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44 Cards in this Set

  • Front
  • Back
Why do we have Defamation?
Protecting reputations through this law. Libel is defamation by sight. Slander is defamation by sound. It does not protect defamatory speech as well as other types of speech.
What are the Elements that Make up a Defamation Suit?
1) Defamatory statement
2) Published by the D
3) Concerning the P
4) In some cases pecuniary loss
What is the difference between Libel and Slander?
Libel- became identified with printed or written defemation
Slander- was oral
What happens if the words that were brought up in court that the P claims were defamatory and the D claims were not?
- A famous Attorney that was well known in the public eye was suing under libel and slander
- He argues that there were defamatory statements said bout him.. in regard to the fact that he purchased clothes to a hotel account that he really didn’t
- The court’s issue was to determine if this was infact a defamatory statement
- The court argues that it was not because it wasn’t capable of carrying a defamatory meaning.
- Libel per sey – is any publication which exposes a person to distrust, hatred, ridicule that has a tendency to injure a person in his office, occupation, business or employment
- Both judge and jury play a role in determine whether language constitutes libel
- Was reversed and submitted so that the jury could hear it.. The courts argued that the lower court acted as the jury should and that the case should go forward
- D did the D calim that they didn’t publish? No. Did they claim that they weren’t true? No
- The D argues that they were not Defamatory. TC agreed appealed. Reversed mixed interepertation statement.
- In mixed interpretation statements the jury decides not the court
What is necessary for a statement to be defamatory?
- in order for a statement to be defamatory is needs to be judged by a majority of right thinking people
- the better phraseology is whether or not it has the potential for causing harm to the P with a respectable yet substantial segment of the community
What is necessary to prove that a defamatory statement is substantial true?
- that does not mean that it has to be absolutely true just substantially true

- inorder for someone to testify in court to show substantially true the person must not have been a second hand whitness. They must have been there at the time it occurred. If they were to raise sub truth of the defense you need to have people who had the real observations and who can speak as to what was heard.
1. Nature of a Defamatory Communication
Notes on p. 834
d. note 2

- Whether or not it has potential for causing harm to reputation of P to a respectable (anybody but criminal community) yet substantial segment of the community. There must be enough people out there to establish that you have a reputation
- A statement with potential of causing harm to rep of P with respectable and substantial segment of the community.

- P. 836
- Note 4
- There is only liability for false statements.
- only liability for false statements.
- If it is substantially true, that is defense to avoid liability.
- D’s burden to prove truthfulness or substantial truthfulness.
- Distinguish between arguments made by D in response to allegations and affirmative defenses.
Common Law Defamation and Changes
p. 841 note 3:
- under common law, if you bring defamation action the court presumed that the statement was false. We’ll see erosion in this rule as we get into more of the cases dealing with constitution in defamation law.
- don’t have burden of proving false, it is already assumed.

- a member of the group may have cause of action if some particular circumstances point to the plaintiff as the person defamed.
- One element at common law is that it must concern the plaintiff. The legal standard for meeting that requirement is that if a reasonable person would associate the statement as concerning the plaintiff. The smaller the group, the better the claim. To determine if it taints everyone in that class, or to attribute the statement to everyone in group, we look at size of group. The smaller the group the better the argument that a reasonable person would construe that as applying to everyone in that group.
- How do we know when the class is too large to go forward? We don’t, its determined on a case by case basis.
Neiman Marcus v. Lait
- Where the group or class libeled is large, none can sue even though the language used in inclusive
- Where the group or class libeled is small, and each and every member of the group or class is referred to, then any individual member can sue
- Conflict arises when it is some or less than all of the designated small group.
- No specific individual is named

