Respond fully in essay form to the question below. 

Susan Blade is a historian at a local public university.  She studies Egyptian history, and cares only about ancient Egypt, leaving her house only to go to work.  The rest of her time is spent pouring over books.  One day, Susan’s home is broken into, and a robber attempts to steal her things by pointing a gun at her.  Instead, she disarms the robber, ties him to a chair, and calls the police.

The next day, the local newspaper, The Dayton Doodle, runs a story about the attempted robbery.  The story describes Susan as being a kooky recluse, and “not well liked by anyone except ancient, mummified Egyptians.”  The newspaper believed this statement to be true, but, in fact, many people at the university like Susan.  The story also describes embarrassing items that were strewn about the floor during the scuffle between Susan and the alleged robber, including the color of her undergarments, written up in a police report.

Susan brings a defamation lawsuit, based on the statement that she is unlikeable, and a privacy tort claim, based on the description of her undergarments.  Discuss how she will fare on these two claims, noting both the state law elements she must prove and the First Amendment defenses The Dayton Doodle will raise.  Do not discuss damages, only liability.  Also, spend significant time only on contested/close legal issues- some elements/issues can be dealt with in one quick sentence, some need a few sentences of analysis, and others need more development.

Answer Key:

Defamation claim:

Threshold issue:  There is only one reasonable interpretation of the statement about Susan being unlikeable, or, at least, the statement is reasonably susceptible of a defamatory connotation. This matters for both the falsity and the defamatory elements.

Identity is clearly met- Susan is named in the article.

Falsity is likely sufficiently met, at least to go to a jury.  The statement that Susan is “not likeable by anyone except ancient, mummified Egyptians” may be considered a mere opinion, but it seems to imply facts not disclosed to the readers, as in Boeheim.  (Concisely analogize facts to facts – Just as in Boeheim, where the denial of sexual assault allegations implied that the coaches knew plaintiff was lying, here there is an implication that the newspaper has inside information.) A reasonable reader might believe that the statement conveys facts, not just opinions, and the article doesn’t allow the reader to assess for him- or herself the basis of those facts; the newspaper may have information about others not liking Susan that it has not disclosed.  Opinions that imply undisclosed facts are treated as fact, because one purpose of defamation law is to allow readers to assess truthful information for themselves.  This could go the other way, however.  If you analyze this as a mere opinion, show your work.

Note: Whether or not mummies actually liked Susan is an irrelevant issue, because a reasonable reader would only interpret that portion of the statement as hyperbole, not falsifiable fact.

Objectively, this is likely defamatory.  The statement tends to lower her standing in the community and bring her into ill repute, although a judge might say this is non-defamatory as a matter of law because it isn’t sufficiently damning or injurious to reputation.  Compare to other situations that are/are not defamatory.

Note:  this is an objective standard, and not about Susan’s feelings about how hurt her reputation is, as a subjective standard would be difficult to administer and cater to the most sensitive among us.

Note- the information relevant to the defamation claim is the statement that Susan is not well liked, not the descriptions of the underwear, because those statements are true and thus would not meet the other elements of defamation (falsity).

The allegedly defamatory statement was published in a newspaper, so intentional publication is clearly met.

1^st A defense to defamation claim:

The threshold issue is whether Susan is a public figure or a private figure.   If she is a public figure, the actual malice standard will apply to falsity, and Susan will not likely win.  Actual malice is a high bar that requires conscious disregard of the truth, and the newspaper thought it was telling the truth.  (Failure to investigate is insufficiently to satisfy actual malice.) If Susan is a private figure, the state can set defamation at whatever it level of culpability wishes, so long as it is negligence or higher, and Susan can likely get to a jury on negligent falsity.

Teachers, especially public-school teachers, are often deemed public figures.  The three factors distinguishing public figures from private figures are (1) the public’s interest in the figure, beyond just this defamation case and context, (2) the figure’s access to media, and (3) how much the figure thrust herself into the public eye.

Here, Susan is a librarian, and she has done nothing to insert herself into the public sphere.  On the other hand, Susan now has a public platform to tell her own tale, since she is a local celebrity, and the public may be interested in her.  This is a close case  – just support your view either way.

Privacy tort claim:

Susan can bring a public disclosure of private facts claim.

In terms of the state law claim, courts will balance offensiveness and newsworthiness.  Although these are separate factors that balance against each other, they also inform each other – as the more something is newsworthy, the less a reasonable person would deem the disclosure offensive.

The color of Susan’s underwear is not particularly newsworthy, and, in that sense, it is fairly offensive to describe her undergarments (the two facts are balanced against each other but each also alters consideration of the other).  This information is not particularly relevant to understanding the robbery or any reason why this might be in the public interest, and, as a result, is very distinguishable from Haynes, where the intimate details between a couple did not get as specific and also were necessary to add context to the case study of a particular couple in highlighting a sociological phenomenon.  Remember that this is an objective inquiry.

In terms of the First Amendment defense, IF a newspaper (1) lawfully obtained truthful information about (2) a matter of public significance, THEN liability can be imposed only if it serves (3) an interest of the highest order.  However, if 1 and 2 are not met, the high standard of three perhaps need not be satisfied (open question).  This is not a balancing test.  1 and 2 are pre-conditions for 3 to apply.

Here, the information is truthful and was obtained from a police report, just like in Florida Star, and courts are loathe to disallow newspapers to publish items in police reports.  However, this may not be a matter of public significance, meaning Florda Star is not even triggered.  The name of a rape victim is a matter of public interest because it relates to crime, so maybe (but not likely) the color of underwear is a matter of public interest as well.  In that case, the state does not have an interest of the highest order justifying liability (confidential military info), though, so probably dismissal as a matter of law.

However, if the undergarment color is not in the public interest, Florda Star does not apply, and it is an open question what sort of interest the state needs to justify imposing liability – likely, the privacy claim can proceed.

Note– although the word “interest” is the same, the public interest that justifies First Amendment protection is not the same as the state “interest” of the highest order that is necessary to overcome that First Amendment protection.  The public interest is in potentially knowing the details of the crime.  If that disclosure that is sufficiently in the public interest so as to trigger Florida Star, the state’s interest would be in protecting Susan from disclosure, which is not likely of the highest order to overcome the First Amendment protection.  (Remember, it must be something akin to disclosure of the location of troops.)  Although it isn’t the best judicial practice, just because you see the word “interest” twice does not mean the word is referring to the same thing; make sure to think through how the parts relate to each other.