14 Oct Defamation Part 3 of 3
This is Part 3 of our 3 part series on Defamation. In Part 1 we covered issue spotting and outlining your defamation essay; if you missed it click here. In Part 2 we covered how to calculate damages and the difference between calculating Common Law damages and Constitutional Defamation damage calculations; if you missed it click here. In Part 3 we will be covering the requirements for New York Malice.
Before we get into our discussion on NY Malice lets do a review Multiple Choice Question to test our memories on damage calculations and our forms of defamation.
A local newspaper printed an article about a ministers speech, referring to the ministers speech as “full of hell fire and brimstone, considering the minister suffers from leprosy”. After seeing the article the minister sued the newspaper for defamation. The newspaper moved to dismiss the ministers defamation action on the grounds that his complaint contained no allegation of damage. Which of the following additional fact or inferences, it were the only one true, would be most helpful to the minister in opposing the motion to dismiss?
A. The minister was so upset upon reading the newspapers statement about him that he had a heart attack.
B. Editors of the newspaper disliked the minister.
C. Leprosy is a loathsome disease
D. The minister is neither a public official nor a public figure
Constitutional Issue Discussions
A quick review our outline to ensure we are having our NY Malice discussion in the right place.
- Defamatory Statement
- Of and Concerning the Plaintiff
- Communicated to a Third Party
- Damages
- Constitutional Issues
- Damages
Our NY Malice discussion will happen under our Constitutional Issues heading because at Common Law defamation was a strict liability offense. It wasn’t until decisions interpreting the First Amendment altered the common law of defamation. Under Constitutional principles you must evaluate the nature of the plaintiff and the subject matter of the defamatory statement.
Lets try a multiple choice question to get the gears working:
Steve was a sports writer who wrote for a local newspaper and Adam wrote the sports column for a competing local newspaper. In the the town that Steve and Adam lived there were two high schools and Steve took a shine to the Broncos High School sports teams and Adam took a shine to the Panthers High School sports team. Because Steve supported the Broncos and Adam supported the Panthers a rivalry developed between them. One of Steve’s recent columns had the following statement: “Adam’s team cant play ball and Adam cant write his way out of a paper bag. The only thing more boring than reading Adams stuff is reading it while watching the Panthers play.” If Adam commences an action for defamation against Steve, which of the following would be Steve’s most effective arguments in defense?
A. Adam is a Public figure
B. The statements made by Steve were expressions of opinion
C. Steve’s occupation makes him a media defendant
D. Steve’s statements were privileged by the defense of competition.
See the video below for explanation and answer of all MCQ’s.
NY Malice
When you begin thinking of malice you probably automatically think something along the lines of the malice requirement for murder or evil intent but that is not the standard used. Malice in defamation means that the statement was either:
- Made with knowledge that it was false or,
- Made with reckless disregard as to its truth or falsity.
Reckless disregard means an unreasonable disregard of a high probability or risk of falsity or a high degree of awareness of probable falsity of the defamatory statement.
Lets try a multiple choice question:
The Children of the Gates is a small religious organization. Over the past 50 years the organization was prosecuted for engaging in religious activities that involved group sex, public nudity, and cult like activities. Many non-members of the organization associate the organization with illicit sex and cult activities. The organization can to be known as The Gate. A minister ordained in the Church of Tomorrow, a religious organization that is not associated with The Gate, was holding its regular Sunday meeting when the minister made a fiery speech of damnation during the meeting. The following day, a local newspaper printed an article about the meeting referring to the minister as a “minister of the Church of Tomorrow, better known as The Gate.” The mister sued the newspaper alleging that the reference to him as a minister of “The Gate” was defamatory. In his lawsuit the minister must prove that the newspaper:
A. Knew, or that the reasonable publisher would have known, that the minister was not affiliated with the Gate.
B. Entertained serious doubts about whether or not the minster was affiliated with The Gate.
C. Knew, that “The Gate” were associated with shame or disgrace in the mind of some readers.
D. Made the statement, but the minister is not required to prove fault since the minister is not a public person.
Public Official and Public Figure
Where the plaintiff is a public official or public figure the plaintiff must establish that the defendant acted with malice before any recovery is available (see malice discussion above). Therefore, before you get into your malice discussion you must determine if the plaintiff is a public official or public figure. A public official is a government official who has substantial responsibility over government operations. Public figures are individuals who have achieved fame or notoriety to become a public figure or who voluntarily inject themselves or are drawn into a particular public controversy so that they become a public figure.
Once you have determined the Plaintiff is a Public Figure or Public Official the plaintiff must show the NY Malice requirement with clear and convincing evidence.
https://youtu.be/kaizwtyyVcI
https://youtu.be/mVQTszYQbDE