o a member of the group may have cause of action if some particular circumstances point to the plaintiff as the person defamed.
o Three categories of plaintiffs here- Models(9), Salesmen(25), saleswomen(382)
o Said some models were call girls.
o One element at common law is that it must concern the plaintiff. The legal standard for meeting that requirement is that if a reasonable person would associate the statement as concerning the plaintiff. The smaller the group, the better the claim. To determine if it taints everyone in that class, or to attribute the statement to everyone in group, we look at size of group. The smaller the group the better the argument that a reasonable person would construe that as applying to everyone in that group.
o The word some applying to a small group was ok for the case. Also consider how consistent the statement is with the group. How believable is it?
o It was said that most of the salesmen were fairies. Is this group small enough that a reasonable person would construe most are fairies to apply to everyone in that group? Court said yes.
o The saleswomen are said to be cheaper or discount call girls. More difficult for reasonable person to come to conclusion that it means everyone in that class. There is such a large number of them, so how can you know all are call girls.
o How do we know when the class is too large to go forward? We don’t, its determined on a case by case basis.
o Why didn’t Neiman sue?
o Notes 6 and 7 on p. 844 and 845. living can being lawsuit, dead can’t. Corporations don’t either unless it impacts them in a different way- their creditworthiness.
Bindrim v. Mitchell
o the test is whether a reasonable person, reading the book, would understand that the fictional character therein pictured was, in actual fact, the plaintiff acting as described.
o Publication for purpose of defamation is sufficient is to only one person other than the person defamed.
o Here we are discussing whether or not it concerns the plaintiff.
o D labels it as fiction because it is not real and P can have a hard time proving it concerns him.
o If D says it is fiction, D must prove it.
o Book character didn’t look like P or have same credentials.
o Test is whether reasonable person would construe this as concerning the P.
o P does same kind of work as person in book.
o D was there and participating so that makes this account more likely to deal with P.
o This court supports conclusion that the book concerns P

- Issue: does the publication have to reach more than just a small group of people? Does it have to reach the public at large?
- It is sufficient when the publication is to only one person other than the person defamed.
Common Law elements of Defamation:
1. defamatory statement- determine if it is defamatory if it has potential to cause harm to reputation of P with respectable yet substantial part of the community.
2. published by D. publication is a term of art meaning conveyed. Doesn’t require it being written down.
3. sometimes must prove pecuniary loss.
4. concerning Plaintiff. P has burden to prove it concerns her.
5. must be substantially true.
Pleading Defamation
when the meaning that defames the P is clear upon the fact of teh words uttered, the cause of action is mad eout by pleading, and proving, the words themselves and their communication to a third person.

As Restatement (second) of torts says... defamatory matter may be communicted by "innuendo, by figure of speech, by expressions of belief, by allusion of by irony or satire.. or by words spoken in jest if not so understood."

Where the meaning is not clear, the P must plead that context that renders the word or conduct defamaty. Matter by be defamaotry by making material omissions.
In each case the P must plead...
A. The defamaotry words
B. The publicatoin: communication of the words to a third person. "D spoke these words to X"
C. Extrinsic facts, bc of which the words were reasonably understoon to convey a meaning defaming the p. This is called inducement.

D. A formal allegation that the words were spoken of and concerningn P. "Colloquium"

E. An allegaition of the particular defamatory meaning conveyed by the words. This is called innuendo.

F. Special damages, when they are necessary to the cause of action

*Both the colloquium and the innuendo must be reasonable in the light of the words spoken and the facts pleaded in the inducement. If the words, toghteher with such facts do not fairly suppost the defamatory meaning, pleaded, no cause of action was made out.
Libel and Slander
- Libel- physical form can be found in ways that we are allowed to record what was said and play it back in the future. Doesn’t necessarily need to be written.
- Slander is spoken words or gestures that is not necessarily capable of being reduced to physical form.
- What influences close calls as to which it is is how deliberate or premeditated the statements were or how capable they are of repetition or how often they were repeated. How capable repetition is, not how interested society is in repeating it.

