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Introductory Note 22:1 Libel Or Slander Per Se

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Introductory Note 22:1 Libel Or Slander Per Se CHAPTER 22 DEFAMATION (LIBEL AND SLANDER) Introductory Note 22:1 Libel or Slander Per Se — Where the Plaintiff Is a Public Official or Public Person or, If a Private Person, the Statement Pertained to a Matter of Public Interest or General Concern — Elements of Liability 22:2 Libel or Slander Per Quod — Where the Plaintiff Is a Public Official or Public Person or, If a Private Person, the Statement Pertained to a Matter of Public Interest or General Concern — Elements of Liability 22:3 Reckless Disregard Defined — Where the Plaintiff Is a Public Official or Public Person or, If a Private Person, the Statement Pertained to a Matter of Public Interest or General Concern 22:4 Libel or Slander Per Se — In a Private Matter Where Plaintiff Is a Private Person — Elements of Liability 22:5 Libel or Slander Per Quod — In a Private Matter Where Plaintiff Is a Private Person — Elements of Liability 22:6 Incremental Harm 22:7 Published — Defined 22:8 Defamatory — Defined 22:9 About the Plaintiff — Defined 22:10 Determination of Meaning of Statement — How Understood by Others 22:11 Determination of Meaning of Statement — Publication to Be Considered as a Whole 22:12 Determination of Meaning of Statement — Publication to Be Considered In Light of Surrounding Circumstances 22:13 False — Defined 22:14 Special Damages — Defined 22:15 Actual Damage — Defined 22:16 Affirmative Defense — Substantial Truth 22:17 Affirmative Defense — Absolute Privilege 22:18 Affirmative Defense — Qualified Privilege — When Lost 22:19 Affirmative Defense — Privilege to Report Official or Public Meeting Proceedings 22:20 Affirmative Defense — Privilege to Provider of Means of Communication 22:21 Affirmative Defense — Fair Comment 22:22 Affirmative Defense — Consent 22:23 Affirmative Defense — Statute of Limitations 22:24 Repetition by Third Persons as an Element of Damages 22:25 Damages — Recovery of 22:26 Circumstances That Mitigate Damages 22:27 Exemplary or Punitive Damages 2 Introductory Note 1. In New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964), the Supreme Court held that the guarantees of freedom of speech and press of the First Amendment, made applicable to the states by the Fourteenth Amendment, prohibit a public official “from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’―that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” This constitutional privilege was premised on our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open,” and on recognition that erroneous statements are “inevitable” in the discussion of public affairs. Id. at 270. In St. Amant v. Thompson, 390 U.S. 727, 731 (1968), the Court explained that the term “reckless disregard,” like “actual malice,” is a term of art, and requires evidence that the defendant “in fact entertained serious doubts as to the truth of his publication.” In Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), the Supreme Court extended the rule to cases brought by persons who, although not public officials, are deemed “public figures.” 2. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974), the Supreme Court held that although the First Amendment privilege extends to a defamation of a private individual when the defamation relates to a matter of public interest or general concern, “[s]o long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability.” Accord Time, Inc. v. Firestone, 424 U.S. 448 (1976). After the Gertz decision, the Colorado Supreme Court decided Walker v. Colorado Springs Sun, Inc., 188 Colo. 86, 538 P.2d 450 (1975). Walker was a case brought by a private plaintiff concerning a publication that involved a matter of public interest. The court rejected the negligence standard of liability and adopted the liability standard of New York Times, 376 U.S. 254, except that it declined to adopt the St. Amant requirement for public officials or public persons, that reckless disregard requires the defendant to have “entertained serious doubts as to the truth.” Subsequently, in Diversified Management, Inc. v. Denver Post, Inc., 653 P.2d 1103 (Colo. 1982), the court overruled this exception in Walker and held that the St. Amant definition of “reckless disregard” should be used “in cases involving matters of public interest or general concern, as well as in cases involving public officials and public figures.” Id. at 1110; see also Shoen v. Shoen, 2012 COA 207, ¶ 24, 292 P.3d 1224; Lockett v. Garrett, 1 P.3d 206 (Colo. App. 1999); Fink v. Combined Commc’ns Corp., 679 P.2d 1108 (Colo. App. 1984); Willis v. Perry, 677 P.2d 961 (Colo. App. 1983). 