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Torts II
University of Kansas School of Law
Weeks, Elizabeth

Torts II Notes
 
DEFAMATION
 
 
090902
 
Publication p. 861
 
Economopoulos v. Pollard Co.
Mass. (1914)
 
Store Clerk accused Plaintiff of defamation but it was not in his native language. No one else heard or understood him. Therefore, no defamation can occur.
 
Ogden v. US Army (P. 864)
DC (1959)
 
 
New York Times v Sullivan (P. 867)
USSC (1964)
 
Concepts that emerged —
 
This case was a case of the Courts reacting against the Sedition Act.  1st Amendment issue.   Madison said – The press should be criticizing Government. Criticism of Government is actually helping Government to be better. 
 
 
Sedition Act – John Adams – Made it a crime to speak ill of the President and VP or other officials. This back-fired the next election they voted the federalist (who enacted the law) out of office. The next Congress repealed the act therefore there was never Consititionally challenged.
 
Public Official – opinion referred to public official only but they did not specify who those people were. What is the interpretation? It was it applies to any public official as long as the public knows who they are. This also means that it applies to political candidates. Once you run for political office – you aren’t covered. Family members of public officials are not clear.   
 
Public Figures – people who are not public officials but still have some notoriety? Example: Charlie Butts – Football Coach for Georgia Tech. (p. 874) Also someone who voluntarily jumps into public debate. 
 
Someone over heard a phone conversation saying that Butts and B. Bryant had a conversation and “fixed” a game. Newspaper printed that.   Holding was that yes, we should treat public figures like public officials.    They are held to New York Times Standard.     Some thought they should keep NYT standards; Some other thought there should be a new other standard. 
 
What is a public figure?
 
1)         Someone who is a public figure for all purposes. Someone who is so persuasive that there is no question that they are a public figure.
 
2)      Some are more questionable – a local state employed teacher – no but if he starts being a “stand” at city council meeting about zoning laws. He would then be a public figure on zoning laws.  Public figure for a limited purpose. 
 
 
Public officials and Public figures – do assume some risk for defamation. Not so if you are a private figure. 
 
 
Rosenbloom v. Metromedia (p. 875) ‘smut-peddler’ case
 
St. Amant v Thompson (P.875)
 SC (1968)
 
St. Amant made a political speech on television. He said the police chief was involved in some criminal activity. Alavin said the statement without proof originally then St. Amant repeated it. Is there reckless disregard for this?  Supreme Court said that they must show proof that they did that with actual malice.   There should be independent review of such critical information in order to make sure that they give the right review. This greatly favors the press.
 
The courts will independently monitor the results and independently review the evidence to make sure that there is actual malice therefore liability needs to be opposed.
 
Herbert v Lando  (p.878)
 
Public officer was deposed for 60 minutes. They took they the view that no one can “censor” what goes on in the editing room. ….
 
Masson v New Yorker Magazine (p.878)
 
“Intellectual Gigolo” libal Case
 
By putting something in “quotations” the charge can now be a case of actual Malice. 
 
Public Figure said he was defamed by NY Magazine. The first Amendment protects the journalist who write about public figures but requires the plantiff to proved statements were made with “actual malice”. 
 
NOTES in Question –
 
Actual Malice in Journalistic enterprise (page 889) – Must be a “purposeful avoidance of the truth.” It must prove to the jury that there is reckless disregard. 
 
Anderson v. Liberty Lobby – Court said – If you have a public official or public figure then summery judgment is appropriate unless P has introduced sufficient “clear and convincing” evidence to the jury that the was reckless disregard otherwise the P doesn’t get a summary judgment.    The court wants to protect 1st amendment in defamation cases. 
 
Time Inc. v Firestone – Celebrity divorce in FL. Highly public divorce. Newspapers wrote about it.   Trial judge wrote a memo that supported the grant of divorce.  Time magazine published that the divorce was granted on the grounds of adultery.   Firestone and his wife were not public figures. Therefore Time magazine was negligent in getting the detail wrong in their story.
 
Repetition of Defamation – (page 890) –   In Pape and Firestone – The court was not concerned about the truth or the falsity of their statements. They were concerned that it must be either a fair statement or a verbatim quote.   They said the journalist must not be concerned it if is true or not as long as he reports what happens and reports “a fair and accurate summary” statement. 
 
The Reporter’s Privilege –
 
Reports of Pleadings (p. 891) Court will hold that there is an exception to a reporter’s privilege in the case of pleading filed with a court. So, his privilege for reporting what happens in a public hearing does not carry over to a pleading filed in court. 
 
Gertz v. Robert Welch, Inc. (page 892)
SC of US 1974
 
Gertz sues John Birch Society Case’s magazine for defamation. Gertz does not have to prove actual malice because he is not a public figure. He only had to prove that it was false and defamatory statement (strict liability approach).    He also must show there was some negligence from JB Society so that he can recover compensatory or actual damages. He can not get punitive damages against broadcaster or journalist. If a private persons only show actual damages then no punitive damages will be awarded. If you want punitive you must go back to NYT (actual malice) standards. 
 
What is NYT Standard?
 
Court held that the fact that an expression concerned a public issue did not by itself entitle the libel defendant to the constitutional protections of New York Times.  Not every lawyer (aka officer of the court) is a public official or public figure. 
 