- Libel is more likely to cause harm because it can reach farther. Don’t necessarily need to prove pecuniary losses and can recover for emotional response to libel, we assume a pecuniary loss to reputation already.
- Slander- must prove pecuniary loss.
- P wants to only prove it was defamatory, concerned him, and was published and not pecuniary loss that a slander suit would require. He sues in libel.
- To determine if libel, court looks at whether it was scripted. Scripted was written then displayed orally so libel. In this case wasn’t scripted. Court also considers how widely disseminated it was. How far it reaches.
Shor v. Billingsley
o Issue here is whether or not comments made during a telecast that weren’t read from a script are libel or slander.
o They weren’t technically written, but are still on telecast and tape.
o Libel is more likely to cause harm because it can reach farther. Don’t necessarily need to prove pecuniary losses and can recover for emotional response to libel, we assume a pecuniary loss to reputation already.
o Slander- must prove pecuniary loss.
o P wants to only prove it was defamatory, concerned him, and was published and not pecuniary loss that a slander suit would require. He sues in libel.
o To determine if libel, court looks at whether it was scripted. Scripted was written then displayed orally so libel. In this case wasn’t scripted. Court also considers how widely disseminated it was. How far it reaches.
o Lindsey is a dork
o Court says no script, but widely disseminated. Court goes with libel.
Broadcasting and regulation by statute
most of the statutes enacted under lobbying from broadcasting companies, provide that any boradcast defmamtion is to be treated as slander, whether there is a script or not.
Twilliger v. Wands
o sued for slander.
o He claimed physical harms from the words, but no proof of harm to his reputation.
o Slander per se actions can only get special damages if character was injured and must show that the consequences were natural, immediate, and legal consequences of the words. Must prove pecuniary loss in slander case.
o Slander happens a lot in casual conversation. This would lead to a lot of lawsuits resulting from defamatory casual conversation. We need a threshold of proof of pecuniary loss in order to recover from slander. This burden is imposed on P to limit occasions where someone is sued. They must confirm harm to their reputation in a pecuniary sense.
o Modern courts have broadened the definition of special damages to loss of relationships that have soured.
Can a P recover additional damages for his mental distress
when the cause of actino is once made out, eithe ras libel or slander per se, or by proof of special damages of a pecuniary character, P may recover additional damages for his mental distress, wounded feelings and humiliation
Original rules that the D was liable
The original rule was that the D was liable only for damages to to his own publication, and was not responsible for repetition by others. Modern law says you are liable for reasonably anticipated repetition of what your said
What are the four categories of slander that don't require pecuniary slander per se statements. YOu look at them a nd something obvious jumps out at you...
1. imputation of major crime
2. loathsome disease
3. business trade or profession
4. serious sexual misconduct

pg 855
Libel per se and Libel per quod
- at common law it was not necessary to prove special damages in order to have an action for libel
- some american decsions have deviated form this rule through of mistate of the expression of "libel per se".. as to the requirement of proof of special damages, all libel was libel per se. But if the statement was not defamaotry on its face and it was necessary to be aware od certian unstated facts (extrinsic) in order to appreciate it defamatory implications, it was sometimes called libel per quod, meanding that the P must allege and prove those extrinsic facts in order to have a cause of action.
(o libel Per Quod- some jurisdictions think to presume a harm is inappropriate. Especially where it is unclear as to who the statement refers to and why it is even defamatory. These are libel per quod jurisdictions. They distinguish between the libels. If libel per se in these jurisdictions no pecuniary proving, for non libel per se for libel you must prove pecuniary loss in these jurisdictions. )
- now, if the communication was not defamatory on its face and was called libel per quod, it was not libel per se and required proof of special damages
Economopoulos v. A.G. Pollard Co.
o publication must be to a third party.
o Were not sued individually, so no third party. The company is sued by vicarious liability and the entity is the group of employees and there was only communication between employees that are of the same entity, so no third party.
o There were three people, but two were of the same entity, so no sufficient publication to third party.
