Please read the question carefully and answer only what is asked. You
will have 30 minutes in which to read the question and outline your
answer. You may not write in your blue books during this time. You will
then have 30 minutes in which to answer the question. I will grade only
the blue books, not the outlines, so it is important that your answer be
complete and well organized.
This is a closed book examination.
You are the law clerk for a state court trial judge. The judge has
asked you to prepare a memorandum discussing the appropriate rules and
standards to be applied to a pending defamation claim. She would like
for you to address whether there are any constitutional requirements
with which the state standards must comply. In addition, to the extent
that the standards for decision are not constitutionally mandated, she
would like for you to advise her on what standards should be imposed as
a matter of state law, and why. Because there are several issues of
fact that are unlikely to be resolved prior to trial, the judge wants
you to explain which factual determinations, if any, would support any
deviations from the state's common law rules regarding defamation
claims. This is a question of first impression in this jurisdiction.
The claim at issue arises out of a hotly contested race for the
presidency of the state bar association. The candidates were Ray, a
graduate of a small rural law school who has been in the general
practice of law in Akron for 20 years, and Sam, an Ivy League graduate
who is a litigator with the Cleveland office of a large national law
firm. Throughout the campaign, Ray tried to position himself as the
underdog running against the privileged favorite son of the old boy
network. Noting that the vast majority of lawyers in Ohio are a lot
like himself, Ray suggested that an arrogant, overpaid paper-pusher like
Sam could not even begin to understand the day to day concerns of the
average lawyer. His campaign literature urged his fellow attorneys not
to elect a man to the presidency of their bar association who would
never consider most of them for membership in his country clubs and
downtown business clubs and general gatherings of the social elite.
Shortly before the election, Sam decided to go on the offensive. A mass
mailing sent to every lawyer in the state contained the following
My opponent would have you believe that he is more like you than I am,
and that he would make a better president because he shares your
experiences and concerns. But let's look at the facts. Ray is not an
"average attorney" and "all around regular guy". In fact, he has a
rather distinguished record. His record can be distinguished from that
of most attorneys by the fact that he is a high school drop out. By his
abysmal LSAT score which landed him in the worst law school in the
state. By the fact that his clients have accused him of malpractice on
literally hundreds of occasions. And by the fact that he had sex with
his 16 year old baby-sitter while his wife was giving birth to his
child. This is not a man who is fit to serve as the president of this
distinguished organization. He is a pathetic pedophile, quitter and
loser. Do not dishonor the profession by electing such a man.
Sam won the election.
Ray then filed this action claiming defamation. The complaint alleges
that the above quoted campaign flyer contains outright falsehoods,
distortions, and implications that are contrary to the facts. The
complaint alleges that while it is true that Ray dropped out of high
school, what Sam neglected to mention was that Ray did so after his
father lost both legs in a mining accident. Ray held down two jobs to
pay the medical bills and support the family, was the primary caretaker
for four younger siblings, and still earned his G.E.D. before his class
graduated from high school. His LSAT score was in the top 10%, and he
went to his law school on a full scholarship (and served as editor-in-
chief of the law review). He has not been accused of malpractice
"hundreds" of times. He has had approximately 40 malpractice claims
filed against him. The high number of malpractice claims is
attributable to the fact that he is one of the few attorneys in his
county to devote a significant amount of his professional time to
representing indigent defendants in criminal matters. Any criminal
lawyer will tell you that those are the clients with plenty of time to
file frivolous claims against their attorneys, and in fact each and
every one of the malpractice claims has been found without merit. Ray
does not know where the allegation about the baby-sitter came from. His
50 year old mother in law babysat while his wife was in the hospital,
and he emphatically denies having sex with her.
The judge expects that this case will be aggressively litigated by both
sides. She is aware of the importance of setting the appropriate course
for Ohio in the area of defamation law. She is also aware that this
case will certainly be appealed, and she wants to make sure that her
analysis of the issues is impeccable. Remember, at this stage of the
case we have little information about what Sam knew or should have known
at the time the statements were made, or even whether they are
substantially true, so be sure the rules you recommend will be
applicable no matter how the factual issues are resolved.
Sample answer -- essay
The questions posed by the judge are: 1) What are the constitutional
requirements for state law standards in defamation cases?; 2) To the
extent that the constitutional requirements do not apply in this case,
what standards should be applied as a matter of state law?; and 3) What
factual determinations would justify and/or require a deviation from
common law rules re defamation?
I. The Common Law Rules
At common law, defamation was a strict liability tort. If the defendant
published a false and defamatory statement of or concerning the
plaintiff, the plaintiff was entitled to recover actual damages. It did
not matter what the defendant knew or should have known at the time the
statement was made. In other words, it was not necessary to prove that
the defendant intentionally made statements he knew to be false (or that
he knew he had no reason to believe were true), or even that the
defendant was negligent in making the statement without checking its
accuracy. If the statement was false and defamatory, the defendant was
liable. The plaintiff was entitled to a presumption that the defamatory
statement was false (truth was an affirmative defense), and actual
damages would be presumed. Punitive damages were available, but
required a showing of culpability.
