Class 6

            Defamation has its own unique set of defenses. The first is perhaps the most intuitive. Because defamation requires a false assertion of fact, truth is a complete defense, albeit one that is rarely used. Proving the truth of a statement can be surprisingly expensive, requiring witnesses and evidence. And what, from the standpoint of defamation, does it mean for a statement to be true? Our concern is with damage to the plaintiff’s reputation. For this reason, courts do not often require a perfect match between the defendant’s assertion and the facts about the plaintiff, instead focusing on the effect on the latter’s public image.

            Defamation law also recognizes privileges for speech deemed to be especially valuable. Some of these privileges are absolute—that is, defendants cannot lose their privileges no matter how much they abuse them. Absolute privileges apply to statements made by judges, executive branch officials, and legislators during the course of their official duties. The justification for these privileges depends on the smooth functioning of government. If judges and elected officials had to worry about defamation liability, the argument goes, they might not perform their duties in the best interest of the citizenry.

            Most privileges, however, are not absolute. These privileges reflect the special value attached to certain forms of speech. Some statements receive protection because of their connection to the freedom of association. The so-called common interest privilege covers statements made by those with a closely shared interest in a matter. Application of the privilege requires courts to determine what counts as a closely shared interest—and what kinds of relationships deserve special consideration.

            A second privilege, the fair report privilege, stems from the value attached to the freedom of the press. This privilege applies to accurate reports or summaries of official proceedings. This privilege also requires courts to make difficult value judgments. In a world flooded by social media, who counts as a reporter or member of the press? And with leaks, preliminary reports, and court filings often making their way into the media, how “official” and “public” must a document or proceeding be?

            Finally, because defamation involves the written and spoken word, defamation cases trigger First Amendment concerns, especially when the plaintiff is a public official or public figure. These cases require us to debate what creates celebrity. Some figures are certainly famous. But others find themselves in the spotlight for more limited reasons or in a more limited way.

            Defamation defenses thus paint a picture of the kinds of speech we prioritize, at least in the context of tort law. In reading the following cases, think about whether these privileges make sense and about how their application should evolve.