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Lets look at the Law !!

26 Apr

Freedom of speech, of the press, of association, of assembly and petition — this set of guarantees, protected by the First Amendment, comprises what we refer to as freedom of expression. The Supreme Court has written that this freedom is “the matrix, the indispensable condition of nearly every other form of freedom.” Without it, other fundamental rights, like the right to vote, would wither and die.

FREEDOM OF SPEECH,  PROVIDED BY THE FIRST AMENDMENT, appears to only be provided by those who are associated with radionewz.net.

Now remember, these are the same  people were all up in arms for protecting Prinne – and promoting her FREEDOM OF SPEECH,  during her law suit  defending her right to make open statements and accusations of criminal activity against certain people, and actually identifying people by their real names and where they live.

For several years I have been accused of being a drunk, a drug addict, a cougar, crazy, insane and the biggest lie told was that I had been in a mental institution – each statement is without doubt libel and defamation of character.  They advised their trolls that my family had discussed issues with them.

1. These people have never had a conversation with any of my family members.  In fact my family members know exactly what has been occurring.

2. The removal of information from this site was encouraged by legal council, also advising me to remain silent for a short period of time – Not to test the waters but use the time for other measures to be taken.

3. The removal of information from this site also enraged a number of people.  Those who felt I should stand my ground !!

Another issue is the Law.. on Defamation in varying States.

North Carolina Defamation Law

Note: This page covers information specific to North Carolina. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

The elements of a defamation claim in North Carolina are essentially similar to the elements discussed in the general Defamation Law section, with the following exceptions and clarifications:

Defamation Per Se

North Carolina has a broad definition of libel per se. This term refers to statements so egregious that they will always be considered defamatory and are assumed to harm the plaintiff‘s reputation, without further need to prove that harm. In North Carolina, a statement that does any of the following things amounts to libel per se:

  • charges that a person has committed an infamous crime;
  • charges a person with having an infectious disease;
  • tends to impeach a person in that person’s trade or profession; or
  • otherwise tends to subject one to ridicule, contempt, or disgrace.

This last category of libel per se is quite broad and is not recognized by most other states.

Actual Malice and Negligence

In North Carolina, a private figure plaintiff bringing a defamation lawsuit must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statements. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

Privileges and Defenses

North Carolina courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege. The status of the wire service defense and the the neutral reportage privilege is unsettled.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Most of the privileges and defenses to defamation can be defeated if the plaintiff proves that the defendant acted with actual malice. This does not apply to immunity under section 230 of the Communications Decency Act. It is not clear whether actual malice defeats the fair report privilege in North Carolina.

Fair Report Privilege

In North Carolina, the fair report privilege protects accurate reports of government proceedings and public records.  Among other things, the privilege applies to court proceedings and information contained in court documents. It also extends to reports of arrests and the charges upon which the arrests were based. See LaComb v. Jacksonville Daily News, 543 S.E.2d 219, 221 (N.C. Ct. App. 2001).  To take advantage of the privilege, your report must be a “substantially accurate acount.” It is not clear whether a plaintiff can defeat the fair report privilege by proving that the defendant acted with actual malice.

Neutral Reportage Privilege

The CMLP located no North Carolina cases addressing the neutral reportage privilege. If you know of any cases, please contact us.

Wire Service Defense

One North Carolina appeals court has recognized the wire service defense, but did not elaborate on its scope. See McKinney v. Avery Journal, Inc., 393 S.E.2d 295 (N.C. Ct. App. 1990).

Statute of Limitations for Defamation

The statue of limitations for defamation in North Carolina is one (1) year. See N.C. Gen. Stat. § 1-54.

The CMLP has identified no North Carolina cases addressing whether the state follows the single publication rule, either online or off. For a definition of the “single publication rule,” see the Statute of Limitations for Defamation section. If you are aware of any North Carolina cases that acknowledge the single publication rule in the Internet context, please notify us.

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Florida Defamation Law

Note: This page covers information specific to Florida. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

Under Florida law, the elements of a defamation claim are:

  1. the defendant published a false statement;
  2. about the plaintiff;
  3. to a third party; and
  4. the falsity of the statement caused injury to the plaintiff.

Border Collie Rescue v. Ryan, 418 F.Supp.2d 1330, 1348 (M.D.Fla. 2006).  A plaintiff must also prove that the defendant’s fault in publishing the statement amounted to at least negligence.  The elements of a defamation claim in Florida are similar to the elements discussed in the general Defamation Law section, with the following exceptions:

Defamation Per Se

In Mid-Florida Television Co. v. Boyles, 467 So.2d 282 (Fla. 1985), the Florida Supreme Court ruled that the state no longer recognizes presumed damages for defamation per se in lawsuits against media defendants. (Defamation “per se” refers to a legal doctrine which holds that some statements of fact are so egregious that a court will presume that they harmed the plaintiff’s reputation.) The CMLP is not aware of any Florida cases deciding whether a blogger or non-traditional journalist is a “media defendant” for purposes of applying this rule. In cases involving matters of purely private concern, a Florida court could still presume damages based on defamation per se. In Florida, a statement amounts to defamation per se if it accuses the plaintiff of committing a crime or imputes to the plaintiff conduct, characteristics, or a condition incompatible with the proper exercise of his or her lawful business, trade, profession, or office.

