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A.    Purpose of punitive damages
1.      Deterrence - D and others 2.      Punishment for very bad behavior
Punitive Damages - Intent
A.    D’s conduct doesn’t have to be intentional - can be conscious or reckless disregard for interest of others (Taylor) 1.      Must have something more than the commission of a tort (ie fraudulent and evil motive/ willful or wanton conduct) 2.      Must balance factors and circumstances
Punitive Damages
Factors (Gore Guideposts)
1.      Degree of reprehensibility 2.      Ratio between actual and punitive damages 3.      Comparable civil or criminal penalties
Punitives potentially unconstitutional if excessive
 Ratio between actual and punitive damages Court won’t set brightline rule, but hints that anything more than single-digit ratio is presumptively unconstitutional.
Defamation CL Elements
1.      Published to third party (intentional or negligent) 2.      Of and concerning Plaintiff 3.      Capable of defamatory meaning 4.      Is claimed meaning actually defamatory?   [Harm to reputation] 5.      Damages (libel or slander)
Defamation - Published to 3rd party
a.       Intentionally or negligently
(1)   Negligence = reasonableness (reasonable duty of care under circumstances)
Defamation - Published to 3rd party
a.       3rd party must hear statement and understand its defamatory meaning
(1)   e.g. without bringing in extrinsic facts to explain its defamatory meaning or if they don’t speak the language in which it was expressed b.      3rd party does not need to believe statement is true (1)   it’s just necessary that someone would understand it in its defamatory sense
Defamation - Strict Liability
(1)   D doesn’t have to know that it’s “of and concerning” P in order to be liable, nor does D have to know that the statement is capable of being defamatory (2)   Publishers publishing defamatory material are strictly liable for what they publish if there are defamatory statements (3)   Re-publishers are liable for libel at common law, but each needs their own privilege (fair comment, fair report). Original publisher liable if re-publishing foreseeable. (4)   Disseminator [libraries, newsstand] NOT liable unless knows or has reason to know of defamatory statement in material distributing (negligent). (a)    Exceptions are either printers or ISPs
Defamation - Repetition of defamatory statements
(1)   General Rule = each repetition is separate publication for which P may recover damages (2)   BUT single publication rule (most jxs) if published in many copies of same newspaper, magazine, book etc., all copies are treated as single publication
Defamation - of and concerning plaintiff
a.       P’s burden of proof to prove this element b.      Only an issue when: (1)   P not named but identifiable (as in fiction) (2)   Group defamation – member of a group or corporation (a)    depends on group size – must sufficiently touch the P c.       Opinions can be defamatory if underlying the opinion are asserting facts, but generally opinions (“she is a wacko”) are not defamatory
Capable of defamatory meaning
a.       Taking fair and natural meaning which will be given by reasonable persons of ordinary intelligence, and generally taken as a whole (Romaine) b.      P alleges “spin” then court evaluates language in context of publication as a whole (1)   Language – evaluate the fair and natural meaning given by a reasonable person of ordinary intelligence (2)   Context (a)    Internal – article as a whole including punctuation i)        Type, format, punctuation may be crucial ii)      Headlines, captions and statement in an article may be defamatory if excessively separated from an explanation (b)   External knowledge (inducement) or draw inferences (innuendo)
Defamation - (Romaine test)
  1. Romaine Test – Is statement reasonably susceptible of one, defamatory meaning:
(1)   If yes ö defamatory (a)    statement susceptible of one, defamatory meaning only (b)   statement is libelous as matter of law (2)   If no ö not defamatory (a)    statement susceptible of only non-defamatory meaning (b)   statement not libelous (3)   If maybe ö jury (a)    statement capable of being assigned more than one meaning, one of which is defamatory and the other not question of defamatory content must be determined by jury
a.       If defamatory meaning arises only when combined w/ extrinsic facts P must show:
(1)   The extrinsic facts [inducements] (2)   That these facts were known by some 3rd party who read or heard statement (3)   The implication [innuendo] of the statement is defamatory
Is claimed meaning actually defamatory?
a.       Statement must be false AND b.      Injurious to reputation, OR c.       Exposes another to hatred, contempt, ridicule (Prosser) OR d.      Subjects another to loss of good will and confidence in which P is held by others (Restatement) – Romaine         
Defamation damages
  1. Types of Damages
(1)   Nominal damages  ö no proof needed (2)   General damages = compensate for harm to P’s reputation (a)    Presumed  ö no proof needed (b)   Proven  ö requires evidence   (3)   Special Damages = out-of-pocket pecuniary damages caused by damage to reputation [loss of a job, injury – usually attached to a bill]            (a)    Must be plead specifically and with particularity and proof (b)   Must flow directly from injury to reputation caused by defamation, not from the emotional effects of the defamation (4)   Punitive damages ö if P proves ill will or malice of D
Slander (oral)
(1)   Must show special damages to recover general damages unless defamation falls into per se category (2)   Slander per se ö NO special damages required – general damage presumed (a)    Slander per se categories: i)        Serious, Morally Reprehensable Criminal Activity ii)      Currently Existing, Loathsome, Communicable Disease iii)    Incompetence in Trade or Profession iv)    Unchastely in a Woman [Some Jx: Sexual Misconduct] (b)   If slander per se ö P gets any proven damages – proven reputation loss; presumed reputation loss/harm (even w/o proof of harm to reputation); other general damages: emotional, etc. and punitives (ill will) (c)    If not per se ö P must plead specifically some special pecuniary loss that satisfies “special damages” (very hard to prove)
Libel (written)
(1)   General rule = don’t need special damages (2)   Jurisdictional split: (a)    Majority: All libel carries presumed damages i)        P always recovers, no matter what kind of libel ii)      More potential for harm; permanence       (b)   Minority i)        Libel on its face carries presumed damages a)      No need for extrinsic facts ii)      Libel not on its face then must show special damages if not in one of the per se categories a)      California requires special damages even if per se b)      Extrinsic facts necessary (inducement) (3)   “Special special damages”– in most jxs, if libel, P can recover all provable damages (4)   Usually libel needs extrinsic facts to realize its defamatory (5)   Movies, TV, radio – can be libelous in Cal. b.      To determine difference between libel and slander: (1)   Libel factors: (a)    permanence (b)   more well thought through (c)    larger audience (d)   more potential for harm to defamed person
Defamation - who can be sued
a.       Primary Publisher – person who makes the defamatory statement b.      Re-publisher – person who repeats defamatory statement c.       Secondary Publisher - those who deal in the physical transportation of the defamatory matter (1)   Includes such as bookstores, libraries, telephone companies, mail deliverers, newspaper delivery people (2)   Does not include ISPs by statute (3)   If there's no knowledge of defamatory content and no reason to know of it, there's no liability

