Harmonizing Constitutional Rules with Common Law Privileges

1. Harmonizing Constitutional Rules with Common Law Privileges • “Fair report” privilege and “fair comment” privilege require a degree of accuracy • Qualified privileges usually lost if defendant had “common law malice” (spite or ill-will) • Constitutional rules (NYT v. Sullivan and Gertz) make defendant’s liability turn on fault of the speaker with respect to the truth

2. Defamation: Prima Facie Case1. Defendant must publish to third person(s)2. Defamatory material [must be provably false facts?]3. Of and concerning the Plaintiff

3. Defamation and the Religion Clauses First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . . Most courts say they may not adjudicate the liability of clergy or a church for defamation, since to do so injects the courts into the interpretation of religious doctrine.

4. Statute of limitations Traditional rule: Most courts say statute of limitations begins running at publication Discovery rule: Some courts say statute begins running when publication was actually discovered or should have been discovered by plaintiff Single Publication Rule: The first publication creates the claim – and only one cause of action arises from an “aggregate” publication (such as a book with multiple editions)

5. Remedies for Defamation: Availability of presumed Damages Common law: Damages were presumed. Gertz: No presumed damages in “public concern” defamation (damages limited to “actual damages”), UNLESS Plaintiff proves NYT v. Sullivan “actual malice.” Dun & Bradstreet v. Greenmoss: States are permitted, but not required, to award presumed damages in “private person, private concern” group of cases. Some states now require proof of “actual damages” in all defamation cases.

6. Remedies for Defamation:Compensatory and Punitive Damages Plaintiffs can recover for actual pecuniary loss, such as lost wages and medical expenses Plaintiffs can also recover for emotional distress resulting from defamation If Plaintiff proves “actual malice” (knowing or reckless defamatory falsehood), some states allow punitive damages – others require a bad motive (akin to “common law malice”)

7. Remedies for Defamation:Radio broadcast and Retraction Statutes “Radio Broadcast” statutes in some states protect media defendants from liability unless they are at fault, and may limit damages to actual damages. “Retraction” statutes in some states say only actual damages can be awarded unless plaintiff has demanded a retraction and the media defendant has refused.