Torts II Outline

TORTS IIDEFAMATION all about ReputationFirst amendment makes it tough; clashes w/freedom of speech, freedom of the press.DEFAMATION ELEMENTS:1)    Allege that a defamatory communication has been madea.    Defamatory communication – statements that would tend to diminish a person’s reputation, hold them up to ridicule, or to cause other parties not to want to be associated w/them.    b.    Defamatory communications tend to sound like facts.   (not mere insults or opinion – must damage reputation.) 2)    Has to be about the Plaintiff w/colloquium in pleading If the Plaintiff is not mentioned by name; then you put in your pleadings the colloquium; put in the facts that make it obvious that the Defendant was talking about the Plaintiff.   It would spell out the statement in its particularity and the next numbered paragraph would began to explain how it is the Plaintiff they are meaning by inference. 3)    It has to be communicated/published to a 3rd person If nobody understands the comment than it is not actionable.  No matter how blistering it might be (i.e., foreign language that is not understood.) Can the dead be defamed?  No.   Any living person can be defamed, as can a corporation.  4)    There must be a provable element of damage TRUTH is an absolute defense to any suit for defamation.Two ways to defame people:            SLANDER & LIBEL1)    Slander is the spoken worda.    B’c it is less serious than libel it has no damages; Plaintiff must prove they have suffered some kind of pecuniary losses.  In order to recover for Slander the Plaintiff must prove they have been affected economically in some way.2)    Libel was a reference to things that had been written but now it pertains to video; some form of permanent embodiment.   Considered more serious than Slander.There are 4 kinds of statements where the Plaintiff does not have to prove losses.Slander per se 1)    Statements that injure business reputation/business life i.e., Lawyer is a shyster; doc is a quack2)    Statements that indicate that the plaintiff has some “loathsome” disease that they do not have.  Loathsome disease was strictly a sexual communicable disease, now expanded to include diseases that society fears  i.e., tuberculosis, aids, herpes 3)    Statements that say that a person has committed a crime of moral turpitude. Moral turpitude is a legal concept in the USA, which refers to     “conduct that is considered contrary to community standards of     justice, honesty4)    Statements pertaining to un-chastity of a woman; now gender neutral; sexually discriminatory. if you say a married person is having an affair and they are not –     that is slander per se.SLANDER PER SEIf slander of one of the 4 types is proven then no damage has to occur; Every person that repeats the slander is liable all the way from the first person who said it;Defendant has to prove the defamatory statement is true; truth is an absolute defense.Impugning the chastity of an unmarried women by saying she has given birth when she has not.LIBELIn permanent form – do not have to prove special economic damages either; b’c there is evidenceInducement and innuendo – terms of pleading allows you to explain why the comment under the circumstances would be defamatory.  Goes to the issue of not naming exactly who the person was by name but it is generally known who it is concerning; and goes to facts that seem on their face innocent w/o additional facts.PUBLIC OFFICIALS:  People who hold public offices; office has to be reasonably high;  i.e., dog catcher is an office holder but not high enough to be considered a public official. Sherriff is a public official; this is about where the line starts at for public official. PUBLIC OFFICIAL:  Have to prove the 1st 4 elements plus a 5th.1.  Defamation communication2.  About the Plaintiff3.  Communicated to a 3rd person4.  Damage5.  Spoke w/actual Malice  He knew it was false or acted w/o regard to the truth of it Includes living people; corp.; and associationsHave an additional element of proof;   Have to prove that the person acted with actual PUBLIC FIGURES:Public figures and officials have the power to protect themselves; REPUTATION: IS THE ESSENCE OF DEFAMATION ARGUMENTSDEFAMATION:Private P v. Private P1.  Defamatory Communication2.  About the Plaintiff3.  Communicated to a Third Party4.  Damages (libel or slander per se damages are presumed HERE) Defamatory communications are presumed to be false as soon as the P says the statement is defamatory (w/o evidence); then the D will have the burden to prove that the statement was true; Truth is the absolute defense to Defamation.PUBLIC FIGURE OR OFFICIAL v