Who is able to complete this discussion?

CHAPTER 6

INTENTIONAL TORTS

The opening problem in  Chapter 2  presented the basic facts underlying a defamation case that business executive Phil Anderson intends to pursue against Allnews Publishing Inc. The questions asked in  Chapter 2  pertained to procedural matters. We now return to Anderson’s case in order to focus on substantive legal aspects of defamation, one of the torts about which you will learn in this chapter. Here, again, are the basic facts:

Allnews Publishing Inc., a firm whose principal offices are located in Orlando, Florida, owns and publishes 33 newspapers. These newspapers are published in 21 different states of the United States. Among the Allnews newspapers is the Snakebite Rattler, the lone newspaper in the city of Snakebite, New Mexico. The Rattler is sold in print form only in New Mexico. However, many of the articles in the newspaper can be viewed by anyone with Internet access, regardless of his or her geographic location, by going to the Allnews website.

In a recent Rattler edition, an article appeared beneath this headline: “Local Business Executive Sued for Sexual Harassment.” The accompanying article, written by a Rattler reporter (an Allnews employee), stated that a person named Phil Anderson was the defendant in the sexual harassment case. Besides being married, Anderson was a well-known businessperson in the Snakebite area. He was active in his church and in community affairs in both Snakebite (his city of primary residence) and Petoskey, Michigan (where he and his wife have a summer home). A stock photo of Anderson, which had been used in connection with previous Rattler stories mentioning him, appeared alongside the story about the sexual harassment case. Anderson, however, was not the defendant in that case. He was named in the Rattler story because of an error by the Rattler reporter. The actual defendant in the sexual harassment case was a local business executive with a similar name: Phil Anderer.

Anderson plans to file a defamation lawsuit against Allnews because of the above-described falsehood in the Rattler story. He expects to seek $500,000 in damages for harm to his reputation and for other related harms.

Consider the following questions as you study this chapter:

· How does defamation differ from other torts addressed in this chapter?

· What types of harms, and what corresponding types of money damages, are recognized in defamation cases? How do those types of harms and damages compare to the harms and damages in other tort cases?

· What basic elements of a defamation claim must Anderson prove in order to have a chance of winning his case? Would he be able to prove those elements?

· Because Anderson’s defamation claim would be based on speech (the erroneous statement in the Rattler article), what role will the First Amendment play in the case?

· Is Anderson a public figure or, instead, a private figure? Why is the answer to that question important in determining whether Anderson is likely to win the case?

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 LEARNING OBJECTIVES

After studying this chapter, you should be able to:

6-1  Explain the basic differences among the four types of wrongfulness in tort law (intent, recklessness, negligence, and strict liability).

6-2  Explain the difference between compensatory damages and punitive damages.

6-3  List and explain the elements of battery.

6-4  List and explain the elements of assault.

6-5  Explain what is necessary in order for liability to be imposed on the basis of intentional infliction of emotional distress.

6-6  List and explain the elements of false imprisonment.

6-7  List and explain the common law elements of defamation.

6-8  Explain what a public official plaintiff or a public figure plaintiff must prove, for constitutional reasons, in order to win a defamation case.

6-9  Explain what a private figure plaintiff must prove, for constitutional reasons, in order to win a defamation case.

6-10  Distinguish among the four types of invasion of privacy.

6-11  Identify circumstances in which a celebrity’s right of publicity is implicated.

6-12  Explain the difference between trespass to land and private nuisance.

Explain the basic differences among the four types of wrongfulness in tort law (intent, recklessness, negligence, and strict liability).

A  TORT  IS A civil wrong that is not a breach of a contract. Tort cases identify different types of wrongfulness, culpability, or fault and define them in varying ways. In this chapter and in  Chapter 7 , we will refer to the four types of wrongfulness defined here.

1. Intent. We define intent as the desire to cause certain consequences or the substantial certainty that those consequences will result from one’s behavior. For example, if D pulls the trigger of a loaded handgun while aiming it at P for the purpose of killing him or with a substantial certainty that P would be killed, D intended to kill P. This chapter discusses several intentional torts, most of which require, as the name of this category of torts suggests, intent on the part of the defendant.

2. Recklessness. The form of intent involving substantial certainty blends by degrees into a different kind of fault: recklessness (sometimes called “willful and wanton conduct”). We define recklessness as a conscious indifference to a known and substantial risk of harm created by one’s behavior. Suppose that simply because he likes the muzzle flash and the sound, D fires his handgun at random in a crowded subway station. One of D’s shots injures P. D acted recklessly if he had no desire to hit P or anyone else and was not substantially certain that anyone would be hit but, nonetheless, knew that this could easily result from his behavior. When legal responsibility is assigned in the civil context, recklessness is often treated as a near equivalent of intentional wrongdoing. Recklessness is considered a more severe degree of fault than the next type to be discussed: negligence.

