Defamation: Common-Law Defenses and Privileges 1. The Truth Defense 2. Absolute Privileges a. Judicial Proceedings b. Legislative Business c. Executive Business d. Consent 3. Qualified Privileges a. Self Interest, Interest of Others, Common Interest b. Public Interest c. Fair Report d. Fair Comment

§1. The Truth Defense  Burden of proof is on defendant  Literal truth not required  Literal truth not enough if whole publication carries a false implication  Defense not available for truthfully repeating defamation, or truthfully stating defamatory opinion  Questions may be defamatory

Absolute Privileges: Judicial Proceedings  Privilege protects communications made (1) in the course of judicial or quasi-judicial proceedings (2) by litigants or other participants (3) to achieve the object(s) of litigation, and (4) have some relation to the action  “Participants” include judges, lawyers, witnesses, jurors and perhaps others (investigators, e.g.)

Absolute Privileges: Legislative Business U.S. Constitution, Art. I, § 6: The Senators and Representatives... shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Absolute Privileges: Executive Business  No explicit privilege in Const. text  Barr v. Mateo, 360 U.S. 569 (1959): federal executive officers absolutely privileged to speak within the scope of federal duties and of their discretion  FTCA/Westfall Act, 28 USC §2679, effectively immunizes all federal employees for acts within scope of their federal duties

Absolute Privileges: Consent  Plaintiff’s consent or apparent consent to publication of defamatory materials is a complete bar to the plaintiff’s recovery for defamation  This is merely the usual application of the consent rules in tort law to the tort of defamation

Qualified Privileges “Qualified” means the privilege is lost if abused -- by “common law malice” (ill-will, spite, or improper purpose), or in some states by knowing or reckless falsehood. Defendant has BOP to prove that a privilege applies; BOP then shifts to Plaintiff to prove that the privilege was abused and thus offers no protection

Qualified Privileges: Self, Others, and Common Interest  Common interest = Communication must relate to a common interest of the speaker with a co-member of some identifiable group (see p. 58)  Interest of Others = Arises when D has a reasonable belief that info affects an important interest of the recipient, and (a) D is under a legal duty to publish, or (b) publication is within generally acceptable standards of decent conduct (p. 59)  Self-Interest = Arises when D has a reasonable belief that he has an important interest at stake (p. 62)

Qualified Privileges: The Public Interest Privilege  Usual scope: Covers complaints about supposed improper (often criminal) activities of a particular person (Plaintiff) to appropriate public officials – although some reports to private persons may also fit here  Note: Some states apply absolute judicial proceedings privilege to citizen reports to police

Qualified Privileges: The Fair Report Privilege  Protects “fair and accurate” reporting of public proceedings and documents, including “public meetings” held to discuss “matters of public concern.”  Privilege abused (thus lost) if defendant proves that the reporting was not “fair” or not “accurate.”  Note: Privilege NOT lost simply because reported statements are false.

Qualified Privileges: The Fair Comment Privilege  Anyone has a qualified privilege to “honestly express a fair and reasonable opinion or comment on matters of legitimate public interest.”  Privilege does not protect factual misstatements  Facts on which otherwise defamatory comment is based must be stated with the comment