Defamation Part 1 of 3
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Defamation Part 1 of 3

Defamation Part 1 of 3

Defamation is one of the tort theories you learn about in 1L that immediately makes you the least liked individual at cocktail parties.  I am sure you have all heard the complaint “Mary has been telling people that I owe her money and that’s a lie; if she isn’t careful I could sue her for defamation!  I even have a letter from her where she said I owed her the money and that I owed everyone money!”

Before enrolling in 1L you probably jumped in one many a conversation where one friend would state they would sue another for defamation.  These days you just want to interject and make sure all your friends are corrected!  Hence, the least like person at cocktail parties.

Defamation is a false statement communicated to a third part of and concerning the plaintiff which lowers the plaintiff in the esteem of the community or discourages third persons from associating with him.  We have broken up the theory of defamation into a 3 part series!

Let’s break down the rule statement a bit:

  • Defamatory statement
  • Communicated
  • Of and Concerning the Plaintiff
  • Damages
  • Constitutional Concerns
  • Common Law Privileges and Defenses

Click here for the written materials; June 2015 Defamation Fact Pattern and Essay Analysis

Defamatory Statement

In order for the statement to be defamatory it must lower the plaintiff in the esteem of the community or discourage third persons from associating with him.  The message must be characterized as holding the plaintiff up to hatred, ridicule, contempt or scorn.  This means that the person who receives the message must understand it, as a reasonable prudent person would, to be negative of the plaintiff.  This doesn’t mean that the individual(s) have to believe it; just that they have to understand it is holding the plaintiff in negative esteem.  “Bob is a Duck” is not a defamatory statement, it’s just weird.  “Bob is a thief who steals old ladies purses” could be defamatory.


If the statement concerning the plaintiff is whispered into a secluded closet and no one is around to hear and understand it then it hasn’t been communicated. The message must be communicated concerning the plaintiff to a third person who receives the message and understands it.

If an eavesdropper picks up the conversation then there are additional factors you have to look at.  Was the communication made in public where there is no reasonable expectation of privacy?  Was the statement made recklessly and foreseeably to be overheard by another?

Another thing to think about is the original publisher and re-publisher.  Remember, any person who repeats the defamatory message is as liable as a publisher.  When you are faced with this type of fact pattern I know you will bee incredibly tempted to get into Constitutional issues and privilege but remember, there is a place in your essay for this discussion and this section is not that place! If you must write “See Constitutional issues below” or see “Privilege discussion below”.

Of and Concerning the Plaintiff

The plaintiff must show that a reasonable third person who received the message understood the message as to referring to the Plaintiff. If the message is defaming a group of persons then you must look to the size of the group of people to identify who may bring suit (if any).

Often, the fact pattern will state there was an ambiguous defamatory statement made which does not specifically name the plaintiff; “A science teacher at USC”, “Bob the janitor working for NASA”, etc.  In this situation, the plaintiff us show extrinsic facts which establish that he was the person in fact being defamed by the message.


Recoverable damages in Defamation cases vary but there are three general types of damages which are recoverable: Pecuniary, Presumed/General, and Punitive Damages.  Pecuniary damages are calculable monetary losses suffered due to injury to the reputation; loss of job.  Presumed/General damages are allowed in certain circumstances but not all.  These damages include non-pecuniary parts of the injury; embarrassment, loss of friendships, co-workers, etc. Punitive damages are assess to punish and deter future wrongful conduct.  In order to obtain punitive damages the plaintiff must make additional showings of malicious intent.

Remember, it is presumed that the plaintiff suffered general damages when the form of defamation is slander per se or libel; so this is where you are going to want to bring up the form of defamation in order to have an accurate damage discussion.  We will cover this more in depth in Part 2 of our series.

Constitutional Concerns

At common law defamation was a strict liability offense. Modernly, we must address Constitutional concerns regarding the nature of the plaintiff and the subject matter of the defamatory statement.  This means you have to identify if the Plaintiff is a Public figure, private figure, public official, etc.  Then once you have identified the classification of the Plaintiff you must identify the classification of the subject matter; public concern, etc. We will cover this more in depth in Part 3 of our series.

Common Law Privileges and Defenses

The truth of the statement is always a defense but it has its caveats as well.  A majority of jurisdictions allow truth as a complete defense to a defamation action but this can sometimes leave you with potential malice that is not addressed.  If this is the case then you need to immediately look to another tort such as False Light.  A minority of jurisdictions do take into account the motive and may impose liability on a defendant who publishes a true defamatory message but this is a minority.

Absolute privileges hold a defendant not liable for an otherwise defamatory message as a matter of law.  This includes defamatory messages made while on the floor of the legislature, made in judicial proceedings, executive communications, spousal communications, etc.  Qualified privileges are almost a step down from absolute privileges but still allow freedom from liability; public interest to one empowered to protect that interest, defendants own interest (but the defendant bears the burden of establishing the qualified privilege).

We will cover more in Part 3 of our series!


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