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through what actual malice is—and isn’t. (Knowledge of falsity or
reckless disregard is actual malice. Negligence isn’t. Neither is ill will or
a spite motive.) Review the types of reckless disregard for the truth. Why
wasn’t there a high degree of awareness of probable falsity here?
prove actual malice.
3) Private figure plaintiff cases
a) Note what private figures are and why the Supreme Court decided not to
treat them the same as public figures for proof-of-fault purposes. Yet the
b) Explain the two-rule approach set forth in Gertz for private figure plaintiff
cases: (1) to establish liability and therefore win the case, the private
figure plaintiff must prove negligence (the fault requirement chosen in
nearly all states, though Gertz allowed the states freedom to choose some
actual malice in order to win the case (unlike the rules governing cases
brought by public official and public figure plaintiffs). Note that in Gertz,
later.
c) Explain that in 1985’s Dun & Bradstreet decision, the Supreme Court
added the public concern vs. private concern factor to at least the second
of the Gertz rules (the rule governing recoverable damages). Outline the
controversy over whether this additional factor also applies to the first
negligence.” (Remind the students that Figure 1 provides a quick review
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discussed below, furnishes a helpful example of how Gertz’s two–rule
approach is applied.
d) What is a public concern, for purposes of the second Gertz rule (as
modified by Dun & Bradstreet)? Go over what the text outlines at 204.
Obsidian Finance Group also provides insight on the public concern
question.
of actual malice. Such a showing should have been required as a
prerequisite to an award of presumed damages because the false statement
at issue dealt with a matter of public concern.
Points for Discussion: This case serves as a very good illustration of the
media.
Before addressing the application of the Gertz rules to the case, ask the
students what the falsehood was here. (A blog post asserting that in his
role as a bankruptcy trustee, plaintiff Padrick had not paid the government
requiring proof that the defendant was at least negligent, as required by
the first Gertz rule.) Why didn’t the district court require proof of
negligence? (Because it thought that the First Amendment rules apply
only in media defendant cases, and because the court thought the
court erred in allowing presumed damages without requiring the plaintiff
to prove not merely negligence, but actual malice—a violation of the
second Gertz rule.) Why did the second Gertz rule apply? (Because the
statement at issue dealt with a matter of public concern.) Why was a
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statements on a matter of public concern). Explore with the students what
concern determination.
4) Note the media-nonmedia issue discussed in the text at pp. 204-05. As the text
6. Invasion of privacy
a. Emphasize that there are four distinct invasion of privacy torts.
b. Regarding intentional intrusion on solitude or seclusion, stress that the intrusion must
be highly offensive to a reasonable person. This requirement probably is why, for
c. Distinguish public disclosure of private facts from defamation. In a public disclosure
of private facts case, the statements about the plaintiff are true. Also, the
“publication” required here involves a widespread dissemination of the facts at issue.
Note that the publicity must be highly offensive to a reasonable person. For example,
d. When discussing false light publicity, note that this form of invasion of privacy
probably also requires a widespread dissemination of the information at issue. See
Restatement (Second) of Torts §§ 652E, comment a, and 652C, comment a. Make
sure that students know what is at stake here: the violation of one’s identity that
e. Commercial appropriation of name or likeness is the oldest form of invasion of
privacy and is different from the other forms because it involves the recognition of a
order to give rise to liability.
f. Explain that the commercial appropriation tort helped spawn the right of publicity,
under which public figures (but not government officials or political figures) may take
legal action when their names, likenesses, or identities are caused for commercial
purposes without their consent. Note that the right of publicity’s coverage may extend
was given to the identity concept, see White v. Samsung Electronics America, Inc.,
971 F.2d 1395 (9th Cir. 1992), rehearing denied and suggestion for rehearing en banc
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rejected, 989 F.2d 1512 (9th Cir. 1993). Note, also, that the right of publicity is
inheritable—something that has been a financial boon to the Estate of Elvis Presley and
the estates of many other deceased celebrities.
g. There normally cannot be a right of publicity violation unless the defendant’s use of
the plaintiff’s name, likeness, or identity was commercial in nature. A noncommercial
use usually does not violate the right. Jordan v. Jewel Food Stores, Inc., a text case
discussed later herein, focuses on the often-crucial commercial vs. noncommercial
issue. This same issue can have First Amendment implications, as Problem #11
and First Amendment issues.
h. Jordan v. Jewel Food Stores, Inc. (p. 210): The U.S. Court of Appeals for the
Seventh Circuit holds that a Chicago-based grocery store chain’s advertisement
congratulating former Chicago Bulls great Michael Jordan on his induction into a
basketball Hall of Fame is commercial speech, even though the advertisement does
First Amendment would bar such a claim.) Have the students identify each party’s
arguments. Ask why the court ruled as it did. (It regarded Jewel as having a clear
commercial motive even though the ad didn’t refer to specific products and didn’t take
the usual form a Jewel ad would take.) Note the court’s emphasis on the prominence
i. C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media,
L.P. (former text case; now Problem #5—see the key facts listed there): The U.S.
Court of Appeals for the Eighth Circuit holds that the First Amendment protects CBC
against right of publicity liability concerning its use of major league baseball players’
of a right of publicity claim are present here. (Yes, at least as to the players’ names,
because the names were used without consent in a commercial context.) Note the
court’s apparent concern about the prospect of effectively giving rights to the players
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aspects of the game merit First Amendment protection, the court concludes. What if
licensing fees are necessary to enable them to capture the economic value of those
exploits and to provide an incentive for further professional efforts. What do the
students think of those statements? Is the court being too hard on these “poor” (not in
an economic sense) ballplayers?
subjects.
k. Note the Global Business Environment box at p. 215. It indicates that the right of
recognize the right of publicity.
