{"id":23057,"date":"2011-09-23T12:00:01","date_gmt":"2011-09-23T17:00:01","guid":{"rendered":"http:\/\/www.shotinthedark.info\/wp\/?p=23057"},"modified":"2011-12-07T08:26:10","modified_gmt":"2011-12-07T14:26:10","slug":"apropos-not-much-part-ii","status":"publish","type":"post","link":"http:\/\/www.shotinthedark.info\/wp\/?p=23057","title":{"rendered":"Apropos Not Much, Part II"},"content":{"rendered":"<p>As<a href=\"http:\/\/www.shotinthedark.info\/wp\/?p=22001\"> I noted in a post about a month ago,<\/a> I occasionally take off on flights of knowledge-seeking fancy.<\/p>\n<p>Last month, it was over the subject of &#8220;Defamation&#8221; &#8211; the catchall term for what used to be called &#8220;Libel&#8221; and &#8220;Slander&#8221;, back when &#8220;old media&#8221; was the human voice and &#8220;new media&#8221; was the printing press.<\/p>\n<p>As I explained back then, the various flavors of defamation occur when\u00a0someone says, writes, or otherwise transmits\u2026:<\/p>\n<ul>\n<li>\u00a0&#8230;something that is defamatory \u2013 in other words, that has a reasonable chance of damaging the subject\u2019s livelihood or reputation (where \u201creasonable\u201d means \u201cwould convince a jury\u201d)\u2026<\/li>\n<li>\u2026to one or more third parties &#8211; meaning that someone besides the target has to hear it. The communication in question must be\u2026<\/li>\n<li>\u2026untrue, as in \u201cthere is no truth to it\u201d.<\/li>\n<li>And if the target of the statement is a \u201cpublic figure\u201d, the target needs to prove the person making the statement acted out of malice.<\/li>\n<\/ul>\n<p>Like most laws, the law as regards Defamation seems pretty straightforward on its surface. \u00a0But as anyone who&#8217;s had to try to read the law and is, as it happens, not a lawyer has noticed, while laws mean what they say, they also mean a lot more, and that &#8220;lot more&#8221; isn&#8217;t kept very clear for any of us lay people.<\/p>\n<p>And so, as I did last month, I flipped through this\u00a0<a href=\"http:\/\/www.abbottlaw.com\/defamation.html\">site, which is an excellent resource on the subject<\/a>. \u00a0I figured we&#8217;d take a quick jaunt through all four of the factors of Defamation, starting with the first. \u00a0What <em>is <\/em>Defamation?<\/p>\n<blockquote><p>A. A Defamatory Communication<\/p>\n<p>What is a &#8220;defamatory&#8221; statement?<\/p>\n<p>1. A statement which causes harm to reputation.<\/p>\n<p>A statement is defamatory if it &#8220;tends to injure the plaintiff&#8217;s reputation and expose the plaintiff to public hatred, contempt, ridicule, or degradation.&#8221;<\/p><\/blockquote>\n<p>Seems fairly straightforward; if you say something about someone that harms their livelihood and reputation, it&#8217;s defamation.<\/p>\n<p>Beyond that? \u00a0Some things are seriously fighting words; they are defined &#8211; sort of, to a certain level &#8211; as defamation any way you slice it:<\/p>\n<blockquote><p>2. Defamation Per se<\/p>\n<p>Some statements are so defamatory that they are considered defamation per se; and the plaintiff does not have to prove that the statements harmed his reputation. The classic examples of defamation per se are allegations of serious sexual misconduct; allegations of serious criminal misbehavior; or allegations that a person is afflicted with a loathsome disease&#8230;When a plaintiff is able to prove defamation per se, damages are presumed, but the presumption is rebuttable.<\/p><\/blockquote>\n<p>In other words, if someone says you&#8217;re a pedophile, that&#8217;s pretty much defamatory. \u00a0If they say you killed someone, and you didn&#8217;t? \u00a0Defamatory!<\/p>\n<p>Of course, it&#8217;s not <em>quite <\/em>that simple:<\/p>\n<blockquote><p>3. What Constitutes Injury to Reputation?<\/p>\n<p>The plaintiff must establish proof of damage to reputation in order to recover any damages for mental anguish; see Gobin v. Globe Publishing Co., 232 Kan. 1, 649 P.2d 1239, 1244 (1982); Swanson v. American Hardware Mutual Ins. Co., 359 N.W.2d 705, 707 (Minn. App. 1984) (rev. denied) (&#8220;To establish a claim in a defamation action [plaintiff] must prove that the [defendant] made false and defamatory statements about them which injured their reputation.&#8221;).