Overview of
Defamation
Tom J. Cafferty
Before NY Times Co. v. Sullivan
(1964)
Three elements were necessary to establish a libel
cause of action at common law:
1. Defamatory words
2. The words must be of and concerning
plaintiff
3. Publication to third parties
Public Official/ Public Figure


Public Person: Official
or figure – must prove
constitutionally defined
“actual malice”
Private Person: Need
only show “fault”
[negligence] in
publishing the
defamatory falsehood
Public Official

NY Times v. Sullivan
(1964) First Amendment
bars a state from awarding
a “public official” damages
for a defamatory falsehood
relating to his official
conduct unless the
falsehood was published
with “actual malice” --- with
knowledge that it was
false or with reckless
disregarding of whether it
was false or not.
Rosenblatt v. Baer (1966)

Definition of “public
officials.” “Public Official”
designation must apply to
“those among the
hierarchy of government
employers who have, or
appear to the public to
have, substantial
responsibility for or control
over the conduct of
governmental affairs.”
Crucial factor



Individual’s apparent ability, because of his
relationship with government, to influence
the outcome of public affairs.
High rank or title is not in itself
determinative.
Position must be one which invites public
discussion apart from that resulting from
“the particular charges” in controversy.
Gertz v. Robert Welch (1974)


In dictum, Court provided
reason for holding public
officials to the New York
Times standard:
“An individual who decides
to seek governmental
office must accept certain
necessary consequences
of that involvement in
public affairs. He runs the
risk of closer public
scrutiny than might
otherwise be the case.”
Hutchinson v. Proxmire (1979)


In dictum, Court stated public officials category cannot be
thought to include all public employees.
The Court in Rosenblatt made clear the "public official" issue
is one for the court, not the jury, to resolve: [I]t is for the trial
judge in the first instance to determine whether the proofs
show [the plaintiff] to be a 'public official.'" The Court
reasoned that judicial resolution of the "public official"
question "will both lessen the possibility that a jury will use
the cloak of a general verdict to punish unpopular ideas or
speakers, and assure an appellate court the record and
findings required for review of constitutional decisions."
Curtis Publishing Co. v. Butts (1967)

“Private” individuals
may become
intimately involved in
the resolution of
important public
questions.
Curtis Publishing Co. v. Butts (1967)

“Private” individuals
may, because of their
fame, shape events in
areas of concern to
society at large --“play an influential role
in order society.”
Curtis Publishing Co. v. Butts (1967)

Public figures have
access to mass media
(as public officials do)
both to influence
policy and to counter
criticism.
Gertz v. Robert Welch, Inc. (1974)

The “pervasive-fameor-notoriety public
figure” who becomes a
public figure for all
purposes and in all
contexts.
Gertz v. Robert Welch, Inc. (1974)

The “limited purposed
public figure” (“vortex
public figure”) who
attains public figure
status become of
involvement in a
controversy --- status
is only within the limits
of that controversy.
Time Inc. v. Firestone (1976)

Involvement in
litigation (divorce
proceeding) is not
alone sufficient to
confer “limited
purpose public figure”
status – must look to
who the participants
are and their position.
Hutchinson v. Proxmire (1979)

Scientist was not
“limited purpose public
figure” for purposes of
criticism of his
federally funded
research.
Rebozo v. Washington Post Co.
(5th Cir. 1981)

Bebe Rebozo held to be
public figure based upon
his demonstrated access
to the media and his
activities – his relationship
with President Nixon
thereby making Rebozo “a
prime subject of public
comment.”
Time & Effect on Public Figure Status

1. A news account or historical commentary that
relates to the source of the person's prior fame or
notoriety receives the protection of the Sullivan
standard, however removed in time the
publication is from the peak of fame or notoriety so long as the plaintiff's original conduct or the
forces underlying his fame have in fact been
continuing public interest.
[Brewer v. Memphis_Publ. Co., 626 F.2d 1238
(5th Cir. 1981)].
Time & Effect on Public Figure Status

When the plaintiff's original "public figure"
status stemmed from participation in
controversy, he remains a "public figure" for
purposes of later publications relating to that
particular controversy - so long as the public
maintains an independent interest in that
controversy. [Street v. National Broadcasting
Co., 645 F.2d 1227 (6th Cir. 1981)].
Actual Malice Standard

New York Times v. Sullivan (1964)
The decision denies recovery to public
officials for defamation, except when they
can prove that the defamatory statement at
issue was published with "'actual malice' that is, with knowledge that it was false or
with reckless disregard of whether it was
false or not.”
Actual Malice Standard

Garrison v. Louisiana (1964)
The Court reiterated that "only those false
statements made with high degree of
awareness of their probable falsity
demanded by Sullivan may be the subject
of either civil or criminal sanctions."
Actual Malice Standard

