Answer To MBE Question From December 11th

(C) is correct.


Issue: Whether the newspaper is liable for defamation for publishing a false article about a public figure without malice or recklessness.


Rule: Defamation occurs when a false statement is spoken (slander) or written (libel) or any other form of communication of a false statement is made to a third person, if the communication holds plaintiff  up  to  ridicule  or  scorn  in  the  eyes  of  the  public. Defamatory statements about public officials or public figures are afforded First Amendment protection. This means that the publisher of  the  statement  is  only  liable  if  the  statements  are  made  with  actual  malice. Actual malice exists when the statement was made with (a) knowledge that the statement was false or (b) reckless disregard of whether it was false or not.


Analysis: Here the newspaper printed an article about a public figure that was defamatory.  It was a false statement that put the public figure in a negative light in the eyes of the public. However, the facts  state  that  the  newspaper  did  not  know  that  the  allegations  were  false,  and  moreover,  that  the  newspaper  followed  established  protocols  in  vetting  the  story  and  used  reliable  sources. Thus,  malice  cannot  be  established and the  newspaper  is  protected  under  the  First  Amendment  from  charges of defamation.


(C) is correct because the article was not printed with actual malice and thus it is afforded protection under the First Amendment.


(A) is incorrect. Falsity alone is insufficient to establish liability when the First Amendment is invoked (i.e., the statement concerns a public figure or an issue of public concern).


(B) is incorrect because it is not relevant here that the conduct was private since it was a public figure.

(D) is incorrect. The newspaper did not have an absolute privilege. Defamation is absolutely privileged, even if made with malice, in the following situations, none of which are applicable here: (i) Judicial Proceedings; (ii) Executive Proceedings; (iii) Legislative Proceedings; (iv)“Compelled” Broadcast or Publication (i.e., where a radio or TV station is compelled to allow a speaker the use of the air, a newspaper compelled to print public notices, etc. Mass media are absolutely privileged in an action based on the content of the compelled publication); (v) Communications between spouses.

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