Chapter 17

DEFAMATION

A person’s interest in his reputation is protected by the tort actions for “libel” and “slander,”  collectively called “defamation.”

• Libel vs. slander:  Libel is caused by a written statement, and slander is caused by an oral statement. Most of the rules governing the two tort actions are identical.
• Defamation generally:  To establish a case for either libel or slander, P must prove:
  • Defamatory statement:  A false and “defamatory” (i.e., reputation-damaging) statement concerning P;
  • Publication:  A communicating of that statement to a person other than P (a “publication”);
  • Fault:  Fault on the part of D, amounting to at least negligence if D is a media defendant, and either knowledge of falsity or reckless disregard of the truth if P is a “public official” or “public figure”;
  • Special harm:  In the case of certain types of slander, “special harm,” i.e., harm of a pecuniary nature.
• Constitution: Some of the above rules are imposed by the U.S. Constitution. Most importantly, Supreme Court decisions interpreting the First Amendment are the source of the rule that where P is a public figure or public official, he must show that D acted with either knowledge of the statement’s falsity or reckless disregard of whether it was true or false.

I. GENERAL PRINCIPLES

A. Prima facie case:  To establish a prima facie case for either libel or slander, the plaintiff must prove the following elements:

1. Defamatory statement:  A false and defamatory statement concerning him;

2. Publication:  A communicating of that statement to a person other than the plaintiff (a “publication”);