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Suggested Additional Assignments
Research: Criticism by the Press
Ask students to find a newspaper article, editorial, or column that harshly criticizes someone. Has the
author or publisher made efforts to avoid a claim of libel? How?
Research: On Line Defamation
Ask students to find an on-line posting either on a social networking site or celebrity gossip site that
harshly criticizes someone. Has the author made efforts to avoid a claim of defamation? What unique
features of the Internet make pursuing a defamation claim difficult? Should the Internet Service Provider
be responsible too?
Research: Tortious Interference
In the financial pages of a newspaper, students should find an article about two corporations negotiating a
major contract, such as for the sale of a subsidiary. Ask them to outline a hypothetical in which a third
corporation enters the negotiations. When is it lawful for a third party to force its way into the bargaining,
and when is it tortious interference with a prospective advantage? What preventive law steps should that
company's CEO take?
Chapter Overview
Chapter Theme
A wide variety of intended acts can have unintended consequences. With intentional torts, the defendant
may not have intended to harm the plaintiff, but her deliberate actions have resulted in alleged injury.
Anticipating the harm that can result enables us to consider carefully the actions themselves.
Quotes of the Day
“If thou dost marry, I'll give thee this plague for thy dowry: be thou as chaste as ice, as pure as snow, thou
shalt not escape calumny.” –William Shakespeare (1564 1616), English playwright, Hamlet, in Hamlet,
act III, scene 1. (Hamlet advising Ophelia to enter a nunnery.) “It is perfectly monstrous the way people
go about nowadays saying things behind one's back that are absolutely true.” –Oscar Wilde (1854 1900),
Anglo Irish playwright and author, Lord Henry, in The Picture of Dorian Gray.
Torts
“Tort” means “wrong.” A tort is a violation of a duty imposed by the civil law. Torts differ from crimes
in that crimes are prosecuted by the government. Tort cases are filed by the wronged party. A particular
action may be both a tort and a crime. A tort also differs from a contract dispute in that in a tort, there is
usually no prior agreement between the parties. The law itself creates the duty breached by the defendant
in a tort case.
Intentional Torts
Defamation
Mere statement of opinion does not constitute defamation. Defamation involves four elements:
Defamatory statement, that is false, communicated to someone other than the plaintiff, that somehow
injures the plaintiff. In cases involving false statements about sexual behavior, crimes, contagious
diseases, and professional abilities, the law is willing to assume injury without requiring the plaintiff to
prove it. Lies in these four categories amount to slander per se when they are spoken and libel per se
when they are published
The following landmark case involves libel per se, The New York Times, and alleged police brutality.
Landmark: New York Times Co. v. Sullivan1
Facts: In 1960, The New York Times ran a full-page advertisement paid for by civil rights
activists. The ad described an “unprecedented wave of terror” by the police of Montgomery,
Alabama, against civil rights protesters. It stated that the police had assaulted nonviolent
protesters with shotguns and tear gas and had padlocked a dining hall to starve them into
submission. The ad also accused the Montgomery police of bombing the home of Dr. Martin
Luther King, Jr., and unjustly arresting him seven times. Most of the ad’s statements were true,
but a few were not.
L.B. Sullivan was Montgomery’s police commissioner. Although the ad did not mention him by
name, Sullivan argued that the accusations hurt his reputation because he was head of the police.
He sued The New York Times under Alabama’s law on libel per se.
An Alabama court agreed with Sullivan, awarding him damages of $500,000. The Supreme
Court of Alabama affirmed. The New York Times appealed to the U.S. Supreme Court, arguing
that the ad was protected by the First Amendment and the evidence did not support such an
award.
Issue: Does the First Amendment protect those who criticize public officials?
Excerpts from Justice Brennan’s Decision:
We consider this case against the background of a profound national commitment to the principle
that debate on public issues should be uninhibited, robust, and wide-open, and that it may well
include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public
officials. The present advertisement, as an expression of grievance and protest on one of the
major public issues of our time, would seem clearly to qualify for the constitutional protection.
The question is whether it forfeits that protection by the falsity of some of its factual statements
and by its alleged defamation of respondent.
First Amendment protection does not turn upon the truth, popularity, or social utility of the ideas
and beliefs which are offered. Erroneous statement [are] inevitable in free debate, and must be
protected. Whatever is added to the field of libel is taken from the field of free debate. Criticism
of official conduct does not lose its constitutional protection merely because it diminishes official
reputations.
A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions
leads to self-censorship. Under such a rule, would-be critics of official conduct may be deterred
from voicing their criticism. The rule thus dampens the vigor and limits the variety of public
debate. It is inconsistent with the First Amendment.
