DefamationDefamation

Torts IITorts II

Dr. SteinerDr. Steiner

Good name in man and woman, dear my Good name in man and woman, dear my lord, lord, Is the immediate jewel of their souls: Is the immediate jewel of their souls: Who steals my purse steals trash; 'tis Who steals my purse steals trash; 'tis something, nothing; something, nothing; 'Twas mine, 'tis his, and has been slave to 'Twas mine, 'tis his, and has been slave to thousands; thousands; But he that filches from me my good name But he that filches from me my good name

Robs me of that which not enriches him Robs me of that which not enriches him And makes me poor indeed.And makes me poor indeed. William ShakespeareWilliam Shakespeare, , OthelloOthello

DefamationDefamation Injury to ReputationInjury to Reputation SlanderSlander LibelLibel General requirementsGeneral requirements

Defendant publishes to third partyDefendant publishes to third party Defamatory statementsDefamatory statements Of and concerning plaintiffOf and concerning plaintiff

Restatement 2d Torts § 559. Restatement 2d Torts § 559. Defamatory Communication Defamatory Communication DefinedDefined A communication is defamatory if it A communication is defamatory if it

tends so to harm the reputation of tends so to harm the reputation of another as to lower him in the another as to lower him in the estimation of the community or to estimation of the community or to deter third persons from associating deter third persons from associating or dealing with him.or dealing with him.

Restatement 2d Torts § 559, Restatement 2d Torts § 559, cmt b. cmt b.

Communications are often defamatory Communications are often defamatory because they tend to expose another to because they tend to expose another to hatred, ridicule or contempt. A defamatory hatred, ridicule or contempt. A defamatory communication may tend to disparage communication may tend to disparage another by reflecting unfavorably upon his another by reflecting unfavorably upon his personal morality or integrity or it may personal morality or integrity or it may consist of imputations which, while not consist of imputations which, while not affecting another's personal reputation, tend affecting another's personal reputation, tend to discredit his financial standing in the to discredit his financial standing in the community, and this is so whether or not the community, and this is so whether or not the other is engaged in business or industry. other is engaged in business or industry.

Restatement 2d Torts § 559, Restatement 2d Torts § 559, cmt c. cmt c.

A communication may be defamatory A communication may be defamatory of another although it has no of another although it has no tendency to affect adversely the tendency to affect adversely the other's personal or financial other's personal or financial reputation. Thus the imputation of reputation. Thus the imputation of certain physical and mental attributes certain physical and mental attributes such as disease or insanity are such as disease or insanity are defamatory because they tend to defamatory because they tend to deter third persons from associating deter third persons from associating with the person so characterized. with the person so characterized.

Belli v. Orlando Daily NewspapersBelli v. Orlando Daily Newspapers

False statement?False statement? Libel per quodLibel per quod Libel per seLibel per se Court’s role and Court’s role and

jury’s rolejury’s role

De mortuis nil nisi bonumDe mortuis nil nisi bonum

Do not speak ill of the dead.Do not speak ill of the dead. But if you do, don’t worry But if you do, don’t worry

about a defamation suit.about a defamation suit.

Problem 1Problem 1 Red Paper Issues Election Red Paper Issues Election

ExtraExtraThe San Francisco People's The San Francisco People's World, recognized throughout World, recognized throughout the state as the mouthpiece of the state as the mouthpiece of the communist party, the communist party, distributed a last-minute extra distributed a last-minute extra edition in Oakland yesterday, on edition in Oakland yesterday, on the eve of the city election. . . . the eve of the city election. . . . The Communist-line paper . . . The Communist-line paper . . . printed a list of printed a list of recommendations which recommendations which included the names of council included the names of council candidates John F. Quinn, John candidates John F. Quinn, John W. Holmdahl, and Dr. Grover H. W. Holmdahl, and Dr. Grover H. MacLeod. MacLeod.

Problem 2Problem 2

Problem 3Problem 3

Rice v. SimmonsRice v. Simmons, 2 Del. (2 , 2 Del. (2 Harr.) 417, 429 (1838)Harr.) 417, 429 (1838)

That mere general abuse and scurrility, That mere general abuse and scurrility, however ill-natured and vexatious, is however ill-natured and vexatious, is no more actionable when written than no more actionable when written than spoken, if it do not convey a degrading spoken, if it do not convey a degrading charge or imputation. Against all such charge or imputation. Against all such attacks, a man needs no other attacks, a man needs no other protection than a good character; and protection than a good character; and the law will not suppose that damage the law will not suppose that damage can happen to such a character from can happen to such a character from the pointless arrows of mere vulgarity. the pointless arrows of mere vulgarity.

Problem 4Problem 4

Problem 5Problem 5

Problem 6Problem 6

Neiman-Marcus v. LaitNeiman-Marcus v. Lait

Neiman-Marcus v. LaitNeiman-Marcus v. Lait

Neiman-Marcus v. LaitNeiman-Marcus v. Lait Group libelGroup libel PrecedentPrecedent

Four coroners, twelve doctors, a posse, Four coroners, twelve doctors, a posse, and twelve radio editorsand twelve radio editors

All officials of a state-wide union, all D.C. All officials of a state-wide union, all D.C. taxicab drivers, all D.C. parking lot taxicab drivers, all D.C. parking lot owners, members of a clanowners, members of a clan

Neiman MarcusNeiman Marcus Models?Models? Male sales clerks?Male sales clerks? Female sales clerks?Female sales clerks?

Restatement 1st Torts § 564, Restatement 1st Torts § 564, illus. 2illus. 2

A newspaper publishes the A newspaper publishes the statement that some member of B's statement that some member of B's household has committed murder. In household has committed murder. In the absence of any circumstances the absence of any circumstances indicating that some particular indicating that some particular member of B's household was member of B's household was referred to, the newspaper has referred to, the newspaper has defamed each member of B's defamed each member of B's household. household.