Public and Private Figures

Florida has a broad conception of public officials, a category of government actors who must prove actual malice in order to prevail on a defamation claim. The Florida Supreme Court found a police officer to be a public official where he was a “highly visible representative of government authority who has power over citizens and broad discretion in the exercise of that power.” Smith v. Russell, 456 So.2d 462 (Fla. 1984). Florida courts have found that a corrections officer, an administrator of large public hospital, and even a harbormaster were public officials.

Criminal Libel

Unlike most states, Florida still recognizes criminal libel. Chapter 836 of the Florida Statutes does not define the elements of criminal libel, but it does specifically prohibit false statements that harm a bank or other financial institution’s reputation or accuse a female of being unchaste. To the extent that the statute remains valid, criminal libel is a first-degree misdemeanor. However, a Florida appeals court found Fla. Stat. § 836.11 — which deals with anonymous defamation of individuals or religious groups — to be unconstitutional. State v. Shank, 795 So.2d 1067 (Fla.Ct.App., 4th Dist. 2001).

Actual Malice and Negligence

In Florida, a private figure plaintiff bringing a defamation lawsuit generally must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statements. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on these standards.

Privileges and Defenses

Florida courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, the fair report privilege, and the wire service defense. The Florida Supreme Court has not explicitly recognized the neutral reportage privilege, but lower court cases have recognized it.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Neutral Reportage Privilege

The Florida Supreme Court has not formally recognized the neutral reportage privilege, but there are indications that Florida would recognize it. Two lower court cases have endorsed the privilege. See Smith v. Taylor County Pub. Co., 443 So. 2d 1042, 1044 (Fla. 1st DCA 1983); Huszar v. Gross, 468 So. 2d 512, 515 (Fla. 1st DCA 1985). Both cases recognized the privilege even in instances where the plaintiff is a private figure. The Court of Appeals for Florida’s Third District spoke favorably of these cases. See Brake & Alignment Supply Corp. v. Post-Newsweek Stations of Florida, Inc, 472 So. 2d 517, 518 (Fla. 3rd DCA 1985).

Statute of Limitations for Defamation

Florida’s statute of limitations for defamation is two (2) years. See Fla. Stat. § 95.11(4)(g).

Florida applies the single publication rule. See Fla. Stat. § 770.07. For a definition of the “single publication rule,” see the Statute of Limitations for Defamation section.

The CMLP could not locate any cases in Florida that apply the single publication rule in the context of a statement published on the Internet. If you are aware of any Florida cases that

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The 2012 Florida Statutes

Title XLVI
CRIMES
Chapter 836
DEFAMATION; LIBEL; THREATENING LETTERS AND SIMILAR OFFENSES
View Entire Chapter

836.11 Publications which tend to expose persons to hatred, contempt, or ridicule prohibited.—

(1)  It shall be unlawful to print, publish, distribute or cause to be printed, published or distributed by any means, or in any manner whatsoever, any publication, handbill, dodger, circular, booklet, pamphlet, leaflet, card, sticker, periodical, literature, paper or other printed material which tends to expose any individual or any religious group to hatred, contempt, ridicule or obloquy unless the following is clearly printed or written thereon:

(a) The true name and post office address of the person, firm, partnership, corporation or organization causing the same to be printed, published or distributed; and,
(b) If such name is that of a firm, corporation or organization, the name and post office address of the individual acting in its behalf in causing such printing, publication or distribution.
(2)  Any person, firm or corporation violating any of the sections of this statute shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
History.—ss. 1, 2, ch. 22744, 1945; s. 996, ch. 71-136.

Libel and Slander (Defamation)

The law of defamation in Georgia shields an individual’s reputation against communications that are untrue and derogatory. Under the law of defamation, a person may be held liable for libel or slander. A person commits the tort of libel when he falsely and maliciously defames another through a permanent form of communication such as a writing, picture, print, or sign. This defamation must tend to injure the offended person and expose him to public contempt to constitute libel. Similarly, slander consists of a false and malicious oral statement, such as stating that someone committed a crime, has a contagious disorder, or operates their business poorly. Slander may also be committed simply by uttering disparaging words about another.

