Defamation

California Bar Exam Exam

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Key Takeaways Explain This Topic AI

Common-law defamation requires (1) a defamatory statement of or concerning the plaintiff, (2) publication to a third party, (3) falsity, and (4) damages; libel (written/permanent) is generally actionable without proof of special damages, while slander usually requires special damages unless it is slander per se.

The Constitution layers fault requirements on top: a public official or public figure must prove ACTUAL MALICE — knowledge of falsity or reckless disregard for the truth — by clear and convincing evidence (New York Times v. Sullivan; Curtis Publishing v. Butts).

A private figure suing on a matter of public concern must prove at least negligence as to falsity (Gertz v. Robert Welch) and actual malice to recover presumed or punitive damages.

Slander per se (imputing a crime, a loathsome disease, professional misconduct, or unchastity) does not require proof of special damages.

Defenses include truth, absolute privileges (judicial, legislative, official, spousal), qualified privileges (lost by abuse or malice), and consent; California's anti-SLAPP statute (CCP § 425.16) provides early dismissal of suits targeting protected speech.

Last updated: June 2026

The Common-Law Elements and the Libel/Slander Divide

The common-law prima facie case for defamation is: (1) a defamatory statement that tends to harm the plaintiff's reputation in the community; (2) that is of and concerning the plaintiff (a reasonable reader/listener would understand it to refer to her); (3) publication to at least one third person who understands it (intentionally or negligently); and (4) damages to reputation. Modern constitutional law adds (5) falsity and (6) fault (below).

A statement is defamatory only if it is a false statement of fact — pure opinion is protected, but an opinion that implies undisclosed defamatory facts is actionable. The statement must be 'of and concerning' the plaintiff; a defamed group is actionable by an individual only if the group is small enough that the statement reasonably refers to each member.

Libel vs. slander controls whether damages must be specially proven:

Libel Slander
Form Written, printed, or otherwise permanent (incl. radio/TV scripts) Spoken / transitory

Damages Damage to reputation is presumed ; no special damages required Plaintiff must prove special (pecuniary) damages ...

Exception — ... unless slander per se

Slander per se — actionable without special damages — covers statements imputing: (a) commission of a crime of moral turpitude; (b) a loathsome disease ; (c) conduct reflecting on the plaintiff's business, trade, or profession ; or (d) unchastity (historically, of a woman). 'Special damages' means actual economic loss (lost job, lost customers), not mere hurt feelings.

The Constitutional Layers: New York Times v. Sullivan and Its Progeny

The First Amendment overlays fault and falsity requirements whenever the speech touches public officials, public figures, or matters of public concern. The required level of fault depends on the plaintiff's status and the subject matter :

Plaintiff / Subject Constitutional fault required Source

Public official (on official conduct) Actual malice (knowledge of falsity or reckless disregard for truth), by clear and convincing evidence New York Times v. Sullivan (1964)

Public figure (all-purpose or limited-purpose) Actual malice Curtis Publishing v. Butts ; Gertz

Private figure , matter of public concern At least negligence as to falsity for actual-injury damages; actual malice for presumed/punitive damages Gertz v. Robert Welch (1974)

Private figure , matter of private concern No constitutional fault overlay (common-law rules govern); presumed/punitive damages available without actual malice Dun & Bradstreet v. Greenmoss

Actual malice is a subjective standard — it is NOT ill will or hatred. It means the defendant published either knowing the statement was false or with reckless disregard (serious subjective doubt about the truth, St. Amant v. Thompson ). A negligent failure to investigate is not enough for actual malice; the plaintiff must show the defendant in fact entertained serious doubts.

Who is a public figure? An all-purpose public figure has pervasive fame or notoriety. A limited-purpose public figure voluntarily injects herself into a particular public controversy and is treated as public only for statements germane to that controversy. A private person does not become a public figure merely by being involuntarily drawn into newsworthy events.

When the plaintiff is a public-concern speaker's target, the plaintiff also bears the burden of proving falsity ( Philadelphia Newspapers v. Hepps ) — truth is not merely a defense, falsity is part of the plaintiff's case.

Privileges, Defenses, and California's Anti-SLAPP Statute

Truth is a complete defense at common law (and, for public-concern speech, the plaintiff must affirmatively prove falsity). Beyond truth, two tiers of privilege apply:

Absolute privileges (cannot be lost, even with malice):

Statements in judicial proceedings (by judges, attorneys, witnesses, parties, if related to the proceeding);
Statements in legislative proceedings (the Speech or Debate Clause for legislators);
Statements by high executive officials in performing official duties;
Communications between spouses ;

'Compelled' broadcasts and certain required publications.

Qualified (conditional) privileges (lost by abuse — exceeding the scope, or acting with malice/no reasonable belief in truth):

Reports of public proceedings (fair-report privilege);

Statements in the interest of the publisher (defending one's reputation), the recipient , or a common interest (e.g., employment references given in good faith);

The privilege is lost if the speaker acts outside its scope, knows the statement is false, or acts with malice.

Other defenses: consent , and the rule that opinion (not implying false underlying facts) is non-actionable.

California's anti-SLAPP statute (Code Civ. Proc. § 425.16): SLAPP = Strategic Lawsuit Against Public Participation. California provides a special motion to strike at the outset of any suit arising from the defendant's exercise of free speech or petition rights on a public issue. The defendant first shows the claim arises from protected activity; the burden then shifts to the plaintiff to show a probability of prevailing. If the plaintiff cannot, the suit is dismissed early and the defendant recovers attorney's fees. This is a powerful California-specific overlay on defamation suits and a frequent essay flag.

Essay roadmap: (1) State the common-law elements; (2) classify libel vs. slander (and check slander per se); (3) determine the plaintiff's status (public official/figure vs. private) and whether the matter is of public concern, then apply the correct constitutional fault standard and falsity burden; (4) run privileges and defenses; (5) in California, flag anti-SLAPP.