6Torts

Intentional Injuries to Reputation

This week covers defamation (libel and slander), including the elements of a defamation claim, constitutional limitations from New York Times v. Sullivan, defenses (truth, privilege, opinion), and the distinction between defamation per se and defamation per quod.

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Learning Objectives

State the elements of defamation: defamatory statement, of and concerning the plaintiff, publication to a third party, fault, and damages
Distinguish libel (written/permanent) from slander (oral/transient)
Identify the four categories of slander per se
Apply the New York Times v. Sullivan 'actual malice' standard for public figures
Explain the defenses: truth, absolute privilege, qualified privilege, opinion
Analyze a defamation fact pattern using IRAC

Key Rules

Defamation requires: (1) a defamatory statement (one that tends to harm the plaintiff's reputation), (2) of and concerning the plaintiff (a reasonable person would understand the statement refers to the plaintiff), (3) publication to at least one third party, (4) the requisite degree of fault, and (5) damages.
Libel = written or otherwise permanent defamation. Damages are presumed (libel per se).
Slander = oral or transient defamation. Requires proof of special (economic) damages UNLESS the statement falls into slander per se categories: (1) business/profession, (2) loathsome disease, (3) crime of moral turpitude, (4) sexual misconduct/unchastity.
Public figures must prove 'actual malice' under NY Times v. Sullivan: knowledge of falsity or reckless disregard for truth or falsity.
Private plaintiffs on matters of public concern must prove at least negligence (Gertz v. Welch).
Truth is an absolute defense to defamation.
Opinion is protected unless it implies undisclosed defamatory facts.

Intentional Injuries to Reputation: Defamation

What Is Defamation?

Defamation is the communication of a false statement of fact that injures a person's reputation. It is divided into two categories: libel (written/permanent) and slander (oral/transient).

Elements of Defamation

1. Defamatory Statement

A statement is defamatory if it tends to: - Lower the plaintiff in the estimation of the community - Deter others from associating or dealing with the plaintiff - Subject the plaintiff to hatred, contempt, or ridicule

The statement must be one of fact, not opinion. "John is a thief" (fact, provable) vs. "John is a terrible person" (opinion, not defamatory).

2. Of and Concerning the Plaintiff

A reasonable person must understand the statement refers to the plaintiff. The plaintiff need not be named if the circumstances identify them.

Group defamation: If the group is small enough that the statement is understood to refer to every member, each member can sue. Large groups (e.g., "all lawyers are crooks") — no individual claim.

3. Publication

The statement must be communicated to at least one third party other than the plaintiff. Each repetition is a new publication.

4. Fault

- Public officials/public figures: Must prove actual malice — the defendant knew the statement was false or acted with reckless disregard for its truth or falsity. New York Times Co. v. Sullivan (1964). - Limited purpose public figures: Actual malice required only for the specific public controversy in which they are involved. - Private plaintiffs on matters of public concern: Must prove at least negligence. Gertz v. Robert Welch, Inc. (1974). - Private plaintiffs on private matters: Common law strict liability may apply (depends on jurisdiction).

5. Damages

- Libel: Damages are presumed (general damages). No proof of specific economic loss required. - Slander: Must prove special damages (specific economic loss) UNLESS the statement is slander per se.

Slander Per Se Categories (Damages Presumed)

1. Statement about plaintiff's business or profession — "Dr. Smith is incompetent" 2. Statement that plaintiff has a loathsome disease — historically, leprosy, STDs 3. Statement that plaintiff committed a crime of moral turpitude — "She embezzled from her employer" 4. Statement of sexual misconduct/unchastity — (historically applied primarily to women; modern application varies)

Defenses to Defamation

| Defense | Type | Scope | |---------|------|-------| | Truth | Absolute | Complete defense in all jurisdictions | | Absolute privilege | Absolute | Judicial proceedings, legislative proceedings, executive communications, spousal communications | | Qualified privilege | Conditional | Reports to those with a legitimate interest (employer references, credit reports) — lost if abused (malice or excessive publication) | | Opinion | Constitutional | Pure opinions are protected; but opinions implying undisclosed facts can be defamatory |

Constitutional Limitations

The First Amendment imposes significant limitations on defamation claims:

- Public officials: Must prove actual malice (NY Times v. Sullivan) - Public figures: Same actual malice standard (Curtis Publishing v. Butts) - Private plaintiffs / public concern: At least negligence required; punitive damages require actual malice (Gertz v. Welch)

Actual malice is a term of art: it does NOT mean ill will or hatred. It means: 1. Knowledge that the statement was false, OR 2. Reckless disregard for whether it was true or false (subjective standard — D actually entertained serious doubts about the truth)

Cases to Know

New York Times Co. v. Sullivan (1964) — actual malice standard for public officials
Gertz v. Robert Welch, Inc. (1974) — private plaintiffs need only prove negligence
Curtis Publishing Co. v. Butts (1967) — public figures held to actual malice standard
Milkovich v. Lorain Journal (1990) — opinion is not automatically protected; depends on whether it implies false facts

California Codes — Official Authority

The statutes SofAI ties to this topic. Use them as your IRAC rule block, then verify the current text on the official leginfo link.

Cal. Civ. Code §46 — Slander definedleginfo
Slander is a false, unprivileged spoken statement that, among other things, charges a crime, imputes a disease, injures someone in their profession, or imputes impotence or unchastity.
Cal. Civ. Code §45 — Libel definedleginfo
Libel is a false and unprivileged written or visual publication that exposes a person to hatred, contempt, ridicule, or that injures their reputation.

Explore all California Codes

Baby Bar Relevance

Defamation is tested on the Baby Bar under Torts. The examiners expect you to classify the statement as libel or slander, apply the correct fault standard based on plaintiff status, and analyze available defenses. The constitutional overlay (Sullivan/Gertz) is critical.

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