Some notes on defamation

D. Negligence Is Standard Of Liability

In Minnesota, the defendant is liable if it "knew or should have known in the exercise of reasonable care" that the defamatory statement was false. Jadwin, supra. This is the standard formulation for liability based on negligence, that is, liability arising from failure to take due care.

This is a low standard of liability. However, First Amendment considerations substantially limit the application of this standard.
2. Matter of Public Concern: Actual Malice must be proven.

In cases where the media defendant is treating an issue of public concern, the First Amendment also requires proof of actual malice or reckless disregard of the truth, even if the plaintiff is not a public figure. Gertz v. Robert Welch, 418 U.S. 323, 349-50 (1974). See also Hepps, 475 U.S. at 775 (In non-public concern, non-public plaintiff defamation case, First Amendment does not bar application of mere negligence standard for defamation); Dun & Bradstreet v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985) (Powell, J., concurring).


As Justice Brennan recognized in 1971 in Rosenbloom v. Metromedia, Inc.,2 the status of the plaintiff should not determine the breadth of constitutional protection afforded to material concerning matters that could influence the lives of many.


3. Matter of Public Concern: Plaintiff Must Prove Statement is False.

Proof of falsity required when media defendant addresses topic of public concern; regardless of public/private status of plaintiff. Hepps, 475 U.S. at 775-76.

We can get to a jury, but it's our burden to show facts were false.
facts in question:
- degree in indiana under false pretenses
- past he tried to hide
- fondling
stroke: touch lightly and with affection, with brushing motions; "He stroked his long beard"
- convicted felon
[convicted drug dealer]


5. Falsity May Have to Shown by "Convincing Clarity."

Public figure plaintiffs may have to prove falsity by "clear and convincing evidence" as protected under New York Times v. Sullivan. Sharon v. Time, Inc., 599 F. Supp. 538, 558 (S.D.N.Y. 1984); Firestone v. Time Inc., 460 F.2d 712, 722 (5th Cir. 1972), cert. den., 409 U.S. 875 (Bell, J., specially concurring).
but not a public figure.
not a government offical, not a famous person, not someone who has sought publicity on this issue.

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/zacchini.html
new York Times v. Sullivan (1964)
Time v. Hill (1967)
Gertz v. Welch (1974)
Zacchini v Scripps-Howard (1977)
Hustler Magazine v. Falwell (1988)

Somewhat simplistically, there are four elements essential to a cause of action for defamation:

(1) a false and defamatory statement concerning another;

(2) an unprivileged publication of the statement to a third party;

(3) if the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and

(4) damage to the reputation of the plaintiff, whether actual or presumed by law.


Cohen v. Cowles Media Co. (1991)

A communication is defamatory if it:

“[T]ends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Restatement (Second) of torts § 559 (1977).

“[If] the plaintiff is a public figure, he cannot recover unless he proves by clear and convincing evidence that the defendant published the defamatory statement with actual malice, i.e., with ‘knowledge that it was false or with reckless disregard of whether it was false or not’.” Masson v. The New Yorker Magazine, 501 U.S. 496, 510 (1991).(but not a public figure: clear and convincing evidence, or preponderence standard, as to malice?

Defamation plaintiffs may seek three types of damages: general, special, and punitive. General, or “presumed” damages, are a form of compensatory damage given to compensate the plaintiff for harm to his/her/its reputation due to the defamatory publication.

Special damages are given if something with economic or pecuniary value is harmed, which in the case of defamation, “must flow directly from the injury to reputation cause by the defamation.” Special damages must be pled with specificity in slander actions.
Punitive damages, which are intended to punish, are awarded only if the plaintiff proves actual malice on the part of the defendant in writing or publishing the defamatory material. (if we make our case, we can ask for reasonable punitives.)
A public figure is someone who has achieved fame or notoriety within the community.

The plaintiff must establish proof of damage to reputation in order to recover any damages for mental anguish; see Gobin v. Globe Publishing Co., 232 Kan. 1, 649 P.2d 1239, 1244 (1982); Swanson v. American Hardware Mutual Ins. Co., 359 N.W.2d 705, 707 (Minn. App. 1984) (rev. denied) ("To establish a claim in a defamation action [plaintiff] must prove that the [defendant] made false and defamatory statements about them which injured their reputation.").

How false is false? The test is whether the alleged defamatory statement as a whole is true or false. Minor inaccuracies are not subject to defamation claims if the overall substance of the statement is true. "The plaintiff cannot succeed in meeting the burden of proving falsity by showing that only that the statement is not literally true in every detail. If the statement is true in substance, inaccuracies of expression or detail are immaterial." Jadwin, supra, 390 N.W.2d at 441.

note: we will be dealing with an insurance company, not the station itself.
lots of lawyers, but motive to settle.
Indiana standard: banditos case ("rats" instead of rodents.)
http://www.hspa.com/main.asp?SectionID=5&SubSectionID=30&ArticleID=140
100 page case.

