Defamation
Torts II
Dr. Steiner
Good name in man and woman, dear my lord,
Is the immediate jewel of their souls:
Who steals my purse steals trash; 'tis
something, nothing;
'Twas mine, 'tis his, and has been slave to
thousands;
But he that filches from me my good name
Robs me of that which not enriches him
And makes me poor indeed.

William Shakespeare, Othello
Defamation




Injury to Reputation
Slander
Libel
General requirements



Defendant publishes to third party
Defamatory statements
Of and concerning plaintiff
Restatement 2d Torts § 559.
Defamatory Communication Defined

A communication is defamatory if it tends
so to harm the reputation of another as to
lower him in the estimation of the
community or to deter third persons from
associating or dealing with him.
Restatement 2d Torts § 559, cmt b.

Communications are often defamatory because
they tend to expose another to hatred, ridicule or
contempt. A defamatory communication may tend
to disparage another by reflecting unfavorably
upon his personal morality or integrity or it may
consist of imputations which, while not affecting
another's personal reputation, tend to discredit his
financial standing in the community, and this is so
whether or not the other is engaged in business
or industry.
Restatement 2d Torts § 559, cmt c.

A communication may be defamatory of
another although it has no tendency to
affect adversely the other's personal or
financial reputation. Thus the imputation of
certain physical and mental attributes such
as disease or insanity are defamatory
because they tend to deter third persons
from associating with the person so
characterized.
Belli v. Orlando Daily Newspapers




False statement?
Libel per quod
Libel per se
Court’s role and jury’s
role
De mortuis nil nisi bonum
 Do
not speak ill of the dead.
 But if you do, don’t worry about a
defamation suit.
Problem 1

Red Paper Issues Election
Extra
The San Francisco People's World,
recognized throughout the state as
the mouthpiece of the communist
party, distributed a last-minute
extra edition in Oakland yesterday,
on the eve of the city election. . . .
The Communist-line paper . . .
printed a list of recommendations
which included the names of
council candidates John F. Quinn,
John W. Holmdahl, and Dr. Grover
H. MacLeod.
Problem 2
Problem 3
Rice v. Simmons, 2 Del. (2 Harr.)
417, 429 (1838)

That mere general abuse and scurrility,
however ill-natured and vexatious, is no
more actionable when written than spoken,
if it do not convey a degrading charge or
imputation. Against all such attacks, a man
needs no other protection than a good
character; and the law will not suppose that
damage can happen to such a character
from the pointless arrows of mere vulgarity.
Problem 4
Problem 5
Problem 6
Neiman-Marcus v. Lait
Neiman-Marcus v. Lait
Neiman-Marcus v. Lait


Group libel
Precedent



Four coroners, twelve doctors, a posse, and
twelve radio editors
All officials of a state-wide union, all D.C.
taxicab drivers, all D.C. parking lot owners,
members of a clan
Neiman Marcus



Models?
Male sales clerks?
Female sales clerks?
Restatement 1st Torts § 564, illus. 2

A newspaper publishes the statement that
some member of B's household has
committed murder. In the absence of any
circumstances indicating that some
particular member of B's household was
referred to, the newspaper has defamed
each member of B's household.
Problem 1
Salomone v. Macmillan Pub. Co., Inc.,
411 N.Y.S.2d 105 (N.Y.Sup. 1978)

Humor, then, may well be a defense to a
suit in libel, but the mere assertion that a
statement was meant to be funny does
not automatically absolve the utterer. . . .
What is amusing or funny in the eyes of
one person may be cruel and tasteless to
someone else. There is always a thin line
between laughter and tears. . . . Especially
is this true in dealing with parody and
satire.
Salomone v. Macmillan Pub. Co., Inc.,
411 N.Y.S.2d 105 (N.Y.Sup. 1978)

