Mbe Florida -- Torts -- Defamation

Front 1

To a packed congregation, Minister X says "Cash Pawn steals its customers items through lying & trickery"

Does this meet all the elements of defamation?

Back 1

-- DF makes a defamatory statement about the PF
-------- purported statement of fact;
-------- that tends to adversely affect PF's reputation
-- the statement is published
-------- ie, heard by person other than solely PF
-- (MBE) damages, maybe
-- (Florida) damages MUST BE proved
-- for public figures, MALICE

Front 2

In a defamation analysis, what traits go to a person's reputation?

Back 2

CHastity PLuS
-- Honesty
-- Competency (e.g., business competency)
-- Sexual morality / modesty
-- Chastity (female PFs only)
-- Peaceable/violent
-- Loyalty

Front 3

What are the legal consequences of uttering to a group:
-- Lawyer X is an asshole
-- Judy Garland is a whore

Back 3

-- Not defamation: name calling
-- Not defamation: statement made after person's death: you can't defame someone who is dead

Front 4

Under the law of defamation, what is the difference between these two statements?
-- Lawyer X is an asshole
-- Lawyer X was my attorney &, imo, it’s a bad idea to trust him

Back 4

-- one is pure opinion without inclusion of any purported facts
-- the other is opinion that crosses line into defamation
------ listener assumes that statement is based on fact & the statement reflects poorly on a trait of PF's character

Front 5

What are the legal consequences of uttering:

PF always stays at Hotel CA. (Hotel CA is known to listener(s) as a brothel.)

Back 5

-- Even though not defamatory on its face.
-- when listener had additional information, statements are made defamatory by innuendo

Front 6

What is the defamation analysis under FL?

Back 6

-- totality of the circumstances test (e.g.: context, words used, audience)
-- classification as (i) pure opinion (not actionable), (ii) mixed opinion / fact (maybe), (iii) fact (actionable if false and defamatory)
-- PF must prove damages

Front 7

What are the legal consequences of uttering soley to X:
-- X, I know you have been embezzling money
-- Mrs. X, you are a whore

Back 7

Not defamation: DF speaking ONLY to PF, even if statements are 100% defamatory

Front 8

In establishing a defamation claim, the term "PUBLICATION"
means...
for example...

Back 8

-- uttering (disclosure) to ANY person other than PF

For example,
-- spoken: radio show; talking in a bar
-- written: spray painting on sidewalk

Front 9

Can DF make an accidental publication of a defamatory statement?

Back 9

YES, DF can make negligent, careless publication
-- e.g., Prof says "you've got STD" without realizing that tape is recording AND reasonable person would be cognizant of glowing green recording light
-- e.g., DF writes letter to PF accusing PF of embezzlement, then mis-labels envelope & letter read by someone

Front 10

In establishing a claim for defamation, whether PF is required to allege & prove damages depends on ...

Back 10

-- (MBE) whether the statement is (i) libel or slander per se or (ii) regular slander
-- (Florida) if in Florida, damages (= economic harm) MUST BE proved

Front 11

When is defamatory statement classified as LIBEL ?

Back 11

-- libel is defamation that is embodied in permanent format
-- classic example: written down (letter), printed (newspaper)
-- also: videotape (TV program); computer drive
-- also: spraypainted on sidewalk

Front 12

What are the legal consequences of classifying a defamatory statement as LIBEL?

Back 12

-- PF does not have to prove damages to get to the jury (PF need only prove (i) DF published (ii) a defamatory statement about the PF), but CAN show damages & more you prove = more you recover
-- EXCEPTION: In FL, all defamation claims must include proof of Damages (= economic harm)

Front 13

When is defamatory statement classified as SLANDER ?

Back 13

-- slander is spoken defamation
-- transitory, fleeting; therefore, generally are required to prove damages
-- example: said in private conversation, public speech that is not recorded, teacher in classroom

Front 14

What are the legal consequences of classifying a defamatory statement as SLANDER?

Back 14

-- (MBE) the legal consequences depend on whether the statements are SLANDER PER SE
-- (MBE) for slander per se, PF does not have to prove damages to get to the jury (same rule as MBE libel)
-- (Florida) In FL, all defamation claims must include proof of Damages (= economic harm)

Front 15

When is a defamatory statement classified as SLANDER PER SE ?

Back 15

Categories of defamatory statements by DF are deemed to be particularly harmful to the PF
("you're in the STD BUSINESS")
-- (BUSINESS) that reflect negatively on PF's business or professional activities (Prof got job under false pretenses; Prof is a fraud)
-- (SLUTS) imputing unchastity to a woman
-- (STD) that PF has a loathsome disease (leprosy or STD)
-- (T) that PF is guilty of crime of moral turpitude

Front 16

What are the legal consequences of classifying a defamatory statement as NOT Slander Per Se?

Back 16

-- spoken defamation that is not Slander Per Se
-- must prove damages (= economic harm)
-- Example: Mike is promiscuous; too win defamation claim, Mike must prove damages (= economic harm)

Front 17

In a DEFAMATION claim, what are considered "DAMAGES" to the PF ?