Beckley Newspapers Corp. v. Hanks
(1967)
Publication "with bad or corrupt motive" or
"from personal spite, ill will or a desire to
injure plaintiff" does not rise to the level of
constitutional "actual malice."
Actual Malice Standard

St. Amant v. Thompson (1968):
[R]eckless conduct is not measured by whether a
reasonably prudent man would have published, or
would have investigated before publishing. There
must be sufficient evident to permit the conclusion
that the defendant in fact entertained serious
doubts as to the truth of his publication.
Publishing with such doubts shows reckless
disregard for truth or falsity and demonstrates
actual malice.
Actual Malice Standard

Time, Inc. v. Pape (1971):
Misinterpretation of official documents does
not constitute actual malice.
Actual Malice Standard

Bose Corp v. Consumers Union (1984)
Inaccurate description of what defendant
perceived does not amount to actual
malice.
Actual Malice Standard

Harte-Hanks Communications v.
Cinnaughton:
“Extreme departure” from journalistic
standards by itself could not support a
finding of actual malice.
Evidence


Plaintiff must prove actual malice by "clear and convincing
evidence."
Bose Corp. v. Consumers Union (1984). The question
whether the evidence in the record in a defamation case is of
convincing clarity required to strip the utterance of First
Amendment protection is not merely a question for the trier of
fact. Judges, as expositors of the Constitution, must
independently decide whether the evidence in the record is
sufficient to cross the constitutional threshold that bars the
entry of any judgment that is not supported by clear and
convincing proof of actual malice.
Evidence

Anderson v. Liberty Lobby. (1986). [W]e
conclude that the determination of whether a
given factual dispute requires submission to a jury
must be guided by the substantive evidentiary
standards that apply to the case...Thus, where the
factual dispute concerns actual malice, clearly a
material issue in a New York Times case, the
appropriate summary judgment question will be
whether the evidence in the record could support
a reasonable jury finding either that the plaintiff
has shown actual malice by clear and convincing
evidence or that the plaintiff has not.
New Jersey Standard

The NJ Supreme Court in Sisler v.
Gannett Company (1986), held that
an individual who was neither a public
official nor a public figure would
nonetheless be required to
demonstrate actual malice where that
private person, possessing sufficient
experience, understanding and
knowledge entered into a personal
transaction or conducted his/her
personal affairs in a manner that one in
such a position would reasonably
expect would generate public interest.
Private Individuals
In Gertz v. Welch (1974), the Supreme Court
delegated to the States the responsibility to define
"the appropriate standard of liability" applicable to
the publisher of a defamatory falsehood injurious
to the reputation of a private individual, "so long
as they do not impose liability without fault." In
order to establish that defendant breached some
standard of care in publication of the defamatory
material it necessarily follows that a private
individual plaintiff must initially establish falsity of
that material.
Private Individuals
There can be no legal fault for libel based
upon publication of truthful material,
however defamatory.
A private individual libel plaintiff is also
required to carry the burden of proof to
prove falsity of the published material when
the publication at issue is of public concern.
Common Law

Gertz v. Robert Welch.
"Under the First Amendment there is no
such thing as a false idea. However
pernicious an opinion may seem, we
depend for its correction not on the
conscience of judges and juries but on the
competition of other ideas."
Common Law

Re Yagman (9th Cir. 1986)
"...since an opinion is protected because it
cannot be false and a statement is not
actionable defamation unless it is false, 'an
opinion is simply not actionable
defamation.'"
Common Law

Milkovich v. Lorain Journal Co. (1990):
"[E]ven if the speaker states the facts upon which he bases
his opinion, if those facts are either incorrect or incomplete,
or if his assessment of them is erroneous, the statement may
still imply a false assertion of fact. Simply couching such
statements in terms of opinion does not dispel these
implications....“
However, "statement[s] of opinion relating to matters of public
concern which [do] not contain a provably false factual
connotation" are privileged, as are statements that "cannot
'reasonably [be] interpreted as stating actual facts' about an
individual."
Absolute Privilege
Absolute privilege is granted to
persons involved in judicial
proceedings. This privilege
extends not only to the
participants involved, but also
to the media which accurately
republishes judicial
proceedings. "The privilege
covers anything that may be
communicated in relation to
the matter at issue, whether it
be in the pleadings, in
affidavits or in open court."
Absolute Privilege
Absolute privilege is also accorded to members of legislative bodies for
defamatory statements made in the performance of their duties and to the
publishers of such statements. The constitution provides, under the so-called
"Speech and Debate Clause," that "for any Speech or Debate in either House,
they shall not be questioned in any other Place." This immunity extends to
members of Congress testifying at legislative hearings, but not to defamatory
statements made by a member of Congress in newsletters and press releases
or in other such non-legislative communications.
Absolute Privilege