Parody, on the other hand, shuns subtlety.
Its aim is to amuse and expose by
imitating life, but larger than life. Its
essence is distortion and exaggeration.
Hence, like the warped and curved mirrors
in a carnival fun house, it depends upon
the grotesque for its effects.
Salomone v. Macmillan Pub. Co., Inc.,
411 N.Y.S.2d 105 (N.Y.Sup. 1978)

Thus, the writer resorting to parody must be
wary, for his shafts may miss the mark, and be
cruel without purpose, inflicting real hurt where
only laughter was intended.
“However desirable it may be that the readers of
and the writers for the public prints shall be
amused, it is manifest that neither such readers
nor writers should be furnished such amusement
at the expense of the reputation or business of
another.”
Restatement 2d Torts § 564, cmt d

Fictitious character. A libel may be published of an
actual person by a story or essay, novel, play or
moving picture that is intended to deal only with
fictitious characters if the characters or plot bear
such a resemblance to actual persons or events as to
make it reasonable for its readers or audience to
understand that a particular character is intended to
portray that person. Mere similarity of name alone is
not enough; nor is it enough that the readers of a
novel or the audience of a play or a moving picture
recognize one of the characters as resembling an
actual person, unless they also reasonably believe
that the character is intended to portray that person.
Restatement 2d Torts § 564

If the work is reasonably understood as portraying
an actual person, it is not decisive that the author
or playwright did not so intend…. The fact that the
author or producer states that his work is
exclusively one of fiction and in no sense
applicable to living persons is not decisive if
readers actually and reasonably understand
otherwise. Such a statement, however, is a factor
to be considered by the jury in determining
whether readers did so understand it, or, if so,
whether the understanding was reasonable.
Problem 2
Cohn v. Brecher, 192 N.Y.S.2d 877
(N.Y.Sup. 1959)

The action of slander is necessarily based
upon the words uttered and their
defamatory nature as applied to plaintiff.
From a reading or hearing of the words
noted here, one cannot conclude that they
were directed to the plaintiff alone or to
him as one of a group of persons. . . .
“An action for defamation lies only in case
the defendant has published the matter ‘of
and concerning the plaintiff.’”
Cohn v. Brecher, 192 N.Y.S.2d 877
(N.Y.Sup. 1959)

Here the words refer to one not specified
of a group of persons. Whereas it is
essential that the 'defamatory words must
refer to some ascertained or ascertainable
person, and that person must be the
plaintiff. . . . “So, if the words reflect
impartially on either A. or B., or on some
one of a certain number or class, and
there is nothing to show which one was
meant, no one can sue.”
Problem 3
Restatement 2d Torts § 564A, cmt c

Even when the statement made does not purport
to include all of the small group or class but only
some of them, as in the case of "Some of A's
children are thieves," it is still possible for each
member of the group to be defamed by the
suspicion attached to him by the accusation. In
general, there can be recovery only if a high degree
of suspicion is indicated by the particular
statement. Thus the assertion that one man out of
a group of 25 has stolen an automobile may not
sufficiently defame any member of the group, while
the statement that all but one of a group of 25 are
thieves may cast a reflection upon each of them.
Blaser v. Krattiger,
195 P. 359 (Or. 1921)

It appears in evidence without dispute that in
making the accusation in the lounging room in
the presence of the men there assembled the
defendant spoke the Swiss language. The proper
pleading in such a case is to set out the actual
words employed, together with a translation into
English, with the averment that it is the true
interpretation of the foreign language used, and
that it was so understood by those who heard it.
Blaser v. Krattiger,
195 P. 359 (Or. 1921)

The substance of the doctrine seems to be that
the defendant gave offense, if at all, by the use
of foreign language, and he must be charged
accordingly. It is necessary also to aver and
prove the English signification so as to refer the
tort to that standard of speech by which alone
causes are adjudicated in this country. Moreover,
no slander is or can be committed unless those
hearing the words used understand their
meaning. It is the impression on the mind of the
hearer which constitutes the essence of slander.
Restatement 2d Torts § 577, cmt