A landmark decision, The Journal-Gazette Company, Inc. v. Bandido's, Inc. case was decided on a 3-2 vote. Justice Frank Sullivan wrote the opinion. Justice Myra Selby concurred and Justice Theodore Boehm concurred with a separate opinion. Justice Brent Dickson and Chief Justice Randall Shepard wrote dissents and concurred with each other's dissent.
The decision means a newspaper cannot be found guilty of libel just because it published a story or headline that contained an error. There must be clear and convincing evidence that the newspaper printed false defamatory information with ill will or reckless disregard of the truth before a plaintiff can prevail.

Justice Boehm came to most of the same conclusions as Justice Sullivan, but reached his opinion by examining Indiana law, rather than looking at federal law. One difference Boehm had with Sullivan is the standard of review for trial decisions in libel cases. Boehm preferred the conventional standard of review, expressed in Justice Dickson's dissent.

Boehm's concurrence focused on the Indiana Constitution's prohibition of any law

"restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever" while providing that a person be "responsible" only for the "abuse" of those rights.

"Abuse seems to fortify the inference that actual malice is an appropriate test for any defamation claim on a matter of public concern," Boehm wrote.

"This limitation is opposite to the words, spirit, and history of the Indiana Constitution, contrary to overwhelming authority from other state jurisdictions, and detrimental to sound public policy. I believe that the majority approach endangers personal privacy, encourages irresponsible journalism, and unnecessarily deprives injured persons of reasonable recourse from harm suffered from defamatory distortions and falsehoods published by entertainment and news media."

According to Dickson, Alaska, Colorado and New Jersey are the only other states to apply the malice standard to private individuals involved in issues of public concern.

Shepard was more to the point.
"A jury of people in Fort Wayne were satisfied that all this [evidence] showed reckless indifference and that this small business was badly hurt," he wrote. "The appellate judges are not convinced. Judgment for the newspaper. When the Court declares its dissatisfaction with the jury and the evidence in this case, it effectively says to other injured citizens, 'You're toast.'"

A jury had awarded Bandido's $985,000 during a trial in Noble Circuit Court.
so a to-do is to shepardize banditos
The Journal-Gazette Company, Inc. v. Bandido's, Inc
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=in&vol=sc\06239901.fsj&invol=2


A defamatory communication is defined as one that “tends so toharm the reputation of another as to lower him in the estimation of the community or to deter thirdpersons from associating or dealing with him.”See footnote 6 Doe v. Methodist Hospital, 690 N.E.2d 681, 686(Ind. 1997) (quoting Restatement (Second) of Torts § 559 (1977)); see Near East Side CommunityOrg. v. Hair, 555 N.E.2d 1324, 1330 (Ind. Ct. App. 1990); Cochran v. Indianapolis Newspapers,Inc., 175 Ind.App. 548, 553, 372 N.E.2d 1211, 1217 (1978).

BOEHM, Justice, concurring.


I do not agree with JusticeDickson that the availability of a federal constitutional resolution renders it inappropriate toexpress an opinion on these state law issues. To the contrary, I believe this Court shouldfirst address the state law issues.

Even if the headline were not a fair index of the article, I agree that Bandido's failedto demonstrate that the paper acted with actual malice. I reach that conclusion under statelaw alone, applying the clear and convincing evidence standard

Apart from the specific facts in this case, the “reckless disregard” prong of “actualmalice” should be satisfied under Indiana law if one publishes a report with no idea whetherit is true or not.

In my view, a dopting an actual malice test for defamationactions on matters of public concern gives appropriate recognition to the balance necessarybetween the conflicting values evidenced in our state constitution: a remedy for injury toreputation and the important interest in the free interchange of thought and opinion. ArticleI, section 12, of the Indiana Constitution explicitly identifies injury to “reputation” as oneproper subject of judicial remedy. Article I, section 9, is even more emphatic than the FirstAmendment in prohibiting any law “ restraining the free interchange of thought and opinion,or restricting the right to speak, write, or print, freely, on any subject whatever” and itprovides for a person to be “responsible” only for “abuse” of those rights. “Abuse” seemsto me to fortify the inference that actual malice is an appropriate test for any defamationclaim on a matter of public concern. The standard we adopt today gives appropriaterecognition to the interest in one's reputation and preserves the notion that one isresponsible for abusing the free speech right, but it accomplishes this while still protectingthe vital right to comment on, speak about and offer criticism of our government and othermatters of public concern.
shepard
Most injured plaintiffs will not have the smoking guns thatBandido's brought to this lawsuit. When the Court declares itsdissatisfaction with the jury and the evidence in this case, iteffectively says to other injured citizens, "You're toast."

“Publicfigures” are those who are “intimately involved in the resolution of important publicquestions or, by reason of their fame, shape events in areas of concern to society atlarge.” Id. at 164, 87 S.Ct. at 1996, 18 L.Ed.2d at 1116 (Warren, C.J., concurring in theresult).
http://barrettlaw.com/biography_a.php?att=12 - the attorney who won banditos.