Problem 1Problem 1

Salomone v. Macmillan Pub. Co., Inc., Salomone v. Macmillan Pub. Co., Inc.,

411 N.Y.S.2d 105 (N.Y.Sup. 1978)411 N.Y.S.2d 105 (N.Y.Sup. 1978) Humor, then, may well be a defense to Humor, then, may well be a defense to

a suit in libel, but the mere assertion a suit in libel, but the mere assertion that a statement was meant to be that a statement was meant to be funny does not automatically absolve funny does not automatically absolve the utterer. . . . What is amusing or the utterer. . . . What is amusing or funny in the eyes of one person may funny in the eyes of one person may be cruel and tasteless to someone be cruel and tasteless to someone else. There is always a thin line else. There is always a thin line between laughter and tears. . . . between laughter and tears. . . . Especially is this true in dealing with Especially is this true in dealing with parody and satire. parody and satire.

Salomone v. Macmillan Pub. Co., Inc., Salomone v. Macmillan Pub. Co., Inc.,

411 N.Y.S.2d 105 (N.Y.Sup. 1978)411 N.Y.S.2d 105 (N.Y.Sup. 1978) Parody, on the other hand, shuns Parody, on the other hand, shuns

subtlety. Its aim is to amuse and subtlety. Its aim is to amuse and expose by imitating life, but larger expose by imitating life, but larger than life. Its essence is distortion and than life. Its essence is distortion and exaggeration. Hence, like the warped exaggeration. Hence, like the warped and curved mirrors in a carnival fun and curved mirrors in a carnival fun house, it depends upon the house, it depends upon the grotesque for its effects.grotesque for its effects.

Salomone v. Macmillan Pub. Co., Inc., Salomone v. Macmillan Pub. Co., Inc., 411 N.Y.S.2d 105 (N.Y.Sup. 1978)411 N.Y.S.2d 105 (N.Y.Sup. 1978)

Thus, the writer resorting to parody must Thus, the writer resorting to parody must be wary, for his shafts may miss the mark, be wary, for his shafts may miss the mark, and be cruel without purpose, inflicting and be cruel without purpose, inflicting real hurt where only laughter was real hurt where only laughter was intended. intended. “However desirable it may be that the “However desirable it may be that the readers of and the writers for the public readers of and the writers for the public prints shall be amused, it is manifest that prints shall be amused, it is manifest that neither such readers nor writers should be neither such readers nor writers should be furnished such amusement at the expense furnished such amusement at the expense of the reputation or business of another.” of the reputation or business of another.”

Restatement 2d Torts § 564, Restatement 2d Torts § 564, cmt dcmt d

Fictitious character.Fictitious character. A libel may be published of A libel may be published of an actual person by a story or essay, novel, play an actual person by a story or essay, novel, play or moving picture that is intended to deal only or moving picture that is intended to deal only with fictitious characters if the characters or with fictitious characters if the characters or plot bear such a resemblance to actual persons plot bear such a resemblance to actual persons or events as to make it reasonable for its or events as to make it reasonable for its readers or audience to understand that a readers or audience to understand that a particular character is intended to portray that particular character is intended to portray that person. Mere similarity of name alone is not person. Mere similarity of name alone is not enough; nor is it enough that the readers of a enough; nor is it enough that the readers of a novel or the audience of a play or a moving novel or the audience of a play or a moving picture recognize one of the characters as picture recognize one of the characters as resembling an actual person, unless they also resembling an actual person, unless they also reasonably believe that the character is reasonably believe that the character is intended to portray that person. intended to portray that person.

Restatement 2d Torts § 564 Restatement 2d Torts § 564 If the work is reasonably understood as If the work is reasonably understood as

portraying an actual person, it is not decisive portraying an actual person, it is not decisive that the author or playwright did not so that the author or playwright did not so intend…. The fact that the author or producer intend…. The fact that the author or producer states that his work is exclusively one of states that his work is exclusively one of fiction and in no sense applicable to living fiction and in no sense applicable to living persons is not decisive if readers actually and persons is not decisive if readers actually and reasonably understand otherwise. Such a reasonably understand otherwise. Such a statement, however, is a factor to be statement, however, is a factor to be considered by the jury in determining whether considered by the jury in determining whether readers did so understand it, or, if so, whether readers did so understand it, or, if so, whether the understanding was reasonable.the understanding was reasonable.

Problem 2Problem 2

Cohn v. Brecher, Cohn v. Brecher, 192 N.Y.S.2d 877192 N.Y.S.2d 877

(N.Y.Sup. 1959)(N.Y.Sup. 1959) The action of slander is necessarily The action of slander is necessarily

based upon the words uttered and their based upon the words uttered and their defamatory nature as applied to plaintiff. defamatory nature as applied to plaintiff. From a reading or hearing of the words From a reading or hearing of the words noted here, one cannot conclude that noted here, one cannot conclude that they were directed to the plaintiff alone they were directed to the plaintiff alone or to him as one of a group of persons. . . or to him as one of a group of persons. . . ..“An action for defamation lies only in “An action for defamation lies only in case the defendant has published the case the defendant has published the matter ‘of and concerning the plaintiff.’” matter ‘of and concerning the plaintiff.’”

Cohn v. Brecher, Cohn v. Brecher, 192 N.Y.S.2d 877192 N.Y.S.2d 877(N.Y.Sup. 1959)(N.Y.Sup. 1959) Here the words refer to one not Here the words refer to one not

specified of a group of persons. specified of a group of persons. Whereas it is essential that the Whereas it is essential that the 'defamatory words must refer to some 'defamatory words must refer to some ascertained or ascertainable person, ascertained or ascertainable person, and that person must be the plaintiff. . . and that person must be the plaintiff. . . . “So, if the words reflect impartially on . “So, if the words reflect impartially on either A. or B., or on some one of a either A. or B., or on some one of a certain number or class, and there is certain number or class, and there is nothing to show which one was meant, nothing to show which one was meant, no one can sue.” no one can sue.”

Problem 3Problem 3

Restatement 2d Torts § 564A, Restatement 2d Torts § 564A, cmt c cmt c

Even when the statement made does not Even when the statement made does not purport to include all of the small group or purport to include all of the small group or class but only some of them, as in the case of class but only some of them, as in the case of "Some of A's children are thieves," it is still "Some of A's children are thieves," it is still possible for each member of the group to be possible for each member of the group to be defamed by the suspicion attached to him by defamed by the suspicion attached to him by the accusation. In general, there can be the accusation. In general, there can be recovery only if a high degree of suspicion is recovery only if a high degree of suspicion is indicated by the particular statement. Thus indicated by the particular statement. Thus the assertion that one man out of a group of the assertion that one man out of a group of 25 has stolen an automobile may not 25 has stolen an automobile may not sufficiently defame any member of the group, sufficiently defame any member of the group, while the statement that all but one of a while the statement that all but one of a group of 25 are thieves may cast a reflection group of 25 are thieves may cast a reflection upon each of them.upon each of them.