Communication in foreign language. A libel may
be published in a foreign language provided it is
understood by the person to whom it is
communicated. Thus to accuse another of a
crime in a foreign language is a publication if the
accusation is addressed to or overheard by third
persons familiar with the language used. So,
too, the printing of a libelous article in a
newspaper in a foreign language is sufficient
since it is presumed that the paper is
disseminated among readers familiar with the
language.
Restatement 2d Torts § 577, Illus. 2


2. A, a Lithuanian, engages in a violent
quarrel with B on the streets in the foreign
section of Chicago. In his native tongue, A
accuses B of murder. No one but B
understands him. A has not published a
slander.
3. The same facts as in Illustration 2,
except that A is overheard by several of
his countrymen. A has published a slander.
Problem 4
Watson v. Detroit Journal Co.,
107 N.W. 81 (Mi. 1906)

Trading stamp concerns are spoken of in
the first article set out in the declaration of
the plaintiff as 'the get-rich-quick industry.'
This refers to trading stamp concerns
generally, and not to any particular trading
stamp concern. In another article the
business is spoken of as 'the trading
stamp fake.' This refers to the business
generally, and not to any particular
individual.
Watson v. Detroit Journal Co.,
107 N.W. 81 (Mi. 1906)

In another article it is said: 'Mr. Hunt appreciates
the damage done to business by the trading
stamp bloodsuckers.' This refers in general terms
to the men engaged in the business, and not to
any particular person engaged therein. We then
have in this case a class of persons in Detroit
engaged in the conduct of trading stamp
concerns. A publication is made which does not
refer to all of the persons engaged in that
business in Detroit, but does refer generally to the
trading stamp concerns of that city. We think the
case stated will not sustain an action of libel.
“Veggie Libel”
Tex. Civ. Prac. & Rem. Code § 96.002


(a) A person is liable as provided by Subsection (b) if:
(1) the person disseminates in any manner
information relating to a perishable food product to
the public; (2) the person knows the information is
false; and (3) the information states or implies that
the perishable food product is not safe for
consumption by the public.
(b) A person who is liable under Subsection (a) is
liable to the producer of the perishable food product
for damages and any other appropriate relief arising
from the person's dissemination of the information.
Problem 5
Problem 6
Pring v. Penthouse Intern., Ltd.
695 F.2d 438 (10th Cir. 1982)

The charged portions of the story described
something physically impossible in an impossible
setting. In these circumstances we must
[conclude] that it is simply impossible to believe
that a reader would not have understood that the
charged portions were pure fantasy and nothing
else. It is impossible to believe that anyone could
understand that levitation could be accomplished
by oral sex before a national television audience
or anywhere else. The incidents charged were
impossible. The setting was impossible.
Pring v. Penthouse Intern., Ltd.
695 F.2d 438 (10th Cir. 1982)
The story is a gross, unpleasant, crude, distorted
attempt to ridicule the Miss America contest and
contestants. It has no redeeming features whatever.
There is no accounting for the vast divergence in
views and ideas. However, the First Amendment was
intended to cover them all. The First Amendment is
not limited to ideas, statements, or positions which
are accepted; which are not outrageous; which are
decent and popular; which are constructive or have
some redeeming element; or which do not deviate
from community standards and norms; or which are
within prevailing religious or moral standards.
Lent v. Huntoon


The confusing semantics of common-law
pleading
Defenses to defamation



Truth
Privilege
Predicate for damages


Compensatory
Punitive
Restatement 2d Torts § 577
What Constitutes Publication

(1) Publication of defamatory matter is its
communication intentionally or by a negligent
act to one other than the person defamed.
(2) One who intentionally and unreasonably fails
to remove defamatory matter that he knows to
be exhibited on land or chattels in his possession
or under his control is subject to liability for its
continued publication.
Restatement 2d Torts § 577, cmt k

