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Chapter 21



§ 21.01 Overview [432]


The law of defamation is particularly intricate due to its unique blend of common law and First Amendment principles. The tort of defamation permits recovery for reputational harm, which was considered a grave injury in socially stratified England. Over time, a number of common law privileges have been recognized, making a plaintiff's defamation case more challenging, however.


§ 21.02 Common Law Defamation [432-442]


At common law, defamation was a strict liability tort. As such, a plaintiff could recover without proving any fault on the part of the defendant.  Furthermore, the falsity of the allegedly defamatory statement was presumed. Finally, in most instances, damages were presumed. Thus, in most common law defamation actions the plaintiff only had to prove (1) a defamatory statement (2) about the plaintiff (3) that was "published." The defendant then had the opportunity to try to assert a defense, such as the truth of the statement. Thus, at common law, a defendant could quite unwittingly defame another and be responsible for significant damages.


            [A] Defamatory Statement


To be defamatory under the general common law rule, a statement must hold the plaintiff up to scorn, ridicule, or contempt.  The Restatement provides that a communication is defamatory if it "tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." [Restatement § 559]. A defamatory statement, is one that harms reputation by injuring a person's general character or causing personal disgrace. A court determines as a matter of law whether any interpretation of the communication could be construed as defamatory, while it is for a jury to decide whether the statement in the case before it is actually defamatory. 


                        [1] Defamatory to Whom?


The plaintiff must show that a "substantial and respectable minority" or a "right-thinking minority" would comprehend the defamatory nature of the communication. This group can be quite small.  If the group that could interpret the communication in a way that injures the plaintiff's reputation is of a blatantly anti-social nature, courts may deny the plaintiff a defamation action. 


                        [2] Statements Not Facially Defamatory: Inducement and Innuendo


Some statements are facially defamatory; nothing needs to be added for a reader to fully understand the defamatory nature of the statement. Other times the defamatory impact can only be understood by the addition of extrinsic information.  In such situations the plaintiff is obligated to plead the extra facts needed to make the statement defamatory ("inducement") or to explain the defamatory impact ("innuendo") if it is not obvious.


            [B] Of and Concerning the Plaintiff


The plaintiff must show that the defamatory communication was understood as referring to her. If the plaintiff can show this, it is irrelevant that the defendant did not intend for the statement to refer to the plaintiff.  Similarly, even if the defendant intended to create a fictional character, a defamation action will lie where recipients of the communication reasonably believe that the character is really the plaintiff.  Where the plaintiff is not expressly named in the communication, the plaintiff must plead "colloquium" to connect herself to the defamatory statement.


                        [1] Group Defamation


Sometimes defamatory communications do not specifically name individuals but ascribe discrediting behavior to unnamed members of a group.  If the group is small and the defamatory sting may attach to each group member, each member of the group may bring a defamation action.  The larger the group, the less likely it is that a court will permit a defamation action by all the affected group members. 


                        [2] Corporate Plaintiffs


Corporations and other business entities may be defamation plaintiffs where the communication tends to cast aspersions on their business character, such as trustworthiness, or deters third parties from dealing with them. Where the attack is on a product, the action is typically for product disparagement.



            [C] Publication and Republication


A plaintiff must establish that the defamatory communication was published, meaning that it reached one person other than the defamation plaintiff. The plaintiff must show that either the defendant intended to publish the information or was negligent in so doing. Any repetition of a defamation is considered publication, even if the republisher attributes the statement to the initial source. 


            [D] Damages


In most defamation cases, a plaintiff's reputational injury may be presumed, permitting the plaintiff to recover compensation without any proof beyond the defamatory nature of the communication.  In the defamation context, such damages are called "general damages." General damages provide compensation for the emotional trauma and harm suffered by the plaintiff whose reputation was besmirched.  There are situations, however, where the plaintiff must plead and prove a specific type of loss, called "special damages," in order to prevail.  Special damages are specific economic losses flowing from the defamation.  If the plaintiff proves these special damages, she may then recover general damages. The damages recoverable to a defamation plaintiff depend on whether the defamatory communication is considered libel or slander and, if slander, whether the defamation falls into a category denominated "slander per se." 


                        [1] The Libel/Slander Distinction


Slander is an oral utterance while libel is a more permanent expression.


                        [2] Slander and Slander Per Se


Where the defamation is characterized as slander, the plaintiff generally must meet the substantial burden of pleading and proving special damages.  Since early common law, however, certain slanderous statements were deemed so horrible that reputational injury to plaintiffs could be presumed even without any proof of special damages. The four traditional slander per se categories that permit presumed reputational damages absent special damage are: (1) communications that directly call into question the plaintiff's competence to perform adequately in her trade or profession; (2) statements claiming the plaintiff has a current, loathsome disease; (3) allegations of serious criminal misbehavior by the plaintiff; (4) and, suggestions of a lack of chastity in a woman. 