3. Negligence. We define negligence as a failure to use reasonable care, with harm to another party occurring as a result. Negligent conduct falls below the level necessary to protect others against unreasonable risks of harm. Assume that without checking, D pulls the trigger on what he incorrectly and unreasonably thinks is an unloaded handgun. If the gun goes off and wounds P, D has negligently harmed P.  Chapter 7  discusses negligence law in detail.

4. Strict liability. Strict liability is liability without fault or, more precisely, liability irrespective of fault. In a strict liability case, the plaintiff need not prove intent, recklessness, negligence, or any other kind of wrongfulness on the defendant’s part. However, strict liability is not automatic liability. A plaintiff must prove certain things in any strict liability case, but fault is not one of them.  Chapter 7  discusses various types of strict liability, some of which are examined more fully in other chapters.

Tort law contemplates civil liability for those who commit torts. This distinguishes it from the criminal law, which also involves wrongful behavior. As you saw in  Chapter 1 ,

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a civil case is normally a suit between private parties. In criminal cases, a prosecutor represents the government in confronting the defendant. The standard of proof that the plaintiff must satisfy in a tort case is the preponderance of the evidence standard, not the more stringent beyond-a-reasonable-doubt standard applied in criminal cases. This means that the greater weight of the evidence introduced at the trial must support the plaintiff’s position on every element of the tort case. Finally, the remedy allowed in civil cases (most often, damages) differs from the punishment imposed in criminal cases (e.g., imprisonment or a fine). Of course, the same behavior may sometimes give rise to both civil and criminal liability. For example, one who commits a sexual assault is criminally liable and will also be liable for some or all of the torts of assault, battery, false imprisonment, and intentional infliction of emotional distress.

Explain the difference between compensatory damages and punitive damages.

A plaintiff who wins a tort case usually recovers  compensatory damages  for the harm she suffered as a result of the defendant’s wrongful act. Depending on the facts of the case, these damages may be for direct and immediate harms, such as physical injuries, medical expenses, and lost wages and benefits, or for seemingly less tangible harms, such as loss of privacy, injury to reputation, and emotional distress. If the defendant’s behavior was particularly bad, injured victims may also be able to recover  punitive damages . Punitive damages are not intended to compensate tort victims for their losses. Instead, they are designed to punish flagrant wrongdoers and to deter them, as well as others, from engaging in similar conduct in the future. Punitive damages are reserved for the worst kinds of wrongdoing and thus are not routinely assessed against the losing defendant in a tort case. Certainly, however, some behaviors amounting to recklessness or giving rise to intentional tort liability are regarded as reprehensible enough to justify an assessment of punitive damages.

The Mathias case, which follows, reviews the types of fault discussed above and explains the role that punitive damages may play in certain cases.

Mathias v. Accor Economy Lodging, Inc. 347 F.3d 672 (7th Cir. 2003)

Burl and Desiree Mathias were bitten by bedbugs when they stayed at a Motel 6 in downtown Chicago. They sued the corporation that owns and operates the Motel 6 chain. Alleging that the defendant’s personnel refused to act in response to the complaints of various guests and otherwise knowingly disregarded clear evidence of a bedbug infestation problem, the plaintiffs sought compensatory and punitive damages on the theory that the defendant had engaged in “willful and wanton conduct.” A federal court jury returned a verdict in favor of the Mathiases, awarding them compensatory damages for their injuries and assessing punitive damages against the defendant. On appeal to the U.S. Court of Appeals for the Seventh Circuit, the defendant argued that any fault on its part did not amount to willful and wanton conduct and that the award of punitive damages was therefore unwarranted. Further facts pertinent to the case are discussed in the edited version of the Seventh Circuit’s opinion, which appears below.

Posner, Circuit Judge

[B]edbugs . . . are making a comeback in the U.S. as a consequence of more conservative use of pesticides. The plaintiffs claim that in allowing guests to be attacked by bedbugs in a motel that charges upwards of $100 a day for a room and would not like to be mistaken for a flophouse, the defendant was guilty of “willful and wanton conduct” and thus [should be] liable for punitive as well as compensatory damages. The jury agreed and awarded each plaintiff $186,000 in punitive damages, though only $5,000 in compensatory damages.