The plaintiff and his attorney shoulder the burden of proving a defamation claim in Georgia. Success depends on an attorney’s ability to prove three or four elements. First, an actual false and malicious statement made against the plaintiff must be proven. Second, the plaintiff must prove that this statement was conveyed to a third party. Third, it must be proven that the defendant was at least negligent in conveying the statement. In some cases, a fourth element proving that harm was done must be satisfied. A plaintiff is usually not obligated to prove this fourth requirement when the alleged statement falsely accuses another person with a crime, asserts that another person has a contagious disorder, or is calculated to harm the person’s trade, office, or profession.

In defending a defamation suit, Georgia provides for several defenses that a defendant may use. For instance, a person is almost always justified in making a true statement. Furthermore, in situations where minor inaccuracies have been made in good faith, the court is likely to ignore those falsities so long as the overall impact or substance of the statement is not false. This is known as a “substantial truth.”

Georgia’s defamation laws also protect opinions in many cases. The First Amendment to the U.S. Constitution grants us a great degree of freedom to criticize others without fear of legal retribution. Opinions of others that are based on a personal belief and that cannot be proven false are generally protected from defamation suits. However, statements that imply or explicitly state defamatory facts that can be proven false are unlikely to be protected. For example, falsely and maliciously stating that someone was convicted of a crime will most likely not constitute a protected opinion, because that fact can be proven false.

Additionally, Georgia considers some statements to be privileged so as to remove them from the realm of liability; however, these privileges do not protect statements made with a malicious intent. Privileged statements include statements made to protect the interest of the speaker, comments concerning the acts of public officials, and statements made in the performance of a public, legal, or moral duty. Georgia law also protects comments made by attorneys about the circumstances of a case or on the conduct of the parties involved.

Professionals in the business world are also granted some leeway under Georgia law. A single statement that another is guilty of a mistake, impropriety, or an unprofessional act is usually not enough to hold one liable. However, if the statement accuses another of general ignorance or lack of skill, the person making the statement will more likely be held liable.

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Arizona Defamation Law

Note: This page covers information specific to Arizona. For general information concerning defamation, see the Defamation Law section of this guide.

Arizona Elements of Defamation

In Arizona, the elements of a defamation claim are:

  1. a false statement concerning the plaintiff;
  2. the statement was defamatory;
  3. the statement was published to a third party;
  4. the requisite fault on the part of the defendant; and
  5. the plaintiff was damaged as a result of the statement.

Morris v. Warner, 160 Ariz. 55, 62 (Ariz. Ct. App. 1988).

To be “defamatory,” a statement must be false and bring the defamed person into disrepute, contempt, or ridicule, or impeach her honesty, integrity, virtue, or reputation. Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 341 (Ariz. 1989).

These elements of a defamation claim in Arizona are similar to the elements discussed in the general Defamation Law section, with the following exceptions:

Defamation Per Se

Arizona distinguishes between statements that constitute libel per se and libel per quod. Libel per se are written communications which “on their face and without the aid of any extrinsic matter” tend to “bring any person into disrepute, contempt or ridicule” or “impeach the honesty, integrity, virtue or reputation.” Ilitzky v. Goodman, 57 Ariz. 216, 220‑21 (Ariz. 1941). In contrast, libel per quod consists of written communications which “on their face do not fall within the definition [of defamation] but which by reason of special extraneous circumstances actually do.” Id. at 221.

Arizona also distinguishes between statements that constitute slander per se and slander per quod. In Arizona, a statement that does any of the following is slander per se:

  • Charges a contagious or venereal disease, or that woman is not chaste; or
  • Tends to injure a person in his profession, trade, or business; or
  • Imputes the commission of a crime involving moral turpitude.

Modla v. Parker, 495 P.2d 494, 4 n.1 (Ariz. Ct. App. 1972). Slander per quod are “all slanderous utterances which are not slanderous per se.” Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 1, 6 n.4 (Ariz. Ct. App. 1985) approved as supplemented by Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9 (Ariz. 1986).

The distinction between libel per se and per quod and slander per se and per quod matters because it effects the type of damages a plaintiff must allege to prevail. To recover for libel or slander per quod, a plaintiff must allege special damages, i.e., lost profits or other “pecuniary loss.” Boswell, 152 Ariz. 1, 6 n.4. In contrast, to recover for libel or slander per se, a plaintiff does not have to allege special damages and may instead allege non-pecuniary damages, such as damage to his reputation. Moreover, in cases of libel or slander per se, damages may be presumed if:

  1. The plaintiff is a private figure and the alleged defamatory statement involves a matter of purely private concern; Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 481 (Ariz. 1986) or
  2. Actual malice is proven. Id.

Public Officials

Arizona courts have considered whether certain lower-level government employees qualify as public officials. They have held that the following individuals, among others, are public officials:

Public Figures and Limited-Purpose Public Figures

In Arizona, to classify a person as a public figure, the person must have achieved “‘such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts.” Dombey, 150 Ariz. at 480 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974).

