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Emanuel Torts Outline


Chapter 17


A. Meaning of "defamation": The tort called "defamation" is actually two sub-torts, "libel" and "slander." These both protect a person’s interest in hisreputation. A state’s freedom to define these torts as it wishes is sharply curtailed by the First Amendment. [412]

B. Prima facie case: To establish a prima facie case for either libel or slander, P must prove [412]:

1. Defamatory statement: false and defamatory statement concerning him;

2. Publication: communicating of that statement to a person other than the plaintiff (a "publication");

3. Fault: Fault on the part of D, amounting to at least negligence, and in some instances a greater degree of fault;

4. Special harm: Either "special harm" of a pecuniary nature, or the actionability of the statement despite the non-existence of such special harm.


A. Injury to reputation: To be defamatory, a statement must have a tendency to harm the reputation of the plaintiff. [413]

1. Reputation not actually injured: For the statement to be defamatory, it need not have actually harmed P’s reputation. It must simply be the case that, if the statement had been believed, it would have injured P’s reputation. [413] (But in most cases of slander, and in cases of libel where the defamatory meaning is not apparent from the face of the statement, P has to prove "special damage," i.e., that his reputation was in fact damaged and caused him pecuniary harm – this is not part of the definition of "defamatory," however.)

B. Meaning attached: Many statements can be interpreted in more than one way. Where this is the case, the statement is defamatory if any one of the interpretations which a reasonable person might make would tend to injure P’s reputation, and P shows that at least one of the recipients did in fact make that interpretation. [413 - 414]

1. Meaning not apparent from face: The defamatory nature of the statement need not be apparent on its face. Some statements become defamatory when certain extrinsic facts are known. [414] (Example: A newspaper runs a story saying that P gave birth on May 1. This becomes defamatory if the reader knows that P only got married on Feb. 1 of the same year.)

C. Reference to plaintiff: P must show that the statement was reasonably interpreted by at least one recipient as referring to P. [414 - 415]

1. Intent irrelevant: But P does not necessarily have to show that D intended to refer to him, rather than to someone else. As a common-law matter (putting aside constitutional decisions), even if D behaved non-negligently and intended to refer to someone else entirely, P can still sue. [414]

2. Groups: If D’s statement concerns a group, and P is a member of that group, P can recover only if the group is a relatively small one. [415] (Example: The statement, "All lawyers are shysters," would not be defamatory as to any particular lawyer, assuming there was no evidence indicating that the statement was intended to refer to P in particular.)

3. Reference need not be by name: If a non-explicit reference to P is reasonably understood as in fact referring to P, it does not matter that P is referred to by a different name or characterization. This is true even if the publication is labelled a "novel." [415]

D. Truth: A statement is not defamatory if it is true. At common law, it is always the defendant who has had the burden of proving truth. [415 - 416]

1. Matters of public interest: Today, as the result of constitutional decisions, the plaintiff must bear the burden of proving falsity, if: (1) D is a media organization; and (2) the statement involves a matter of "public interest" (whether P is a public figure or a private figure). [415]

2. Private figure, no public interest or non-media defendant: It is probably the case that the states may still require the defendant to bear the burden of proving truth if: (1) the defendant is not a media organization; or (2) the plaintiff is a private figure and the statement is not of public interest. [415 - 416]

3. Substantial truth: For truth to be a barrier to recovery, it is not necessary that the statement be literally true in all respects. Instead, the statement must merely be "substantially" true. [416]

E. Opinion [416 - 419]

1. Pure opinion: A statement of pure opinion can never be defamatory. [416] (Example: "I think Smith is a disgusting person," without any factual basis for this statement either expressed or implied.)

2. Implied facts: But if a statement of opinion implies undisclosed facts, and a statement of those facts would be defamatory, then the statement will be itself treated as defamatory. [417] (Example: "I think P must be an alcoholic" is probably actionable, because it implies that the speaker knows precise facts about P’s alcohol consumption which would justify an opinion of alcoholism.)


A. Significance of distinction: Distinguish between "libel" and "slander." It makes a difference only with respect to the requirement of special harm: to establish slander, P must show that he suffered pecuniary harm (unless the statement falls into one of four special categories). To prove libel, by contrast, P does not have to show such special harm (except, in some courts, if the defamatory nature of the statement is not evident on its face). [419]

B. Libel: Libel consists mainly of all written or printed matter. [419 - 420]

1. Embodied in physical form: Most states hold that it also includes any communication embodied in "physical form" [419] (Examples: A phonograph record, or a computer tape, would be libel in most courts.)

2. Radio and TV: Where a program is broadcast on radio or TV:

a. Written script: If it originated with a written script, all courts treat it as libel.

b. No script: If the program is "adlibbed" rather than coming from a written script, courts are split as to whether it is libel or slander.

C. Slander: All other statements are slander. An ordinary oral statement, for instance, is slander. [420]

D. Special harm: P may generally establish slander only if he can show that he has sustained some "special harm" This harm generally must be of apecuniary nature. [420 - 421] (Example: P shows only that his friends believed D’s defamatory statements, and the friends now socially reject P. If the statement is slander, and does not fall within one of the four "slander per se" categories, P cannot recover.)