We allow you to be liable for publication if you intent it to a third pary or were negligent and that their party received the publication
for communicatino to a third party to be a publication, it mst have been done intentionally or by a negligent act. There there is no publication when words are spoken by D directly to P with to no reason to suppose that any one can overhear, but they are in fact overhead by a concealed listener.. Thus, when words are spoken in so loud a voice that D can expect some one may overhear, the D has published the defamatory imputation.
Is there a disctinction between primary and secondary publishers?
Yes there is a distinction finding that both are potentially liable on different citeria for the publication of defamatory material. An internet source provider would be liable for defamatory material appearing on its webiste as a secondary publisher. pg 866
Carafano v.
defamatory in order to be liable for defamation.
o They weren’t conducting any oversight or having very little of websites out of concern that they might find something that was defamatory and be put on notice. To encourage oversight by ISP’s, congress decided to immunize them from liability. If they know they aren’t liable as secondary publisher b/c they know material is defamatory, maybe they will be more willing to conduct over sight and to encourage development of these b/c we respect them as a vehicle of communication and learning. Congress immunized these providers from liability as publishers of defamatory material as long as they are simply passing on info and aren’t responsible for content of what is being passed on.
o Statute of limitations starts to run at first publication, not every time after that. Starts to run when first book is sold. That is the single publication rule. New editions are considered to be a new publication.
New York Times v. Sulllivan
- Under the 1st amendment, a public official cannot recover damages for defamatory falsehoods concerning his official conduct unless they prove that the statement was made with "actual malice; with knowledge that it was false or with reckless disregard of whether it was false or not."
- Don’t impose strict liability on public official, must prove malice. Three ways of imposing liability for publication- strict liability, negligence, or malice. We choose publishing with actual malice in these situations.
- They say strict liability is unconstitutional in these cases. They skip negligence and go to actual malice. This tells us a lot about what court is trying to accomplish. Liability encourages a certain type of conduct. The prospect of being sued changes our conduct, so if we know strict liability based on what we say, chances are we’ll practice self censorship out of fear. This is problematic when court allows recovery of presumed damages based on something in theory that occurred. When dealing with matters of public officials, we want to know about them and don’t people to keep censored- give some breathing room in these cases.
- Common law malice is intent to injure. This is defamation so we use actual malice.
- Why do we require public officials to prove actual malice? To limit self censorship, they have access to media to correct mistakes, assume risk by becoming a public official. Goal is to encourage discussions as to qualifications of public officials. No absolute protection, but a great deal by the standard we impose.
Two types of public figures
- two types of public figures- universal public figures, and limited purpose public figures. Both must prove actual malice- three conditions for limited purpose public figure
1. must be a legitimate public controversy.
2. the plaintiff must have voluntarily thrown herself into the forefront of the controversy
3. the statements that were made that were defamatory must have been in regard to the plaintiff’s participation in the controversy.
- limited purpose public figure must prove actual malice if these three conditions are met.
Actual Malice Standard
- when involves public official or figure, how do we judge whether or not they acted with actual malice?
- Is it objective- RP in circumstance or is it more subjective- whether proof that D entertained doubts as to accuracy of statements.
- P. 881- dual standard actual malice requires P prove one of two things
1. D knew statements were false when published, or
2. D acted with reckless disregard as to whether they were false- subjective standard. P must prove.
- court accepts certain amount of turning blind eye in order to protect speech.
- An objective standard would have led to more occurrences where publishers are held liable- more liability, more censorship.
- Can find actual malice when D doesn’t doubt it. note 2 on 882. when what you said is so inherently improbable that you should have questioned accuracy of what you are saying, actual malice can be found. This is objective. Must be inherently improbable.

