#1
Free Speech and Civil Liability for Defamation Under U.S. Law
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lMasaryk University, March 2012
lBrno, Czech Republic
lVincent R. Johnson

#2
Course Goals
1)Knowledge of substantive rules and acquaintance with the legal topography
2)Facility with the interplay of law and fact
3)Understanding of how tort law changes
4)Appreciation of the relationship between common law and statutes
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lFocus:  Rules, Process, Policy

#3
Four Categories of Tort Liability
lLiability based on Fault:
vIntentional Torts
vRecklessness
vNegligence
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lLiability without Fault:
vStrict Liability

#4
Liability Based on Fault
lIntentional Injury:
vPurpose – subjective desire to cause a forbidden result
vKnowledge – “substantial certainty” that a forbidden result will occur
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lRecklessness:
vSubjectively defined:  conscious disregard of a serious risk
vObjectively defined:  risk totally disproportionate to utility
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lNegligence:
vConduct posing an unreasonable risk of harm

#5
Consequences of Classification:
lThe classification of a tort as intentional,
lreckless, negligent, or strict liability has a
lbearing on:
a)Scope of Liability
b)Punitive Damages
c)Defenses
d)Respondeat Superior
e)Insurance
f)Immunities
g)Worker’s Compensation
h)Statutes of Limitation
i)Bankruptcy

#6
Defamation:
Elements
1.A false and defamatory communication about P
2.Culpable publication to the third person who understands
3.Fault as to falsity (depending on status of P)
4.Proof of damages (unless statement warrants presumed damages)

#7
Truth v. Falsity
lThere must be a provably false assertion of fact
lUnbelievable statements are not actionable
lA statement that is substantially true is not actionable
lPure opinions which do not imply facts are not actionable

#8
Opinions and Implicit Assertions of Fact
lConsider:
lType of language used
–Extreme language rarely is “factual”:
lMeaning of statement in context
–Did the word only denote anger?
lVerifiability
lCircumstances
–Front page versus blogger’s rant
lWhether the factual basis for the opinion was already disclosed

#9
When is a Statement Defamatory?
lMust reflect on P’s personal character
lMust carry sting  of disgrace
lNeed only defame P in the eyes of some not anti-social segment of the community
lSome statements are defamatory “as a matter of law,” some as a “matter of fact”

#10
Pleading Defamation
lIf it is not otherwise clear, plaintiff must plead and prove:
lColloquium (reference to P)
lInducement (surrounding facts)
lInnuendo (defamatory meaning)

#11
Two Kinds of Defamation
lLibel:  Written defamation
lSlander: Oral defamation
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lThis is sometimes important in determining whether P must prove damages

#12
About the Plaintiff:
Group Defamation
lIn determining whether the statement defames this plaintiff, consider:
lSize of group
lInclusiveness of language
lExtravagance of charge
lSpecial circumstances
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#13
Culpable Publication
l“Publication” is a term of art meaning communication to someone other than P who understands
l“Culpability” means that the matter must be communicated intentionally, recklessly, or negligently
by D
lD is ordinarily not liable for P’s  repetition of D’s statements
lRepetition by D is publication
lPublication starts the running of the statute of limitations

#14
Publication:
Single-Publication Rule
lEach edition or other aggregate communication (e.g. DVD, webposting) gives rise to just one cause
of action subject to one statute of limitations
lA new edition is a new publication, but only significant changes to a website is a new publication

#15
The First Amendment
lProhibits Congress (and the States) from abridging freedom of the speech or of the press
lThis imposes limits on defamation actions

#16
Reconciling the First Amendment with Defamation Principles
lRequirements (3) and (4) have changed
–No strictly liabilty for false statements (3)
lTruth is no longer a defense; P must prove falsity
–Ps must now h prove damages in a wider range of cases (4)
lPunitive damages are also limited

#17
The 1964 Landmark Case:
New York Times v. Sullivan
lThere is a profound national commitment to the principle that debate on public issues should be
uninhibited, robust and wide-open
lErrors must be protected to allow “breathing space” for free expression
lPermitting merely a defense of truth will  deter more than false speech
lA public official, suing with respect to statements about official conduct, must prove “actual
malice”:  that D acted with knowledge of falsity or reckless disregard for the truth

#18
Actual Malice Defined
lIs a state of mind about truth or falsity
lMeans knowledge of falsity or reckless disregard for the truth
lRequires a high degree of awareness of probable falsity
–This is a subjective test for recklessness
–D must in fact have entertained serious doubts about the truth of the publication
lMust be distinguished from both common-law malice (spite, ill-will, vindictiveness) and mere
carelessness (negligence)