The defendant argues that at worst it is guilty of simple negligence, and if this is right the plaintiffs were not entitled . . . to any award of punitive damages. [The defendant] also complains that the [punitive damages] award was excessive. . . . The first complaint has no possible merit, as the evidence of . . . recklessness, in the strong sense of an unjustifiable failure to avoid a known risk, was amply shown. In 1998, EcoLab, the extermination service that the motel used, discovered bedbugs in several rooms in the motel and recommended that it be hired to spray every room, for which it would charge the motel only $500; the motel refused. The next year, bedbugs were again discovered in a room but EcoLab was asked to spray just that room. The motel tried to negotiate “a building sweep [by EcoLab] free of charge,” but, not surprisingly, the negotiation failed. By the spring of 2000, the motel’s manager “started noticing that there were refunds being given by my desk clerks and reports coming back from the guests that there were ticks in the rooms and bugs in the rooms that were biting.” She looked in some of the rooms and discovered bedbugs.

Further incidents of guests being bitten by insects and demanding and receiving refunds led the manager to recommend to her superior in the company that the motel be closed while every room was sprayed, but this was refused. This superior, a district manager, was a management-level employee of the defendant, and his knowledge of the risk and failure to take effective steps either to eliminate it or to warn the motel’s guests are imputed to his employer for purposes of determining whether the employer should be liable for punitive damages. The employer’s liability for compensatory damages is of course automatic on the basis of the principle of respondeat superior, since the district manager was acting within the scope of his employment. [Under the respondeat superior principle, employers are liable for torts committed by employees if those torts occurred within the scope of employment.]

The infestation continued and began to reach farcical proportions, as when a guest, after complaining of having been bitten repeatedly by insects while asleep in his room in the hotel, was moved to another room only to discover insects there; and within 18 minutes of being moved to a third room he discovered insects in that room as well and had to be moved still again. (Odd that at that point he didn’t flee the motel.) By July, the motel’s management was acknowledging to EcoLab that there was a “major problem with bedbugs” and that all that was being done about it was “chasing them from room to room.” Desk clerks were instructed to call the “bedbugs” “ticks,” apparently on the theory that customers would be less alarmed, though in fact ticks are more dangerous than bedbugs because they spread Lyme Disease and Rocky Mountain Spotted Fever. Rooms that the motel had placed on “Do not rent, bugs in room” status nevertheless were rented.

It was in November that the plaintiffs checked into the motel. They were given Room 504, even though the motel had classified the room as “DO NOT RENT UNTIL TREATED,” and it had not been treated. Indeed, that night 190 of the hotel’s 191 rooms were occupied, even though a number of them had been placed on the same don’t-rent status as Room 504.

Although bedbug bites are not as serious as the bites of some other insects, they are painful and unsightly. Motel 6 could not have rented any rooms at the prices it charged had it informed guests that the risk of being bitten by bedbugs was appreciable. Its failure either to warn guests or to take effective measures to eliminate the bedbugs amounted to fraud and probably to [the intentional tort of] battery as well. There was, in short, sufficient evidence of “willful and wanton conduct” [that is, of recklessness as opposed to mere negligence] to permit an award of punitive damages in this case.

But in what amount? In arguing that $20,000 was the maximum amount of punitive damages that a jury could constitutionally have awarded each plaintiff, the defendant points to the U.S. Supreme Court’s recent statement that “few awards [of punitive damages] exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003). The Court went on to suggest that “four times the amount of compensatory damages might be close to the line of constitutional impropriety.” Hence the defendant’s proposed ceiling in this case of $20,000, four times the compensatory damages awarded to each plaintiff. The ratio of punitive to compensatory damages determined by the jury was, in contrast, 37.2 to 1.

The Supreme Court did not, however, lay down a 4-to-1 or single-digit-ratio rule—it said merely that “there is a presumption against an award that has a 145-to-1 ratio”—and it would be unreasonable to do so. We must consider why punitive damages are awarded and why the Court has decided that due process requires that such awards be limited. The second question is easier to answer than the first. The term punitive damages implies punishment, and a standard principle of penal theory is that “the punishment should fit the crime” in the sense of being proportional to the wrongfulness of the defendant’s action, though the principle is modified when the probability of detection is very low (a familiar example is the heavy fines for littering) or the crime is potentially lucrative (as in the case of trafficking in illegal drugs).

Another penal precept is that a defendant should have reasonable notice of the sanction for unlawful acts, so that he can make a rational determination of how to act; and so there have to be reasonably clear standards for determining the amount of punitive damages for particular wrongs. [A] third precept, . . . , is that sanctions should be based on the wrong done rather than on the status of the defendant; a person is punished for what he does, not for who he is, even if the who is a huge corporation.

What follows from these principles, however, is that punitive damages should be admeasured by standards or rules rather than in a completely ad hoc manner, and this does not tell us what the maximum ratio of punitive to compensatory damages should be in a particular case. To determine that, we have to consider why punitive damages are awarded in the first place.