The Arizona Supreme Court has recognized that an individual may become a limited-purpose public figure for a certain event or controversy when he “‘voluntarily injects himself or is drawn into a particular public controversy. . . .’” Id. (quoting Gertz, 418 U.S. at 351).

In determining whether a person is a limited-purpose public figure, Arizona courts will consider whether the person has “‘thrust[] himself or his views into public controversy to influence others’” and whether the person’s “‘position with respect to matters of public concern gives him access to the media on a regular and continuing basis.’” Id. at 483 (quoting Hutchinson v. Proxmire, 443 U.S. 111, 135 (1979).

The Arizona Supreme Court has held that a person “‘is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention.’” Id. (quoting Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157, 167 (1979). Rather, the person must voluntarily assume a position that invites attention. Id. at 485 (quoting McDowell v. Paiewonsky, 769 F.2d 942, 950 (3rd Cir. 1985). In that regard, the Court has stated that “doing business with the government, being swept up in a controversy over an issue of public interest or concern, being named in articles creating a public controversy, and defending oneself against charges leveled in the media are all insufficient to automatically transform a private individual into a public figure.” Id. at 484.

Arizona courts and the 9th Circuit have held the following individuals, among others, to be limited-purpose public figures:

  • A “publicly self‑acknowledged former hoodlum and organized crime enforcer” who testified against a mob boss in exchange for immunity from prosecution. Scottsdale Publ’g, Inc. v. Superior Court, 159 Ariz. 72, 73, 74 (Ariz. Ct. App. 1988).
  • A World War II veteran who had authorized a biography and solicited press coverage of that work. Thomas v. Los Angeles Times Commc’ns. LLC, 45 Fed. Appx. 801, 803 (9th Cir. 2002).
  • The insurance agent of record for an Arizona county, where the insurance agent made recommendations resulting in substantial expenditures from the public and financially benefited from his position, although he was not actually employed by the county. Dombey, 150 Ariz. at 484‑85.
  • An individual, in suing his former employer for defamation, who had contacted the media regarding his claims of wrongful termination and sent his complaint to approximately twenty companies in related business fields. Prendeville v. Singer, 155 Fed. Appx. 303, 305-06 (9th Cir. 2005).

On the other hand, Arizona courts have found the following individuals and organizations, among others, to be private figures:

Actual Malice and Negligence

Arizona courts apply a negligence standard to defamation claims brought by private figures seeking compensatory damages. Peagler v. Phoenix Newspapers, Inc., 114 Ariz. 309, 315 (Ariz. 1977).

Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

Privileges and Defenses

Arizona courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Fair Comment Privilege

In Arizona, the fair comment privilege “is limited to discussions of matters which are of legitimate concern to the community as a whole because they materially affect the interests of all the community.” Phoenix Newspapers, Inc. v. Church, 103 Ariz. 582, 595 (Ariz. 1968).  If actual malice is shown, however, the privilege is defeated. Id.

The fair comment privilege protects both media and non-media defendants when the plaintiff is a public official.  The Arizona Supreme Court ruled that regardless of the defendant’s media status, “when the plaintiff is a public official and the speech is of public concern, [then] the plaintiff bears the burden of showing that a statement is provably false before an action for defamation can lie.” Turner v. Devlin, 174 Ariz. 201, 205 (1993).

The Arizona Supreme Court in the past has also explicitly recognized pure opinion as protected speech. MacConnell v. Mitten, 131 Ariz. 22, 25 (1981) (finding a statement “was pure opinion and not actionable“).  It is unclear whether this recognition survived Turner and Milkovich v. Lorain Journal Co., 497 U.S. 1 (1993), however.

Fair Report Privilege

In Arizona, the precise scope of the fair report privilege, also known as the public records privilege, is not clear because there is only one case in which the Arizona courts have applied the privilege.

In Sallomi v. Phoenix Newspapers, Inc., 160 Ariz. 144, 147 (Ariz. Ct. App. 1989), the Court of Appeals of Arizona held that the “public records privilege” applied to articles which were “a fair and accurate abridgment of the public records used.” In that case, the Arizona Republic published articles about the apprehension of a hitman at a local restaurant, which it described as a “hangout for narcotics dealers and users” owned by a man being investigated for fraud and attempted extortion. Id. at 145. The owners of the restaurant filed suit for defamation. The information in the articles was obtained from interviews with police officers, affidavits submitted to support searches of various locations, a grand jury indictment, and a booking slip on file at the Phoenix Police Department. Id. at 145‑46. The Court reviewed the articles, the search warrant affidavits, grand jury indictment, and booking slip and concluded that although the newspaper may have relied on interviews with police officers, which are not a public record, because the information obtained was available in the affidavits, indictment, and booking slip, the privilege applied. Id. at 146‑47.

