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The Court has some doubt whether the publication in question carries a non-defamatory meaning. The Court has very little doubt that it carries a defamatory meaning. The Court has concluded however that the final determination of the issue of defamation should be made by a jury.

The story is nine years old. It was not made within the context of a discussion of an important public issue. Nevertheless, the delimiting effect of the law of libel on First Amendment rights and a free press impels the Court not to excise the role of the jury. ‘Since one’s reputation is the view which others take of him * * * whether an idea injures a person’s reputation depends upon the opinions of those to whom it is published.’ [Cc] Thus, because it is impractical, even unreliable, to depend upon in-court testimony of recipients of the particular publication for determining whether that publication is defamatory, a logical function of the jury is to decide whether the plaintiff has been lowered in the esteem of those to whom the idea was published. As early as the seventeenth century, [one English] court held that ‘words should not be construed in a rigid or in a mild sense, but according to the general and natural meaning, and agreeable to the common understanding of all men.’ Florida has adopted the common-mind test. [Cc] Any doubt as to the defamatory effect of a publication should be resolved by the common mind of the jury, and not by even the most carefully considered judicial pronouncement.

* * *

A owns and operates a Kosher deli. Kosher food is not supposed to be or contain pork products. B has come to believe that A is selling pork products at his kosher deli, although this is not true. B sings in the shower, and in so doing, sings a melodic rhyme that tells of selling pork. B’s wife, C, overhearing his singing, commences to tell her friends in the predominately Jewish community of the charge leveled against A.
(1) A may sue B in slander.
(2) A may sue C in slander.
(2) A may sue both B and C in slander.
(4) None of the above.


United States Supreme Court (1964)

Mr. Justice BRENNAN delivered the opinion of the Court:

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