Bar Exam Defamation

Front 1

What are the elements of defamation?

Back 1

1) defamatory language
2) of and concerning P
3) publication to a third party that understands it
4) damages to P's reputation

Front 2

What is defamatory language?

Back 2

Defamatory language is language that adversely affect's one's reputation. It must be based on specific facts, name calling is not enough

Front 3

Is defamation re a dead person actionable?

Back 3

No

Front 4

What makes a statement "of and concerning P"?

Back 4

A reasonable reader, listener, or viewer would understand that the defamatory statement referred to P
Note: extrinsic evidence may be offered to show that the statement refers to P if it is not clear on its face

Front 5

What are the rules for group defamation

Back 5

1) if the statement refers to all members of small group, each member can establish that the statement was about him
2) if the statement is about a large group, no one can claim defamation
3) if the statement is about some members of a small group, P must show that a reasonable person would view the statements as referring to P.

Front 6

What is publication?

Back 6

Communication of the defamatory language to a 3rd party, intentionally or negligently

Front 7

What are defamation damages?

Back 7

It depends whether the defamation is libel or slander

Front 8

What is libel and what kind of damages are available?

Back 8

1) Libel is written or printed publication of defamatory language.

2) P does not need to prove special damages and general damages are presumed

Front 9

what is slander, and what are the available damages?

Back 9

1) slander is spoken defamation.

2) P must prove special damages, unless it is slander per se

Front 10

What are the slander per se categories?

Back 10

a statement that:
1) adversely reflects one's conduct in a buiness or profession;
2) one has a loathsome disease;
3) One is or was guilty of a crime involving moral turpitude; or
4) a woman is unchaste

Front 11

What if the defamation involves a matter of public concern?

Back 11

To make a PF case, P must show all of the common law elements of defamation, plus:

1) falsity of the statement; and
2) fault on the part of D

Front 12

If P is a public official or public figure, and the case involves a matter of public concern, what must D prove?

Back 12

P must prove malice, which is
1) knowledge that the statement was false; OR
2) reckless disregard as to whether it is false

Front 13

If the defamation involves a matter of public concern and P is NOT a public figure, what must he prove?

Back 13

1) Fault
2) falsity
3) negligence re the statement
Note: if malice is involved, damages are presumed, if only negligence, actual damages must be shown

Front 14

What are the defenses to defamation?

Back 14

1) consent
2) truth
3) absolute privilege
4) qualified privilege

Front 15

What statements are subject to an absolute privilege?

Back 15

1) remarks made during a judicial proceeding;
2) remarks made by legislators in a debate;
3) by federal executive officials;
4) in compelled broadcasts;
5) and between spouses

Front 16

What are the categories for qualified privilege?

Back 16

Wherever there is a policy to encourage candor:

1) references and recommendations;
2) credit reporting
3) police investigation