- p. 886- standard is a subjective one, there must be sufficient evidence to prove D had a high degree of awareness of probable falsity.
- If statements so inherently improbable that you should have doubted, then actual malice.
fair reporting privilege
Notes on p. 890
- fair reporting privilege- reporting events as the occur. note 5. reporting, not embellishing statements made by people.
- Privilege- means even if you think what is said is false, you aren’t liable under fair reporting privilege as long as it is a quote or a reasonable repetition of what is actually said and it is your job to report.
Private P's

Gertz v. Welch
Be able to answer
o what is the issue and how is it different from NY times?
o Is the court suggesting media should get special treatment as D and should be extended to non media defendants?
o P. 897- what does court say in regard to rosenbloom case about framing this issue as a matter of public concern.
o What are the competing interests here? What compromise does the court strike?
o Note 4 on 901, note 6 on 902.
o Reconcile on 903 what you know happened in Gertz and how the court in Dunn interpreted Gertz.
Gertz v. Welch
- Issue: Is Whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor a public figure may claim a constitutional privilege against liability for the injury inflicted by those statesments?
- The first remedy of any victim of defemation is
o Self- Help- using available opportunities to contradict the lie or correct the error and thereby to minimize it adverse impace on reputation. Publi official usually enjoysignificantly greater access to the channels of effective communication and have a more realistic opportunity to conteract false statements than Private individuals would enjoy. Private individuals are more vulnerable to injury and the state interest inprotecting them is correspondingly greater.
o Lack of effective opportunities for rebuttal
- Extension of the NYT case to private individuals is unfair becase they have not voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them.
- Held that so long as they do not impose liability without fault that states may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injuriour to a private individual.
- Difference between a Public and a Private individual
o Public- an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues
o It is important to look look at the nature and extend of an individual’s participation in the particular controversy giving rise to the defmation.
 This case the P was not. He played a minimal role at the coroners inquest. He took not party in the prosecution. HE DID NOT THRUST HIMSELF INTO THE VORTEX OF THE PUBLIC ISSUE, he also didn’t engage the public’s attention in an attempt to influence its outcome.
Gertz v. Welch
- Said he could not recover. Because he did not prove actual malice.
- Compensatory? Presumed Compensatory?
- Where do we find the protection in Sullivan? It draws from the first amendment. The Malice Standard protects speech.
- Why is this a newcaster or a broadcaster case? That they might be entitled to some sort of protection.
- Pg 897 Discussion of the rosenbloom case. What does the public say about framing this as a public concern case. The D is framing it as a public concern case so the P has to prove actual malice.
- Private individual and Public concern case. According to the supreme court – it would occasion the difficulty of fordin state and federal judges to decide on an ad hoc basist which publications address issues of “general or public interest” and which not. Judges are not good at deciding what is a matter of concern
- This is a private individual media court case. This is according the the court than. What does this do to the Sullivan standard? What is the justification? It is not dealing with public concern so it not protected by the constitution. The fact that this is a private individual is enough to shape a different test form Sullivan.
- Strict liability in Sullivan the courts said no malice. Something less than malice in gertz. The problems arise when we allow recovery under something less than that most demanding standard.
- What is the competing interest? State? Protection of it citizens- and making it easier to recover. We should not be strained or constrained in our ability to publish
- Compromise on 897- WE hold that so long as they do not impose liability without fault, the states may define for themselves the appropriate statndard of liability in this case. What are the choices? Negligence or SL. Negligence would be good because they want to protect the citizens. But, they can’t impose SL on the media.
- Pg. 898 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. 897 choice between negligence or malice for actual damages. 898- says that - presumed or punitive damages and you don’t have a choice
Gertz v. Welch
note two- we can impose malice across the board if the state wants to. A state must apply the Times standard in a suit by a public person; it is not required to do this in a suit by a private person but is entirely free to do so if it wishes. A few couts have indicated that they will contingue to require knwoledge or reckless disredard where the pulication touches matter of public or general interst.
Non-Media D's --
New York times and Gertz both involved suits against memebers of the news meida. There is no constituional justivifation for distinquishing betweeen the D's
actual damages, as required by the soncituion under the holding in Gertz, are broader in scope than special damages, as required by common law for oral statements that are not sladnerous per se. Special damages require pecuniary loss. Actual damages may include injury to reputation or emotional distress, without showing pecuniary loss, but the injury must be proved.
(damages, acaual damages are required under the gertz where the court has a choice. We can allow some under the gertz. Actual damages include pecuniary and emotional losses as long as they are proved)
St. Amant v. Thompson
- Issure of finding a reckless disregard for the truth. The Louisana Supreme Court ruled that St. Amant had broadcast false information about Thompson recklessly though not knowingly.
- Several reasons were given for this conclusion
o Pg 880
- In new your times, the P did not satisfy his burden because the record failed to show that the publisher was aware of the likelihood that he was circulating false information. In Garison v. Louisana it showed that a false publication was made with a “high degree of awareness of probable falsity.”
- Reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publisheing. There must be sufficient evidence to permit the conclusion that the D 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.
- The D in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will unlikely to prove persuasive, for example, where a story is fabricated by the D, is the product of his imagination, or is based wholly on an unverified telephone cal. Recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports

Dun and Bradstree, Inc v. Greenmoss Builders, inc
- What did gertz say about presumed damages? Must prove actual malice before you can recover. What is the argument on appeal. The P did not prove actual malice and was allowed to recover presumed damages. Based on the D’s sitation to Gertz.
- What does the Don court say about Gertz. Dun’s council asks to impose the Gertz malice on Greenmoss. WE have to determine if the ruling is binding in this situation.
- Dun involves private matters Dun involved matters of public concern. This makes a distinction in terms of the burden that is placed on the P. We know that in Dun actual malice was not proved. Was it permissible to obtain damages without a showing of actual malice. Yes, there is nothing in this case that was public. So we can imply negligence. What is key is that you don’t have to require malice.
- What was the recover of punitive damages recoverd on? Common Law malice.
- So if it is not a public figure and not a public concern you can recover damages witout shoing actual malice.
- Does Gertz apply? This case. Compensatory- where they actual or presumed? He was given 50,000 presumed compensatory damages and 300,000 punitive.
- In Gertz for presumed compensatory you had to show actual malice. WE can presume in this case is that the TC didn’t (??)
- It involved a private individual and a private concern case so the courts had to back track.
- It is a private concern that gives us the ability to move away from gertz. We can allow punitive and presumed damages because we do not have to show that malice was concern. The constitution is not concerned with protecting matters of private concern. No constitutional issues here.
- the media is going to get more protection because of the nature of the business that they are in.
- What standard is Bush Held to? If it was said that he looked at kid porno sites? Likely to Dun. We could avoid the malice standard. Because you could argue that looking at porno does not have anything to do with his ability in office that is necessary for the Sullivan standard.
- There are no private matters when it comes to public figures.

