Torts: Defamation: First Amendment Defamation

First Amendment Defamation – hard to prove. Π’s don’t want to bring it.
  • When is FAD the sole cause of action: Public concern. If what Δ said or wrote is a matter of public concern, then Π who wishes to sue for defamation either brings FAD or has no claim. (i.e. whether athlete is using performance enhancing drugs; whether mayor is taking bribes). Has two extra elements: in addition to prove defamatory statement, the publication, and the damages, maybe, Π must show:
    • Falsity: Π must show that the statement is false—eliminates truth as a defense. Π has the burden of proof on showing falsity.
    • Δ made the statement with fault: other than in good faith, or other than with a reasonable basis. The degree of fault depends on the identity of the Π.
      • Public figure Π – must show Δ knew statement was false and made it anyway OR made it recklessly. (intent or recklenss aka “malice)
      • Private figure Π – enough to show negligence.