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

TORTS II OUTLINE FALL 2006
I.            DEFAMATION
A.        ELEMENTS/ REQUIREMENTS
1.            Initially requirement of special damages (for slander); libel arose with the printing press; originally criminal- didn’t have to be false- idea govt. had right to suppress thoughts or ideas that were negative to the govt.
2.            When it filtered into civil law, defamatory statements had to be false in either written or permanent form (libel)
3.            Transitory, temporary in nature- slander
4.            Dichotomy between slander and libel remains
5.            With libel- concern in favor of free speech; great distaste for suppressing sedition
6.            Elements of Defamation
            a.            A false and defamatory statement made by D
            b.            “of and concerning” P.
            c.            Publication to a third person.
            d.            Scienter (D’s knowledge or appreciation of falsity).
            e.            Damage to P’s reputation.
7.            Absolute privileges- even though I knew it was false, still wouldn’t be held liable
8.            Conditional privileges- so long as you don’t abuse the privilege you would be protected
 
B.            NATURE OF A DEFAMATORY STATEMENT
1.            A defamatory statement is one that would lower you in the esteem of others; more modern line of cases have expanded it to something that might include pity (element of shunning)
            Belli v. Orlando Daily Newspapers, Inc. p. 830
a.            When is it defamatory?
1).            Exposes a person to distrust, hatred, contempt, ridicule, or obloquy, that lowers others’ opinion of him or her
b.            Role of Judge and Jury-
1)            Judge- decides whether the comment is capable of communicating a defamatory meaning. Court gets to make the determination.
2)            Jury- decides which meaning was in fact understood by the readers- in the common mind, how would it be understood?
àProblem: words have multiple interpretations
 
2.            If there is any significant segment of society in the very broad mainstream that would think less of the P, then that part of the cause of action would be satisfied and will treat it as defamatory Grant v. Reader’s Digest, p. 834 (Artic

have burden to prove falsity
 
4.            If statement is defamatory but true, there is no liability for the civil tort of defamation
                       
5.            Group defamation/libel- generally, the larger the group, less likely that the sting of the comment about the group as a whole would cause damage to an individual Neiman Marcus v. Lait, p. 841 (USA Confidential- alleged that the models were call girls; sales girls- cheaper; male workers- homosexuals)
a.            Used to fight back against hate speech; not really upheld today
b.            some ambivalence in the courts on a less than all-inclusive statement
c.            Footnote 2 page 843- example of older line
d.            Modern trend- referring to some or most or many of a very small group, possibly a cause of action
e.            Group size- magic number is 25; sometimes a little larger
6.         Who can be defamed?