Blaser v. Krattiger, Blaser v. Krattiger,

195 P. 359 (Or. 1921)195 P. 359 (Or. 1921) It appears in evidence without dispute that It appears in evidence without dispute that

in making the accusation in the lounging in making the accusation in the lounging room in the presence of the men there room in the presence of the men there assembled the defendant spoke the Swiss assembled the defendant spoke the Swiss language. The proper pleading in such a language. The proper pleading in such a case is to set out the actual words case is to set out the actual words employed, together with a translation into employed, together with a translation into English, with the averment that it is the English, with the averment that it is the true interpretation of the foreign language true interpretation of the foreign language used, and that it was so understood by used, and that it was so understood by those who heard it. those who heard it.

Blaser v. Krattiger, Blaser v. Krattiger,

195 P. 359 (Or. 1921)195 P. 359 (Or. 1921) The substance of the doctrine seems to be The substance of the doctrine seems to be

that the defendant gave offense, if at all, by that the defendant gave offense, if at all, by the use of foreign language, and he must be the use of foreign language, and he must be charged accordingly. It is necessary also to charged accordingly. It is necessary also to aver and prove the English signification so as aver and prove the English signification so as to refer the tort to that standard of speech to refer the tort to that standard of speech by which alone causes are adjudicated in by which alone causes are adjudicated in this country. Moreover, no slander is or can this country. Moreover, no slander is or can be committed unless those hearing the be committed unless those hearing the words used understand their meaning. It is words used understand their meaning. It is the impression on the mind of the hearer the impression on the mind of the hearer which constitutes the essence of slander. which constitutes the essence of slander.

Restatement 2d Torts § 577, Restatement 2d Torts § 577, cmt cmt

Communication in foreign language.Communication in foreign language. A libel A libel may be published in a foreign language may be published in a foreign language provided it is understood by the person to provided it is understood by the person to whom it is communicated. Thus to accuse whom it is communicated. Thus to accuse another of a crime in a foreign language is another of a crime in a foreign language is a publication if the accusation is a publication if the accusation is addressed to or overheard by third addressed to or overheard by third persons familiar with the language used. persons familiar with the language used. So, too, the printing of a libelous article in So, too, the printing of a libelous article in a newspaper in a foreign language is a newspaper in a foreign language is sufficient since it is presumed that the sufficient since it is presumed that the paper is disseminated among readers paper is disseminated among readers familiar with the language. familiar with the language.

Restatement 2d Torts § 577, Restatement 2d Torts § 577, Illus. 2Illus. 2

2. A, a Lithuanian, engages in a 2. A, a Lithuanian, engages in a violent quarrel with B on the streets violent quarrel with B on the streets in the foreign section of Chicago. In in the foreign section of Chicago. In his native tongue, A accuses B of his native tongue, A accuses B of murder. No one but B understands murder. No one but B understands him. A has not published a slander.him. A has not published a slander.

3. The same facts as in Illustration 2, 3. The same facts as in Illustration 2, except that A is overheard by several except that A is overheard by several of his countrymen. A has published a of his countrymen. A has published a slander.slander.

Problem 4Problem 4

Watson v. Detroit Journal Co., Watson v. Detroit Journal Co.,

107 N.W. 81 (Mi. 1906)107 N.W. 81 (Mi. 1906) Trading stamp concerns are spoken of Trading stamp concerns are spoken of

in the first article set out in the in the first article set out in the declaration of the plaintiff as 'the get-declaration of the plaintiff as 'the get-rich-quick industry.' This refers to rich-quick industry.' This refers to trading stamp concerns generally, and trading stamp concerns generally, and not to any particular trading stamp not to any particular trading stamp concern. In another article the business concern. In another article the business is spoken of as 'the trading stamp fake.' is spoken of as 'the trading stamp fake.' This refers to the business generally, This refers to the business generally, and not to any particular individual. and not to any particular individual.

Watson v. Detroit Journal Co., Watson v. Detroit Journal Co., 107 N.W. 81 (Mi. 1906)107 N.W. 81 (Mi. 1906)

In another article it is said: 'Mr. Hunt In another article it is said: 'Mr. Hunt appreciates the damage done to business by appreciates the damage done to business by the trading stamp bloodsuckers.' This refers in the trading stamp bloodsuckers.' This refers in general terms to the men engaged in the general terms to the men engaged in the business, and not to any particular person business, and not to any particular person engaged therein. We then have in this case a engaged therein. We then have in this case a class of persons in Detroit engaged in the class of persons in Detroit engaged in the conduct of trading stamp concerns. A conduct of trading stamp concerns. A publication is made which does not refer to all publication is made which does not refer to all of the persons engaged in that business in of the persons engaged in that business in Detroit, but does refer generally to the trading Detroit, but does refer generally to the trading stamp concerns of that city. We think the case stamp concerns of that city. We think the case stated will not sustain an action of libel. stated will not sustain an action of libel.

““Veggie Libel”Veggie Libel”Tex. Civ. Prac. & Rem. Code § 96.002Tex. Civ. Prac. & Rem. Code § 96.002

(a) A person is liable as provided by Subsection (b) if: (a) A person is liable as provided by Subsection (b) if: (1) the person disseminates in any manner (1) the person disseminates in any manner information relating to a perishable food product to information relating to a perishable food product to the public; (2) the person knows the information is the public; (2) the person knows the information is false; and (3) the information states or implies that false; and (3) the information states or implies that the perishable food product is not safe for the perishable food product is not safe for consumption by the public. consumption by the public.

(b) A person who is liable under Subsection (a) is (b) A person who is liable under Subsection (a) is liable to the producer of the perishable food product liable to the producer of the perishable food product for damages and any other appropriate relief arising for damages and any other appropriate relief arising from the person's dissemination of the information.from the person's dissemination of the information.