7. Misuse of Legal Proceedings
a. Note the difference between malicious prosecution and wrongful use of civil
complete defense to liability. The issue of the plaintiff’s guilt can be retried in the
malicious prosecution case, despite his acquittal in the criminal proceedings. Proof of
8. Deceit (Fraud)
a. Briefly sketch the elements of fraud. These elements are discussed more fully in
Chapter 13. If you will be covering that chapter, you may want to defer in-depth
consideration of fraud until then.
C. Interference With Property Rights
1. Trespass to land
plaintiff’s land.
cases.
2. Nuisance
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a. Go through the noninclusive list of possible nuisances. Note the distinction between
private nuisances and public nuisances. (See pp. 215–16.)
b. How is nuisance distinguished from trespass to land? Most nuisances don’t involve
the invasion of tangible matter discussed earlier. However, this test only takes us so
pollution?
c. Stephens v. Pillen (p. 216): The Nebraska Court of Appeals affirms a lower court’s
ruling that a large hog operation constituted a nuisance and the lower court’s order
an intentional nuisance even if the defendant did not specifically intend that it be a
nuisance. Explore the issues surrounding the determination of whether the
defendant’s actions unreasonably interfered with the plaintiffs’ ability to use and enjoy
d. Additional example: Problem #10 (nuisance claim failed, as did trespass claim).
3. Conversion
a. Go through the list of ways in which conversion may occur.
Trespass to personal property remains a possible claim. For an out-of-the-ordinary
(and unsuccessful) attempt to use the trespass to personal property theory in the
IV. RECOMMENDED REFERENCES:
A. W. PROSSER & R. KEETON, THE LAW OF TORTS.
work in the right of privacy area.
V. ANSWERS TO PROBLEM CASES:
1. Yes, Garley had the necessary intent for battery liability. The defendant either must desire to
Inc., 511 So. 2d 1313 (La. App. 1987).
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2. Yes. The North Dakota Court of Appeals reasoned that the offensiveness element of a battery
would not have been offended by Huey’s response to the intrusion. Wishnatsky v. Huey, 584
N.W.2d 859 (N.D. App. 1998).
3. Yes. The Supreme Court of Nebraska emphasized that the statements should be evaluated in
statements of supposed fact, and therefore did not amount to actionable defamation. For
4. The U.S. District Court for the Eastern District of Arkansas granted summary judgment for the
defendants on Millbrook’s assault and battery claims. There was no assault because nothing in
provided sufficient evidence for a jury to conclude that she had been confined against her will
and by threat of force, that the confinement was complete and for a meaningful length of time,
5. CBC was entitled to a declaratory judgment in its favor. The U.S. Circuit Court of Appeals
disinclined to rule in a way that might effectively give the players rights over statistical facts
6. Although the point is not certain, White’s distress looks sufficiently severe, even in a state that
susceptible and the defendant knows this? (The court did not regard White as particularly
7. As a public figure, Kipper needed to prove, by clear and convincing evidence, that the
defendants made the false statement about him with actual malice. He could not do so,
headline, but a mere mistake is neither a knowing falsehood nor an instance of reckless
disregard for the truth. Kipper v. NYP Holdings Co., 912 N.E.2d 26 (N.Y. App. 2009).
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8. Yes. Although the Indiana Court of Appeals reversed the trial court’s decision, the Supreme
reasonable apprehension of an imminent battery. Raess’s rapid movement toward the plaintiff
883 N.E.2d 790 (Ind. Sup. Ct. 2008).
9. In this case, the jury returned a verdict for Calor. On appeal, however, the defendants argued
that that their statements were conditionally privileged statements in furtherance of a common
statements about Calor, even if false, were communicated between parties sharing a common
interest, the conditional privilege would protect the defendants against liability unless the
LEXIS 220 (Kentucky. Sup. Ct. 2010).
10. Yes as to both claims, according to the Supreme Court of Vermont. Although the court
recognized that courts in some states had permitted trespass claims on the basis of entry of
nuisance claim, the court observed that such claims focus on whether a defendant’s
unreasonable use of his property interfered with the plaintiff’s use and enjoyment of the
A.3d 1135 (Vermont Sup. Ct. 2010).
11. Yes. Rejecting defendant Saderup’s First Amendment defense, the Supreme Court of California
held in Comedy III Productions, Inc. v. Gary Saderup, Inc., 21 P.3d 797 (Cal. Sup. Ct. 2001),
when those circumstances exist. Under the test adopted by the court for whether the First
Amendment should “trump” the right of publicity when the defendant has been engaged in
law.) The court concluded that Saderup’s drawing, as reproduced on the lithographic prints
judges who may know very little about art to become art critics? These and other similar
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manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
questions have been raised by critics. On the other hand, should simply calling one’s work
“art” give him a free pass against right of publicity liability?
12. The district court was correct. There was no intrusion on solitude in a manner that would be
of the exchange in the documentary did not amount to public disclosure of private facts.
variety of an invasion of privacy claim. Bogie v. Rosenberg, 705 F.3d 603 (7th Cir. 2013).
13. As a public figure, KKAC would be expected to prove, by clear and convincing evidence, that
the defendant made the false statements at issue with actual malice. Actual malice means
forms (knowledge of falsity or reckless disregard for the truth). The Supreme Court of
Kentucky concluded that there was sufficient evidence of actual malice in the record and that
14. The defendants should succeed with an argument that their statements were nonactionable
liability. Mann v. Abel, 885 N.E.2d 884 (N.Y. App. 2008).