Truth -Defense
1.      Truth (complete defense) a.       D must show the “sting” of the charge to be true (1)   Literal truth not necessary – substantial truth (a)    determine if the same effect would be had on the reader b.      Mitigation of damages if P’s reputation is already in low esteem (1)   Some jx only allow truth defense if D’s motives were good faith or justified c.       Truth defense rarely used because it’s expensive and risky         d.      Examples (1)   No sting change btwn accusation of $50K embezzlement and $45K embez. (2)   Greater sting if D says P embezzled $50K when he meant to say P was child molester (could not use as a truth defense, but this could be brought in to mitigate the damages – e.g. the person was child molester and already had bad reputation and thus embezzlement allegation could not make his reputation any worse than it already is – no potential for hurt reputation)
Defamation Defense 

Common Interest Privilege
a.       To encourage openness in communication – Liberman b.      Privilege lost if motive of spite or ill will or if D knew there was a strong likelihood of falsity
Defemation Defense

 Fair comment (qualified privilege)
a.       Based on true or privileged facts of matter of public interest AND b.      Honestly believe in opinion c.       Applies to re-publishers also d.      Jx split: (1)   Majority – privilege exists only if underlying facts are actually true        (2)   Minority – privilege if honestly believe factual basis for criticism
Defemation Defense