Cathleen M. Shrader
Attorney at Law
T: 260-423-8921
F: 260-423-8920
Back cms@barrettlaw.com

gertz, a landmark case, concerned false accusations against a lawyer, court found public concern so applied sullivan standard.
http://www.insd.uscourts.gov/opinions/AMF640O1.PDF
indianapolis federal district court case on defamation

it's in pdf, but has a good definition of defamation in indiana.
1) comunication with a defamatory implication.
2) malice
3) publication
4) damages
Poyser v peerless 775 n e 2d 1101,1106.(ind app 2002)

what's strong about our case is the multiple false statements - supports recklessness.
what's strong is the damages are huge -
bodily harm,
mental distress,
fear for safety,
loss of job,
had to move to place with rats and roaches, had to leave town,
sought psychiatriac help,
shunned by friends,
had a nervous breakdown (with other contributing causes.)
loss of other employment,
indigency,

--
reckless disregard: while the standard in indiana is reckless disregard, we find no case that pins down with specificity what constitutes reckless disregard.
in Bandito, a headline writer writing "rats" instead of "rodents" was found not reckless, by 3 of 5 judges. need to look up the poyser case.

here, they absolutely made up the false claim that plaintiff had obtained a law degree in indiana under false pretenses. what school? what year? they have no idea, because it didn't happen.
weakness: he did, tho, seek admission to the bar. there only evidence of false pretenses was a false and unsubstantiated laim by an adversary in litigaion who is immune from libel and would benefit from the destruction of client's repuation.
but maybe they can rely on her because the government never lies.

well that was a start. off for now, more tomorrow to be ready for monday.

stuff for mike:

1 Will you take the case, right?
2 Redacting of arrest
3 letter re tax 227
4 he doesn't want the lots?
5 discovery of any written or videotape jail records.
something else.

1. To handle, stroke, or caress lovingly. See Synonyms at caress.
2. Obsolete. To treat with indulgence and solicitude; pamper.


VERB: To touch or stroke affectionately: caress, cuddle, pat, pet1. See TOUCH.

v. intr. <- that's not too far off.

To show fondness or affection by caressing.
libel requires statements of fact; what the reader assumes is not part of the deal.
even if it doesn't hold up as false, it still goes to malice - reckless disregard, just made stuff up. they alleged three incidences of fondling, none of them were true. it's triable to a jury, so it'll settle.

- false claim of felony
- false claim of convicted drug dealer
- false claim of three fondles.
- false claim of past tried to hide.
- false claim of law degree in indiana vie deception

uncorroborated, onesided, rush to print, - reckless.
failed industry standards.
made stuff up! for any one, could argue reasonable mistake, but 7 reasonable mistakes?

republication:
6 pm 11pm internet. 4 showings of promo. settle $10,000 each time.

process
to do list (brainstorm)
to do list (itemized)
daily task list. - three things for saturday.

to do list
written:
agenda for mike. 3:30 monday.
libel action
no to lots?
dsicovery re jail
what else?
expunge
collect on accident case - find insurance company via other insurance company

discovery re jail:

Subpoena for any written records.
Intake records,
medical records,
copies of any correspondence by or about plaintiff,
any videotape,
any records of disciplinary actions taken for actions in regard to plaintiff,
any communications by or to the chaplain or warden in which plaintiff's name is mentioned,
dental records,
time in library
names of staff
names of inmates
















disc
irs
court 13
AGO
227 tax
mom and lindy
client letter
taylor v taylor status report
securatex

nonwritten:
vaccuum
pay storage bill
227 turn off lights and water.
pay bills.
(write) oct rent check.
pick up trash

call jewelry doctor
take car for fix
6 cle
chuck's listings for greg
did: took out trash. swept. 105 pushups.

all i've done yet is make the list, and it's past 4:40 already.

raccoon statement.

I got interested in intentional community in 1975, but in 2005 am still living alone or with roommates.

I have been active in environmental concerns since earth day 1970.
I have served on the boulder county energy advisory committee, the boone county (missouri) energy and environment commission, the indiana trails advisory board.
I received a TWA environmental law scholarship while obtaining a law degree from the University of Missouri-Columbia.
I graduated 4.0 from Western Illinois and have a masters in law from University of Missouri- Kansas City.
I am a vegetarian and an avid recycler.
I enjoy gardening. I ride a bicycle. I read books, and blog on my computer.
I like Bloomington.
I like the potential of developing low cost housing outside the city.
In the short term, I am going to be moving to Milwaukee, where a friend needs a personal assistant. If I can get his finances in order, he might be able to become a member as well.
If I am able to sell my house in Indianapolis, I will be in the market for an address in Indiana, for the purposes of my small law practice.
I do an occasional case about voting rights.