                        [3] Libel and Libel Per Quod


Under the traditional view, which remains the position of most jurisdictions and of the Restatement, any libel plaintiff may recover general (presumed) damages.  Some states have narrowed this approach, however, and have distinguished libel per se (libel on its face) from libel per quod (libel that requires extrinsic evidence such as inducement or innuendo). In these states, the plaintiff may recover general damages for libel per se. For libel per quod, however, the plaintiff must show special damages (as in the slander context) unless the libel falls into one of the slander per se categories.


            [E] Common Law Defenses


Because at common law a plaintiff could often establish a prima facie case of defamation quite easily, the defendant often had to look to the available defenses in order to avoid liability. 


                        [1] Substantial Truth


At common law, the defamatory communication was presumed false, and it was incumbent upon the defendant to establish truth as a defense. While the defendant had to show the accuracy and truth of the statement in issue, she did not have to show the literal truth of every aspect – substantial truth is the test.


                        [2] Absolute Privileges


There are a few contexts that rely so heavily on unfettered discourse that the law provides immunity from defamation liability. These absolute privileges typically arise in governmental proceedings involving judicial, legislative and executive communications. In the judicial context, statements made in court or in official court papers are absolutely privileged as long as relevant to the court proceeding. A similar absolute privilege applies to legislators and high-level executive officers.  An absolute privilege protects a defendant even if she knew the statement was false or published it in order to harm the plaintiff's reputation.


                        [3] Qualified Privileges


Qualified (or conditional) privileges have developed due to the recognition that there are certain interests which could be seriously impaired by the common law's strict liability approach to defamation. Qualified privileges are based on the social utility of protecting communications made in connection with the speaker's moral, legal or social obligations. These privileges can be lost in several ways: by failing to have an honest belief that the statement was true; by failing to have an objectively reasonable belief that the statement was true; or by disclosing the information to more people than necessary (that is, excessive publication). Another important qualified privilege in many jurisdictions is the "fair and accurate report" privilege. This privilege permits a report of public meetings, and probably information in public records, provided that the report is an accurate and unbiased account.


§ 21.03 Constitutional Constraints [442-450]


Until 1964, defamation law was entirely defined by the law of the states without any constraints imposed by the United States Constitution. Since 1964, however, there has been a "constitutionalization" of defamation law. As the Court's constitutional defamation jurisprudence has developed, an analysis of a defamation case typically requires a consideration of the status of the plaintiff (whether she is a public official, public figure or private person) and of the subject matter of the defamation (whether it is of public or private concern).


            [A] Public Officials


The constitutionalization of defamation law began with the Supreme Court's 1964 decision of New York Times v. Sullivan, 376 U.S. 254 (1964), in which the Court held that a public official could only prevail in a defamation action where the public official shows that the defendant either knew that the statement was false or recklessly disregarded whether the communication was false, a fault standard known as "actual malice." The Court also required that this actual malice standard be proven by "convincing clarity," which has been interpreted as requiring the plaintiff to establish actual malice by the heightened burden of proof of "clear and convincing evidence." The Sullivan decision only affects defamation actions against public officials, those individuals who are positioned to affect policy. 


            [B] Public Figures


The constitutionalization of defamation law continued in earnest when a few years after Sullivan the Court determined that "public figures," like public officials, should have to prove actual malice in order to prevail in defamation actions. The Court justified this move by noting that public figures generally have access to the media to counteract false communications and because they have assumed the risk of reputational harm by involving themselves in issues of importance. The Court has recognized two general categories of public figures: an all-purpose public figure, who is someone widely known and a limited public figure, who is a person who injects himself into a controversy (or gets drawn into one). The Supreme Court has narrowly circumscribed the public figure category as the Court has been aware that classifying a person as a public figure has a profound impact on that individual's ability to receive compensation for reputational harm.


            [C] Private Persons


The current state of the law in the private plaintiff context requires that the subject matter of the defamation be analyzed to discern whether it deals with matters of public concern or matters of private concern.


                        [1] Public Concern


The Supreme Court's decision of Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), lays out the complex rules in the private person/public concern context. The Court determined that states could permit private plaintiffs to recover damages for "actual injury," defined as proven "impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering," under any standard other than strict liability.  The Court held that the tougher fault standard of actual malice was appropriate when the plaintiff sought either presumed damages or punitive damages.


                        [2] Private Concern


The exact standard remains uncertain because the Court has yet to clarify its decision in Dun & Bradstreet v. Greenmoss, Inc., 472 U.S. 749 (1985). In Dun & Bradstreet, the plurality held that the Constitution does not require that a private plaintiff suing in a case involving a matter of private concern prove actual malice to recover presumed and punitive damages.


            [D] Actual Malice


The fault standard of actual malice requires the plaintiff to prove that either the defendant knew of the falsity or was reckless as to truth or falsity. A plaintiff must prove that the defendant was at least reckless, a standard compelling proof that the defendant had "in fact entertained serious doubts as to the truth of his publication."


            [E] Falsity


The Supreme Court has determined that in cases involving public officials, public figures, or private figures and public concern, the Constitution mandates that the plaintiff prove falsity as part of her prima facie case.


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