Problem 5Problem 5

Problem 6Problem 6

Pring v. Penthouse Intern., Pring v. Penthouse Intern., Ltd.Ltd.695 F.2d 438 (10th Cir. 695 F.2d 438 (10th Cir. 1982) 1982) The charged portions of the story described The charged portions of the story described something physically impossible in an something physically impossible in an impossible setting. In these circumstances we impossible setting. In these circumstances we must [conclude] that it is simply impossible to must [conclude] that it is simply impossible to believe that a reader would not have understood believe that a reader would not have understood that the charged portions were pure fantasy and that the charged portions were pure fantasy and nothing else. It is impossible to believe that nothing else. It is impossible to believe that anyone could understand that levitation could anyone could understand that levitation could be accomplished by oral sex before a national be accomplished by oral sex before a national television audience or anywhere else. The television audience or anywhere else. The incidents charged were impossible. The setting incidents charged were impossible. The setting was impossible.was impossible.

Pring v. Penthouse Intern., Pring v. Penthouse Intern., Ltd.Ltd.695 F.2d 438 (10th Cir. 695 F.2d 438 (10th Cir. 1982) 1982) The story is a gross, unpleasant, crude, distorted The story is a gross, unpleasant, crude, distorted

attempt to ridicule the Miss America contest and attempt to ridicule the Miss America contest and contestants. It has no redeeming features contestants. It has no redeeming features whatever. There is no accounting for the vast whatever. There is no accounting for the vast divergence in views and ideas. However, the First divergence in views and ideas. However, the First Amendment was intended to cover them all. The Amendment was intended to cover them all. The First Amendment is not limited to ideas, First Amendment is not limited to ideas, statements, or positions which are accepted; which statements, or positions which are accepted; which are not outrageous; which are decent and popular; are not outrageous; which are decent and popular; which are constructive or have some redeeming which are constructive or have some redeeming element; or which do not deviate from community element; or which do not deviate from community standards and norms; or which are within standards and norms; or which are within prevailing religious or moral standards. prevailing religious or moral standards.

Lent v. HuntoonLent v. Huntoon The confusing semantics of common-The confusing semantics of common-

law pleadinglaw pleading Defenses to defamationDefenses to defamation

TruthTruth PrivilegePrivilege

Predicate for damagesPredicate for damages CompensatoryCompensatory PunitivePunitive

Restatement 2d Torts § 577Restatement 2d Torts § 577What Constitutes PublicationWhat Constitutes Publication

(1) Publication of defamatory matter is its (1) Publication of defamatory matter is its communication intentionally or by a communication intentionally or by a negligent act to one other than the person negligent act to one other than the person defamed.defamed.(2) One who intentionally and unreasonably (2) One who intentionally and unreasonably fails to remove defamatory matter that he fails to remove defamatory matter that he knows to be exhibited on land or chattels in knows to be exhibited on land or chattels in his possession or under his control is his possession or under his control is subject to liability for its continued subject to liability for its continued publication.publication.

Restatement 2d Torts § 577, Restatement 2d Torts § 577, cmt kcmt k

There is an intent to publish There is an intent to publish defamatory matter when the actor defamatory matter when the actor does an act for the purpose of does an act for the purpose of communicating it to a third person or communicating it to a third person or with knowledge that it is with knowledge that it is substantially certain to be so substantially certain to be so communicated. communicated.

Restatement 2d Torts § 577, Restatement 2d Torts § 577, cmt kcmt k

It is not necessary, however, that the It is not necessary, however, that the communication to a third person be communication to a third person be intentional. If a reasonable person would intentional. If a reasonable person would recognize that an act creates an recognize that an act creates an unreasonable risk that the defamatory unreasonable risk that the defamatory matter will be communicated to a third matter will be communicated to a third person, the conduct becomes a negligent person, the conduct becomes a negligent communication. A negligent communication. A negligent communication amounts to a publication communication amounts to a publication just as effectively as an intentional just as effectively as an intentional communication.communication.

Restatement 2d Torts § 577, Restatement 2d Torts § 577, Illus. 4Illus. 4

A and B engage in an altercation on A and B engage in an altercation on the street where there are a number the street where there are a number of pedestrians. During the course of of pedestrians. During the course of the quarrel, A in a loud voice accuses the quarrel, A in a loud voice accuses B of larceny, the accusation being B of larceny, the accusation being overheard by a number of passers-overheard by a number of passers-by. A has published a slander.by. A has published a slander.

Restatement 2d Torts § 577, Restatement 2d Torts § 577, Illus. 5Illus. 5

A, a cartoonist, while working at his A, a cartoonist, while working at his desk in an office building represents desk in an office building represents B, a member of the editorial staff, in B, a member of the editorial staff, in a ludicrous attitude. A leaves the a ludicrous attitude. A leaves the cartoon on his desk, where it can cartoon on his desk, where it can easily be seen by numerous people easily be seen by numerous people who pass by the desk. A who pass by the desk. A stenographer subsequently sees the stenographer subsequently sees the cartoon. A has published a libel.cartoon. A has published a libel.

Restatement 2d Torts § 577, Restatement 2d Torts § 577, cmt ocmt o

The accidental communication of The accidental communication of matter defamatory of another to a matter defamatory of another to a third person is not a publication if third person is not a publication if there was no negligence. Thus, an act there was no negligence. Thus, an act that is not intended to communicate that is not intended to communicate to a third person matter that is to a third person matter that is defamatory and which does not defamatory and which does not create an unreasonable risk of the create an unreasonable risk of the communication is not a publication.communication is not a publication.

Restatement 2d Torts § 577, Restatement 2d Torts § 577, Illus. 12Illus. 12

A writes a letter to B containing A writes a letter to B containing defamatory statements about C. He defamatory statements about C. He puts the letter in his desk and locks it puts the letter in his desk and locks it up. A thief breaks open the desk and up. A thief breaks open the desk and reads the letter. A has not published reads the letter. A has not published a libel.a libel.

Problem 1Problem 1

Restatement 2d Torts § 577, Restatement 2d Torts § 577, Illus. 6Illus. 6

A writes a defamatory letter to B and A writes a defamatory letter to B and sends it to him through the mails in a sends it to him through the mails in a sealed envelope. A knows that B is sealed envelope. A knows that B is frequently absent and that in his frequently absent and that in his absence his secretary opens and absence his secretary opens and reads his mail. B is absent from his reads his mail. B is absent from his office and his secretary reads the office and his secretary reads the letter. A has published a libel.letter. A has published a libel.