Neutral Reportage Privilege

The CMLP has not identified any cases in Arizona concerning the neutral reportage privilege. If you are aware of any, please contact us. The 9th Circuit has mentioned the adoption of the neutral reportage privilege in other jurisdictions but does not appear to have specifically adopted it itself. See Flowers v. Carville, 310 F.3d 1118, 1128 (9th Cir. 2002).

Wire Service Defense

A federal district court in Arizona has applied the wire service defense in at least one case. In In re Med. Lab. Mgmt. Consultants v. Am. Broad. Cos., Inc., 931 F. Supp. 1487, 1492 (D. Ariz. 1996), the court held that the defense applied to an ABC-affiliate in Phoenix that broadcast an edition of “Prime Time Live” but played no part in the planning, reporting, production, or editing of the broadcast.

Retraction or Correction

By statute in Arizona, the type of damages a plaintiff may recover from a newspaper, magazine, or radio or television broadcaster can be limited by the publication of a retraction. A.R.S. § 12‑653.02 provides:

In an action for damages for the publication of a libel in a newspaper or magazine, or of a slander by radio or television broadcast, the plaintiff shall recover no more than special damages [i.e. damages with respect to the plaintiff’s property, business, trade, profession or occupation] unless a correction is demanded and not published or broadcast, unless the plaintiff shall prove the publication or broadcast was made with actual malice. The plaintiff shall serve upon the publisher at the place of publication, or broadcaster at the place of broadcast, a written notice specifying the statements claimed to be libelous and demanding that the same be corrected. The notice and demand shall be served within twenty days after actual knowledge of the plaintiff of the publication or broadcast of the statements claimed to be libelous.

If a correction is demanded within the time period prescribed by A.R.S. § 12‑653.02 and a correction is not published or broadcast within three weeks, the plaintiff may recover damages for loss of reputation and punitive damages if she can prove actual malice. A.R.S. § 12‑653.03.

The applicability of the retraction statute in all cases in questionable because the Arizona Supreme Court has held that the retraction statute violates art. 18, § 6 of the Arizona constitution to the extent that it eliminates “general damages for both loss of reputation and emotional harm, preventing those damaged by defamation from recovering general damages for actual injury.” Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 19 (Ariz. 1986).

The retraction statute also does not apply not apply “to any publication or broadcast made within thirty days preceding any election, if such publication or broadcast is designed to in any way influence the results of such election.” A.R.S. § 12‑653.05.

At least one federal court in Arizona has stated that the retraction statute applies only to “libel actions based on newspaper or magazine articles” and does not apply to comments made on an online forum. Dealer Comp. Servs. v. Fullers’ White Mt. Motors, Inc., No. CV07-00748-PCT-JAT, 2008 U.S. Dist. LEXIS 83311 at *19 (D. Ariz. Oct. 16, 2008).

Other Statutory Protections for Periodicals and Broadcasters

A.R.S. § 12‑653 provides:

An action for damages shall not lie against the editor, publisher, or proprietor of a newspaper or periodical for publication of a report, proceedings or other matter published at the instance of a public officer acting in compliance with law.

A.R.S. § 12‑652 provides:

  1. The owner, licensee or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employees of the owner, licensee or operator, shall not be liable for damages for a defamatory statement published or uttered in or as a part of a visual or sound radio broadcast by one other than the owner, licensee or operator, or agent or employee thereof, unless it is alleged and proved by the complaining party that the owner, licensee, operator or agent or employee has failed to exercise due care to prevent publication or utterance of the statement in the broadcast. The exercise of due care shall be construed to include a bona fide compliance with federal law or regulations of a federal regulatory agency.
  2. An owner, licensee or operator, or the agents or employees of such owner, licensee or operator of a station or network of stations shall not be liable for damages for defamatory statements published or uttered over the facilities of such station or network by or on behalf of a candidate for public office.
  3. In an action for damages for a defamatory statement published or uttered in or as a part of a visual or sound radio broadcast, the complaining party shall be allowed only the actual damages alleged and proved.

CMLP has not identified any Arizona cases in which these statutes have been applied. If you are aware of any, please contact us.

Statute of Limitations for Defamation

The statute of limitations for defamation is one (1) year. See A.R.S. § 12‑541. The Court of Appeals of Arizona has stated that the general rule is that the statute of limitations begins to run upon publication; however, the Court has also created an exception to the general rule and held that the statute of limitations may instead begin to run upon discovery “in those situations in which the defamation is published in a manner in which it is peculiarly likely to be concealed from the plaintiff, such as in a confidential memorandum or a credit report.” Clark v. Airesearch Mfg. Co. of Ariz., Inc., 138 Ariz. 240, 242 (Ariz. Ct. App. 1983).