[O]ne function of punitive-damages awards is to relieve the pressures on an overloaded system of criminal justice by providing a civil alternative to criminal prosecution of minor crimes. An example is deliberately spitting in a person’s face, a criminal assault but because minor readily deterrable by the levying of what amounts to a civil fine through a suit for damages for the tort of battery. Compensatory damages [unaccompanied by punitive damages] would not do the trick in such a case, . . . for three reasons: because [compensatory damages] are difficult to determine in the case of acts that inflict largely [dignity-related] harms; because in the spitting case [compensatory damages] would be too slight to give the victim an incentive to sue, and he might decide

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instead to respond with violence—and an age–old purpose of the law of torts is to provide a substitute for violent retaliation against wrongful injury; and because to limit the plaintiff to compensatory damages would enable the defendant to commit the offensive act with impunity provided that he was willing to pay.

When punitive damages are sought for billion-dollar oil spills and other huge economic injuries, the considerations that we have just canvassed fade. As the Supreme Court emphasized in Campbell, the fact that the plaintiffs in that case had been awarded very substantial compensatory damages—$1 million for a dispute over insurance coverage—greatly reduced the need for giving them a huge award of punitive damages ($145 million) as well in order to provide an effective remedy. Our case is closer to the spitting case. The defendant’s behavior was outrageous but the compensable harm done was slight and at the same time difficult to quantify because a large element of it was emotional. And the defendant may well have profited from its misconduct because by concealing the infestation it was able to keep renting rooms. Refunds were frequent but may have cost less than the cost of closing the hotel for a thorough fumigation. The hotel’s attempt to pass off the bedbugs as ticks, which some guests might ignorantly have thought less unhealthful, may have postponed the instituting of litigation to rectify the hotel’s misconduct. The award of punitive damages in this case thus serves the additional purpose of limiting the defendant’s ability to profit from its fraud by escaping detection and (private) prosecution. If a tortfeasor is “caught” only half the time he commits torts, then when he is caught he should be punished twice as heavily in order to make up for the times he gets away.

Finally, if the total stakes in the case were capped at $50,000 (2 × [$5,000 + $20,000]), the plaintiffs might well have had difficulty financing this lawsuit. It is here that the defendant’s aggregate net worth of $1.6 billion becomes relevant. A defendant’s wealth is not a sufficient basis for awarding punitive damages. BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996). That would be discriminatory and would violate the rule of law, as we explained earlier, by making punishment depend on status rather than conduct. Where wealth in the sense of resources enters is in enabling the defendant to mount an extremely aggressive defense against suits such as this and by doing so to make litigating against it very costly, which in turn may make it difficult for the plaintiffs to find a lawyer willing to handle their case, involving as it does only modest stakes, for the usual 33–40 percent contingent fee. In other words, the defendant is investing in developing a reputation intended to deter plaintiffs. It is difficult otherwise to explain the great stubbornness with which it has defended this case, making a host of frivolous evidentiary arguments despite the very modest stakes even when the punitive damages awarded by the jury are included.

All things considered, we cannot say that the award of punitive damages was excessive, albeit the precise number chosen by the jury was arbitrary. It is probably not a coincidence that $5,000 + $186,000 = $191,000/191 = $1,000: that is, $1,000 per room in the hotel. But as there are no [rigid] punitive-damages guidelines, . . . it is inevitable that the specific amount of punitive damages awarded . . . will be arbitrary. (Which is perhaps why the plaintiffs’ lawyer did not suggest a number to the jury.) The judicial function is to police a range, not a point.

But it would have been helpful had the parties presented evidence concerning the regulatory or criminal penalties to which the defendant exposed itself by deliberately exposing its customers to a substantial risk of being bitten by bedbugs. That is an inquiry recommended by the Supreme Court [in Campbell]. [However,] we do not think its omission invalidates the award. We can take judicial notice that deliberate exposure of hotel guests to the health risks created by insect infestations [potentially] exposes the hotel’s owner to [criminal fines] under Illinois and Chicago law that in the aggregate are comparable in severity to that of the punitive damage award in this case. [W]hat is much more important, a Chicago hotel that permits unsanitary conditions to exist is subject to revocation of its license, without which it cannot operate. We are sure that the defendant would prefer to pay the punitive damages assessed in this case than to lose its license.

District court’s judgment in favor of plaintiffs affirmed.

Interference with Personal Rights

This chapter examines two categories of intentional torts: (1) those involving interference with personal rights and (2) those involving interference with property rights. A third category, business or competitive torts, will be discussed in Chapter 8.

Battery

List and explain the elements of battery.