Roberts v. English Mfg.,Roberts v. English Mfg.,

46 So. 752 (Ala. 1908)46 So. 752 (Ala. 1908) In the civil action for libel it is necessary to In the civil action for libel it is necessary to

show that the libelous matter was published show that the libelous matter was published by being communicated to some third by being communicated to some third person. Consequently a sealed letter, sent person. Consequently a sealed letter, sent through the mail to the person who claims to through the mail to the person who claims to be libeled, is not such a publication as the be libeled, is not such a publication as the law requires, unless there is evidence to law requires, unless there is evidence to show that the party who sent it knew that show that the party who sent it knew that some other person was in the habit of some other person was in the habit of opening letters, or that in the ordinary course opening letters, or that in the ordinary course of business the contents of the letter would of business the contents of the letter would come to the knowledge of some third person. come to the knowledge of some third person.

Problem 2Problem 2

Problem 2Problem 2

Lewis v. Equitable Life Assur. Soc’y., Lewis v. Equitable Life Assur. Soc’y.,

389 N.W.2d 876 (Minn.1986)389 N.W.2d 876 (Minn.1986) General rule: communication of a General rule: communication of a

defamatory statement to a third person defamatory statement to a third person by the person defamed is not actionable by the person defamed is not actionable

Exception: if the plaintiff was compelled Exception: if the plaintiff was compelled to communicate the defamatory to communicate the defamatory statement to a third person, and if it was statement to a third person, and if it was foreseeable to the defendant that the foreseeable to the defendant that the defamed person would be so compelled defamed person would be so compelled

Problem 3Problem 3

For illicit amatory

ventures, call555-1234

Restatement 2d Torts § 577, Restatement 2d Torts § 577, cmt pcmt p

One who knows that defamatory matter One who knows that defamatory matter is exhibited upon land or chattels in his is exhibited upon land or chattels in his possession or under his control and possession or under his control and intentionally and unreasonably fails to intentionally and unreasonably fails to remove it, becomes subject to liability remove it, becomes subject to liability for the continued publication. The basis for the continued publication. The basis of the liability is his duty not to permit of the liability is his duty not to permit the use of his land or chattels for a the use of his land or chattels for a purpose damaging to others outside of purpose damaging to others outside of the land. the land.

Restatement 2d Torts § 577, Restatement 2d Torts § 577, cmt p cmt p

So far as the cases thus far decided So far as the cases thus far decided indicate, the duty arises only when the indicate, the duty arises only when the defendant knows that the defamatory defendant knows that the defamatory matter is being exhibited on his land or matter is being exhibited on his land or chattels, and he is under no duty to police chattels, and he is under no duty to police them or to make inquiry as to whether them or to make inquiry as to whether such a use is being made. He is required such a use is being made. He is required only to exercise reasonable care to abate only to exercise reasonable care to abate the defamation, and he need not take the defamation, and he need not take steps that are unreasonable if the burden steps that are unreasonable if the burden of the measures outweighs the harm to of the measures outweighs the harm to the plaintiff. the plaintiff.

Restatement 2d Torts § 577, Restatement 2d Torts § 577, Illus. 15Illus. 15

A writes on the wall of the men's washroom A writes on the wall of the men's washroom in B's tavern a statement that C is an in B's tavern a statement that C is an unchaste woman. B fails to discover the unchaste woman. B fails to discover the writing for an hour. After he discovers it, he writing for an hour. After he discovers it, he fails to remove it for another hour, although fails to remove it for another hour, although he has ample opportunity to do so. During he has ample opportunity to do so. During the second hour the writing is read by the second hour the writing is read by several men. B is subject to liability for the several men. B is subject to liability for the continued publication of the libel during the continued publication of the libel during the second hour, although not for the original second hour, although not for the original publication.publication.

Hellar v. Bianco,Hellar v. Bianco,

244 P.2d 757 (Cal.App.1952)244 P.2d 757 (Cal.App.1952) Persons who invite the public to their premises Persons who invite the public to their premises

owe a duty to others not to knowingly permit owe a duty to others not to knowingly permit their walls to be occupied with defamatory their walls to be occupied with defamatory matter…. The theory is that by knowingly matter…. The theory is that by knowingly permitting such matter to remain after permitting such matter to remain after reasonable opportunity to remove the same reasonable opportunity to remove the same the owner of the wall or his lessee is guilty of the owner of the wall or his lessee is guilty of republication of the libel…. Republication republication of the libel…. Republication occurs when the proprietor has knowledge of occurs when the proprietor has knowledge of the defamatory matter and allows it to remain the defamatory matter and allows it to remain after a reasonable opportunity to remove it. after a reasonable opportunity to remove it.

Tacket v. General Motors Corp.,Tacket v. General Motors Corp.,

836 F.2d 1042 (7th Cir.1987)836 F.2d 1042 (7th Cir.1987) The The RestatementRestatement suggests that a tavern suggests that a tavern

owner would be liable if defamatory owner would be liable if defamatory graffiti remained in a bathroom stall a graffiti remained in a bathroom stall a single hour after their discovery…. The single hour after their discovery…. The common law of washrooms is otherwise, common law of washrooms is otherwise, given the steep discount that readers given the steep discount that readers apply to such statements and the high apply to such statements and the high cost of hourly repaintings of bathroom cost of hourly repaintings of bathroom stalls…. The burden of constant vigilance stalls…. The burden of constant vigilance greatly exceeds the benefits to be had. greatly exceeds the benefits to be had.

Problem 4Problem 4

Tacket v. General Motors Corp.,Tacket v. General Motors Corp.,836 F.2d 1042 (7th Cir.1987)836 F.2d 1042 (7th Cir.1987)

A person is responsible for statements he makes or A person is responsible for statements he makes or adopts, so the question is whether a reader may adopts, so the question is whether a reader may infer adoption from the presence of a statement. infer adoption from the presence of a statement. That inference may be unreasonable for a That inference may be unreasonable for a bathroom wall or the interior of a subway car in bathroom wall or the interior of a subway car in New York City but appropriate for the interior walls New York City but appropriate for the interior walls of a manufacturing plant, over which supervisory of a manufacturing plant, over which supervisory personnel exercise greater supervision and control. personnel exercise greater supervision and control. The costs of vigilance are small (most will be The costs of vigilance are small (most will be incurred anyway), and the benefits potentially incurred anyway), and the benefits potentially large (because employees may attribute the large (because employees may attribute the statements to their employer more readily than statements to their employer more readily than patrons attribute graffiti to barkeeps). patrons attribute graffiti to barkeeps).