By statute, the single publication rule applies in Arizona. See A.R.S. § 12-651. The statute provides, in pertinent part:

  1. No person shall have more than one cause of action for damages for libel, slander, invasion of privacy or any other tort founded upon a single publication, exhibition or utterance, such as any one edition of a newspaper, book or magazine, any one presentation to an audience, any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.
  2. A judgment in any jurisdiction for or against the plaintiff upon the substantive merits of any action for damages founded upon a single publication, exhibition or utterance as described in subsection A shall bar any other action for damages by the same plaintiff against the same defendant founded upon the same publication, exhibition or utterance.

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Missouri Defamation Law

Note: This page covers information specific to Missouri. For general information concerning defamation, see the Defamation section of this guide. 

Elements of Defamation

The elements of defamation in Missouri are:

1. publication
2. of a defamatory statement
3. that identifies the plaintiff
4. that is false
5. that is published with the requisite degree of fault, and
6. damages the plaintiff’s reputation

Overcast v. Billings Mut. Ins. Co., 11 S.W.3d 62, 70 (Mo. 2000) (en banc).

The publication requirement is simply the communication of defamatory matter to a third person. An exception to the publication requirement exists for slander actions in Missouri where a person who utters defamatory matters intends, or has reason to suppose, that in the ordinary course of events the matter will come to knowledge of some third person. Mauzy v. Mex. Sch. Dist., 878 F. Supp. 153, 157 (E.D. Mo. 1995), citing Neighbors v. Kirksville College, 694 S.W.2d 822, 824 (Mo. Ct. App. 1985). One who republishes defamatory facts is liable for that publication. Mortiz v. Kan. City Star Co., 258 S.W.2d 583 (Mo. 1953). There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

These elements of a defamation claim in Missouri are similar to the elements listed in the general Defamation section, with the following exceptions:

Defamation Per Se/Per Quod

The Missouri Supreme Court case of Nazeri v. Missouri Valley College, 860 S.W.2d 303 (Mo. 1993) (en banc) eliminates the defamation per se/per quod distinction. In that case, the court abandoned the classifications of defamation per se and per quod, holding that “plaintiffs need not concern themselves with whether the defamation was per se or per quod, nor with whether special damages exist, but must prove actual damages in all cases.” Id. at 313.

Defamatory Meaning

By statute, it is actionable to publish falsely and maliciously, in any manner whatsoever, that any person has been guilty of fornication or adultery. Mo. Rev. Stat. § 537.110 (2011).

In 1993, a false allegation of homosexuality was held to be defamatory. Nazeri at 312. It is not clear whether this would still be actionable now.

In order to find that a publication is defamatory, it must “be unequivocally so” and the words “should be construed in their most innocent sense.” Walker v. Kan. City Star Co., 406 S.W. 44, 51 (Mo. 1966). In Ampleman v. Schweppe, 972 S.W.2d 329 (Mo. Ct. App. 1998), the court stated that “if a statement is capable of two meanings (one defamatory and one nondefamatory), and can reasonably be construed in an innocent sense, the court must hold the statement nonactionable as a matter of law.” Id. at 333.

Of and Concerning the Plaintiff

Even if the plaintiff is readily identifiable in a particular publication, the plaintiff cannot sue for defamation unless the libelous portion of the publication is directed at him. May v. Greater Kansas City Dental, 863 S.W.2d 941, 945 (Mo. Ct. App. 1993).

Actual Malice

In order to recover for defamation, a public official/figure is required to show that the defendant acted with actual malice. Actual malice requires a showing that the libelous statements were published with actual knowledge of falsity or in reckless disregard as to whether the statement as true or not. The Missouri Supreme Court has equated recklessness with disregard of the truth with subjective awareness of probable falsity. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Glover v. Herald Co. 549 S.W.2d 858, 862 (Mo. 1977) (en banc).

Application of the actual malice standard in defamation cases in Missouri is not limited to statements regarding public officials’ performance of official acts. A public figure’s private conduct is, in some cases, a matter of public concern. Westhouse v. Biondo, 990 S.W.2d 68 (Mo. Ct. App. 1999).

Missouri cases have applied constitutional fault principles to statements made by non-media defendants, as well as those made by media defendants. Ramacciotti v. Zinn, 550 S.W.2d 217, 224 (Mo. Ct. App. 1987); McQuoid v. Springfield Newspapers, Inc., 502 F. Supp 1050, 1054 n.3 (W.D. Mo. 1980).

See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

Private Figure Standard

In Missouri, a private figure must show libelous statements were published by a defendant “at fault.” The Missouri Supreme Court has interpreted the U.S. Supreme Court’s ruling in Gertz v. Robert Welch, Inc., as stating that the requisite degree of fault in a private figure defamation case is negligence. Overcast v. Billings Mut. Ins. Co., 11 S.W. 3d 62, 70 (Mo. 2000) (en banc).