There is an intent to publish defamatory
matter when the actor does an act for the
purpose of communicating it to a third
person or with knowledge that it is
substantially certain to be so
communicated.
Restatement 2d Torts § 577, cmt k

It is not necessary, however, that the
communication to a third person be intentional.
If a reasonable person would recognize that an
act creates an unreasonable risk that the
defamatory matter will be communicated to a
third person, the conduct becomes a negligent
communication. A negligent communication
amounts to a publication just as effectively as an
intentional communication.
Restatement 2d Torts § 577, Illus. 4

A and B engage in an altercation on the
street where there are a number of
pedestrians. During the course of the
quarrel, A in a loud voice accuses B of
larceny, the accusation being overheard by
a number of passers-by. A has published a
slander.
Restatement 2d Torts § 577, Illus. 5

A, a cartoonist, while working at his desk
in an office building represents B, a
member of the editorial staff, in a
ludicrous attitude. A leaves the cartoon on
his desk, where it can easily be seen by
numerous people who pass by the desk. A
stenographer subsequently sees the
cartoon. A has published a libel.
Restatement 2d Torts § 577, cmt o

The accidental communication of matter
defamatory of another to a third person is
not a publication if there was no
negligence. Thus, an act that is not
intended to communicate to a third person
matter that is defamatory and which does
not create an unreasonable risk of the
communication is not a publication.
Restatement 2d Torts § 577, Illus. 12

A writes a letter to B containing
defamatory statements about C. He puts
the letter in his desk and locks it up. A
thief breaks open the desk and reads the
letter. A has not published a libel.
Problem 1
Restatement 2d Torts § 577, Illus. 6

A writes a defamatory letter to B and
sends it to him through the mails in a
sealed envelope. A knows that B is
frequently absent and that in his absence
his secretary opens and reads his mail. B
is absent from his office and his secretary
reads the letter. A has published a libel.
Roberts v. English Mfg.,
46 So. 752 (Ala. 1908)

In the civil action for libel it is necessary to show
that the libelous matter was published by being
communicated to some third person.
Consequently a sealed letter, sent through the
mail to the person who claims to be libeled, is
not such a publication as the law requires,
unless there is evidence to show that the party
who sent it knew that some other person was in
the habit of opening letters, or that in the
ordinary course of business the contents of the
letter would come to the knowledge of some
third person.
Problem 2
Problem 2
Lewis v. Equitable Life Assur. Soc’y.,
389 N.W.2d 876 (Minn.1986)


General rule: communication of a
defamatory statement to a third person by
the person defamed is not actionable
Exception: if the plaintiff was compelled to
communicate the defamatory statement to
a third person, and if it was foreseeable to
the defendant that the defamed person
would be so compelled
Problem 3
For illicit
amatory
ventures, call
555-1234
Restatement 2d Torts § 577, cmt p

One who knows that defamatory matter is
exhibited upon land or chattels in his
possession or under his control and
intentionally and unreasonably fails to
remove it, becomes subject to liability for
the continued publication. The basis of the
liability is his duty not to permit the use of
his land or chattels for a purpose
damaging to others outside of the land.
Restatement 2d Torts § 577, cmt p

So far as the cases thus far decided indicate, the
duty arises only when the defendant knows that
the defamatory matter is being exhibited on his
land or chattels, and he is under no duty to
police them or to make inquiry as to whether
such a use is being made. He is required only to
exercise reasonable care to abate the
defamation, and he need not take steps that are
unreasonable if the burden of the measures
outweighs the harm to the plaintiff.
Restatement 2d Torts § 577, Illus. 15

A writes on the wall of the men's washroom in
B's tavern a statement that C is an unchaste
woman. B fails to discover the writing for an
hour. After he discovers it, he fails to remove it
for another hour, although he has ample
opportunity to do so. During the second hour
the writing is read by several men. B is subject
to liability for the continued publication of the
libel during the second hour, although not for
the original publication.
Hellar v. Bianco,
244 P.2d 757 (Cal.App.1952)

