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ANSWERS TO

MULTISTATE-STYLE QUESTIONS

1.       C

Although liability ordinarily results from the publication of false defamatory statements about the plaintiff, the courts have always required that publication be either intentional or the result of negligence. Dresden’s statement to Prescott was not a publication, since Prescott is the plaintiff. The fact that it was overheard by Audit does not satisfy the requirement of publication unless either Dresden intended that Audit hear it or Audit heard it as a result of Dresden’s unreasonable conduct in the face of the foreseeable risk that Audit would hear it. If Dresden knew that Audit would hear it, he intended the publication. If he should have known that Audit would hear it, he acted unreasonably in saying it.

The courts have never required proof that the defendant knew the statement to be defamatory, so A is incorrect. The United States Supreme Court has held that in some defamation cases the plaintiff must prove that the defendant knew or should have known that the statement was false when he made it. B is incorrect, however, because the requirement has not been applied to a defamation action brought by a private person against a non-media defendant. D is incorrect because knowledge that harm will result is not an essential element of any defamation case.

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