#19
Actual Malice is Very Hard to Prove
lIs not established by mere:
lLack of personal knowledge
lLack of information of about veracity of source
lFailure to verify information or retract
lIgnorance that liability can be based on a quote
lFailure to discuss allegation with P
lFailure to present an objective picture
lFailure to search files
lSloppy or speculative reporting that is an extreme departure from professional standards
lEvidence of a motive for publishing the falsehood
lProof of hatred, enmity, or desire to injure

#20
Evidence of Actual Malice
lMay be established by
–Deliberate falsification
–Fabrication
–Reliance on a wholly anonymous call
–Allegations that are inherently improbable or open to doubt for obvious reasons
lMust be established by clear and convincing evidence
lIs subject to de novo review
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#21
How Far Does the Actual Malice Requirement Extend?
lNYT v. Sullivan (1964)
lPublic officials must prove actual malice
lCurtis v. Butts
lPublic figures must prove actual malice
lRosenbloom v. Metromedia (1973)
lActual malice must be proved in all cases involving matters of public concern
lGertz v. Robert Welch (1975)
lRepudiates Rosenbloom
lPrivate figures suing with respect to matters of private concern must prove at least negligence
lAbsent actual malice, damages are limited to “actual injury” and presumed and punitive damages may
not be recovered
lDun & Bradstreet v. Greenmoss Builders (1985)
lPresumed damages may be recovered in cases involving matters of private concern
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#22
Today: 3 Categories
l(1) Public officials and public figures suing with regard to their conduct, fitness, or role in
that capacity
–Must show actual malice
–May recover presumed/punitive damages
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l(2) Private persons suing with regard to matters of public concern
–Must prove at least negligence as to falsity (states may set standard higher)
–Recovery is limited to “actual injury” (including emotional distress) unless actual malice is
shown, in which case presumed and punitive damages are available
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l(3) Any person suing with respect to a matter of private concern
lUnclear whether fault as to falsity is required
lPresumed/punitive damages may be awarded without proof of actual malice

#23
Defamation:
Public Officials Defined
lNot all public employees are public officials
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lThe issue is whether the position in government has such apparent importance that the public has
an independent interest in the qualifications of the person who holds the position, beyond the
general public interest in the qualifications and performance of all government employees.

#24
Defamation:
Public Figures Defined
lThis category includes those who have:
lAchieved notoriety because of their achievements
lSuccessfully sought public attention
lThrust themselves to the forefront of public controversies to influence their outcome
lInvoluntary public figures
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#25
Defamation:
Private Persons
lOne is not a public figure merely because one:
lIs a lawyer
lIs active in the community
lParticipates in litigation in which the public is interested
lHolds a press conference
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#26
Traditional:
Presumed Damages
lTraditionally, presumed damages without proof of actual loss could be recovered for:
lAll libel (libel per se)
–In some states, only libel defamatory on its face of P or libel within the court slander per se
categories
lFour types of slander (slander per se)
–Major crime
–Incompetence in business, trade, or profession
–Loathsome disease
–Serious sexual misconduct
lNYT (1964) & later cases impose limits on presumed damages

#27
Defamation:
Relationship to Other Torts
lThe constitutional protections that have evolved in defamation actions cannot be circumvented by
changing the name of the tort
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lHustler v. Falwell:                                           A publication about a public
official/figure cannot support an outrage action unless it contains a false assertion of fact
uttered with actual malice

Communications Decency Act
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lNo provider or user of an interactive computer service shall be treated as the publisher or
speaker of any information provided by another information content provider.
#28

Subpoenas to Force Disclosure of Identity
lUnder various tests, a motion to quash will be granted unless
–D is acting in good faith
–Balance of equities weighs in favor of D
–D can survive motion to dismiss or motion for summary judgment
–D makes a prima facie showing of defamation
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#30
Defamation:
Libel-proof Plaintiff Doctrine
lWhere reputation is so bad that only nominal damages could be awarded, the court need not
entertain the action
lConsider:
–Anti-social nature of P’s prior conduct
–Number of prior offenses
–Degree and range of publicity give to prior conduct
–Whether guilt was previously adjudicated

#31
Defamation:
Absolute Privileges
lProvide immunity without regard to the publisher’s motives or the reasonableness of the
publisher’s conduct
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lSix main categories:
–Judicial proceedings
–Legislative proceedings
–Executive communications
–Spousal communications
–Communications required by law
–Consent

#32
Defamation:
Qualified Privileges
lWill arise whenever there is good reason to permit the communication or conduct in question.
Consider
–The relationship between publisher and recipient
–Whether the information was requested or volunteered
–Whether the conduct sought to respond to a serious risk of harm that could be prevented
–Whether P wrongfully provoked D’s communication or conduct
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lAre lost by:
–Excessive publication
–Improper motives
–Actual malice (in some states, negligence)
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#33
Defamation:
Reporter’s Privilege
lThe publication of defamatory matter is privileged if it is:
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lContained in the report of an official action or proceeding or a meeting open to the public on a
matter of public concern, AND
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lFair and accurate
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lR2T 611