Persons who invite the public to their premises owe
a duty to others not to knowingly permit their walls
to be occupied with defamatory matter…. The
theory is that by knowingly permitting such matter
to remain after reasonable opportunity to remove
the same the owner of the wall or his lessee is
guilty of republication of the libel…. Republication
occurs when the proprietor has knowledge of the
defamatory matter and allows it to remain after a
reasonable opportunity to remove it.
Tacket v. General Motors Corp.,
836 F.2d 1042 (7th Cir.1987)

The Restatement suggests that a tavern
owner would be liable if defamatory graffiti
remained in a bathroom stall a single hour
after their discovery…. The common law of
washrooms is otherwise, given the steep
discount that readers apply to such
statements and the high cost of hourly
repaintings of bathroom stalls…. The burden
of constant vigilance greatly exceeds the
benefits to be had.
Problem 4
Tacket v. General Motors Corp.,
836 F.2d 1042 (7th Cir.1987)
A person is responsible for statements he makes or
adopts, so the question is whether a reader may
infer adoption from the presence of a statement.
That inference may be unreasonable for a bathroom
wall or the interior of a subway car in New York City
but appropriate for the interior walls of a
manufacturing plant, over which supervisory
personnel exercise greater supervision and control.
The costs of vigilance are small (most will be
incurred anyway), and the benefits potentially large
(because employees may attribute the statements to
their employer more readily than patrons attribute
graffiti to barkeeps).
Problem 5
Restatement 2d Torts § 581


(1) Except as stated in subsection (2), one
who only delivers or transmits defamatory
matter published by a third person is
subject to liability if, but only if, he
knows or has reason to know of its
defamatory character.
(2) One who broadcasts defamatory
matter by means of radio or television is
subject to the same liability as an original
publisher.
Restatement 2d Torts § 581, cmt d

Under the rule stated in this Section, a news dealer
is not liable for defamatory statements appearing
in the newspapers or magazines that he sells if he
neither knows nor has reason to know of the
defamatory article. The dealer is under no duty to
examine the various publications that he offers for
sale to ascertain whether they contain any
defamatory items. Unless there are special
circumstances that should warn the dealer that a
particular publication is defamatory, he is under no
duty to ascertain its innocent or defamatory
character.
Restatement 2d Torts § 581, cmt e

Bookshops and circulating or lending libraries come
within the rule stated in this Section. The vendor
or lender is not liable, if there are no facts or
circumstances known to him which would suggest
to him, as a reasonable man, that a particular book
contains matter which upon inspection, he would
recognize as defamatory. Thus, when the books of
a reputable author or the publications of a
reputable publishing house are offered for sale,
rent or free circulation, he is not required to
examine them to discover whether they contain
anything of a defamatory character.
First and Fourteenth Amendments

Congress shall make no law
respecting an
establishment of religion,
or prohibiting the free
exercise thereof; or
abridging the freedom of
speech, or of the press; or
the right of the people
peaceably to assemble, and
to petition the Government
for a redress of grievances.

No State shall make or
enforce any law which
shall abridge the privileges
or immunities of citizens of
the United States; nor
shall any State deprive any
person of life, liberty, or
property, without due
process of law; nor deny
to any person within its
jurisdiction the equal
protection of the laws.
Who’s Sullivan?
What was false in the ad?

In Montgomery, Alabama, after students sang
`My Country, ‘Tis of Thee’ on the State Capitol
steps, their leaders were expelled from school,
and truckloads of police armed with shotguns and
tear-gas ringed the Alabama State College
Campus.
Again and again the Southern violators have
answered Dr. King’s peaceful protests with
intimidation and violence. They have bombed his
home almost killing his wife and child. They have
assaulted his person. They have arrested him
seven times--for “speeding,” “loitering” and
similar “offenses.” And now they have charged
him with “perjury”--a felony under which they
could imprison him for ten years.
New York Times v. Sullivan







Did the ad hurt Sullivan’s reputation?
Was there any proof that his reputation was
damaged?
What is the New York Times and the four
clergymen’s defense under Alabama law?
What’s the issue before court?
What’s the purpose of the First Amendment?
Do public officials need “fortitude”?
“Actual malice”: What is it? Whose burden to
prove it?
“Of and concerning” Sullivan?