Fair and Accurate Report (qualified privilege)
  1. Re-publishers are liable for defamation at common law (like original publisher would be), so they need their own privilege
  2. Press privileged to publish accounts of official proceedings or reports even when these contain defamatory statements (Medico)
(1)   If re-publisher does a fair and accurate report of the information, they are not liable for republishing defamatory statements
  1. Once privilege established, burden shifts to P to show that D abused privilege via:
(1)   Failure to be fair and accurate or (2)   Material was published for the sole purpose of causing harm to defamed P
  1. Applies to media only, but some jurisdictions have extended to others
  2. Policy of public supervision, public interest in learning of important matters (matters of legitimate public interest) (Medico)
Absolute privilege
  1. Absolute Privilege  (complete defense)
    1. Privilege not lost no matter what the motive
    2. Policy to foster free and open debate in administration
    3. Applies to:
(1)   Legislative Privilege [floor of House and Senate]  ö regardless of relevancy (2)   Federal govt executives ö as long as relevant to job (3)   Other executives  [president, mayor, etc.]  ö as long as relevant to job (4)   Police Privilege [in report] (5)   Judicial Privilege (a)    Must be relevant to cause of action (b)   Includes “course of judicial proceedings” (c)    Includes “quasi-judicial” proceedings [e.g. administrative hearings]  
Qualified Privileges
a.       Qualified Privilege Where (1)   Common Interest (Liberman) (2)   Credit Agency (3)   Employer Recommendation (a)    Employer has qualified privilege to disclose honestly about former employee (but has duty to disclose truthfully) b.      Lose Privilege if abused: (1)   Published solely w/ motive of malice, spite or ill will, or if D knew there was strong likelihood of falsity (a)    Common Law Malice - trying to hurt the person (b)   Actual Malice - knowingly false or reckless disregard of truth (2)   Excessive publication 
Constitutional Defenses and Requirements:

Basic Analysis
  1. Determine status of P
(1)   Public P – Public official or public figure (and public concern) (2)   Private P – matter of public concern or private concern
  1. Then, what must be proved? ö reckless disregard for truth
(1)   “Serious doubts” of truth or knowingly falsity (St. Amant)
  1. If private figure  ö public concern (Gertz) – then:
(1)   at least negligence (2)   reckless disregard for truth etc. for presumed punitives
Constitutional Defenses and Requirements

Status of Plaintiff - Public Official
a.       Public Officials (1)   Have or appear to have authority/substantial responsibility/control over the conduct of governmental affairs (Rosenblatt) (a)    Applies to governmental candidates (b)   Rather imprecise boundaries (2)   3-legged stool test to determine whether public official: (a)    Policy-maker position, (b)   Access to media, and (c)    Assumption of risk to exposure to criticism by media (ie take on the position) (3)   Examples               (a)    Political candidates –  public officials (Monitor Patriot) (b)   Police officers – public officials (c)    Social workers – public officials (d)   Former officials are public officials for purposes of commentary on their past performance. (e)    Fire-fighters (lower level) – not public officials (f)    Public school personnel – courts split
Constitutional Defenses and requirements 

Status of Plaintiff - Involuntary public figures
Rare, little guidance
Constitutional Defenses and requirements 

Status of Plaintiff - voluntary public figures
(1)   All-purpose (a)    Household name (2)   Limited-purpose                    (a)    Prior/other influential tests i)        Gertz – Importance of voluntarily thrusting one’s self to influence the particular issue ii)      Firestone – being known in society is not enough, and one has no choice but to go to court in order to get a divorce a)      Press conferences part of self-help iii)    Wolston – Just not showing up to court is not enough (unless whole point of not showing up is to make a statement/influence an issue) iv)    Hutchinson – Not enough if asking for governmental grant money (risk of over-sweeping a huge group of people) (b)   Current main test – Wells v. Liddy i)        For P to qualify as voluntary limited purpose public figure, D must prove that: a)      P has access to channels of public communication, b)      P voluntarily assumed a role of special prominence in public controversy, c)      P sought to influence the resolution or outcome of the controversy, d)     Controversy existed prior to the publication of the defamatory statement, and e)      P retained public figure status at the time of the alleged defamation
Constitutional Defenses and requirements 

Status of Plaintiff - Private Individuals
(1)   Examples (private plaintiff, not public figure) (a)    Woman who was member of one of America’s wealthier industrial families. She did not assume any role of special prominence in the affairs of society and did not thrust herself to the forefront of any particular public controversy in order to influence the resolution of the issues involved in it. (Time v. Firestone) (b)   P who was indicted for and convicted of contempt of court for failing to appear before grand jury, and was subject of 15 newspaper stories. (Wolston) (c)    Scientist criticized by U.S. Senator that grants to scientist were examples of wasteful govt spending on unjustifiable scientific research.  Not public figure even though he successfully applied for federal funds and had access to media to respond to Senator’s charges. (Hutchinson)
Constitutional Defenses and requirements 

Status of Plaintiff - Public officials
a.       PUBLIC OFFICIALS (1)   Public officials prohibited from recovering damages for a defamatory falsehood relating to their official conduct unless he proves that the statement was made with “actual malice” -  NY Times v. Sullivan (a)    “Actual malice” is knowing falsity or reckless disregard for the truth (b)   Policy to foster uninhibited, robust and wide-open debate on public issues i)        Duty to criticize the government (c)    NY Times introduced First Amendment issues to defamation actions 
Constitutional Defenses and requirements 