Problem 5Problem 5

Restatement 2d Torts § 581 Restatement 2d Torts § 581 (1) Except as stated in subsection (1) Except as stated in subsection

(2), one who only delivers or (2), one who only delivers or transmits defamatory matter transmits defamatory matter published by a third person is subject published by a third person is subject to liability to liability if, but only if,if, but only if, he knows he knows or has reason to know of its or has reason to know of its defamatory character.defamatory character.

(2) One who broadcasts defamatory (2) One who broadcasts defamatory matter by means of radio or matter by means of radio or television is subject to the same television is subject to the same liability as an original publisher.liability as an original publisher.

Restatement 2d Torts § 581, cmt Restatement 2d Torts § 581, cmt dd

Under the rule stated in this Section, a news Under the rule stated in this Section, a news dealer is not liable for defamatory statements dealer is not liable for defamatory statements appearing in the newspapers or magazines appearing in the newspapers or magazines that he sells if he neither knows nor has that he sells if he neither knows nor has reason to know of the defamatory article. The reason to know of the defamatory article. The dealer is under no duty to examine the dealer is under no duty to examine the various publications that he offers for sale to various publications that he offers for sale to ascertain whether they contain any ascertain whether they contain any defamatory items. Unless there are special defamatory items. Unless there are special circumstances that should warn the dealer circumstances that should warn the dealer that a particular publication is defamatory, he that a particular publication is defamatory, he is under no duty to ascertain its innocent or is under no duty to ascertain its innocent or defamatory character. defamatory character.

Restatement 2d Torts § 581, cmt Restatement 2d Torts § 581, cmt ee

Bookshops and circulating or lending libraries Bookshops and circulating or lending libraries come within the rule stated in this Section. The come within the rule stated in this Section. The vendor or lender is not liable, if there are no vendor or lender is not liable, if there are no facts or circumstances known to him which facts or circumstances known to him which would suggest to him, as a reasonable man, would suggest to him, as a reasonable man, that a particular book contains matter which that a particular book contains matter which upon inspection, he would recognize as upon inspection, he would recognize as defamatory. Thus, when the books of a defamatory. Thus, when the books of a reputable author or the publications of a reputable author or the publications of a reputable publishing house are offered for sale, reputable publishing house are offered for sale, rent or free circulation, he is not required to rent or free circulation, he is not required to examine them to discover whether they contain examine them to discover whether they contain anything of a defamatory character. anything of a defamatory character.

First and Fourteenth First and Fourteenth AmendmentsAmendments

Congress shall make no Congress shall make no law respecting an law respecting an establishment of establishment of religion, or prohibiting religion, or prohibiting the free exercise the free exercise thereof; or abridging thereof; or abridging the freedom of speech, the freedom of speech, or of the press; or the or of the press; or the right of the people right of the people peaceably to assemble, peaceably to assemble, and to petition the and to petition the Government for a Government for a redress of grievances.redress of grievances.

No State shall make or No State shall make or enforce any law which enforce any law which shall abridge the shall abridge the privileges or immunities privileges or immunities of citizens of the United of citizens of the United States; nor shall any States; nor shall any State deprive any State deprive any person of life, liberty, or person of life, liberty, or property, without due property, without due process of law; nor deny process of law; nor deny to any person within its to any person within its jurisdiction the equal jurisdiction the equal protection of the laws. protection of the laws.

Who’s Sullivan?Who’s Sullivan?

What was false in the ad?What was false in the ad? In Montgomery, Alabama, after students In Montgomery, Alabama, after students

sang `My Country, ‘Tis of Thee’ on the sang `My Country, ‘Tis of Thee’ on the State Capitol steps, their leaders were State Capitol steps, their leaders were expelled from school, and truckloads of expelled from school, and truckloads of police armed with shotguns and tear-gas police armed with shotguns and tear-gas ringed the Alabama State College Campus.ringed the Alabama State College Campus.Again and again the Southern violators Again and again the Southern violators have answered Dr. King’s peaceful protests have answered Dr. King’s peaceful protests with intimidation and violence. They have with intimidation and violence. They have bombed his home almost killing his wife bombed his home almost killing his wife and child. They have assaulted his person. and child. They have assaulted his person. They have arrested him seven times--for They have arrested him seven times--for “speeding,” “loitering” and similar “speeding,” “loitering” and similar “offenses.” And now they have charged “offenses.” And now they have charged him with “perjury”--a him with “perjury”--a felonyfelony under which under which they could imprison him for they could imprison him for ten yearsten years..

New York Times v. SullivanNew York Times v. Sullivan Did the ad hurt Sullivan’s reputation?Did the ad hurt Sullivan’s reputation? Was there any proof that his reputation was Was there any proof that his reputation was

damaged?damaged? What is the What is the New York TimesNew York Times and the four and the four

clergymen’s defense under Alabama law?clergymen’s defense under Alabama law? What’s the issue before court? What’s the issue before court? What’s the purpose of the First What’s the purpose of the First

Amendment?Amendment? Do public officials need “fortitude”?Do public officials need “fortitude”? “ “Actual malice”: What is it? Whose burden Actual malice”: What is it? Whose burden

to prove it? to prove it?

““Of and concerning” Sullivan?Of and concerning” Sullivan? In Montgomery, Alabama, after students In Montgomery, Alabama, after students

sang `My Country, ‘Tis of Thee’ on the State sang `My Country, ‘Tis of Thee’ on the State Capitol steps, their leaders were expelled Capitol steps, their leaders were expelled from school, and truckloads of from school, and truckloads of policepolice armed armed with shotguns and tear-gas ringed the with shotguns and tear-gas ringed the Alabama State College Campus.Alabama State College Campus.Again and again the Again and again the Southern violatorsSouthern violators have answered Dr. King’s peaceful protests have answered Dr. King’s peaceful protests with intimidation and violence. They have with intimidation and violence. They have bombed his home almost killing his wife and bombed his home almost killing his wife and child. They have assaulted his person. child. They have assaulted his person. They They have arrested himhave arrested him seven times--for seven times--for “speeding,” “loitering” and similar “speeding,” “loitering” and similar “offenses.” And now “offenses.” And now they have charged they have charged himhim with “perjury”--a with “perjury”--a felonyfelony under which under which they could imprison him for they could imprison him for ten yearsten years. .

