Defamation

MBEMax wiki article — paired with the Torts question set on mbemax.com.

One-line summary

Defamation requires a defamatory statement of fact about the plaintiff, published to a third party, causing harm to reputation — with constitutional fault requirements when the matter is of public concern or plaintiff is a public figure.

Mnemonic

D-P-F-D — Defamatory statement, Publication to third party, Fault, Damages.

Plus the four constitutional overlays: P-P-P-P — Public official, Public figure, Private figure public concern, Private figure private concern.

Prima facie case (common law + constitutional)

1. Defamatory statement of fact. Tends to lower plaintiff in the estimation of the community or deter third persons from associating. Statements of opinion not actionable unless implying false facts.
2. Of or concerning the plaintiff. Reasonable listener/reader identifies plaintiff. Group defamation — small groups yes, large groups usually no.
3. Publication. Communication to at least one person other than plaintiff; intentional or negligent communication.
4. Falsity. Plaintiff typically bears the burden of proving falsity when public concern is implicated (Hepps).
5. Fault. Constitutional standard depends on plaintiff's status and the subject matter.
6. Damages. Libel (written/durable): presumed general damages at common law; some jurisdictions require special damages for libel per quod. Slander (oral): special damages required except for slander per se categories.

Slander per se categories (four)

1. Imputing criminal conduct.
2. Imputing a loathsome disease.
3. Imputing professional incompetence or business misconduct.
4. Imputing serious sexual misconduct / unchastity (historically).

Constitutional fault standards

• Public officials and public figures must prove actual malice — knowledge of falsity or reckless disregard (New York Times v. Sullivan; Gertz).
• Private figures in matters of public concern must prove at least negligence as to truth, and cannot recover presumed or punitive damages without showing actual malice (Gertz).
• Private figures in matters of private concern may be subject to common-law rules — presumed damages available without actual malice (Dun & Bradstreet v. Greenmoss Builders).

Privileges

Absolute privileges

• Judicial proceedings (statements by judges, parties, witnesses, counsel in course of proceedings).
• Legislative proceedings.
• Communications between spouses.
• Executive officials in scope of official duties.
• Consent.

Qualified privileges

• Reports on public proceedings (fair and accurate).
• Statements made to protect legitimate interests of publisher, recipient, or common interest.
• Lost by abuse: excessive publication, knowledge of falsity, reckless disregard, ill will.

NCBE loves to test

• Opinion vs. fact. "Pure opinion" not actionable; "mixed" opinions implying undisclosed defamatory facts are actionable.
• Reference to plaintiff. Group defamation — all or a "known few" of small group (25 or fewer) may sue; large-group statements non-actionable.
• Libel vs. slander. Durable form = libel; presumed damages. Oral = slander; special damages required unless per se category.
• Slander per se. Memorize the four categories. Special damages not required if statement fits.
• Actual malice. Subjective knowledge or reckless disregard. Clear and convincing standard.
• Public figure vs. limited-purpose public figure. Limited-purpose figures voluntarily inject themselves into a public controversy; actual malice applies only as to that controversy.
• Retraction statutes. Many states limit damages (or bar punitive) when retraction is made promptly.
• Single-publication rule. Each edition/broadcast is a single publication; statute of limitations runs from first publication.
• Section 230. 47 U.S.C. § 230 immunizes interactive computer service providers from liability as publishers of third-party content; not available to content creators.

Fast hypos

Hypo 1. Newspaper publishes an article falsely accusing a sitting senator of accepting bribes. Senator sues for defamation. Public official → actual malice standard; must show knowledge of falsity or reckless disregard.

Hypo 2. Accountant is accused by a rival of "embezzling from clients." Accountant is a private figure in a private commercial dispute. Slander per se (professional misconduct); damages presumed; possibly private-concern, common-law standards.

Hypo 3. Blogger posts opinion piece calling a celebrity "a moral failure." Pure opinion? Generally non-actionable as pure opinion; if implies undisclosed defamatory facts, actionable.

Hypo 4. TV station broadcasts: "Local restaurant had rat droppings on the line." Statement true but exaggerated. Substantial-truth defense — minor inaccuracies do not defeat truth defense if "gist" or "sting" is accurate.

Hypo 5. Internet platform hosts a user's defamatory post. Plaintiff sues platform. Section 230 — platform immune as distributor of third-party content.

Case anchors

• New York Times v. Sullivan, 376 U.S. 254 (1964) — actual-malice standard.
• Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) — private-figure / public-concern.
• Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749 (1985) — private figure / private concern.
• Philadelphia Newspapers v. Hepps, 475 U.S. 767 (1986) — falsity burden on plaintiff in matters of public concern.
• Milkovich v. Lorain Journal, 497 U.S. 1 (1990) — opinion must imply factual assertion.
• Masson v. New Yorker Magazine, 501 U.S. 496 (1991) — deliberate alteration of quotations.
• Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997) — § 230 immunity.

See also

• Negligence
• Strict Liability
• Nuisance
• Privileges

Sources

Restatement (Second) of Torts §§ 558–623; 47 U.S.C. § 230; New York Times v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749 (1985); Philadelphia Newspapers v. Hepps, 475 U.S. 767 (1986); Milkovich v. Lorain Journal, 497 U.S. 1 (1990); Masson v. New Yorker Magazine, 501 U.S. 496 (1991).