Battery  is the intentional and harmful or offensive touching of another without his consent. Contact is harmful if it produces bodily injury. However, battery also includes

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nonharmful contact that is offensive—calculated to offend a reasonable sense of personal dignity. The intent required for battery is either (1) the intent to cause harmful or offensive contact or (2) the intent to cause apprehension that such contact is imminent. Assume, for instance, that in order to scare Pine, Delano threatens to “shoot” Pine with a gun that Delano mistakenly believes is unloaded. If Delano ends up shooting Pine even though that had not been his specific intent, Delano is liable for battery. For battery to occur, moreover, the person who suffers the harmful or offensive contact need not be the person the wrongdoer intended to injure. Under a concept known as transferred intent, a defendant who intends to injure one person but actually injures another is liable to the person injured, despite the absence of any specific desire to injure him. So, if Dudley throws a rock at Thomas and hits Pike instead, Dudley is liable to Pike for battery.

As the previous examples suggest, the touching necessary for battery does not require direct contact between the defendant’s body and the plaintiff’s body. Dudley is therefore liable if he successfully lays a trap for Pike or poisons him. There is also a touching if the defendant causes contact with anything attached to the plaintiff’s body. If the other elements of a battery are present, Dudley is thus liable to Pike if he shoots off Pike’s hat. Finally, the plaintiff need not be aware of the battery at the time it occurs. This means that Dudley is liable if he sneaks up behind Pike and knocks Pike unconscious, without Pike’s ever knowing what hit him.

There is no liability for battery, however, if the plaintiff consented to the touching. As a general rule, consent must be freely and intelligently given to be a defense to battery. Consent may also be inferred from a person’s voluntary participation in an activity, but it is ordinarily limited to contacts that are a normal consequence of the activity. A professional boxer injured by his opponent’s punches to the head, therefore, would not win a battery lawsuit against the opponent. However, a professional boxer whose ear is partially bitten off by his opponent should have a valid battery claim against the ear-biter. In addition, the law infers consent to many touchings that are customary or reasonably necessary in normal social life. Thus, Preston could not recover for battery if Dean tapped him on the shoulder to ask directions or brushed against him on a crowded street. Of course, many such contacts are neither harmful nor offensive anyway.

In Banks v. Lockhart, which follows, the court applies the elements of battery to the facts and explains why battery cases may give rise to awards of punitive damages in addition to compensatory damages.

Banks v. Lockart 119 So. 3d 370 (Miss. Ct. App. 2013)

Brandon Lockhart and his friend, Lindsay Gibson, visited several Oxford, Mississippi, bars one July evening. While at the Library Bar & Grill, Lockhart and Gibson encountered Harrison Banks. For reasons unknown, Gibson slapped Banks several times. A brief altercation between Banks and Gibson ensued, but the two were quickly separated. After this altercation, Lockhart and Gibson left the Library.

While Lockhart and Gibson were walking in an alleyway near Taylor’s Pub, another altercation took place between Gibson and a third party. During this altercation, the third party knocked Gibson to the ground. Lockhart knelt down to assist Gibson and was struck in the face. This blow knocked Lockhart to the ground. At the trial in the case referred to below, Lockhart testified that when he looked up, he saw Banks fleeing the scene. However, Banks testified at trial that he was not present in the alleyway and did not see Lockhart or Gibson after they left the Library.

At the urging of police officers who arrived on the scene shortly after this second altercation, Lockhart went to the local hospital to have his injuries assessed and treated. According to Lockhart’s trial testimony, several hospital exams showed that the above-described blow to his face shattered a sinus bone. Lockhart also testified that he underwent several steroid injections and one invasive surgery to remove scar tissue from the side of his face, and that further treatments could be needed.

Based on the above facts, Lockhart sued Banks for the alleged battery that occurred near Taylor’s Pub. A Mississippi jury returned a verdict in favor of Lockhart for $300,000 in compensatory damages and $50,000 in punitive damages. Banks filed alternative post-trial motions for a judgment notwithstanding the verdict, a new trial, or a remittitur. (In this context, a remittitur would be a ruling by the court that the amount of damages awarded to the plaintiff by the jury was excessive and that unless the plaintiff agreed to accept a lesser amount as set by the court, the judgment in favor of the plaintiff would be vacated and a new trial on damages issues would be ordered.) After the trial court denied each of these motions, Banks appealed to the Court of Appeals of Mississippi.

Griffis, Judge

On appeal, Banks argues that: (1) the jury’s verdict is against the overwhelming weight of the evidence; (2) the trial court erred when it allowed the jury to consider punitive damages; and (3) the trial court erred when it did not grant a remittitur on compensatory and punitive damages.

