TORTS - Constitutional Law Defomation Flow Chart FIRST AMENDMENT APPLICABILITY: {s the plaintiff a public official or public figure, or does the statement involve a matter of public concern? NO~> the First Amendment does not come into play, just analyze under the common law YES > the First Amendment does come into play \s the plaintiff a public official or public figure, oris the plaintiff a private person? PUBLIC OFFICIAL OR PUBLIC FIGURE the plaintiff must prove, as pat ofthe prima facie case, thatthe statement is false, AND the plaintiff must prove the defendant’s actual malice, that is, that the defendant acted with knowledge that the statement was false or with reckless disregard as to the truth or falsity of the statement PRIVATE PERSON RE MATTER OF PUBLIC CONCERN ~ the plainitf must prove, as part of the prima facie case, that the statement is false, AND the plaintiff must, either: prove the defendant's actual malice, that is, that the defendant acted with knowledge that the statement was false or with reckless disregard as to the truth or falsity of the statement oR prove negligence plus actual injury (© 2010 Eric JosonTORTS - Common Law Defamation Flow Chart ‘THE COMMON LAW ELEMENTS: NO ves @ Isthore a defamatory statement? (defamatory = tends to injure the reputation in the view of any substontial and morally respectable group) ‘yg @ Isthe statement of or concerning the plaintiff? {identification of person can be impli, «an be by group iene if grou isl] "rns @ Was the statement published? {intentionally or negligently acl communiced ‘na lenst one thd person) \sit libel or slander? SLANDER PER SE / LIBEL PER QUOD ANALYSIS Does the statements defamatory information cme from ..? + averse to ones profession or business Hf slandet use slander per se analysis + loathsome disease + guilt of crime involving mora turpitude Wiel + lack of chastity Ist (no external infomation snooded to IF YES then no special damages ned be proven ‘understand defamatory import) IF HO > then special damages mus be proven NOT PROVE soy SPECIAL DAMAGES, isneded for defamatory meonng) "5 0 @ {s tho statement substantially true? {defamatory = tends to injure the reputation in the view of ony substantial and morally respectable group) "5 vo @ Is the satement protected by absolute privilege? {court proceedings, legislative business, highevel government executive coruniains ss0 opt) Te” © Is the statement protected by qual \ (fic and ecu reparting, employment ference, oer) Isthe quolifed privilege exceeded? "0" St" lock of subjective belief in truth, lack of objectively reasonable beliot intr, excessive pblation) © 0 Eric. Johnson