II. The Constitutional Requirements
In a series of cases, the United States Supreme Court held that the
application of those common law rules, at least in some situations, is
inconsistent with the First Amendment and its underlying policy of
fostering robust debate of public issues. From those cases, the
following rules emerge:
Public plaintiff/public issue
Where the plaintiff is a public official or public figure and the issue
is one of public interest, the Supreme Court has held that the
constitution mandates a significantly heavier burden on the plaintiff
who would recover damages for defamation. In order for the plaintiff to
recover at all, he must show that the defendant acted with "actual
malice" - knowledge of the falsity of the statement or reckless
disregard of its truth or falsity. New York Times v. Sullivan.
Further, the court has clarified that reckless disregard of the truth
means something more than even gross negligence. The defendant must
have in fact entertained serious doubts as to the truth of the
statement. St. Amant. The plaintiff has the burden of proof on actual
malice. The plaintiff also has the burden of proving that the statement
was false. Unlike most other civil cases, the burden of proof is not a
mere preponderance, but "clear and convincing". No damages will be
presumed, but once the plaintiff has carried his burden he can recover
actual and punitive damages.
Private plaintiff/public issue
Where the plaintiff is not a public official or public figure, but the
statement concerns a public issue, the Supreme Court has held that the
plaintiff must bear an intermediate burden in order to recover damages
for defamation. The states must require that the plaintiff demonstrate
some degree of fault on the part of the defendant (at least negligence,
states can require as much more as they care to). As in the
public/public case, the plaintiff has the burden of proof on the falsity
of the statement Hepps and the fault of the defendant. No damages will
be presumed. Punitive damages are not available unless the plaintiff can
demonstrate actual malice.
Private plaintiff/private issue
There are no constitutional requirements (except perhaps that opinion is
not actionable unless the speaker does not in fact have that opinion or
there is a false implication of underlying facts) and the states may
make whatever rules they care to.
III. Facts that would support a deviation from existing common law
Of course, the most important "facts" that would support a deviation
from common law rules would be any finding that brings this case within
the scope of the constitutional requirements set forth by the Supreme
Court. Therefore, if it is determined that this plaintiff is a "public
figure" (because he is running for the presidency of the bar
association, because he put himself forward as a candidate, because of
the things he said about the defendant, or just because he is a lawyer)
or that the statements involved a matter of "public interest" (Ray's
character became a matter of public interest because of the election or
the post he would hold if elected, etc.) those determinations would
support substantial deviations from the common law rules.
In the event that you determine that the constitutional requirements do
not apply, the question will be what standards should be applied as a
matter of state law. You may conclude that some of the facts of this
case justify a change in existing state defamation law.
IV. What rules should this state adopt to govern defamation claims?
In considering the options open to this court, it is important to
remember that the constitutional standards applied by the United States
Supreme Court are minimums, not maximums. The state is free to set its
standards higher, it just cannot set them any lower.
This case probably does not present an occasion to re-examine the basic
elements of a defamation claim. We have publication. Whether any or all
of the statements were false is one of the fact issues to be resolved.
While there may be some dispute on whether the statements were
defamatory (quitter, loser, even pedophile), at least the attribution of
criminal conduct (sex with minor) is defamatory if false. Again,
although there may be some debate on whether some of the statements were
probably understood as opinion rather than statements of fact, we still
have allegedly false statements of fact - slept with teenager, has been
sued "hundreds" of times.
The real question is what rules this state should adopt within the
public/private framework set up by the Supreme Court cases. [Note - from
here on out it doesn't matter which position you take, you just need to
advocate some position on each of the relevant issues].
If the court determines that this is a public/public case:
- Culpability required. Must be at least actual malice. Free to
require intentional falsehood. Free to create absolute privilege to
comment on public issues, even with intentionally false statements.
- Burden of proof (who and what) - plaintiff must have burden of proof
on actual malice and falsity of the statement. The burden must be at
least clear and convincing.
- No presumed damages. Must require a showing of malice for punitive
damages. Free to say punitive damages will not be available at all.
If the court determines that this is a private/public case:
- Culpability required must be at least negligence. Can be anything
higher (actual malice, intent). Free to create an absolute privilege.
- Burden of proof - Can be preponderance or anything higher.
Plaintiff has burden on truth, and on malice if asking for punitives.
- No presumed damages. Must require actual malice for punitives.
Free to say punitives are not available at all.
If the court determines that this is a private/private case:
- Culpability (strict liability, or negligence, or actual malice, or
intent). Free to say no cause of action at all (privileged).
- Burden of proof (whatever we want). Can put burden on truth or
falsity on plaintiff or leave it on defendant. Can require a higher
burden of proof to justify punitives, but don't have to.
- Can have presumed damages, or can eliminate them.
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