[T]he Supreme Court of Mississippi has held that “[o]nce the jury has returned a verdict in a civil case, [an appellate court is] not at liberty to direct that judgment be entered contrary to that verdict short of a conclusion on [the reviewing court’s] part that, given the evidence as a whole, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could have found as the jury found.” [Citation omitted.] To determine whether the verdict in favor of Lockhart was contrary to the overwhelming weight of the evidence, we must examine the elements of the intentional tort of battery and whether the evidence supports the verdict. A battery occurs when a person intends to cause a harmful or offensive contact to another person and such contact actually occurs. To determine whether the verdict was against the overwhelming weight of the evidence, we look at the facts in the light most favorable to the verdict. It is undisputed in the record that Lockhart suffered a harmful or offensive contact [on the relevant July night]. Thus, the central elements of battery that Lockhart had to prove to the jury were that: (1) Banks intended to cause a harmful or offensive contact, and (2) Banks was responsible for the harmful or offensive contact.

Both parties agree that at least one altercation took place that evening in the Library between Gibson and Banks. While Banks claims he was not a party, it is undisputed that a second altercation took place in the alleyway near Taylor’s Pub, where Lockhart was struck in the face. Lockhart claims that after he was struck, he observed Banks fleeing from the scene. Additionally, the testimonies of [two police officers who arrived on the scene] were consistent that an altercation took place in the alleyway between Gibson and another party, and that while assisting Gibson after he was knocked to the ground, Lockhart was struck in the face. Banks’s only response to these assertions is that he simply was not present and, therefore, did not strike Lockhart. A reasonable, hypothetical juror could make inferences and conclude that, based on the testimony of the witnesses and the fact that a previous altercation had occurred, Banks was a party to the second altercation in the alleyway. As for Banks’s intent, a reasonable, hypothetical juror could have concluded that, based on Banks’s own statements, involvement in the previous altercation, and involvement in the alleyway altercation, he intended to cause a harmful or offensive contact when he struck Lockhart. Given this scenario, we cannot conclude that the verdict was contrary to the overwhelming weight of the evidence.

Banks argues that Lockhart’s testimony lacked credibility. Determining the credibility of a witness or the weight of their testimony is not the province of this court. The weight and credibility of the witnesses was for the jury, [which] determined that Lockhart was a more credible witness than Banks. Furthermore, when applying the standard of review to jury verdicts in civil cases, . . . the jury verdict in favor of [Lockhart means that] this court resolves all conflicts in the evidence in his favor.

[Banks also challenges the damages award as unsupported by the record.] Lockhart stipulated that his medical expenses were $11,654.64. Banks claims that the difference between an award of $350,000 in compensatory and punitive damages and medical expenses of $11,654.64 clearly evidences bias on the part of the jury. However, medical expenses are not the only damages claimed by Lockhart. He also claims past, present, and future physical pain and suffering, and resulting mental anguish.

It is clear from the record that Lockhart sustained an actual injury and incurred damages as a result. However, this court [cannot speculate about] the reason for the difference between the damages claimed by Lockhart and the jury’s specific allotment of the award. As such, this court cannot say that a reasonable juror would have concluded otherwise. Thus, taking the evidence in this matter as a whole, we find that a reasonable, hypothetical juror could have found as the jury here found.

Banks’s second assignment of error is that the trial court erred in allowing the jury to consider punitive damages. [For punitive damages to have been appropriate, Mississippi law requires a showing that the defendant] acted with . . . willful, wanton, or reckless disregard for the safety of others. [E]ven in situations where an assault or battery occurred from sudden passion, [the requisite willful, wanton, or reckless disregard] on the part of the assailant may still be present in the case [and presumed from the proven facts and circumstances]. Anderson v. Jenkins, 70 So. 2d 535, 540 (Miss. Sup. Ct. 1954). In Anderson, the Supreme Court of Mississippi considered whether an assailant possessed [willful, wanton, or reckless disregard] when using a weapon to defend property. The assailant in Anderson fired a shotgun, twice, at a vehicle filled with teenage trespassers and one of the teens was struck in the eye with a shotgun. The assailant had the requisite intent to cause an offensive or harmful contact and that contact actually occurred. This court cannot say that simply because fists instead of firearms were used to cause the battery here, that the Supreme Court’s presumption no longer applies. Given the facts of this case, such a presumption can be made with respect to Banks’s intent when the jury considered punitive damages.

The trial court did not abuse its discretion in allowing the jury to consider the issue of punitive damages. The jury found

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Banks responsible for the battery to Lockhart and awarded compensatory damages. Taking the totality of the circumstances, a reasonable, hypothetical trier of fact could have found that Banks acted willfully, wantonly, or with reckless disregard by striking Lockhart.