Philadelphia Newspaper, Inc v. Hepps
P = Maurice Hepps, principal stockholder of GPI a corporation a chain of thrify stores
D’s Published a series of articles about the D that “argued that they were linked to organized crime and used some of those links to influence the states governmental processes, both legislative and administrative.”
- “ the need to encourage debate on public issues that concerned the court in the governmental- restriction cases is of concern in a similar manner in this case involving a private suit for damages: placement by state law of the burden of proving truth upon media defendants who publish speech of public concern deters such speech because of the fear that liability will unjustifiably result”
- Therefore a private figure P must bear the burden of showing that the speech at issue is false before recovering damages for defamation from a media defendant.
- The P must show fault
- You don’t have to prove substantial proof. The P has to prove that the statements were false. So convince us that you were not involved in organized crime.
- More like Gertz because it is a public matter and a private individual. What was defamatory? That his corporation was linked to organized crime.
- Would that place too much of a burden on publishers to prove that the statements were true. IF the newspapers were involved in certain activities.
- Not only prove malice to recover presume or pun damages but now you also have to prove that you were not involved with organized crime. (Good luck) Now you have to prove that the statement was false.
What is the test for public concern?
- last paragraph on 912… “In deciding whether a person may be a limited publice figure, must be one that…
- mere public interest is not enough to establish a matter of public concern.
- Publicly debated with foreseeable and substantial ramifications for non-participants.
Opinion- can you sue for an opinion? It depends.

Four Factors to examine
- Four factors to understand the “totality of circumstances a statement is fact or opinion
o The specific language used
o Whether the statement is verifiable
o The general contxed of the statement
o The broader context in which the statement appeared
o Pg. 917 – Does the constitution require that the court impose certain burdens. Would a speech that is characterized as opinion be immunized. The SC says no the constitution does not requires protection of speech that we might call opinions.
o Pg. 917- Typical analysis that the states go through.
o The SC held that there is no contistion protection for opinions. So that state can impose one but they are not obligated to do so. There is enough protection out there already of speech in these defamation lawsuits.
o The Scott analysis allows us to get into the real issues. What the court will look at is the specific language that is used. Whether or not what was said could be proved false. The general context of the statement, and the specific or the broader context of the statement.
o Can it be proved false? Most important question is wheather it can be proved false. There is a difference between Dotson is a crook, and I don’t know hwat to think about him. First, seems to be coming from facts. The second is an opinion. If you can but the lie to what was said it was an opinion of fact. It if is not a statement of fact it is protected not because it is an opinion but it would be protected because it is not defamatory

A. Absolute Privilege- affirmative defenses like immunity.
1. Absolute Privilege- statements made by Judges, or during judicial proceedings (lawyers, whitnesses and judges) as long as it is in the category of those who are protected. Statements made by high ranking public officials, also state high ranking officials. They are protected even if done with MALICE. There is also recognized a spousal privlige.
a. Note 5, Note 11, Note 13
B. Conditional or Qualified Priviege-
- there is a limitation on the priviledge. To determine abuse is wheather or not they believed in the accuract of what was said and reasonably coveyed the information that was provided. There are limitations on your ability to defame. Pg 928- see how limitations are imposed. Have a reasonable belief in the accuracy of what you are saying.
a. Note 1- 929
b. Note 3- 930
Sindorf v. Jacron Sales Co., Inc.
- involving the interest of a third party.
- Former employee brought action for libel against former employer. The Circuit Court, Prince George's County, William B. Bowie, J., directed verdict in favor of former employer and former employee appealed. The Court of Special Appeals, Orth, C. J., held that there was a conditional privilege on the part of the former employer to communicate concerning the former employee to his new employer; but that evidence was sufficient to permit finding of actual malice in the communications, thus permitting former employee to recover despite the privilege; and that United States Supreme Court decisions in the area of libel and slander did not affect state law in cases involving purely private defamations.
Reversed and remanded.
- Did they believe in the accuracy of what was said? Was the conveyance unreasonable?
- Maybe these statements were published with malice- question of fact. Let the jury decide.
o Ask how do you know? To determine if your belief is reasonable
o Whether you are protecting a third party?
o If you have any sort of grudge or defame?
o Who in the neighborhood r u telling