3. The “constitutionalization” of the law of libel under New York Times and its progeny also reallocated the traditional roles of a court as an arbiter of law and a court or jury as factfinder in resolving factual issues that involve drawing “line[s] ‘between speech unconditionally guaranteed and speech which may legitimately be regulated.’” N.Y. Times, 376 U.S. at 285 (quoting Speiser v. Randall, 357 U.S. 513, 525 (1958)). In such cases, a reviewing court must “examine for [itself] the statements in issue and the circumstances under which they were made to see whether they are of a character which the principles of the First Amendment … protect.” Id. (quoting Pennekamp v. Florida, 328 U.S. 331, 335 (1946)). The Colorado Supreme Court has embraced the responsibility doctrine of “independent review,” which it characterizes as “de novo” review in cases involving speech arguably protected by the Colorado Constitution. Walker, 188 Colo. at 101, 538 P.2d at 459; see also NBC Subsidiary (KCNC- 3 TV), Inc. v. Living Will Ctr., 879 P.2d 6 (Colo. 1994). When performing the function of independent review, courts require that the plaintiff’s factual proof on a factual issue of constitutional significance be supported by “convincing clarity,” or, as alternatively stated, by “clear and convincing evidence.” DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318 (1980). The “clear and convincing” burden of proof is to be applied by the factfinder and the court when determining the issues of falsity and knowledge of falsity or reckless disregard for the truth. New York Times, 376 U.S. at 284-85; McIntyre v. Jones, 194 P.3d 519 (Colo. App. 2008); Barnett v. Denver Publ’g Co., 36 P.3d 145 (Colo. App. 2001); Lockett, 1 P.3d at 210; Smiley’s Too, Inc. v. Denver Post Corp., 935 P.2d 39 (Colo. App. 1996). The clear and convincing burden of proof also applies in cases brought by a public officials or public figures or that involve a matter of public or general concern when a factual issue is presented as to whether the publication is “of and concerning” the plaintiff. New York Times, 376 U.S. at 288-89. 4. In Rowe v. Metz, 195 Colo. 424, 579 P.2d 83 (1978), the court held the Gertz rule (that presumed damages were unconstitutional without proof of actual malice as defined in New York Times) did not apply to a case of a private plaintiff and a non-media defendant in a purely private context. In effect, the court in Rowe followed the common-law rules of presumed damages in such cases where the defamation is per se. In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), five justices concurred that a state, without violating the First Amendment, may permit a private plaintiff to recover presumed or punitive damages for defamatory statements not involving a matter of public concern without a showing of “actual malice.” Eight justices also specifically agreed that the scope of the First Amendment privilege does not depend on whether the defendant is a news medium. 5. Thus, in Colorado, the New York Times-St. Amant rule applies when the plaintiff is a public official or a public person, see, e.g., DiLeo, 200 Colo. at 123, 613 P.2d at 321, or when the plaintiff is a private person involved in a matter of public interest or general concern. See Instruction 22:3. The pre-New York Times common-law rule of presumed damages applies, see Instruction 22:4, only when the claimed defamation involves a private matter and the plaintiff is a private person. See Dun & Bradstreet, 472 U.S. at 751; Rowe, 195 Colo. at 426, 579 P.2d at 85. 6. In Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 768-69 (1986), the Court held that “at least where a newspaper publishes speech of public concern, a private figure- plaintiff cannot recover damages without also showing that the statements at issue are false.” Neither the United States Supreme Court nor any Colorado appellate court has determined whether a private person suing over a private matter is subject to the same requirement. However, the Colorado Supreme Court has rendered decisions suggesting that, even in a purely private defamation action, the federal and/or state constitutions require the plaintiff to prove falsity. In Bucher v. Roberts, 198 Colo. 1, 595 P.2d 239 (1979), the court held that the Gertz requirement that the statement must be provably false applies to defamation of a private person uttered in a private context. See also Williams v. Dist. Court, 866 P.2d 908 (Colo. 1993) (holding that the requirement of Gertz that the plaintiff prove fault is applicable in an action by a private person suing over a private communication); McIntyre, 194 P.3d at 528 (assuming that private plaintiff suing over private matter must prove falsity); RESTATEMENT (SECOND) OF TORTS § 580B cmt.
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