Class 5

            Defamation, which can take the form of libel or slander, involves injuries to a plaintiff’s reputation. At its most simple, defamation requires that the plaintiff prove a false assertion, of or concerning her, that damages her reputation, that is published, and that causes damages.

            In practice, many of these elements are slippery. Publication is relatively straightforward: any time any other individual hears a statement, it has been published. The “of or concerning” requirement can be thorny when a statement addresses members of a group, such as employees of a company or members of team, or when an account is partly fictionalized. The question in these scenarios is whether a reader will know that the plaintiff is the one being discussed.

            Here, we will focus on the first several elements. First, how can a court distinguish fact from opinion? It is not enough to assert that something is opinion. Sometimes, statements that appear subjective may imply knowledge of other, private facts—triggering possible liability.

            It can also be difficult to determine when a statement will damage someone’s reputation. These judgments force courts and juries to consult their knowledge of cultural norms. Would calling someone greedy damage her reputation? Much would depend on context. Is the plaintiff in a business community in which maximizing profits is considered admirable? Or is she part of a religious community that prizes self-sacrifice?

            Finally, defamation requires courts and juries to determine whether a defendant is being serious. Insults, jokes, and parodies may not be interpreted as factual and may not damage the defendant’s reputation. But how can a court identify parody or insults? After all, some parody programs contain a mix of news and humor. And insults may be understood to be much more than ordinary epithets.

            We will consider how courts draw these lines and what sources of information they prioritize. Should courts consider statements in context or in isolation? What is the relevant community for determining how a plaintiff’s reputation will be affected? The following cases all raise these issues.