In Montgomery, Alabama, after students sang `My
Country, ‘Tis of Thee’ on the State Capitol steps,
their leaders were expelled from school, and
truckloads of police armed with shotguns and teargas ringed the Alabama State College Campus.
Again and again the Southern violators have
answered Dr. King’s peaceful protests with
intimidation and violence. They have bombed his
home almost killing his wife and child. They have
assaulted his person. They have arrested him
seven times--for “speeding,” “loitering” and similar
“offenses.” And now they have charged him with
“perjury”--a felony under which they could imprison
him for ten years.
New York Times v. Sullivan
(Black, concurring)
The half-million-dollar verdict does give dramatic
proof, however, that state libel laws threaten the
very existence of an American press virile enough
to publish unpopular views on public affairs and
bold enough to criticize the conduct of public
officials. The factual background of this case
emphasizes the imminence and enormity of that
threat. One of the acute and highly emotional
issues in this country arises out of efforts of many
people, even including some public officials, to
continue state-commanded segregation of races in
the public schools and other public places, despite
our several holdings that such a state practice is
forbidden by the Fourteenth Amendment.
New York Times v. Sullivan
(Black, concurring)
Montgomery is one of the localities in which
widespread hostility to desegregation has
been manifested. This hostility has sometimes
extended itself to persons who favor
desegregation, particularly to so-called
“outside agitators,” a term which can be made
to fit papers like the Times, which is published
in New York.
New York Times v. Sullivan
(Black, concurring)
The scarcity of testimony to show that Commissioner
Sullivan suffered any actual damages at all suggests
that these feelings of hostility had at least as much
to do with rendition of this half-million-dollar verdict
as did an appraisal of damages. Viewed realistically,
this record lends support to an inference that instead
of being damaged Commissioner Sullivan's political,
social, and financial prestige has likely been
enhanced by the Times' publication.
Public Figures


Rinaldi: state court judge
Curtis Publishing Co. v.
Butts, 388 U.S. 140
(1967)


Butts: athletic director,
University of Georgia
Walker:


Retired general/private
individual
Court ruled Walker had
thrust himself into the vortex
of an important public
controversy
Prior Restraint

Near v. Minnesota (1931)



County sued to enjoin (as abatement of public
nuisance) the Saturday Press, a scandal sheet
that regularly charged county officials as in
cahoots with “Jewish gangsters”
Court held: no prior restraint
Remedy was libel suits after publication
Public Figures/Private Lives

Monitor Patriot v. Roy



Newspaper referred to candidate as “former
small-time bootlegger”
Trial court instructed jury that different rules
would be applied depending on whether the
publication was official or private conduct
Because election campaigns are a “clash of
reputations,” Court held “as a matter of
constitutional law that a charge of criminal
conduct, no matter how remote in time or place,
can never be irrelevant to an official’s or a
candidate’s fitness for office.”
Problem 1
“Never pick a
fight with
someone who
buys ink by
the barrel.”
Problem 4
Problem 5
Problem 6:
Once a public official, always a
public official?

Rosenblatt v. Baer, 383 U.S. 75 (1966)

To be sure, there may be cases where a
person is so far removed from a former
position of authority that comment on the
manner in which he performed his
responsibilities no longer has the interest
necessary to justify the New York Times rule.
Gertz v. Robert Welch, Inc.
Gertz v. Robert Welch, Inc.





