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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 statements.

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.

Torts Spring 1994 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 rules.

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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