1. Defenses
1.1. Consent
1.1.1. Not induced by fraud or duress, made by a competent person, the publication does not exceed the scope of consent.
1.2. Truth
1.2.1. D must prove the statements were substantially true.
1.2.2. If P is a PO/PF or Matter of Public Concern, P must prove that that the statement was substantially false.
1.3. Absolute Privilege
1.3.1. Government Process
1.3.1.1. Judicial statements made in the course of juridical proceedings or has some reasonable relationship to the judicial proceedings.
1.3.1.2. Legislative Privilege protects defamatory statements made in legislative proceedings OR made as part of the deliberative process.
1.3.1.3. Executive Privilege applies at least to high ranking Fed and State officials who are exercising the functions of office.
1.3.1.4. Federal Tort Claims act protects US for statements by any federal official w/in the scope of employment.
1.3.2. Compelled Broadcasts
1.3.3. Spousal Communications
1.4. Qualified/Conditional Privilege
1.4.1. Fair & Accurate Reporting Privilege
1.4.1.1. Reporter's Privilege reports on public proceedings so long as the reports are verbatim transcriptions or fair & accurate summaries. May be abused or lost.
1.4.2. Interest Privileges
1.4.2.1. Common Interest Privileges
1.4.2.1.1. Shares interest w/ recipient and the communication relates to a common interest.
1.4.2.1.2. Conditionally protects where D has a moral or legal duty to the 3rd party recipient regarding the subject matter.
1.4.2.1.3. Self-Interest conditionally protects defamatory statements made in the D's self interest.
1.4.2.1.4. Public Interest Privilege conditionally protects defamatory statements made in the public interest.
1.4.2.1.5. Conditional privileges may be lost when D made statements with reckless disregard of the truth (the minority views) that exceeded the scope of privilege.
1.4.3. C.L. Fair Comment Privilege
2. A Defamatory Statement
2.1. C.L. Definition
2.1.1. Defamatory Statements are those that expose the P to hatred, disgrace, or contempt.
2.2. Restatement Definition
2.2.1. Defamatory Statements tend to harm P's reputation so as to "lower him in the estimation of the community" or "deter 3rd persons from associating or dealing with him."
2.3. Statements that expose persons to "distrust, hatred, contempt, ridicule, obloquy" or tend to injure persons in their "office, occupation, business or employment."
2.4. The statement must be capable of being perceived as defamatory by:
2.4.1. General Rule: Some people.
2.4.2. RS Position: a "substantial minority" of people who are "not anti-social."
2.4.3. Minority: some "right-thinking" people.
2.5. Inducement: factual matters plead as background to the defamatory statement.
2.6. Innuendo: matters plead to explain the defamatory meaning.
3. About P
3.1. Colloquim is the formal allegation that the defamatory words are of and about the P. The defamatory statement must be reasonably understood by recipients as being about the P.
3.1.1. "Large" P Group Rule
3.1.1.1. If P are members of a large group then none of the Ps can sue unless circumstances point to a particular P.
3.1.2. "Small" P Group Rule
3.1.2.1. If Ps are members of a small group 1) all the Ps may sue if the statement refers to every member of the group
3.1.2.2. OR 2) All Ps may all sue if the statement refers to some members of the group. (Jurisdictional Split)
3.2. Third Person Rule - A person may NOT sue for defamation about or concerning other persons.
3.3. Non-Natural Persons Rule (Entities) may only sue for defamatory statements about the entity's business character.
4. That is False
4.1. To support a defense based on truth, D must be able to prove that the statements are substantially true. (Held in doubt by Con. Law)
5. That is of Fact
5.1. C.L. In general, defamatory statements must be factual and not opinion.
5.2. M.L. Opinion actionable in limited circumstances such as an implication of facts.
6. That is Published
6.1. The defamatory statement must be intentionally or negligently communicated & understood by at least 1 person other than P.
6.2. Self-Publication
6.2.1. General Rule: There's no publication if P (rather than D) communicates defamatory statements to third persons.
6.2.2. Limited Exception: When it's reasonably foreseeable that that 3P will involuntarily or unknowingly consult another person about the defamatory statement.
6.3. Republication
6.3.1. C.L. Every repetition of a defamatory statement constituted an actionable publication.
6.3.2. M.L. Single Publication Rule
6.3.2.1. The entire edition of a book, periodical, or a newspaper constitutes a single publication that gives rise to a single action.
6.3.3. M.L. Secondary Republishers
6.3.3.1. Repeating/distributing defamatory material does not constitute publication unless there was knowledge, or a reason to know, of the defamatory content.
6.4. Internet
6.4.1. Communications Decency Act states that no provider of an interactive computer service shall be treated as the publisher of any info provided by another information content provider.
7. P suffers Damages
7.1. Slander
7.1.1. Publication of defamatory matter by spoken words, transitory gestures, or any form other than those listed as libel.
7.1.2. It was necessary to prove slander that there be special damages to the P in the form of loss of marriage services, loss of business, or loss of gifts as a result of diminished reputation.
7.1.2.1. Unless the claim is for slander per se which is a defamatory meaning understood from written words alone & general damages are presumed.
7.1.2.1.1. Serious Crimes
7.1.2.1.2. Loathsome Communicable Disease
7.1.2.1.3. Professional InCompetence
7.1.2.1.4. Serious Sexual MisConduct (Chastity)
7.1.3. Libel Per Quod extrinsic evidence required to show defamatory meaning and jurisdictions are split regarding proof of damages (whether special damages are required and general damages are presumed.)
7.2. Libel
7.2.1. Publication of defamatory matter by written or printed words, or embodiment in physical form, or equivalent harmful qualities where libel is always libel.
7.2.1.1. General damages presumed.
7.2.1.1.1. Form (spoken v printed)
7.2.1.1.2. Premeditation
7.2.1.1.3. Permanence
7.2.1.1.4. Dissemination
7.3. Constitutional Overlay
7.3.1. Proof of damages turn on the status of the parties & type of concern.
7.4. General Actual Damages
7.4.1. Losses (emotional and/or economic) from being defamed that P can prove.
7.5. Special Damages
7.5.1. Pecuniary losses from being defamed that P can prove.
8. State of Mind - Con Law
8.1. 1st Amendment Element Fault
8.1.1. Public Status of Plaintiff
8.1.1.1. General: Public Officials and Public Figures must prove actual malice in order to recover for defamation.
8.1.1.1.1. Actual malice is a statement made with either knowledge that it was false
8.1.1.1.2. Reckless Disregard for whether it was true or false
8.1.1.1.3. Requires clear and convincing evidence.
8.1.1.2. Public Official
8.1.1.2.1. Persons who have or appear to the public to have substantial responsibility or control over the conduct of governmental affairs.
8.1.1.3. Public Figures
8.1.1.3.1. All Purpose
8.1.1.3.2. Limited Purpose
8.1.2. Public Matters
8.1.2.1. Private Ps & Media D
8.1.2.1.1. Private Ps must prove that the defamatory statement was false.
8.1.3. Private Matters
8.1.3.1. Private Ps
8.1.3.1.1. States may allow P to obtain presumed & punitive damages w/o proof of actual malice.
8.2. Private/Public Matters of Concern
8.2.1. Look to the content, form, & context as revealed by the whole record.
8.2.2. Dissent
8.2.2.1. Look at the subject matter and possibly extent of dissemination.