1. The tort is: (a) a printed, spoken or non-verbal message, (b) communicated to a third party, (c) which because of fault (actual malice or reckless disregard of truth or failure to exercise reasonable care or, in the case of a private person, negligence) (d) brings person into hatred, contempt or ridicule, (e) in eyes of a substantial, respectable group.
2. “Public officials” are elected or appointed, have substantial roles in making and/or implementing policy, and earn public money (Sullivan, Rosenblatt, Roy, Butts, Walker).
3. “Public figures” enter limelight (a) voluntarily to market talents or their fruits or to participate in a controversy of public importance, or (b) involuntarily become involved in a newsworthy event or process (Butts, Walker, Gertz).
4. “Private persons” are neither public officials nor public figures, or are persons of any category in story about the person’s involvement in civil litigation (Gertz, Firestone).
5. “Qualified privilege” is attached to absolutely privileged status of public records and public officials and requires accuracy and balance to support the privilege.
6. “Actual malice” is:
falsity “with reckless disregard of whether it was false or not” (Sullivan);
“extreme departure from standards of investigation ordinarily adhered to by responsible publishers” (Butts);
“serious doubt as to the truth” (St. Amant);
“false statements made with a high degree of awareness of their falsity” (Garrison);
“obvious reasons to doubt the veracity of the informant or accuracy of his reports” (Lando);
“clear and convincing evidence” of actual malice (Anderson);
“provably false factual connotation” (Milkovich);
“material change in a … meaning” if “untrue factual assertion” or false “negative personal trait or attitude” (Masson).
7. “Fair comment and criticism” is the defense for opinion about public figures’ performance or talent artifact to be claimed when critic is an eyewitness of plaintiff’s work or can be used by public figures. But Sullivan usually is used.
8. “Neutral reportage” is a narrow defense for stories about opinion exchanges between spokespersons of respectable entities about controversial issues of public importance when writer knows one or both sides is lying but reporter cannot identify which is lying.
9. Facts to be proved by plaintiffs are: (a) publication, (b) identification, (c) defamation or damage to reputation, (d) fault of appropriate level based on plaintiff category, and (e) damages.
10. “Compensatory or general damages” are damages paid to a victorious plaintiff for the value of his or her reputation, which is a difficult to quantify criterion.
11. “Special damages” are damages paid to a victorious plaintiff for actual, measurable, out-of-pocket, or projected wages or salaries losses caused by loss of reputation.
12. “Punitive damages” are paid to victorious plaintiffs to punish defendant who published falsehood with actual malice, not to reimburse him for general or special losses.
Terms to know
- SLAPP suit
- Libel tourism
Scriptural Roots
By Charles Marler
1. “Do not go about spreading slander among your people. Do not do anything that endangers your neighbor’s life. I am the Lord. Do not hate your brother in your heart. Rebuke your neighbor frankly so you will not share in his guilt. Do not seek revenge or bear a grudge against one of your people, but love your neighbor as yourself” (Leviticus 19:16-18).
2. “Let slanderers not be established in the land; may disaster hunt down men of violence” (Psalm 140:11).
3. “You shall not give false testimony against your neighbor” (Exodus 20:16).
4. “Do not repay evil or insult with insult, but with blessing, because to this you were called so that you may inherit a blessing. For ‘Whoever would love life and see good days must keep his tongue from evil and his lips from deceitful speech'” (1 Peter 3:9-10).
5. “…[T]he word of the Lord stands forever….Therefore, rid yourselves of all malice and all deceit, hypocrisy, envy, and slander of every kind” (1 Peter 1:25-2:1).