New York Times v. SullivanNew York Times v. Sullivan(Black, concurring)(Black, concurring)

The half-million-dollar verdict does give The half-million-dollar verdict does give dramatic proof, however, that state libel laws dramatic proof, however, that state libel laws threaten the very existence of an American threaten the very existence of an American press virile enough to publish unpopular views press virile enough to publish unpopular views on public affairs and bold enough to criticize the on public affairs and bold enough to criticize the conduct of public officials. The factual conduct of public officials. The factual background of this case emphasizes the background of this case emphasizes the imminence and enormity of that threat. One of imminence and enormity of that threat. One of the acute and highly emotional issues in this the acute and highly emotional issues in this country arises out of efforts of many people, country arises out of efforts of many people, even including some public officials, to continue even including some public officials, to continue state-commanded segregation of races in the state-commanded segregation of races in the public schools and other public places, despite public schools and other public places, despite our several holdings that such a state practice is our several holdings that such a state practice is forbidden by the Fourteenth Amendment. forbidden by the Fourteenth Amendment.

New York Times v. SullivanNew York Times v. Sullivan(Black, concurring)(Black, concurring)

Montgomery is one of the localities in Montgomery is one of the localities in which widespread hostility to which widespread hostility to desegregation has been manifested. desegregation has been manifested. This hostility has sometimes extended This hostility has sometimes extended itself to persons who favor itself to persons who favor desegregation, particularly to so-called desegregation, particularly to so-called “outside agitators,” a term which can be “outside agitators,” a term which can be made to fit papers like the Times, which made to fit papers like the Times, which is published in New York. is published in New York.

New York Times v. SullivanNew York Times v. Sullivan(Black, concurring)(Black, concurring)

The scarcity of testimony to show that The scarcity of testimony to show that Commissioner Sullivan suffered any actual Commissioner Sullivan suffered any actual damages at all suggests that these feelings of damages at all suggests that these feelings of hostility had at least as much to do with rendition hostility had at least as much to do with rendition of this half-million-dollar verdict as did an of this half-million-dollar verdict as did an appraisal of damages. Viewed realistically, this appraisal of damages. Viewed realistically, this record lends support to an inference that instead record lends support to an inference that instead of being damaged Commissioner Sullivan's of being damaged Commissioner Sullivan's political, social, and financial prestige has likely political, social, and financial prestige has likely been enhanced by the Times' publication.been enhanced by the Times' publication.

Public FiguresPublic Figures Rinaldi: Rinaldi: state court state court

judgejudge Curtis Publishing Co. v. Curtis Publishing Co. v.

ButtsButts, 388 U.S. 140 , 388 U.S. 140 (1967)(1967) Butts: athletic director, Butts: athletic director,

University of GeorgiaUniversity of Georgia Walker: Walker:

Retired general/private Retired general/private individual individual

Court ruled Walker had Court ruled Walker had thrust himself into the thrust himself into the vortex of an important vortex of an important public controversy public controversy

Prior RestraintPrior Restraint Near v. Minnesota Near v. Minnesota (1931)(1931)

County sued to enjoin (as abatement of County sued to enjoin (as abatement of public nuisance) the public nuisance) the Saturday PressSaturday Press, a , a scandal sheet that regularly charged scandal sheet that regularly charged county officials as in cahoots with county officials as in cahoots with “Jewish gangsters”“Jewish gangsters”

Court held: no prior restraintCourt held: no prior restraint Remedy was libel suits after publication Remedy was libel suits after publication

Public Figures/Private LivesPublic Figures/Private Lives Monitor Patriot v. RoyMonitor Patriot v. Roy

Newspaper referred to candidate as Newspaper referred to candidate as “former small-time bootlegger”“former small-time bootlegger”

Trial court instructed jury that different Trial court instructed jury that different rules would be applied depending on rules would be applied depending on whether the publication was official or whether the publication was official or private conductprivate conduct

Because election campaigns are a “clash Because election campaigns are a “clash of reputations,” Court held “as a matter of of reputations,” Court held “as a matter of constitutional law that a charge of criminal constitutional law that a charge of criminal conduct, no matter how remote in time or conduct, no matter how remote in time or place, can never be irrelevant to an place, can never be irrelevant to an official’s or a candidate’s fitness for office.” official’s or a candidate’s fitness for office.”

Problem 1Problem 1

““Never pick Never pick a fight with a fight with someone someone who buys who buys ink by the ink by the barrel.”barrel.”

Problem 4Problem 4

Problem 5Problem 5

Problem 6:Problem 6:Once a public official, always a Once a public official, always a public official?public official? Rosenblatt v. BaerRosenblatt v. Baer, 383 U.S. 75 , 383 U.S. 75

(1966)(1966) To be sure, there may be cases where a To be sure, there may be cases where a

person is so far removed from a former person is so far removed from a former position of authority that comment on position of authority that comment on the manner in which he performed his the manner in which he performed his responsibilities no longer has the responsibilities no longer has the interest necessary to justify the New interest necessary to justify the New York Times rule.York Times rule.

Gertz v. Robert Welch, Inc.Gertz v. Robert Welch, Inc.

Gertz v. Robert Welch, Inc.Gertz v. Robert Welch, Inc. What was the communist conspiracy What was the communist conspiracy

and what role did Elmer Gertz play in and what role did Elmer Gertz play in that conspiracy?that conspiracy?

How did the article defame Gertz?How did the article defame Gertz? Issue presentedIssue presented The distinction between public The distinction between public

figures and private individualsfigures and private individuals Is Gertz a public figure or a private Is Gertz a public figure or a private

individual?individual?

