DEFAMATION

a. Analyze whether the portrayal is likely to be considered defamatory.

This question is only asking you to analyze the first element –
whether the challenged statements meet the definition of defama-
tory. (4 points)
b. Analyze whether plaintiff is likely to be able to satisfy the require-
ment that the defamation be “of and concerning” the plaintiff. (4
points)
c. Analyze whether the plaintiff is likely to be categorized as a private
plaintiff, a public figure, or a public official. If there are facts neces-
sary for your analysis that do not appear in the question, indicate
what you would need to know in order to reach a conclusion on this
question. (4 points)
d. Is this likely to be treated as libel or slander? Explain your answer. (4 points)
—

ANALYSIS FOR PRIVATE PLAINTIFF

a. A defamatory statement is one that exposes the plaintiff to public hatred, contempt, and
ridicule. The judge ultimately decides whether the portrayal is capable of a defamatory meaning.
In other words, the “trier of fact” decides whether, in fact, it is defamatory. In order to be action-
able, the portrayal must assert or imply a provably false fact and cannot merely be a rhetorical
hyperbole or a vigorous epithet.

Here, ________.

b. The test to determine if the defamatory statement is “of and concerning the plaintiff” s
whether the communication would reasonably be understood to refer to the plaintiff by someone
who knew him.

Here, _______.
c. ANALYSIS ONE Plaintiff is unlikely to be considered a public official, which is defined as a
government employee who has or appears to have control over government affairs. (This fact
pattern: a member of the airforce is unlikely to be considered a public official.

Whether plaintiff is a public figure will depend on whether he or she has done anything to seek
the public limelight. Has he gone on talk shows or written articles in newspapers, or done any-
thing to voluntarily thrust himself into the public limelight? If not, he should be treated as a pri-
vate plaintiff.

d. This is likely to be treated as libel because it is a movie and therefore oral. Most jurisdictions
treat media communications as libel because of their ability to reach a wide audience. A movie is
not fleeting like ordinary words, which once spoken, disappear. Moreover, the movie was based
on a screenplay so there is actually a writing.

—————

Or could just say this “In separately numbered paragraphs, conforming to the elements of
the tort, state, apply and analyze what ___ must prove to make out a prima facie claim of
defamation.”

ANALYSIS FOR PUBLIC FIGURE

Defamatory Communications

Defamatory communications expose plaintiff to public hatred, contempt and ridicule. In order to
be actionable, the defamatory communication must assert or imply a provably false fact.

Here, _____.

Of or Concerning Plaintiff

The “of or concerning” test requires that the communication in question reasonably be under-
stood as referring to plaintiff by one who knew the plaintiff.

Here, ____.

Publication
This requires that the communication be disseminated to at least one person other than the plain-
tiff.

Here, ___’s statements, which were treated as libel, were printed in the national newspapper. It
will be subject to the single publication rule which provides that each edition of the newspaper
give rise to one cause of action.

Falsity

The plaintiff would be considered a public figure based on his general fame and celebrity result-
ing from his music sales and involvement in hip hop. Thus, the burden is on the plaintiff to prove
the statement was false, meaning substantially untrue.

Here, _____.

Damages

Common law rules apply here since the defamatory statement is libel, and damages can be pre-
sumed. ___ may seek punitive damages.