1

What are the four elements of defamation?

Answer 1

1. Defamatory language
2. Of or concerning a living plaintiff (P need NOT be ID’d by name) with
3. Publication (by the D, to a 3rd party), AND
4. Damage to P’s reputation

Question 2

What are the constitutional elements when defamation involves public concern?

Answer 2

1. Falsity of the defamatory language
2. Fault on the part of the defendant

(Elements - P must prove)

Question 3

What level of fault is required for defamation when target is a public figure?

Answer 3

Defamation of a PUBLIC figure requires ACTUAL MALICE

(Actual Malice: D had knowledge that the statement was false, or made the statement with reckless disregard as to whether it is false)

Question 4

What level of fault is required for defamation of private figures?

Answer 4

Defamation of a PRIVATE figure requires NEGLIGENCE

(Negligence: D did not act reasonably to verify the truth)

Question 5

What types of statements are generally not defamatory? (2)

Answer 5

1. Insults (not factual allegation)
2. Statements of opinion (unless implicating factual basis)

Question 6

When are opinions defamatory?

Answer 6

When they implicate a factual basis

Question 7

What is the requisite intent for publication?

Answer 7

Intent to publish, not defame.

(N.B. Can be intentional, reckless, or negligent)

Question 8

At common law, when do you have to prove special damages for defamation?

Answer 8

Slander not per se

Question 9

What are special damages for defamation?

Answer 9

Actual (economic) damages to reputation

Question 10

What is the core difference between slander and libel?

Answer 10

Slander is spoken; Libel is fixed permanently in a medium (e.g., written/recorded)

Question 11

What is the NY RULE on when you have to prove special damages for defamation? (2 situations)

Answer 11

1. Slander not per se
2. Libel when (1) the statement does not fall into a slander per se category; AND (2) the statement requires additional evidence to make out defamatory impact

Question 12

What are the three defenses to defamation?

Answer 12

1. Consent
2. Truth
3. Privilege

Question 13

What are the slander per se categories? (4)

Answer 13

Slanderous statements regarding P and:

1. His business or profession;
2. Crimes of moral turpitude;
3. HER sexual activity (i.e., “Unchastity of a woman” category = stmt re: ANY sexual activity!); OR
4. A loathsome disease (e.g., leprosy, venerial)

Question 14

What are the two categories of privileges available as affirmative defenses to defamation?

Answer 14

1. Absolute privilege
2. Conditional/Qualified

Question 15

What is absolute privilege against defamation?

(3 examples?)

Answer 15

Absolute privilege stems from the status of the defendant, e.g.,

1. Spousal privilege
2. Attorney-client privilege
3. Officers of the three branches of government (interpreted broadly)

Question 16

What is conditional privilege against defamation?

Answer 16

Conditional privilege exists where there is a public interest in encouraging candor

Question 17

What are the conditions needed for conditional privileges for defamation to apply?

Answer 17

The speaker must:

1. make statement in good faith (reasonable belief the statement is factually correct), AND
2. confine the statement to relative material

Question 18

What is a matter of public concern to implicate the constitutional requirements for defamation?

Answer 18

Something newsworthy (e.g., athlete taking drugs, adequate security at a nuclear power plant, politician taking bribes, etc.)