Wednesday, April 3, 2013

Proving a Defamation Case: Public Figure vs. Private Figure

So how does the determination of public figure vs. private figure make such a huge
difference in exposure to liability in defamation cases?  Here's a brief synopsis of what lawyers face in each of the two types of cases.

Public figure case:

Plaintiff must prove:
  • Defendant made a false statement of fact
  • The false statement damaged the Plaintiff's reputation
  • That the statement was made with constitutional malice, which means:
    •  The defendant KNEW the statement was false when it was made, or
    • The defendant has a "subjective awareness" of probable falsity (this means that the plaintiff must prove the defendant's mental awareness, not just that a reasonable person would have had this awareness), or
    • The defendant engaged in purposeful avoidance of the truth
  • Plaintiff does NOT meet his burden by proving ill will, negligence, or breach of professional or journalistic standards.  These are NOT sufficient.
  • Plaintiff must prove each of these elements by an enhanced standard of "clear and convincing evidence", which is an ill-defined standard that is greater than the normal preponderance of evidence standard used in civil cases, but not quite to the beyond a reasonable doubt standard used in criminal cases.  To put this in perspective, this is the same standard often used in civil mental commitment cases.
  • Defendant has no burden to prove that his statements were true.
Private figure case:

Plaintiff must prove:

  • Defendant made a false statement of fact
  • The false statement was:
    •  defamatory per se (attacked person in their profession, asserted criminal activity, accused person of having a "loathesome disease," or asserted that a woman was unchaste, or 
    • Damaged the plaintiff's reputation in the community
  • Defendant's statement was made with "fault" - often meaning that the statement was made without reasonable care.
  • Plaintiff must prove these elements only by a preponderance of the evidence, that is, a "more likely than not" standard.  This means that the facts have been proven by the slightest amount of evidence to have been more likely.  Lawyers often explain this in terms of percentages.  If the jury finds the weight of evidence to be 50.000001 to 49.999999, the plaintiff has carried his/her burden.
For lawyers, the difference is dramatic.

photo credit: <a href="">Butte-Silver Bow Public Library</a> via <a href="">photopin</a> <a href="">cc</a>

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