Select Page

Torts II
University of Kansas School of Law
Westerbeke, William E.


Table of Contents

1.                  A false and defamatory statement made by D.
2.                  “Of and concerning” P
3.                  Publication to a 3rd person.
4.                  Scienter (D’s knowledge or appreciation of falsity)
5.                  Damage to P’s reputation.

1.      Two Branches of Defamation
1.         Libel
1.      A statement, typically written, seen as having lasting effects. SIGHT. Pictures, signgs, videos.
·         The more permanent the representation, the more likely it will be seen as libel. 
·         If reading something from the typed page, that’s libel, even though it’s oral.
2.      No special damages must be shown.
3.      Libel per se vs. Libel per quod: Both treated the same in the modern day:
2.         Slander
a.         Typically an oral statement. HEARING. Words, transitory gestures, all other, ect.
b.         Have to show special damages:
·         Threshold to stay in court: GATEWAY DAMAGES: Must show pecuniary loss
·         Then can add on damages for emotional distress.
·         Rationale: To limit slander cases to only the really serious ones, due to slander’s inherently temporary nature.
·         Premeditation and persistence are factors that tilt the balance one way or another.  

c.         Do not have to show special damages for Slander per se: Available for the following types of statements:
·         Imputations of major crime:
(1)   “Major crimes” involve “moral turpitude,” such that people would shun.
(2)   It’s the nature, not the name, of the crime that matters. Crimes that are inherently base and vile will be seen as “major.”
·         Imputations of loathsome disease: INACTIVE.
(1)   Limited only to STDs and leprosy.
·         Statements referring to business, trade, or profession:
(1)   Statement must relate to person’s ability to perform or quality to perform the job.
(2)   Can assume a negative effect on customer base, w/o proving a decline in business.
·         Serious sexual misconduct: INACTIVE
(1)   Initially limited to allegation of unchastity by an unmarried woman, with no male analogue.

1. False and Defamatory
1.         “Defamatory:” A statement that exposes person to distrust, ridicule, hatred, results in shunning, etc., tends to injure in occupation / business / employment.
a.         If statement permits more than one meaning, only one of which is defamatory, jury decides how the “common mind” would have taken it.
·         Standard is not what “right-minded” people would think. It’s not a defense that “enlightened people” would not have shunned P. as a result of the statement.
·         As long as an important and respectable part of the community, not a majority. segment of reasonable people would shun P., the statement is defamatory.
·         Doesn’t matter what criminals think, because not respectable. No defamation usually for being called a snitch.

b. Defense of Truth: Words have to be false: If statement is substantially true, complete defense to action. 

2.         No separate category of “opinion” statements that should be treated different than “fact” for             purposes of defamation. If statements are sufficiently factual to be able to be proven true or false, they             can be defamatory. Milkovich.
a.         If speaker doesn’t explicitly set out the facts on which he relies for his opinion, reader is allowed to infer, and potentially challenge, the facts that form the basis.
b.         Exceptions:
·         Hyperbole: Using words that, interpreted literally, would be defamatory, but are not understood as factual in context.
·         Parody: Recipient understands it’s not stated as true.
·         Can be committed by innuendo, figure of speech, expressions of belief, allusion, irony/satire.
·         Based on time, place, culture; Look at context of the statement.
·         Parady and humor is usually not defamation b/c it usually exaggerates, and no one would believe the truth.

2.      Of and Concerning P:
1.         Group Defamation:
a.         Test 1: Where a publication libels some but not all people in a designated small group (25 or fewer people), individual members have a cause of action. Neiman-Marcus.
Exception: If circumstances point to P as the person defamed, action allowed. 
b.         Intensity of suspicion: specificity of the charge. 
c.         Statement must say “all,” “most,” or at bare minimum “some” of the groups members did the bad act to be defamatory.
d.         But no cause of action for generalized st4atements that the reasonable person would not construe as applying to the whole group (e.g., All members of Congress are crooks”).
E          P needs to be alive. Exception: Corp./partnership that is recognized as a legal entity, if casts an aspiration upon its honesty, credit, efficiency, and other business or moral character..          

2.         Defamation by Fiction:
a.         Test: Whether a reasonable person, reading the book, would understand that the fictional character was, in actual fact, P. acting as described. 
·         Fictional character must be so close to the real person that everyone knows who it’s based on.
·         Not all readers have to realize it was P.; it’s sufficient “publication” if only one person other than P. realizes it.
b.         For the fictional statement to be defamatory, there must be:
·         Identification that the character is based on P., and
·         Reasonable audience believing P. would really act that way.

3.      Publication:
1.         Defined: Any communication of defamatory words to someone other than the person defamed. At least one person has to hear and understand the words for there to be publication. Communications to a third person must be intentional

s Comms.
·         Also have to prove that the statement is false.
·         NYT v. Sullivan can apply anytime there’s a 1st Amend. speech interest to be protected. E.g., Hustler v. Falwell, holding that public officials/figures can’t recover for i.i.e.d. without showing actual malice.
b.         Public officials: People whom the public has some reason to be concerned with their job performance.
c.         Public figures: People who are well-known: Two main types:
·         Person with celebrity status: A public figure for all purposes, b/c everything about them is of interest.
·         Person who interjects himself into a dispute of public concern: A public figure for that matter only.

2.         Non-Public Plaintiff:
a.         Statement is about a “matter of public concern:”
·         To recover at all, individual must prove the statement is false. Philadelphia Newspapers, Inc.
·         To recover compensatory damages: Individual can recover for negligent publication. Gertz.
·         To recover presumed or punitive damages: Individual can only recover if he can show actual malice. Gertz.
b.         Statement is not about a “matter of public concern:”
·         Can recover compensatory, presumed, AND punitive damages for negligent publication, without a showing of actual malice. Dun & Bradstreet.

3.         Repetition of Defamation:
a.         An individual can be held liable for repeating defamation if he repeats it with actual malice.
b.         Reporter’s Privilege: 
·         A reporter can repeat allegations made at a public meeting, even if he knows the allegation is false, as long as the repeating is verbatim or a “fair and accurate summary” of what was said.  Does not apply to private meetings of public entities or any meetings of private entities.
·         Exception: Reports of pleadings: Pleadings, until answered, are not within the reporter’s privilege.

5.      Damages:
1.         Money damages are the rule.
2.         Factors that mitigate damages:
a.         Provocation (mitigates punitives, but not actual damages);
b.         A “libel-proof P.:” P. whose reputation is so terrible you couldn’t say anything that would damage it further.
c.         Incremental harm doctrine: If there’s an article about someone that’s mostly true, but damaging to reputation, if the truthful part is so damaging the false part wouldn’t make a difference.