Damages 

In a ruling rejecting the distinction between defamation per se and per quod (see above), the Missouri Supreme Court seems to have abandoned the doctrine of presumed damages. Nazeri v. Misssouri Valley College, 860 S.W.2d 303, 313 (Mo. 1993) (en banc). “By allowing presumed damages for certain words but precluding actual damages for other words without the additional proof of special damages, we believe this rule of the past creates unjustifiable inequities for plaintiffs and defendants alike. We hold that in defamation cases the old rules of per se and per quod do not apply and plaintiff need only to plead and prove the unified defamation elements set out in MAI [i.e., the “Missouri Approved Instructions,” the standard jury instructions used in Missouri courts] 23.01(1) and 23.01(2).” Nazeri at 313. See also Kenney v. Wal-Mart Stores, Inc., 100 S.W.3d 809, 814 (Mo. 2003); Bauer v. Ribaudo, 975 S.W.2d 180, 182-83 (Mo. Ct. App. 1997).

Recent Missouri legislation says that punitive damages in any tort case may not exceed $500,000 or five times the net amount of any judgement awarded to the plaintiff against the defendant, whichever is greater. Mo. Rev. Stat. § 510.265 (2011).

The Missouri Supreme Court has held that a defamation plaintiff must prove impairment to reputation in order to recover any damages for defamation and that emotional distress alone will not suffice. Kenney v. Walmart Stores, Inc., 100 S.W.3d 809, 814 (Mo. 2003).

Other Issues

Missouri has no criminal libel statute.

Privileges and Defenses

Missouri courts recognize a number of privileges and defenses in the context of defamation cases, including substantial truth, the wire service defense, the fair reportage privilege, and opinion and fair comment privileges.

Missouri has not adopted the neutral reportage doctrine officially, although some cases show some recognition of a more limited privilege. Englezos v. Newspress & Gazette Co. 981 S.W.2d 25, 32 (Mo. Ct. App. 1998). The Eighth Circuit has suggested adherence to the neutral reportage doctrine. Price v. Viking Penguin Inc., 881 F.2d 1426, 1434, 1444 (8th Cir. 1989).

Substantial Truth

At common law, truth was considered a complete defense to libel (i.e., the defendant would have the burden to prove truth). Mortiz v. Kan. City Star Co., 258 S.W.2d 583 (Mo. 1953); Bartulica v. Pasculdo, 411 F. Supp 392, 397 (W.D. Mo. 1976).

Now falsity must be proven by the plaintiff, at least in cases where the defendant is a member of the media. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986). “Under the controlling constiutional standards, public officials, public figures and private persons using media defendants [for libel] must establish that the defendant published a false statement of fact.” Anton v. St. Louis Suburban Newspapers, Inc., 598 S.W.2d 493, 498 (Mo. Ct. App. 1980).

Slight inaccuracies of expression are immaterial if the defamatory charge is true in substance. Brown v. Biggs, 569 S.W.2d 760, 762 (Mo. Ct. App. 1978).

Wire Service Defense

Missouri recognizes that a newspaper has the right to reply upon and to republish information obtained from “reputable and properly-regarded-as reliable news services” where (1) the matters republished are of public significance and occur many miles away and (2) the reporter did not act with actual malice. Walker v. Pulitzer Publ’g Co., 271 F.Supp. 364 (E.D. Mo. 1967), aff’d, 394 F.2d 800 (8th Cir. 1968).

Fair Reportage Privilege

Missouri has adopted this privilege in the exact language provided in the Restatement of Torts (Second) § 611:

The publication of defamatory matter concerning another in a report or an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.

“Actual malice” is irrelevant under the Section 611 privilege. The privilege fails only when the report is not a fair and accurate account of the proceedings. Williams v. Pulitzer Broad. Co., 706 S.W.2d 508, 511 (Mo. Ct. App. 1986).

Opinion

The Missouri Supreme Court, considering the U.S. Supreme Court’s holding in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990),rejected a blanket defense for protected opinion and established instead the following test:

“The test to be applied to ostensible ‘opinion’ is whether a reasonable factfinder could conclude that the statement implies an assertion of objective fact. …The issue of falsity relates to the defamatory facts implied by a statement — in other words, whether the underlying statement about the plaintiff is demonstrably false… But neither ‘imaginative expression’ nor ‘rhetorical hyperbole’ is actionable as defamation.”

Nazeri at 314 (citations omitted). Nevertheless, a Missouri appellate court has since held that generally any statement preceded by a phrase such as “it is my position” or “it is my belief” or other cautionary phrases are, as a matter of law, opinion. Pape v. Reither, 918 S.W.2d 376, 380 (Mo. Ct. App. 1996). “Put plainly, it is impossible to interpret statements preceded by such cautionary lanugage as positing a verifiable proposition, and verifiability is the crux of the fact/opinion distinction in defamation law.”  Pape at 380-81. The Pape court also held that “[a] statement must be verifiable at the time it is issued in order to be one of fact.” Id. at 381.

