Slander homework

Chapter 4: Defamation Fall 2020

“The First Amendment exists to insure that freedom of speech and expression applies not just to that with which we agree or disagree, but also that which we find outrageous.” - Colin Powell, 65th Secretary of State, 12th

Chairman of the Joint Chiefs of Staff

Defamation

S How would you define defamation in your own words?

S Defamatory Speech à damages a person’s reputation

S Is defamation a state or federal issue?

S ALL laws concerning defamation are at the state level! S BUT the First Amendment is binding on the states (Gitlow)

Defamation and the Courts

S When deciding whether a statement is defamatory, what rights are the courts balancing?

S Balancing Test: S Courts balance the right to free speech with individuals’ rights not to be

harmed by defamatory speech.

Types of Defamation

S What is the difference between libel and slander?

S Traditionally….

S Slander: Spoken defamation S Libel: Written defamation

S Which is harder to prove?

S How does new technology impact the slander/libel distinction?

Libel Per Se and Libel Per Quod

S Libel Per Se: The statement itself is libelous S Statement accusing someone of breaking the law

S Statements that someone has an offensive/contagious disease

S Statements attack a person’s reputation in her business/profession

S Statements that accuse someone of sexual immorality

S Libel Per Quod: The statement is libelous because of surrounding circumstances S Look at all the facts

What does the Plaintiff need to prove?

1. The defendant made a statement about the plaintiff S Ron Swanson said Andy Dwyer stole his car

2. The statement is “published” S Ron put the message on the neighborhood Facebook page

3. The statement injured the plaintiff's reputation. S Everyone thinks now thinks Andy is a thief!

4. The statement was false (and the defamer was at fault). S Andy didn’t do it! He was at work shining shoes. S Negligence – what if Ron really thought Andy did it? Ron saw a man of

Andy’s build wearing a “Mouse Rat” (Andy’s band name) t-shirt and Ron’s statement was just negligent? Could he still be held liable?

Dunn & Bradstreet v. Greenmoss Builders

S Facts: Credit rating agency sent a report to 5 subscribers indicating that Greenmoss Builders had filed for bankruptcy.

S Holding:.

S (1) If you have a private plaintiff, a private defendant, negligent statements can qualify for a successful defamation suit. S *As long as the speech is not about an issue of public concern

S (2) Companies can successfully sue for defamation!

Three Degrees of Fault in Tort Law

S Negligence S Not doing something that a reasonable person WOULD do

S Doing something that a reasonable and prudent person would NOT do

S Gross Negligence: S More serious than negligence

S Intentional failure to do what is reasonable and prudent

S Actual Malice (specific to defamation & privacy) S Knowingly communicating false information OR doing so

with reckless disregard for the truth.

How are Defamation Suits Tried?