Banks’s final assignment of error is that the trial court erred in denying a motion for remittitur of the compensatory and punitive damages. We review the trial court’s denial of Banks’s motion for remittitur for abuse of discretion. If the overwhelming weight of the evidence is against the verdict, then the trial court abused its discretion in denying Banks’s remittitur motion. [As explained in the discussion above], a reasonable, hypothetical juror could have found as the jury here found; thus, this court finds the overwhelming weight of the evidence is not against the verdict. The trial court did not abuse its discretion in denying Banks’s motion for remittitur.

Furthermore, “[a] jury award should not be disturbed unless its size, in comparison to the actual amount of damage, shocks the conscience.” [Citation omitted.] The award of $300,000 in compensatory damages and $50,000 in punitive damages does appear rather substantial, given the totality of the case before the trial court and the record before us. However, this court cannot say that such an award shocks the conscience. Given that the trial court did not abuse its discretion in denying Banks’s motion for a remittitur and that, while significant, the award does not shock the conscience, this court finds no merit in Banks’s argument.

Judgment in favor of Lockhart affirmed.

Assault

List and explain the elements of assault.

Assault  occurs when there is an intentional attempt or offer to cause a harmful or offensive contact with another person, if that attempt or offer causes a reasonable apprehension of imminent battery in the other person’s mind. The necessary intent is the same as the intent required for battery. In an assault case, however, it is irrelevant whether the threatened contact actually occurs. Instead, the key thing is the plaintiff’s apprehension of a harmful or offensive contact. Apprehension need not involve fear; it might be described as a mental state consistent with this thought: “I’m just about to be hit.”

The plaintiff’s apprehension must pertain to an anticipated battery that would be imminent or immediate. Threats of some future battery, therefore, do not create liability for assault. In addition, the plaintiff must experience apprehension at the time the threatened battery occurs. For instance, if Dinwiddie fires a rifle at Porter from a great distance and misses him, and only later does Porter learn of the attempt on his life, Dinwiddie is not liable to Porter for assault. The plaintiff’s apprehension must also be reasonable. As a result, threatening words normally are not an assault unless they are accompanied by acts or circumstances indicating the defendant’s intent to carry out the threat.

Intentional Infliction of Emotional Distress

Explain what is necessary in order for liability to be imposed on the basis of intentional infliction of emotional distress.

For many years, courts refused to allow recovery for purely emotional injuries unless the defendant had committed some recognized tort. Victims of such torts as assault, battery, and false imprisonment could recover for the emotional injuries resulting from these torts, but courts would not recognize an independent tort of infliction of emotional distress. The reasons for this judicial reluctance included a fear of spurious or trivial claims, concerns about proving purely emotional harms, and uncertainty about the proper boundaries of an independent tort. However, increased confidence in our knowledge about emotional injuries and a greater willingness to compensate such harms have helped to overcome these judicial impediments. Most courts today allow recovery for severe emotional distress, under appropriate circumstances, regardless of whether the elements of any other tort are proven.

The courts are not, however, in complete agreement on the elements of this relatively new tort. All courts do require that a wrongdoer’s conduct be outrageous before liability for emotional distress arises. The Restatement (Second) of Torts speaks of conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” This means that many instances of boorish, insensitive behavior are not “bad enough” to give rise to liability for this tort. Courts also agree in requiring severe emotional distress. The Restatement (Second) sets forth another clear majority rule: that the defendant must intentionally or recklessly inflict the distress in order to be liable. A few courts, however, still fear fictitious claims and require proof of some bodily harm resulting from the victim’s emotional distress.

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In addition, some courts say that the plaintiff’s distress must be distress that a reasonable person of ordinary sensibilities would suffer. The focus on whether the severely distressed person had ordinary sensibilities is sometimes minimized, however, when the defendant behaves outrageously by abusing a position or relation that gives him authority over another. Examples include employers, police officers, landlords, and school authorities.

The courts also differ in the extent to which they allow recovery for emotional distress suffered as a result of witnessing outrageous conduct directed at persons other than the plaintiff. The Restatement (Second) suggests that, at minimum, plaintiffs should be allowed to recover for severe emotional distress resulting from witnessing outrageous behavior toward a member of their immediate family.

In the Durham case, which follows, the court applies the elements of intentional infliction of emotional distress to a set of facts involving a manager’s alleged treatment of an employee.

Durham v. McDonald’s Restaurants of Oklahoma, Inc. 256 P.3d 64 (Okla. Sup. Ct. 2011)

Camran Durham filed an intentional infliction of emotional distress lawsuit in an Oklahoma court against his former employer, McDonald’s Restaurants of Oklahoma, Inc. Durham based his claim on the behavior of a McDonald’s manager (Durham’s former supervisor) who, during Durham’s employment, denied three requests by Durham that he be allowed to take his prescription anti-seizure medication. In the course of denying the last request, the manager called Durham a “f . . . ing retard.” Durham, who was 16 years old at the time, alleged that the manager’s refusals caused him to fear he would suffer a seizure. Durham alleged that he left work crying after the incident and did not return.