The constitutional guarantees require a federal rule that prohibits 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.
Applying these standards, we consider that the facts do not support a finding of actual malice as
to the Times. The Times published the advertisement without checking its accuracy. We think the
evidence against the Times supports at most a finding of negligence in failing to discover the
misstatements, and is constitutionally insufficient to show the recklessness that is required for a
finding of actual malice.
1 376 U.S. 254 United States Supreme Court, 1964.
The judgment of the Supreme Court of Alabama is reversed and the case is remanded.
Question: What does a public official have to prove in order to recover damages for a defamatory
falsehood relating to his official conduct?
Question: What is actual malice?
Question: What is libel per se?
Additional Case: Yeagle v. Collegiate Times2
Facts: Sharon Yeagle was the Assistant to the Vice President of Students Affairs and Virginia
Polytechnic Institute and State University. One of Yeagle’s duties was to help students apply to the
Governor’s Fellows Program. The school newspaper published an article describing the university’s
success in placing students and included a quote from Yeagle. Under Yeagle’s name in the article was
the phrase “Director of Butt Licking.”
Yeagle sued the Collegiate Times for defamation and the trial court dismissed the case ruling that
no reasonable person would take the words literally. Yeagle appealed.
Issue: Was the phrase defamatory, or was it deliberate exaggeration that no reasonable person would
take literally?
Holding: Judgment for Collegiate Times affirmed. The court held that the phrase was no more than
rhetorical hyperbole. Although the phrase was disgusting, offensive, and in bad taste, it could not
reasonably be understood as stating an actual fact about Yeagle's job title or her conduct, or that she
committed a crime of moral turpitude. Yeagle's assertion that the phrase demonstrated a lack of integrity
in the performance of her duties also failed. The phrase could not reasonably be considered as conveying
factual information about Yeagle, thus it did not support a cause of action for defamation.
Question: Why didn’t the district court allow Yeagle to present her case at trial? Wasn’t she entitled
to his day in court?
Answer: Yeagle had her day in court—before the judge who dismissed her case. A plaintiff only
Question: Why does the court look at phrase in the context in which it appeared, from the standpoint
of the average reader?
Answer: The phrase could not be read in a vacuum. The same phrase appearing on the front page of
Question: What was the context in which they appeared?
Answer: They were in a student newspaper, readers of which appreciate humor and lively language
Question: Why is that important? The photo and caption offended Yeagle.
2 255 Va. 293, 497 S.E.2d 136, 1998 Va. LEXIS 32, Virginia Supreme Court, 1998
Privilege
In certain cases, speakers are given protection from being sued for defamation. This protection is called
“privilege.” Absolute privilege is given to those speaking in courtrooms and legislative sessions.
False Imprisonment
The intentional restraint of another person without a reasonable cause and without consent is false
imprisonment. Most states have regulations that govern how long and under what circumstances a
customer or employee may be held for suspicion of shoplifting or theft.
Intentional In%iction of Emotional Distress
Case: Jane Doe and Nancy Roe v. Lynn Mills3
Facts: Late one night, an anti-abortion protestor named Robert Thomas climbed into a dumpster located
behind the Women's Advisory Center, an abortion clinic. He found documents indicating that the
plaintiffs were soon to have abortions at the clinic. Thomas gave the information to Lynn Mills. The next
day, Mills and Sister Lois Mitoraj created signs, using the women's names, indicating that they were about
to undergo abortions, and urging them not to “kill their babies.”
Doe and Roe (not their real names) sued, claiming intentional infliction of emotional distress (as well as
breach of privacy, discussed later in this chapter). The trial court dismissed the lawsuit, ruling that the
defendants' conduct was not extreme and outrageous. The plaintiffs appealed.
Issue: Have the plaintiffs made a valid claim of intentional infliction of emotional distress?
Holding: Dismissal reversed, and remanded for trial. “The objectionable aspect of defendants' conduct
does not relate to their views on abortion or their right to express those views, but, rather, to the fact that
defendants gave unreasonable or unnecessary publicity to purely private matters involving plaintiffs. . . .
We believe this is the type of case that might cause an average member of the community, upon learning
of defendants' conduct, to exclaim, ‘Outrageous!’ “
Question: What are the elements of intentional infliction of emotional distress?
Question: According to the appeals court, how does the law determine whether a defendant’s
conduct is sufficiently extreme to constitute this tort?
Question: Don’t the defendants have a First Amendment right to express their opinions?
Question: Then how can the appeals court reverse the trial court’s dismissal? Isn’t the court
diminishing the defendants’ First Amendment rights?
Answer: The court acknowledges that the defendants have a right to express their views on abortion.