Absolute immunity and
privilege is also extended to
chief executive officers of the
federal, state, and local
governments during the
discharge of their duties. This
privilege encompasses all
publications and utterances
within the "outer perimeter" of
the "line of duty," even
including defamatory press
releases concerning public
actions of government
employees.
Absolute Privilege


Absolute privilege is available to a publisher who
publishes defamatory material with the plaintiff's
informed consent. Of course, consent to
publication in one form cannot be presumed to
authorize publication in some other form.
Guarantees a considerable degree of protection
to those who diligently require their writers to
obtain proper releases whenever possible from
individuals about whom the publication of
potentially defamatory material is contemplated.
Qualified Privileges


The Privilege of Reply or Statements of
Self-Interest
Reporter’s Privilege to Publish Fair Reports
of Official Proceedings
Reporter’s Privilege to Publish Fair
Reports of Official Proceedings
"[I]n a society in which each individual has but limited time
and resources with which to observe at first hand the
operations of his government, he relies necessarily upon the
press to bring to him in convenient form the facts of those
operations. Great responsibility is accordingly placed upon
the news media to report fully and accurately the proceedings
of government, and official records and documents open to
the public are the best data of government operations...With
respect to judicial proceedings in particular, the function of
the press serves to guarantee the fairness of trials and to
bring to bear the beneficial effects of public scrutiny upon the
administration of justice."
Qualified Privileges




The Privilege of Reply or Statements of
Self-Interest
Reporter’s Privilege to Publish Fair Reports
of Official Proceedings
Public Interest
Common Interest
Common Interest

"[A] communication made by a person with
an interest or duty to make the
communication and sent to a person with a
corresponding interest or duty is protected
by a qualified privilege, even though
without the privilege the communication
would be 'slanderous and actionable.'"
Weldy v. Piedmont Airlines (2nd Cir.
1993).
Qualified Privileges






The Privilege of Reply or Statements of
Self-Interest
Reporter’s Privilege to Publish Fair Reports
of Official Proceedings
Public Interest
Common Interest
Interest of Recipient or Third Person
Neutral or “Balanced” Reportage
Neutral or “Balanced” Reportage



The Second Circuit in Edwards v. National
Audubon_Society, (2nd Cir. 1977) recognized a new
privilege. This privilege is generally referred to as the
doctrine of "neutral reportage."
Protects a publisher from liability for its republication of
defamatory statements made by a responsible, prominent
person or organization about a public official or public figure,
provided the subject statements are of public concern and
have been reported accurately and disinterestedly.
What is newsworthy in the republication of such statements is
not their truth or falsity, but the fact that they were made.
Damages



Presumed damages
Compensatory damages
Punitive damages
Presumed Damages

"The common law of defamation is an oddity of
tort law, for it allows recovery of purportedly
compensatory damages without evidence of
actual loss. Under the traditional rules pertaining
to actions for libel, the existence of injury is
presumed from the fact of publication. Juries may
award substantial sums as compensation for
supposed damage to reputation without any proof
that such harm actually occurred."
Presumed Damages

"For the reasons stated below, we hold that
the States may not permit recovery of
presumed or punitive damages, at least
when liability is not based on a showing of
knowledge of falsity or reckless disregard
for the truth."
Presumed Damages

Dun & Bradstreet v. Greenmoss Builders
(1985) Supreme Court held that the Gertz
restrictions on the availability of presumed
damages do not apply to all speech. Because
there is a "reduced constitutional value [in]
speech involving no matters of public
concern," presumed and punitive damages
may be awarded "even absent a showing of
'actual malice.'"
Compensatory Damages

The Supreme Court held in Gertz, supra:
"Suffice it to say that actual injury is not limited to out-ofpocket loss. Indeed, the more customary types of actual
harm inflicted by defamatory falsehood include impairment of
reputation and standing in the community, personal
humiliation and mental anguish and suffering. Of course,
juries must be limited by appropriate instructions, and all
awards must be supported by competent evidence
concerning the injury, although there need be no evidence
which assigns an actual dollar value to the injury."
Compensatory Damages



Impairment of reputation in the community
Mental anguish or emotional distress
Special damages, i.e. out-of-pocket
monetary expenses or losses, such as
medical bills or loss of income
Punitive Damages

The Supreme Court in Gertz also precluded state
courts and federal courts from submitting to libel
juries the issue of punitive damages, unless there
is adequate trial proof in support of the existence
of constitutional actual malice, i.e. actual
knowledge of falsity or reckless disregard of
probable falsity. The constitutional bar to punitive
damage awards not founded upon evidence of
actual malice was applied to all libel plaintiffs,
public officials, public figures and private
individuals.