<\/p><\/blockquote>\n<p>If someone claims, for example, that you had been convicted of driving under the influence of alcohol? \u00a0Well, that&#8217;s a pretty infamous crime in this day and age. \u00a0Just ask Tom Emmer, who wasn&#8217;t even convicted of it, and still likely lost the Governor&#8217;s race &#8211; because of two non-convicted incidents that happened decades ago. \u00a0The incidents happened, of course &#8211; Emmer never hid the fact &#8211; so there was no defamation involved, although the context (as I noted at the time) of the DFL&#8217;s campaign was very dodgy.<\/p>\n<p>But if there was no conviction, ever?<\/p>\n<p>That&#8217;s why lawyers make so much money off of these sorts of cases!<\/p>\n<p>Of course, there are some people that simply can&#8217;t be defamed&#8230;<\/p>\n<blockquote><p>The &#8220;libel-proof&#8221; plaintiff. A plaintiff is &#8220;libel-proof&#8221; when his reputation has been irreparably stained by prior publications. At the point the challenged statements are published, then, plaintiff&#8217;s reputation is already so damaged that a plaintiff cannot recover more than nominal damages for subsequent defamatory statements. Marcone v. Penthouse Int&#8217;l Magazine for Men, 754 F.2d 1072, 1079 (3rd Cir. 1985).<\/p><\/blockquote>\n<p>Now, we&#8217;re talking about people with <em>drastically <\/em>bad reputations; we&#8217;re not as a rule talking parking tickets, here. \u00a0Indeed, everyone&#8230;:<\/p>\n<blockquote><p>However, a court will not dismiss a defamation action merely because the plaintiff already has a bad reputation. Schiavone Construction Co. v. Time, Inc., 646 F. Supp. 1511, 1516 (D.N.J. 1986), rev&#8217;d, 847 F.2d 1069, 1072-73 (3rd Cir. 1988). Finklea, 742 S.W.2d at 516 (&#8220;[E]ven the public outcast&#8217;s remaining good reputation is entitled to protection.&#8221;) Rather the statement upon which the defamation claim is based should relate to the same matters upon which the prior bad reputation was founded, or to substantially similar matters.<\/p><\/blockquote>\n<p>&#8230;has a right to try to rehabilitate their reputation.<\/p>\n<p>Well, <em>almost <\/em>everyone:<\/p>\n<blockquote><p>In extreme cases, a plaintiff&#8217;s general reputation may be so bad that a court will hold a plaintiff libel-proof on all matters. For example, Charles Manson or Adolph Hitler could not be damaged by defamatory statements. Langston v. Eagle Publishing Co., 719 S.W.2d 612, 623 (Tex. App. 1986).<\/p><\/blockquote>\n<p>So to sum up this first part: \u00a0&#8220;Defamation&#8221; is when someone says something about you that harms your reputation and livelihood &#8211; but you have to be able to show that it <em>caused damage<\/em>. \u00a0A drunk calling you naughty names in a bar &#8211; or on their blog &#8211; is not the kind of thing that&#8217;s going to convince a jury that you&#8217;ve been harmed.<\/p>\n<p>Oh, <em>of course <\/em>there&#8217;s more to it than that.<\/p>\n<p>More on Monday.<\/p>\n<p>Again &#8211; this is purely a flight of unfettered fancy.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>As I noted in a post about a month ago, I occasionally take off on flights of knowledge-seeking fancy. Last month, it was over the subject of &#8220;Defamation&#8221; &#8211; the catchall term for what used to be called &#8220;Libel&#8221; and &#8220;Slander&#8221;, back when &#8220;old media&#8221; was the human voice and &#8220;new media&#8221; was the printing [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23],"tags":[179],"class_list":["post-23057","post","type-post","status-publish","format-standard","hentry","category-geekery","tag-defamation-law"],"_links":{"self":[{"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=\/wp\/v2\/posts\/23057","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=23057"}],"version-history":[{"count":5,"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=\/wp\/v2\/posts\/23057\/revisions"}],"predecessor-version":[{"id":23073,"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=\/wp\/v2\/posts\/23057\/revisions\/23073"}],"wp:attachment":[{"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=23057"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=23057"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=23057"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}