Question: Does the appeals court ruling mean that the plaintiffs have proven their case of intentional
infliction of emotional distress?
Answer: No. The ruling simply means that the plaintiffs are entitled to a jury trial. The court is
3 212 Mich. App. 73, 536 N.W.2d 824, 1995 Mich. App. LEXIS 313 Michigan Court of Appeals, 1995
Battery and Assault
Assault and battery are related, but not identical. Battery is an intentional touching of another person
in a way that is harmful or offensive. Assault occurs when a defendant does some act that makes a
plaintiff fear an imminent battery.
Trespass, Conversion, and Fraud
Trespass is intentionally entering land that belongs to someone else or remaining on the land after
being asked to leave. You don’t have to be aware that the land belongs to someone else. It is also
trespass if you have some object, let’s say a car, on someone else’s property and refuse to remove it.
Conversion is taking or using someone’s personal property without consent.
Fraud is injuring another person by deliberate deception.
Damages
Landmark Case: State Farm v. Campbell4
Facts: While attempting to pass several cars on a two-lane road, Campbell drove into oncoming traffic.
An innocent driver swerved to avoid Campbell and died in a collision with a third driver. The family of
the deceased driver and the surviving third driver both sued Campbell.
As Campbell’s insurer, State Farm represented him in the lawsuit. It turned down an offer to settle the
case for $50,000, the limit of Campbell's policy. The company had nothing to gain by settling because
even if Campbell lost big at trial State Farm’s liability was capped at $50,000.
A jury returned a judgment against Campbell for $185,000. He was responsible for the $135,000 that
exceeded his policy limit. He argued with State Farm, claiming that it should have settled the case.
Eventually, State Farm paid the entire $185,000, but Campbell still sued the company, alleging fraud and
intentional infliction of emotional distress.
His lawyers presented evidence that State Farm had deliberately acted in its own best interests rather
than his. The jury was convinced, and in the end, Campbell won an award of $1 million in compensatory
damages, and $145 million in punitive damages. State Farm appealed.
Issue: What is the limit on punitive damages?
Excerpts from Justice Kennedy's Opinion: We address whether an award of $145 million in punitive
damages, where full compensatory damages are $1 million, is excessive and in violation of the Due
Process Clause. The Utah Supreme Court relied upon testimony indicating that State Farm's actions,
because of their clandestine nature, will be punished at most in one out of every 50,000 cases as a matter
of statistical probability, and concluded that the ratio between punitive and compensatory damages was
not unwarranted.
Compensatory damages are intended to redress the concrete loss that the plaintiff has suffered by reason
of the defendant's wrongful conduct. By contrast, punitive damages serve a broader function; they are
aimed at deterrence and retribution.
The Due Process Clause prohibits the imposition of grossly excessive or arbitrary punishments. The
reason is that elementary notions of fairness dictate that a person receive fair notice not only of the
conduct that will subject him to punishment, but also of the severity of the penalty that a State may
impose. To the extent an award is grossly excessive, it furthers no legitimate purpose and constitutes an
arbitrary deprivation of property. A defendant should be punished for the conduct that harmed the
plaintiff, not for being an unsavory.
4 538 U.S. 408 Supreme Court of the United States (2003)
We decline to impose a bright-line ratio which a punitive damages award cannot exceed. Our
jurisprudence and the principles it has now established demonstrate, however, that, in practice, few
awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant
degree, will satisfy due process. Single-digit multipliers are more likely to comport with due process,
while still achieving the State's goals of deterrence and retribution, than awards with ratios in range of
145 to 1.
Nonetheless, because there are no rigid benchmarks that a punitive damages award may not surpass,
ratios greater than those we have previously upheld may comport with due process where a particularly
egregious act has resulted in only a small amount of economic damages. The precise award in any case
must be based upon the facts and circumstances of the defendant's conduct and the harm to the plaintiff.
In sum, courts must ensure that the measure of punishment is both reasonable and proportionate to the
amount of harm to the plaintiff and to the general damages recovered. In the context of this case, we have
no doubt that there is a presumption against an award that has a 145-to-1 ratio. The compensatory award
in this case was substantial; the Campbells were awarded $ 1 million for a year and a half of emotional
distress. This was complete compensation. The harm arose from a transaction in the economic realm, not
from some physical assault or trauma; there were no physical injuries; and State Farm paid the excess
verdict before the complaint was filed, so the Campbells suffered only minor economic injuries.
The judgment of the Utah Supreme Court is reversed, and the case is remanded for proceedings not
inconsistent with this opinion.
Question: Did State Farm shoe any evil intent in turning down the offer to settle?
Question: What would have been an appropriate punitive damage award?
