TORTS

PROFESSOR CHRISCOE
DEFAMATION PROBLEM 1

Note: Feel free to use your notes to craft an answer to this problem. The objectives are to
simply make sure your notes are full and accurate and to make sure you understand the
common law and constitutional analyses that apply.

Avis Andrews was a writer for Sports US, a nationally distributed sports
magazine. The magazine had a paying reader base of approximately 150,000 persons,
and Sports US further provided complimentary copies to selected college and
professional coaches throughout the United States. The magazine was widely accepted
by these coaches as a serious commentary on the various issues in sports.
Prompted by rumors Avis had heard in various circles, Avis decided to prepare an
investigative article on the prevalence of performance enhancing drugs in high school
sports programs. Specifically, these rumors were addressed to the use of such drugs in
women’s tennis, so Avis limited his focus to this sport.
Over a couple of months Avis visited numerous high schools across the United
States and interviewed female tennis players and coaches about the rumors. He found
nothing to suggest that the rumors were true.
One of the last high schools Avis visited was East Blayne High School. One
afternoon while interviewing one of the coaches, Avis noticed two female tennis players
taking some capsules. When Avis inquired about the capsules, the coach explained that
the two young women, Beth Boyton and Claire Counts, had terrible colds and were
taking an over-the-counter medication that contained the decongestant pseudoephedrine.
“They are so congested I don’t think they could play this afternoon without the
medicine,” the coach explained to Avis.
Avis wrote a shorthand note on his pad that the girls were “taking p-ephedrine for
cold – no prescription needed – some days can’t play without it.”
When Avis completed his investigation, he wrote an article in which he put to rest
the rumor that female high school tennis players were taking performance enhancing
drugs. However, near the end of the article he wrote the following paragraph:

In fact, the only observation of any drug use of any type occurred at East
Blayne High School. Apparently, when the young ladies on the tennis
team at East Blayne feel a little under the weather they take ephedrine,
which they obtain without prescription. The coach explained to this writer
that some days the girls probably could not play without it.

Ephedrine is a stimulant well-known in collegiate and professional sports circles

for its use as a performance enhancing drug. It appears as one of the expressly banned
drugs on the National Collegiate Athletic Association’s (NCAA) list of banned drugs.
Further, ephedrine is a controlled substance in the state where East Blayne is located and
it is illegal under state law to possess or take the drug without prescription.
Pseudoephedrine, the ingredient in the cold capsules the girls were actually taking, is a
decongestant used in many over-the-counter cold medicines, and is expressly listed by
the NCAA as a drug that it not banned.
When the 150,000 copies of the magazine that contained this article hit the news
stands, none of the eight girls on the East Blayne tennis team gave it much thought
because they did not understand the implications. However, Penny Palmer soon found
out that there are those in the sports world who know the difference between ephedrine
and pseudoephedrine.
Penny was the top player on the East Blayne team and had a tentative offer from
Creston College for a full athletic scholarship to play tennis. Creston, a relatively small
but excellent private liberal arts college, had in recent years suffered public
embarrassment because several of its basketball players had tested positive for steroids
and the school was suspended from league play. Not wanting to flirt with the same
disaster in women’s tennis, upon reading Avis’ article the school contacted Penny and
told her that they would not be extending her a scholarship offer.
Penny was particularly outraged because, to her knowledge, she had never even
taken pseudoephedrine, much less ephedrine.
When the East Blayne coach read the article, he immediately contacted the editors
at Sports US to point out the enormity of the mistake in the article. When the editors
approached Avis about the article, Avis told them truthfully that he never intended to
suggest that the players were taking performance enhancing drugs. He further explained
that he wrote the paragraph about East Blayne from his shorthand notes and admitted that
he did not even know the difference between ephedrine and pseudoephedrine or that
either was banned by the NCAA.
Penny has sued Avis and Sports US for defamation. (You may assume that if
Avis is liable Sports US will be liable by respondeat superior and this issue does not need
to be discussed. You may also assume without further discussion that Avis acted
negligently in referring in his article to ephedrine as opposed to pseudoephedrine.) The
jurisdiction continues to apply the common law of defamation in all areas not modified
by constitutional considerations.
Discuss the issues presented and conclude with a determination of whether Penny
will be successful in this suit.