1."Slander per se": There are four kinds of utterances which, even though they are slander rather than libel, require no showing of special harm [420]:

a. Crime: Statements imputing morally culpable criminal behavior to P.

b. Loathsome disease: Statements alleging that P currently suffers from a venereal or other loathsome and communicable disease.

c. Business, profession, trade or office: An allegation that adversely reflects on P’s fitness to conduct her business, trade, profession or office. (Example: "P cheats his customers.")

d. Sexual misconduct: Statement imputing serious sexual misconduct to P.

2. Libel: In the case of libel, at common law courts do not require proof of actual harm, and can award "presumed" damages even without a showing of harm. However, recent Supreme Court decisions cut back on the states’ ability to do this [421 - 422]:

a. Matters of public concern: If the statement involves a matter of public concern or a public figure, and recovery is allowed without proof of "actual malice," presumed damages may not constitutionally be awarded.

b. Matter of private concern: But if the defamatory statement does not involve a matter of "public concern," presumed damages may be allowed, even without a showing of "actual malice." (Example: D, a credit reporting agency, sends a subscriber a written report falsely stating that P is insolvent. Since the statement is not of "public interest," P may recover $50,000 presumed damages without showing any financial loss, and without showing that D knew of the falsity or recklessly disregarded the truth. [Dun & Bradstreet v. Greenmoss Builders]

c. Actual malice: If P does show "actual malice" (that D either knew of the falsity or recklessly disregarded the truth), presumed damages may probably be constitutionally awarded, even if P is a public figure and the matter is one of public interest.


A. Requirement of publication generally: P must show that the defamation was "published" "Publication" means merely "seen or heard by someone other than the plaintiff" [422]

1. Must be intentional or negligent: D’s publication must have been either intentional or negligent. Thus there is no "strict liability" as to the publication requirement. [422] (Example: D makes a defamatory statement to P himself; D does not realize that X may overhear the statement, but X does overhear it. D has no liability for defamation.)

B. Repeater’s liability: One who repeats a defamatory statement made by another is held to have published it, and is liable as if he were the first person to make the statement. [423] This is true even if he indicates the source, and indicates that he himself does not believe the statement. (Example: D says, "X told me that P is a thief who steals from his customers, though I doubt it." Technically, D has published the defamatory statement, and can be liable.)


A. Common-law strict liability: At common law, libel and slander were essentially strict liability torts. P had to show that the publication occurred due to D’s intent or negligence, but did not have to show intent or negligence as to any of the other aspects. For instance, it was irrelevant that D had every reason to believe that the statement was true. [424]

B. Constitutional decisions: But recent Supreme Court decisions on the First Amendment have eliminated courts’ right to impose strict liability for defamation. The precise mental state which D must be shown to have met depends on whether P is a public figure [424 - 428]:

1. Public figure: If P is a "public figure," he can recover only if he shows that D made the statement with either: (1) knowledge that it was false; or (2) "reckless disregard" of whether it was true or false. [New York Times v. Sullivan] (These two alternate states of mind are collectively called "actual malice," which is a term of art.) [424 - 425]

a. Meaning of "reckless disregard": For P to show that D "recklessly disregarded" the truth, is not enough to show that a "reasonably prudent person" would not have published, or would have done further investigation. Instead, P must show that D in fact entertained serious doubts about the truth of the statement. [425]

2. Private figures: But if P is neither a public official nor a public figure, he is not constitutionally required to prove that D knew his statement was false or recklessly disregarded whether it was true or false. [Gertz v. Robert Welch, Inc.] [425]

a. No strict liability: However, the First Amendment prohibits a state from applying strict liability, even in the "private figure" situation, at least if the suit is against a media defendant. In other words, even in suits brought by private figure plaintiffs, P must prove that D was at least negligent in not ascertaining the statement’s falsity. (In suits by a private-figure plaintiff against a private individual or other non-media defendant, the Supreme Court has never said whether strict liability is allowable, so it may be.) [425]

b. Negligence, recklessness or intent: Thus in suits brought by private figures against media defendants, the states are free to decide whether they wish to use negligence, recklessness or intent as the standard.


A. Absolute privileges: An "absolute" privilege applies even if D was motivated solely by malice or other bad motives. The following classes of absolute privilege are usually recognized:

1. Judicial proceedings: Judges, lawyers, parties and witnesses are all absolutely privileged in what they say during the course of judicial proceedings, regardless of the motives for their statements. [428] (Example: D, in a pleading in a civil lawsuit between him and P, calls P a crook. P cannot recover from D for defamation, even if P shows that D knew D’s statement was a lie.)