Status of Plaintiff - Public figures
(1)   NY Times standard extended per Walker and Butts  ö knowing falsity or reckless disregard for the truth (a)    applies to all purpose and limited purpose public figures (2)   Policy same as above because public figures are in positions of power and are involved in the resolution of important public questions or help to shape events in areas of concern to society at large (a)    not subject to restraints of political process, but like public officials, public figures often play influential role in ordering society (Walker and Butts) (3)   Importance of open and robust public debate; don’t want to cause self-censorship or chilling effect               
Defamation - Actual Malice
(1)   Substantive – knowing falsity or reckless disregard for the truth (a)    Strict standard – must entertain serious doubts about truth of publication i)        Failure to investigate is not enough (St. Amant) ii)      Motive for publication alone not enough iii)    Purposeful avoidance of truth in failing to investigate may be enough to show actual malice. (Harte-Hanks)             iv)    Although publisher who has no obvious reasons to doubt the accuracy of a story is not required to initiate an investigation that might plant such doubt, once doubt exists, the publisher must act reasonably in dispelling it. (Masson v. New Yorker Magazine) (b)   “Of and concerning” – must specifically pinpoint p rather than just an agency                                 (2)   Procedural – must show with convincing clarity/clear and convincing evidence (Herbert v. Lando and NY Times) (a)    Independent appellate review of adequacy of the evidence (3)   NY Times Actual Malice Test: (P’s b/p) (a)    P must be a public official or running for public office (b)   P must prove his or her case w/ clear and convincing evidence; (c)    P must prove falsity of the statement; and   [knowledge that its false] (d)   P must prove actual malice – that D knew the statement was false or acted w/ reckless disregard of the truth. (4)   If actual malice test fails (e.g. no actual malice found)  ö D not liable
Defamation - Private Plaintiffs
Matter of Public concern
  1. Matter of public concern
(1)   Rosenbloom plurality – NY Times standard applies if matter of general/public concern (2)   Gertz found that test to be inadequate and held that state interest in compensating injury to the reputation of private individuals requires that a different rule should be applied to them (a)    States may define for themselves the appropriate standard of liability for a publisher of defamatory falsehood injurious to a private individual i)        Must have at least negligence to allow recovery (no strict liability) to recover for actual injury only ii)      Can apply NY Times standard (actual malice) to recover presumed or punitive damages (b)   Private individuals are more vulnerable to injury and more deserving of recovery than public officials/figures i)        Public officials/figures can call press conference to address the issue ii)      Private individuals have expectations of privacy whereas public figures thrust themselves into the public eye and assume the risk (3)   Damages ö P must only show NY Times malice to get presumed and punitive damages
Defamation - Private Plaintiffs
Matter of Private concern
  1. Matter of private concern               
(1)   Balance between state’s interest in protecting reputation and 1st Amend. rights (2)   Greenmoss – Analyze three factors to determine if matter of public or private concern (though law is unclear on this matter) (a)    Content (b)   Form  (c)    Context i)        limited distribution as a factor (only five people received info)   (3)   Damages ö P gets presumed or punitive damages w/o showing actual malice (no NY Times standard required) – Greenmoss
Defamation - Damages
1.      Damages (summary) a.       Public officials and public figures (1)   P must show NY Times malice (falsity of statement and reckless disregard for the truth) b.      Private individual, private information (not public concern) (1)   NO NY Times/Gertz standard – P gets presumed and punitive damages w/o showing actual malice c.       Private figure, public concern (1)   P must only show NY Times malice to get presumed and punitive damages

Constitutional Defenses
1.      Defendant as commentator – Fact versus Opinion
1.      Defendant as commentator – Fact versus Opinion a.       Matters of public concern must be provable as false before there can be liability under state defamation law, at least in situations where a media defendant is involved (Milkovich v. Lorain Journal) (1)   Then, if provably false, must have at least negligence pursuant to Gertz (2)   No separate category of First Amendment protection or privilege for “opinion” (a)    It is ensured that a statement of opinion concerning a matter of public concern which does not contain a “provably false” factual connotation will receive full constitutional protection (b)   HIPO receive constitutional protection (no defamation recovery) i)        Hyperbole (rhetorical) ii)      Insult iii)    Parody iv)    Opinion (3)   Burden of proof regarding falsity is on the P (Hepps)
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