In State ex. rel. Diehl v. Kintz, 162 S.W.3d 152 (Mo. Ct. App. 2005), the Missouri Court of Appeals, while recognizing that the U.S. Supreme Court “has rejected the notion that there is a wholesale defamation exception for anything that might be labeled opinion” as a matter of federal constitutional law, held that “a statement may only suggest to the ordinary reader that the defendant disagrees with the plaintiff’s conduct and used pejorative statements or vituperative language to express this disapproval. … ‘Courts should also examine the statements themselves to determine whether they are too imprecise.'” Id. at 155, quoting Henry v. Halliburton, 690 S.W.2d 775, 789 (Mo. 1985) (en banc).

See the general page on fair comment and opinion for details on the standards and terminology mentioned in this subsection.

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Defamation

American tort liability for defamatory speech or publications traces its origins to English common law. For the first two hundred years of American jurisprudence, the basic substance of defamation law continued to resemble that existing in England at the time of the Revolution. An 1898 American legal textbook on defamation provides definitions of libel and slander nearly identical to those given by Blackstone and Coke. An action of slander required:[141]

  1. Actionable words, such as those imputing the injured party: is guilty of some offense, suffers from a contagious disease or psychological disorder, is unfit for public office because of moral failings or an inability to discharge his or her duties, or lacks integrity in profession, trade or business;
  2. That the charge must be false;
  3. That the charge must be articulated to a third person, verbally or in writing;
  4. That the words are not subject to legal protection, such as those uttered in Congress; and
  5. That the charge must be motivated by malice.

An action of libel required the same five general points as slander, except that it specifically involved the publication of defamatory statements.[142] For certain criminal charges of libel, such as seditious libel, the truth or falsity of the statements was immaterial, as such laws were intended to maintain public support of the government and the truth of the statements merely eroded public support more thoroughly.[143] Instead, libel placed specific emphasis on the result of the publication. Libelous publications tended to “degrade and injure another person” or “bring him into contempt, hatred or ridicule.”[142]

Concerns that defamation under common law might be incompatible with the new republican form of government caused early American courts to struggle between William Blackstone‘s argument that the punishment of “dangerous or offensive writings…[was] necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty” and the argument that the need for a free press guaranteed by the Constitution outweighed the fear of what might be written.[143] Consequently, very few changes were made in the first two centuries after the ratification of the First Amendment.

The Supreme Court’s ruling in New York Times Co. v. Sullivan[144] fundamentally changed American defamation law. The case redefined the type of “malice” needed to sustain a libel case. Common law malice consisted “ill-will” or “wickedness”. Now, a public officials seeking to sustain a civil action against a tortfeasor needed to prove by “clear and convincing evidence” actual malice. The case involved an advertisement published in The New York Times indicating that officials in Montgomery, Alabama had acted violently in suppressing the protests of African-Americans during the civil rights movement. The Montgomery Police Commissioner, L. B. Sullivan, sued the Times for libel claiming the advertisement damaged his reputation. The Supreme Court unanimously overruled the $500,000 judgment against the Times. Justice Brennan suggested that public officials may sue for libel only if the publisher published the statements in question with “actual malice” — “knowledge that it was false or with reckless disregard of whether it was false or not.”[145]

While actual malice standard applies to public officials and public figures,[146] in Philadelphia Newspapers v. Hepps,[147] the Court found that, with regard to private individuals, the First Amendment does “not necessarily force any change in at least some features of the common-law landscape.”[148] In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.[149] the Court held that “[i]n light of the reduced constitutional value of speech involving no matters of public concern…the state interest adequately supports awards of presumed and punitive damages – even absent a showing of ‘actual malice.'”[150] Despite varying from state to state, private individuals generally need prove only the negligence of the defendant.

In Greenbelt Cooperative Publishing Association, Inc. v. Bresler[151] the Supreme Court ruled that a Greenbelt News Review article, which quoted a visitor to a city council meeting who characterized Bresler’s aggressive stance in negotiating with the city as “blackmail”, was not libelous since nobody could believe anyone was claiming that Bresler had committed the crime of blackmail and that the statement was essentially hyperbole (i.e., clearly an opinion).

The Supreme Court ruled in Gertz v. Robert Welch, Inc.[152] opinions could not be considered defamatory. It is, therefore, permissible to suggest, for instance, that someone is a bad lawyer, but not permissible to declare falsely that the lawyer is ignorant of the law: the former constitutes a statement of values, but the latter is a statement alleging a fact.

More recently, in Milkovich v. Lorain Journal Co.,[153] the Supreme Court backed off from the protection from “opinion” announced in Gertz. The court in Milkovich specifically held that there is no wholesale exception to defamation law for statements labeled “opinion,” but instead that a statement must be provably false (falsifiable) before it can be the subject of a libel suit.

Hustler Magazine v. Falwell[154] extended the “actual malice” standard to intentional infliction of emotional distress in a ruling which protected a parody.

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