2. Legislative proceedings: Legislators acting in furtherance of their legislative functions are absolutely privileged. [428]

3. Government officials: Many government officials have absolute immunity for statements issued in the course of their jobs. Thus all federal officials, and all high state officials, have this privilege. [429]

4. Husband and wife: Any communication between a husband and wife is absolutely privileged. [429]

5. Consent: Any publication that occurs with the consent of the plaintiff is absolutely privileged. [429]

B. Qualified privilege: Other privileges are merely "qualified" or "conditional" ones. A qualified privilege will be lost if D is acting primarily frommalice, or from some other purpose not protected by the privilege. [429 - 435]

1. Protection of publisher’s interests: D is conditionally privileged to protect his own interests, if these are sufficiently important, and the defamation is directly enough related to those interests. [429 - 430] (Example: If D reasonably believes that his property has been stolen by P, he may tell the police of his suspicions. If D’s belief is reasonable, he is protected against a slander action by P, even if his suspicions are wrong.)

2. Interest of others: Similarly, D may be qualifiedly privileged to act for the protection of the recipient of his statement, or some other third person. The issue is whether D’s statement is "within the generally accepted standards of decent conduct." [430]

a. Old boss to new boss: Thus an ex-employer generally has the right to give information about his ex-employee to a new, prospective, employer if asked by the latter.

3. Public interest: D may be conditionally privileged to act in the public interest. [431] (Example: A private citizen’s reasonable but mistaken accusation made to the police that P committed a crime would be covered.)

4. Report of public proceedings: There is a conditional privilege to report on public proceedings, such as court cases, legislative hearings, etc. [431 - 432] (Example: D, a newspaper, accurately reports that in a lawsuit, X has called P a crook and a liar. Even if X’s statement is completely untrue and was made with malice, D has a qualified privilege to make the report of the public proceeding, and therefore may not be sued for libel.)

5. Neutral reportage: A few cases have recognized a "neutral reportage" privilege. Under this privilege, one who correctly and neutrallyreports charges made by one person against another will be protected if the charges are a matter of public interest, even if the charges are false. [433 - 435] (Example: D, a newspaper, runs a story saying, "Citizen said at a press conference that he saw Mayor Brown take a bribe from a developer." If Citizen really made these charges, D would be protected under the "neutral reportage" privilege even if D had serious doubts about the truth of the charges. This is so even though D’s doubts would cause D’s conduct to constitute "actual malice" under New York Times v. Sullivan.)

C. Abuse of qualified privilege: Even where a qualified privilege exists, it may be abused (and therefore forfeited) in a number of ways. [435 - 436]

1. Actual malice: Most importantly, the privilege will be lost if D knew that his statement was false, or acted in reckless disregard of whether it was true. [435] (Example: D, P’s ex-employer, is asked for information by X, P’s new prospective employer, concerning P’s work. D’s clerk negligently misreads the file, and asserts that P was fired for dishonesty, when in fact P quit voluntarily. If the clerk is shown to have behaved recklessly, D’s qualified privilege – to protect the interest of a third person by commenting on an employee’s fitness – will be deemed abused and thus forfeited. But if the clerk was only negligent, the privilege will probably not be lost.)

2. Excessive publication: The privilege is abused if the statement is made to persons to whom publication is not reasonably necessary to protect the interest in question, or if more damaging information is stated than is reasonably needed. [436]


A. Damages: A successful defamation plaintiff may recover various sorts of damages:

1. Compensatory damages: First, of course, P may recover compensatory damages. These can include [436]:

a. Pecuniary: Items of pecuniary loss (e.g., P’s lost earnings from being fired from her job, due to D’s statement to P’s boss that D was dishonest in the last job).

b. Humiliation, lost friendship: Compensation for humiliation, lost friendship, illness, etc. (even though these items would not count as "special harm" for purposes of slander).

2. Punitive damages: Also, under some circumstances punitive damages may be awarded [436 - 437]:

a. Public figure or matter of public interest: If P is a public figure, or the case involves a matter of public interest, punitive damages may be awarded only on a showing that D knew his statements were false or recklessly disregarded the truth. (That is, the "actual malice" requirement of New York Times v. Sullivan extends, as far as punitive damages go, not only to public figures but also to private figures suing on matters of public interest.) [Gertz v. Robert Welch]

b. Private figure/private matter: But if P is a private figure and D’s statement relates to a private matter, then punitive damages may be awarded even if P shows only that D was negligent. (Example: D, a credit reporting agency, falsely reports to a few subscribers that P, a corporation, is insolvent. Because P is a private figure and the report did not involve any matter of public concern, punitive damages can be awarded, as a constitutional matter. [Dun & Bradstreet Greenmoss Builders436])

3. Nominal damages: Even a plaintiff who has suffered no direct loss may recover nominal damages, to "clear his name." Certainly if P shows knowledge of falsehood or reckless disregard of the truth on the part of D, P may recover nominal damages. It is not clear whether or when a plaintiff who shows less than this may recover nominal damages. [437]

B. Retraction: Most states have enacted "retraction" statutes. Some of these statutes hold that if D publishes a retraction within a certain period, this bars P from recovery. Other statutes merely require news organizations to grant a right of response to P, without providing that this eliminates P’s defamation action. [437]



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