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32 Cards in this Set
- Front
- Back
To a packed congregation, Minister X says "Cash Pawn steals its customers items through lying & trickery"
Does this meet all the elements of defamation? |
-- 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 |
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In a defamation analysis, what traits go to a person's reputation?
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CHastity PLuS
-- Honesty -- Competency (e.g., business competency) -- Sexual morality / modesty -- Chastity (female PFs only) -- Peaceable/violent -- Loyalty |
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What are the legal consequences of uttering to a group:
-- Lawyer X is an asshole -- Judy Garland is a whore |
-- Not defamation: name calling
-- Not defamation: statement made after person's death: you can't defame someone who is dead |
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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 |
-- 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 |
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What are the legal consequences of uttering:
PF always stays at Hotel CA. (Hotel CA is known to listener(s) as a brothel.) |
-- Even though not defamatory on its face.
-- when listener had additional information, statements are made defamatory by innuendo |
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What is the defamation analysis under FL?
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-- 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 |
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What are the legal consequences of uttering soley to X:
-- X, I know you have been embezzling money -- Mrs. X, you are a whore |
Not defamation: DF speaking ONLY to PF, even if statements are 100% defamatory
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In establishing a defamation claim, the term "PUBLICATION"
means... for example... |
-- uttering (disclosure) to ANY person other than PF
For example, -- spoken: radio show; talking in a bar -- written: spray painting on sidewalk |
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Can DF make an accidental publication of a defamatory statement?
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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 |
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In establishing a claim for defamation, whether PF is required to allege & prove damages depends on ...
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-- (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 |
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When is defamatory statement classified as LIBEL ?
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-- 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 |
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What are the legal consequences of classifying a defamatory statement as LIBEL?
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-- 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) |
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When is defamatory statement classified as SLANDER ?
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-- 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 |
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What are the legal consequences of classifying a defamatory statement as SLANDER?
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-- (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) |
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When is a defamatory statement classified as SLANDER PER SE ?
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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 |
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What are the legal consequences of classifying a defamatory statement as NOT Slander Per Se?
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-- 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) |
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In a DEFAMATION claim, what are considered "DAMAGES" to the PF ?
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Economic injury or loss. For example:
-- failed to get promotion, to get business contract -- got fired -- no one patronized your business |
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Florida Rule:
if DF makes a defamatory statement, can DF retract that statement? |
-- 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) |
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In a SLANDER per se claim, what are examples of statements of "crimes of moral turpitude"?
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X is embezzling
X is printing counterfeit $50s X sexually abusing his 10-yo son X is filing false tax returns |
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In a SLANDER per se claim, what is meant by a statement regarding the unchastity of a woman?
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-- unchastity: sexually active before marriage and/or having multiple sex partners
-- does it hurt rep? depending on religious beliefs, community in which PF lives |
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Does DF have any affirmative defenses to DEFAMATION?
(Review) What is an affirmative defense? |
-- consent
-- truth (defamatory statement is accurate) -- privilege -- to assert an affirmative defense, DF has the burden of proof |
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How can DF prove that PF consented to the defamatory statement ?
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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 |
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if DF makes a defamatory statement, what other affirmative defense can DF prove besides consent and truth?
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absolute privilege OR qualified privilege
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when does a DF have an absolute privilege to make defamatory statements?
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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 |
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Members of the Judicial Branch have an absolute privilege to make defamatory statements.
-- Who is considered a member? -- How can this privilege be lost? |
-- 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!! |
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When does a DF have a qualified privilege to make defamatory statements?
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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 |
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What are typical examples of situations in which DF has a qualified privilege to make defamatory statements?
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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 |
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When are a DF's defamatory statements protected by the First Amendment?
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In matters involving public figures or matters of "public concern"
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In matters involving public figures or matters of "public concern", what is the extra element that a PF must prove in claiming defamation ?
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-- 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) |
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In matters involving public figures or matters of "public concern", a PF must prove MALICE.
How does a PF prove malice? |
-- 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 |
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The First Amendment version of defamation applies only when the SJM is of public concern.
What are examples of matters of "public concern"? |
-- 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 |
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What if a newspaper makes a defamatory statement about a private individual?
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-- 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) |