What was the communist conspiracy and
what role did Elmer Gertz play in that
conspiracy?
How did the article defame Gertz?
Issue presented
The distinction between public figures and
private individuals
Is Gertz a public figure or a private
individual?
Public Figures

General purpose public
figures:


“Household word”;
celebrity
Public character
attributed to all aspects
of their lives

Limited purpose
public figures



Public controversy
Plaintiff’s role isn’t
trivial or tangential
Alleged defamation
relevant to plaintiff’s
participation in
controversy
Public Figures?
Problem 1
Problem 2
Problem 5
St. Armant v. Thompson





What’s reckless disregard?
Reckless disregard v. reasonable person
standard
Why must the First Amendment protect
erroneous publications?
How important is good faith in
determining reckless disregard?
Applying reckless disregard standard in
this case
Masson v. New Yorker






Is an article that portrays plaintiff as meanspirited, self-serving, and arrogant libelous?
What is the meaning of quotation marks?
How might fabricated quotations be libelous?
Is every alteration of a verbatim quotation
actionable?
Applicability of protecting author’s rational
interpretation
Are there issues of fact?
Quotations



“Intellectual
gigolo”
Masson’s plan for
Freud Archives:
“sex, women,
fun”
Why he adopted
middle name: ”it
sounded better”



Why remark about
sterility of psychoanalysis
was added to speech: “I
don’t know why I put it
in”
“Greatest analyst who
ever lived”
Director of Freud Archives
“had the wrong man” to
do the right thing
[A] lesson was learned (or relearned)
yesterday by the student body of Maple
Heights High School, and by anyone who
attended the Maple-Mentor wrestling meet of
last Feb. 8.
A lesson which, sadly, in view of the events of
the past year, is well they learned early.
It is simply this: If you get in a jam, lie your
way out.
If you're successful enough, and powerful
enough, and can sound sincere enough, you
stand an excellent chance of making the lie
stand up, regardless of what really happened.
The teachers responsible were mainly Maple
wrestling coach, Mike Milkovich, and former
superintendent of schools, H. Donald Scott....
Anyone who attended the meet, whether he be
from Maple Heights, Mentor, or impartial
observer, knows in his heart that Milkovich and
Scott lied at the hearing after each having given
his solemn oath to tell the truth.
But they got away with it.
Is that the kind of lesson we want our young
people learning from their high school
administrators and coaches?
Milkovich v. Lorain Journal Co.



Fact versus opinion
Is existing constitutional
doctrine sufficient without
creating a dichotomy
between fact and opinion?
New York Times standard
and whether implying
someone committed
perjury is capable of being
proved true or false
Buckley v. Littell

William F. Buckley
unable to recover
for being called a
“fascist” because
the term was too
imprecise and
indeterminate to
be regarded as a
statement of fact.
Fair Report Privilege:
Restatement 2d Torts § 611

The publication of defamatory matter
concerning another in a report of an
official action or proceeding or of a
meeting open to the public that deals with
a matter of public concern is privileged if
the report is accurate and complete or a
fair abridgement of the occurrence
reported.
Neutral Reporting Privilege



Neutral reporting privilege goes beyond
Restatement § 611 to extend privilege to the
accurate publication of newsworthy statements
made about public figures
Most state courts have rejected the privilege as
too sweeping and without constitutional basis
Pennsylvania case was cert. denied in March
(one city council member called mayor and
another council member “draft dodgers” and
“child molesters”; newspaper didn’t have neutral
reporting privilege to repeat statements that it
knew were false )
Problem 2
Henderson v. Times Mirror Co.
669 F.Supp. 356 (D. Colo.1987)

While it can be agreed generally that the terms
“sleazebag” and “slime” do not rank as descriptive
words one would prefer to have in letters of
recommendation, their meanings in the context of
Davis’ comments is so imprecise that they cannot be
considered as asserting facts. While it may not be a
compliment to be called a “sleaze-bag agent,” or
“sleaze-bag journalist,” or “sleaze-bag coach,” or
whatever kind of sleaze-bag one may happen to be,
the mere absence of complimentary affect does not
render a statement defamatory.
Problem 3