Rosenbloom v. Metromedia held that any matter of public or general interest and should be held to the New York Times Standard (??)
 
Does this apply to non-media defendants? –  
 
When is a statement defamatory –
 
Actual damage – relates to if there is any actual damage. Not special damage. 
 
 
Milkovich v. Lorain (p. 915) 1990
 
 
Privileges Chapter 17 (p. 922)
 
Absolute Privilege – Applies to any statement made during the course of a judicial proceeding. This is so a judge can be fair without getting sued for deformation. A judge or lawyer can not feel like they must guard what they say within ethical limits.
 
Must be in judicial setting not outside the courthouse with the media. Also must be relevant to the court case pertaining to the case. Also available in tribunal if it mimics a judicial proceeding.  
 
Legislative Privilege – Any statement made in the course of legislative proceedings are privileged. No limitation to relevance.  No elsewhere like in press releases. Example Hutchinson v. Proxmire (1979) The Golden Fleece Award.   
 
Barr v. Mateo (1952) Government employees can also be privileged as long as they are working in the scope of the legislature.   
 
State Employment is different – Only top officials have absolute privilege, others have conditional privilege. Other city employees have only a conditional privilege.
 
Absoulte privilege for Congressional campaign commercials on television. The station can not edit the content. 
 
Conditional or Qualified Priviledge
 
Sindorf v Jacron (page. 926)
 
Sindorf was a salesman for Jacron Sales – he resigned as a dispute over his sales practices. Sindorf kept some of the Jacron inventory because he believed Jacron owed him commission. Sindorf then went to work for Tool Box Corp. 
 
 
 
Jacron called Tool Box – and said that a few cash sales and quite a bit of merchandise was not accournted for – Jacron told Tool Box to “watch his stock” and made other derogatory insinuations. 
 
Court has to look at what Jacron’s intent was. Was this malice. Prosser said that qualified privilege will be lost if the defendant publishes the defamation “in the wrong state of mind” He though that the statement that the privilege is defeated if the publication is Malicious is misleading and discounted malice in this context as a meaningless and quite unsatisfactory term
 
 
Fair comment (p. 932) The media relies on this privilege. It allows the publisher to offer criticisms on matter of public concern including activities or public officials. Their opinion must be fair ( meaning that it must be based on facts) but not reasonable.
 
Remedies — 
1)      Damages
 
a.       Mitigation of Damages
 
b.      Punitive Damages
 
c.       Nominal Damages
 
2)      Declaratory Relief
 
3)      Self-Help
 
a.       Right of Response Statutes

engage in self-censorship. 
 
Cantrell v. Forest City Publishing;
 
P’s husband was killed with 40 other people when a bridge collapsed. D assigned a reporter to do a feature story on the husband’s funeral and the impact of the death on his family. 5 months later the reporter returned to do a follow-up. P was not home so reporter interviewed her children.  The story stressed the children’s poverty and was inaccurate. The case went to the jury on the “false light” theory of invasion of privacy.
 
The jury was instructed that D was liable only if it was shown that D published the article with reckless disregard of the truth. This is the constitutional “actual malice” standard used in defamation cases. 
 
There was sufficient evidence for the jury to find that the reporter knew of the falsity of the story. D can be held on the basis of respondeat superiour since it approved and published the story.
 
PARODY OF PUBLIC FIGURES
 
Hustler Magazine v. Falwell
 
D published a parody of an advertisement in which P was depicted as describing a drunken incestuous rendezvous with his mother in an outhouse. The ad contained a disclaimer at the bottom. P sued for invasion of privacy, libel and intentional infliction of emotional distress. After a directed verdict on the privacy claim, the jury found for D on the defamation because it contained no assertion of fact. The jury also awarded for emotional distress. 
 
Can a public figure recover damages for emotional harm caused by the publication of an offensive parody intended to inflict emotional distress but which cannon reasonably have been interpreted as stating actual facts?
 
1st Amendment promotes political debate by protecting criticism of public figures, however not all speech about public figure is protected.    A public figure can hold a speaker liable for damages to reputation caused by defamation, if the statement was made with knowledge that it was false or with reckless disregard of whether it was false or not.
 
CIVIL RIGHTS 
 
Civil Rights in most cases are protected by statute in most cases, but the scope of the protection is determined by the courts. 
 
Federal Statue – 42 USC 1983 – imputes liability to any person who, under the color of law deprives another of his civil rights.
 
CHAPTER 20 – MISUSE OF LEGAL PROCEDURE
 
Malicious Prosecution
–           The wrongful institution of criminal proceeding by one private citizen against another resulting in damages.
 
Elements –
1.      Instigation of proceedings by defendant
a.       Criminal proceedings are initiated by a charge made to the police or other public officials in such form as to cause the insurance of a warrant or indictment against the accused
2.      Proceedings terminated favorably to plaintiff
a.       The plaintiff must allege and proved that the criminal proceedings were terminated in a manner indicating his innocence
3.      Lack of Probable cause
a.       P must show that D instituted the proceedings without probable cause
                                                                          i.      The D had no honest or reasonable belief in the truth of the charge.
                                                                        ii.      Objective Test – but also Good Faith Requirement.
                                                                      iii.      Usually decided by the Judge
                                                                      iv.      D may be held liable even where there are sufficient facts to indicate to a reasonable person that P was guilty if D himself knew better.