Public FiguresPublic Figures General purpose General purpose

public figures:public figures: ““Household word”; Household word”;

celebritycelebrity Public character Public character

attributed to all attributed to all aspects of their livesaspects of their lives

Limited purpose Limited purpose public figurespublic figures Public controversyPublic controversy Plaintiff’s role isn’t Plaintiff’s role isn’t

trivial or tangentialtrivial or tangential Alleged defamation Alleged defamation

relevant to relevant to plaintiff’s plaintiff’s participation in participation in controversy controversy

Public Figures?Public Figures?

Problem 1Problem 1

Problem 2Problem 2

Problem 5Problem 5

St. Armant v. ThompsonSt. Armant v. Thompson What’s reckless disregard?What’s reckless disregard? Reckless disregard v. reasonable Reckless disregard v. reasonable

person standardperson standard Why must the First Amendment Why must the First Amendment

protect erroneous publications?protect erroneous publications? How important is good faith in How important is good faith in

determining reckless disregard?determining reckless disregard? Applying reckless disregard standard Applying reckless disregard standard

in this casein this case

Masson v. New YorkerMasson v. New Yorker Is an article that portrays plaintiff as mean-Is an article that portrays plaintiff as mean-

spirited, self-serving, and arrogant libelous?spirited, self-serving, and arrogant libelous? What is the meaning of quotation marks?What is the meaning of quotation marks? How might fabricated quotations be How might fabricated quotations be

libelous?libelous? Is every alteration of a verbatim quotation Is every alteration of a verbatim quotation

actionable?actionable? Applicability of protecting author’s rational Applicability of protecting author’s rational

interpretationinterpretation Are there issues of fact? Are there issues of fact?

QuotationsQuotations ““Intellectual Intellectual

gigolo”gigolo” Masson’s plan Masson’s plan

for Freud for Freud Archives: “sex, Archives: “sex, women, fun”women, fun”

Why he adopted Why he adopted middle name: ”it middle name: ”it sounded better”sounded better”

Why remark about Why remark about sterility of sterility of psychoanalysis was psychoanalysis was added to speech: “I don’t added to speech: “I don’t know why I put it in”know why I put it in”

““Greatest analyst who Greatest analyst who ever lived”ever lived”

Director of Freud Director of Freud Archives “had the wrong Archives “had the wrong man” to do the right man” to do the right thing thing

[A] lesson was learned (or relearned) yesterday by the student body of Maple Heights High School, and by anyone who attended the Maple-Mentor wrestling meet of last Feb. 8.A lesson which, sadly, in view of the events of the past year, is well they learned early. It is simply this: If you get in a jam, lie your way out. If you're successful enough, and powerful enough, and can sound sincere enough, you stand an excellent chance of making the lie stand up, regardless of what really happened.

The teachers responsible were mainly Maple wrestling coach, Mike Milkovich, and former superintendent of schools, H. Donald Scott....Anyone who attended the meet, whether he be from Maple Heights, Mentor, or impartial observer, knows in his heart that Milkovich and Scott lied at the hearing after each having given his solemn oath to tell the truth.But they got away with it. Is that the kind of lesson we want our young people learning from their high school administrators and coaches?

Milkovich v. Lorain Journal Co.Milkovich v. Lorain Journal Co. Fact versus opinionFact versus opinion Is existing constitutional Is existing constitutional

doctrine sufficient without doctrine sufficient without creating a dichotomy creating a dichotomy between fact and between fact and opinion?opinion?

New York TimesNew York Times standard standard and whether implying and whether implying someone committed someone committed perjury is capable of perjury is capable of being proved true or false being proved true or false

Buckley v. LittellBuckley v. Littell

William F. Buckley William F. Buckley unable to recover unable to recover for being called a for being called a “fascist” because “fascist” because the term was too the term was too imprecise and imprecise and indeterminate to indeterminate to be regarded as a be regarded as a statement of fact.statement of fact.

Fair Report Privilege:Fair Report Privilege:Restatement 2d Torts § 611Restatement 2d Torts § 611 The publication of defamatory matter The publication of defamatory matter

concerning another in a report of an concerning another in a report of an official action or proceeding or of a official action or proceeding or of a meeting open to the public that deals meeting open to the public that deals with a matter of public concern is with a matter of public concern is privileged if the report is accurate privileged if the report is accurate and complete or a fair abridgement and complete or a fair abridgement of the occurrence reported. of the occurrence reported.

Neutral Reporting PrivilegeNeutral Reporting Privilege Neutral reporting privilege goes beyond Neutral reporting privilege goes beyond

Restatement § 611 to extend privilege to the Restatement § 611 to extend privilege to the accurate publication of newsworthy accurate publication of newsworthy statements made about public figuresstatements made about public figures

Most state courts have rejected the privilege Most state courts have rejected the privilege as too sweeping and without constitutional as too sweeping and without constitutional basisbasis

Pennsylvania case was cert. denied in March Pennsylvania case was cert. denied in March (one city council member called mayor and (one city council member called mayor and another council member “draft dodgers” and another council member “draft dodgers” and “child molesters”; newspaper didn’t have “child molesters”; newspaper didn’t have neutral reporting privilege to repeat neutral reporting privilege to repeat statements that it knew were false )statements that it knew were false )

Problem 2Problem 2

Henderson v. Times Mirror Henderson v. Times Mirror Co.Co.669 F.Supp. 356 (D. 669 F.Supp. 356 (D. Colo.1987) Colo.1987) While it can be agreed generally that the terms While it can be agreed generally that the terms

“sleazebag” and “slime” do not rank as “sleazebag” and “slime” do not rank as descriptive words one would prefer to have in descriptive words one would prefer to have in letters of recommendation, their meanings in letters of recommendation, their meanings in the context of Davis’ comments is so imprecise the context of Davis’ comments is so imprecise that they cannot be considered as asserting that they cannot be considered as asserting facts. While it may not be a compliment to be facts. While it may not be a compliment to be called a “sleaze-bag agent,” or “sleaze-bag called a “sleaze-bag agent,” or “sleaze-bag journalist,” or “sleaze-bag coach,” or whatever journalist,” or “sleaze-bag coach,” or whatever kind of sleaze-bag one may happen to be, the kind of sleaze-bag one may happen to be, the mere absence of complimentary affect does not mere absence of complimentary affect does not render a statement defamatory. render a statement defamatory.

Problem 3Problem 3