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U.S. Constitution

FIRST AMENDMENT

The following information was presented at our public meeting on 12-19-02.  Below this section, see other links and articles.

Defamation & Free Speech (The Press)

Defamatory statements can be burdened.  If the defamatory statement is about a PUBLIC OFFICIAL or PUBLIC FIGURE or involves a PUBLIC CONCERN, the First Amendment requires the plaintiff to prove all the elements of defamation PLUS FALSITY and some degree of FAULT.

Note that constitutional questions usually arise from overly restrictive or overly burdensome laws that restrict speech by a particular governmental entity.  (5th Amendment for federal, 14th Amendment for state and local).

DEFAMATION

Common Law:  Defamatory language, of or concerning plaintiff, publication, damage to reputation.  If a matter of public concern, plaintiff must also prove fault and falsity.

In a common law case, plaintiff does not have to prove falsity as part of the prima facie case.  Rather, defendant can offer truth of the statement as a defense.  Rather, defendant can offer truth of the statement as a defense.

Defamatory Language:  tending to adversely affect one's reputation.  A statement of opinion is actionable only if it appears to be based on specific facts, and an express allegation of those facts would be defamatory.

  • Defamatory meaning can be established by innuendo.
  • Defamation of a deceased person is NOT actionable.

"Of or Concerning" Plaintiff:

  • Extrinsic evidence may be offered to establish that the statement refers to the plaintiff, aka--pleading colloquium.

Liability:  primary publishers, author, salespersons as secondary publisher (only if knows or should know defamatory content).

Damages:  in a libel case, Plaintiff does not need to prove special damages and general damages are presumed.

Constitutional:  First Amendment Concerns

  • When the defamation involves a matter of public concern, plaintiff must prove additional elements of fault and falsity
  • Possible cause for intentional infliction of emotional distress (extreme & outrageous conduct, intent or recklessness, causation, damages - SEVERE emotional distress) or invasion of right to privacy
  • Public official or figure must prove malice (Times v. Sullivan)
    • Public figure by achieving a central role in a particular public controversy
    • Malice Times v. Sullivan - knowledge the statement was false, or reckless disregard as to whether it was false
  • Private persons need not prove malice (Gertz v. Welch)
    • Only negligence regarding the falsity must be proved if the statement involves a matter of "public concern".
      • When negligence shown, only "actual injury" damages are recoverable
      • When malice found, damages may be presumed, and punitive damages allowed

Defenses:  Consent, Truth, Absolute Privilege (judicial proceedings, legislators in debate, federal executive officials, "compelled" broadcasts, between spouses).  Qualified Privilege (lost if not within scope of the privilege, or speaker acted with malice).  Note:  Defendant must prove a privilege.

INVASION OF RIGHT TO PRIVACY

  • Intrusion upon Plaintiff's Affairs or Seclusion:  prying or intruding, objectionable to a reasonable person, private matter (photos in a public place are not actionable)
  • Publication of Facts Placing Plaintiff in False Light:  attributing to Plaintiff views not held or actions not taken by Plaintiff
  • First Amendment:  if a public interest, malice must be proven
  • Causation (proximately caused by conduct), no special damages necessary (emotional distress and mental anguish are sufficient), defenses (truth, inadvertence, good faith, or lack of malice are NOT good defenses in a right of privacy action), personal right (does not extend to family)

NOTE:  TO OBTAIN SUMMARY CASE INFORMATION ON CITED CASES, CONTACT REDRESS, INC.

CASE LAW

Legal Information Institute, First Amendment - http://www.law.cornell.edu/topics/first_amendment.html

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