Back 17

Economic injury or loss. For example:
-- failed to get promotion, to get business contract
-- got fired
-- no one patronized your business

Front 18

Florida Rule:

if DF makes a defamatory statement, can DF retract that statement?

Back 18

-- at least 5 days before instituting civil action, PF must serve written notice of intent to bring defamation suit
-- if the media fully retracts their statement within 10 days of receipt of written notice
-- AND if original publication was made in good faith
-- then PF recovery limited to actual damages (NO Punitive Damages)

Front 19

In a SLANDER per se claim, what are examples of statements of "crimes of moral turpitude"?

Back 19

X is embezzling
X is printing counterfeit $50s
X sexually abusing his 10-yo son
X is filing false tax returns

Front 20

In a SLANDER per se claim, what is meant by a statement regarding the unchastity of a woman?

Back 20

-- unchastity: sexually active before marriage and/or having multiple sex partners
-- does it hurt rep? depending on religious beliefs, community in which PF lives

Front 21

Does DF have any affirmative defenses to DEFAMATION?
(Review) What is an affirmative defense?

Back 21

-- consent
-- truth (defamatory statement is accurate)
-- privilege
-- to assert an affirmative defense, DF has the burden of proof

Front 22

How can DF prove that PF consented to the defamatory statement ?

Back 22

same consent analysis as in intentional torts
-- legal capacity: PF could legally consent
-- PF made express consent: yes, you can quote me
-- (or PF made implied consent: by PF's overt actions)
-- scope: DF's defamatory statements were made within the scope of PF's consent

Front 23

if DF makes a defamatory statement, what other affirmative defense can DF prove besides consent and truth?

Back 23

absolute privilege OR qualified privilege

Front 24

when does a DF have an absolute privilege to make defamatory statements?

Back 24

turns on the status or identity of the speaker
-- married DF is talking spouse
-- DF is member of Executive, Judicial, Legislative branch & is acting in capacity as member

Front 25

Members of the Judicial Branch have an absolute privilege to make defamatory statements.
-- Who is considered a member?
-- How can this privilege be lost?

Back 25

-- Prosecutors and witnesses are considered "members" of the judicial branch; therefore, any defamatory statements made in their capacity as such enjoy an absolute privilege
-- e.g., if X acquitted in murder trial, X can't sue DA for defamatory statements made at trial
-- (Florida) no privilege for defamatory statements made in complaint dismissed for lack of SJM jurisdiction, since there is no jurisdiction to which judicial privilege could attach!!

Front 26

When does a DF have a qualified privilege to make defamatory statements?

Back 26

turns on when & why the statement is made ("the when & why rule")
-- DF is speaking in a socially useful context
-- defamatory material is relevant to that context
-- DF makes statement with good faith (ie, reasonable) belief in its truth
(if it were true, wouldn’t need this defense)
==> if you confine yourself to material that is relevant and if you have a good faith belief in truth
==> then you can't be liable for defamation

Front 27

What are typical examples of situations in which DF has a qualified privilege to make defamatory statements?

Back 27

socially useful occasions in which we want to encourage frankness
-- letters of recommendation or reference: we want people to truthfully (in their mind) evaluate past job performance
-- statements of credit worthiness by PF's past lenders: we want people to truthfully (in their mind) evaluate credit worthiness
-- statements made to police investigating a crime: we want people to talk truthfully to the cops
e.g., in talking to cops: I do know they smoke a lot of weed over there; NOT: oh yeah, they have AIDS
e.g., in writing reference letter: she worked here, oh yeah, she has AIDS

Front 28

When are a DF's defamatory statements protected by the First Amendment?

Back 28

In matters involving public figures or matters of "public concern"

Front 29

In matters involving public figures or matters of "public concern", what is the extra element that a PF must prove in claiming defamation ?

Back 29

-- Defamatory statement
-- about or concerning the PF
-- published to one or more persons
-- damages maybe (in FL, damages always)
-- AND clear evidence that statement was made with MALICE
(rationale: because otherwise imposing on people's FAD rights, thereby chilling speech)

Front 30

In matters involving public figures or matters of "public concern", a PF must prove MALICE.
How does a PF prove malice?

Back 30

-- knowledge that the statement is false (e.g., alteration of quotation that makes material change in the meaning)
-- OR reckless disregard with respect to its truth or falsity

Front 31

The First Amendment version of defamation applies only when the SJM is of public concern.
What are examples of matters of "public concern"?

Back 31

-- whether a professional athlete is deliberately throwing games
-- whether a politician is deliberately acting unethically or illegally
-- whether a high ranking military officer is lying about success of military campaign
elements

Front 32

What if a newspaper makes a defamatory statement about a private individual?

Back 32

-- then the extra element (malice) does not apply
-- paper liable for negligent statements (e.g., not fact checking) published in paper
-- (Florida) right to retract (within 10 days if originally published in good faith)