Select Page

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

Torts II Outline – Summer 2008
Professor Westerbeke

Defamation

1) Defamation Generally – Statements made that are damaging to a Plaintiff’s reputation under the form of libel or slander – does not have to be actually believed, but if it were that reputation would take a hit.
a) Old definition: anything that would make the P “shunned or avoided”
b) Pity has been added to the definition, anything that would make a person pity the P
c) Libel v. Slander
i) Factors to determine whether Libel or Slander:
(1) Area of Dissemination
(2) Character of Publication(Premeditated or not)
(3) Persistence(Permanence) of Defamation.

ii) Libel – false and unprivileged publication which exposes a person to distrust, hatred, contempt, ridicule, obloquy that is the proximate cause of the person’s injury.
(1) Libel – Pictures, signs, statues, movies, implication.
(a) Visual, communication having qualities of printed word.
(2) Judge-Jury Roles
(a) Judge either:
(i) determines if definitively defamatory if there can only be one interpretation and it is unambiguous.
(ii) if not definitive, and can be interpreted multiple ways, Judge decides what statement is allegedly defamatory.
(b) Jury looks at judge determined defamatory language and then determines if the statement is defamatory if there are two meanings one that is defamatory and one that is not.
(c) Belli v. ODN
(i) Two meanings possible, question for Jury. “Taken” – smart v. crooked
(ii) Common Mind Test – a reasonable reading of the published statements should determine if defamatory
1. Criticism: Some defamatory statements may not be understood(internal jokes)
(d) Grant v. Reader’s Digest
(i) The defamation can take place even if P’s reputation is harmed within only a certain segment of the population, most people do not need to draw an adverse opinion of the P. (Disgrace to that Group and a Respectable Group (not Criminals)).
(3) Libel Per Se – Libel is implied to be damaging b/c of permanent written form.
(4) Libel Per Quod – extrinsic facts need to be known to understand as libelous, some cts. require for showing of damages
(a) Ex. “burning down your own barn” (need to know insurance was taken on it)

iii) Slander – an oral statement that is defamatory
(1) Generally need to show special damages to be able to collect damages from slander
(a) Television and Radio statements ad-libbed considered slander now. Off a script = libel
(i) Shor v. Billingsley – Ad-libbed statement made on TV found to be libel b/c permanence and spread of statement, old rule.
(b) Special Damages – something of an economic or pecuniary nature
(i) Terwilliger v. Wands – special damages have to be one that damages a person’s reputation not that it mentally distressed an individual like in this case
(ii) Special damages strictly economic in nature now
(iii) After Special Damages proven, other claims like mental distress can be brought

(c) Slander Per Se – slander that is actionable w/o proof of damages.
(i) Time- Warped (Must have special damages)?
1. Loathsome Disease – Diseases which would create a shunning(Leprosy/Venereal Disease), not very likely now, but some application (Aids/Herpes)
2. Serious Sexual Misconduct – Imputation of sexual activity by women, not as prevalent b/c freedom and equality. Gay could be depending if sodomy is illegal in the state.
(ii) Not Time-Warped
1. Serious Crime – Major crimes that involved Moral Turpitude
a. Moral turpitude – things that character of act vile/wrongful
i. “beating mother” v. “beating another”
2. Business/Trade/Profession or Office – words that would damage reputation of the person’s occupation, ex. a chauffeur that drinks a lot

2) Elements of Defamation
a) A false and defamatory statement made by defendant.
i) The defense of truth will defeat a claim under this element
(1) Killian v. Doubleday
(a) Substantial truth will defeat a claim of false and defamatory statement.
(i) Facts that will not necessarily change how others would view the person in the light of the defamatory statements made
1. Theoretically = robbing one bank v. another shouldn’t but has been found not substantially true. Stealing 4 watches v. 5 watches.
(ii) Blocking truth b/c of defamatory is found to violate 1st amendment.

b) “Of and Concerning” the Plaintiff
i) The defamatory remarks have to be about or concerning the P who brings the action
(1) Who can be Defamed?
(a) Living people, even a baby – Dead cannot be defamed but defaming the dead may lead to defaming the living.
(b) Corporations – Can be defamed for things easily addressable to Corporation
(i) Fraudulent, Tainted/Defective Goods, Corporate behavior
(ii) NOT: Unchastity, things not possible for a company.
(c) Groups
(i) Only groups that are all-inclusive and small can be defamed.
1. Neiman Marcus v. Lait
a. Saleswoman group of 325 too large to be “of and concerning”
2. The Smaller the group the more believable
a. Most Cts. have found 25 people and less
b. Depends on the sting that could be felt personally in the group
i. “All” is clear
ii. “Most” – “Some” is possible depending on the circumstances
iii. “One” – not good enough, doesn’t specify who(even if only two ppl).
(ii) Defamation for Groups of People generally not good enough, actions for groups elsewhere.
(2) Defamatory r

performs activities of the public concern.
(i) Assumption of Risk – sought out position, should understand criticism comes w/ it
(ii) Sedition Case – criticism of government should not be estopped.
(c) Public Figures – same rules of actual malice apply.
(i) General Celebrity – President’s Family, Paris Hiltion, etc.
(ii) People who interject themselves into the public concern by influencing an outcome
(d) Burden of Proof on Malice – High
(3) Actual Malice – not ill-will, but that the P published with knowledge of the falsity or reckless disregard to the truth.
(4) Reckless Disregard = (subjective) evidence that D having serious doubts as to the truth of his publication. Reckless can be found if the circumstances show obvious questionability of the information received prior to publishing.
(a) St. Amant v. Thompson – D in fact entertained serious doubts as to the truth of his publication – obvious reasons to doubt veracity, talk show host didn’t know what was said was false by looking at the record
(i) Case by Case Analysis – Subjective standard
(ii) Role of Ct. to find if jury finding is ok by looking at the record.
(b) Harte-Hanks – Article claiming P used “dirty tricks” while trying to run for office, Purposeful avoidance of truth can meet subjective standard of reckless disregard, should have looked at tapes, verify facts from evidence shows reckless disregard.
(i) Headlines could be enough to defame an individual
(5) Private Person in a Public Matter – Gertz
(a) Person is not a public figure once they become part of a Public Matter
(b) Defamation against a private person (in a public matter) must also show more than just strict liability, at least negligence.
(i) Presumed or punitive damages are not available unless actual malice/reckless disregard for truth(for public matters)
(c) States are given latitude on what culpability necessary to fulfill scienter element.
(6) Private Person in a Private Matter – Dun and Bradstreet
(a) May not have to show negligence if a private person in a private concern, Gertz was a private person in a public concern but most likely still have to show negligence