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”);