McDonald’s moved for summary judgment but did not controvert Durham’s account of the incident. Instead, McDonald’s argued that the manager’s conduct did not amount to “extreme and outrageous” conduct—a required element of a claim for intentional infliction of emotional distress. In so arguing, McDonald’s relied on an earlier federal court disposition of claims made by Durham under the federal Americans with Disabilities Act (ADA). In denying Durham recovery on his ADA claims, the federal court determined that the manager’s conduct was “not severe.”

The trial court in Durham’s state court case concluded that the federal court disposition of the ADA claims constituted a binding determination of the “extreme and outrageous” element of Durham’s claim for intentional infliction of emotional distress. Therefore, the trial court granted summary judgment in favor of McDonald’s. Durham appealed to the Oklahoma Court of Civil Appeals, which affirmed. Durham appealed to the Supreme Court of Oklahoma.

Reif, Judge

In order to prove the tort of intentional infliction of emotional distress (or outrage), a plaintiff must prove each of the following elements: (1) the alleged tortfeasor acted intentionally or recklessly; (2) the alleged tortfeasor’s conduct was extreme and outrageous; (3) the conduct caused the plaintiff emotional distress; and (4) the emotional distress was severe. In the case at hand, McDonald’s has argued that the federal court [decision regarding Durham’s ADA claims effectively] adjudicated the second and fourth elements of the tort, and, therefore, Durham’s claim is barred by [the] issue preclusion [doctrine].

Issue preclusion prevents relitigation of facts and issues actually litigated and necessarily determined in an earlier proceeding between the same parties or their privies. Under the doctrine, once a court has decided an issue of fact or of law necessary to its judgment, the same parties or their privies may not relitigate that issue in a suit brought upon a different claim. To establish issue preclusion, a party must prove: (1) that the party against whom it is being asserted was either a party to or a privy of a party to the prior action; (2) that the issue subject to preclusion has actually been adjudicated in the prior case; (3) that the adjudicated issue was necessary and essential to the outcome of that prior case; and (4) the party against whom it is interposed had a full and fair opportunity to litigate the claim or critical issue. [Citations omitted.]

The Court of Civil Appeals found that the federal court had necessarily determined that the manager’s conduct was “not severe” in disposing of the federal ADA claims. Noting that Black’s Law Dictionary treats “extreme” as a synonym for “severe,” the Court of Civil Appeals [concluded] that conduct which is not severe cannot be “extreme and outrageous” under the applicable law. [According to Oklahoma case law,] “extreme and outrageous” conduct requires the existence of conduct so extreme in degree as to go beyond all possible bounds of decency, and which is viewed as atrocious and utterly intolerable in a civilized community. In general, a defendant’s conduct must be such that an average member of the community would exclaim, “Outrageous!” [Citations omitted.]

The chief problem we have with [the analysis of the Court of Civil Appeals] is that it was not necessary for the federal court to make any determination about the character of the manager’s conduct in disposing of the federal litigation. All of Durham’s claims under the ADA, including [a] hostile working environment and constructive discharge claim, were dependent upon [Durham’s being] a “disabled person.” The federal court determined [that Durham] was not a disabled person. [Durham’s] status as a disabled person was the linchpin of federal question jurisdiction and the determination of this issue adversely to [Durham] ended the court’s jurisdiction to decide any other issue concerning the ADA claims. [Under the circumstances, the federal court did not have] power to rule on any other matter affecting the parties. The Court of Civil Appeals [therefore] erred in ruling that the federal court disposition of the ADA claims was preclusive of the extreme and outrageous element of plaintiff’s claim for intentional infliction of emotional distress.

When this Court reviews a claim for intentional infliction of emotional distress that has been rejected by the Court of Civil Appeals, we will make the “gatekeeper” or threshold determination of whether the defendant’s conduct may reasonably be regarded as extreme and outrageous. The test is whether the conduct is so extreme in degree as to go beyond all possible bounds of decency, and is atrocious and utterly intolerable in a civilized community. In the case at hand, we find that the manager’s use of “f . . . ing retard” in addressing a minor employee who is filled with apprehension after being denied permission to take anti-seizure medication may reasonably be regarded as meeting this test. We further find that reasonable people might differ on this issue, but could nonetheless similarly conclude that such conduct meets the test of [being] extreme and outrageous. Where this threshold is satisfied, the issue of whether a defendant’s conduct is extreme and outrageous is for a jury to decide.

In its motion for summary judgment, McDonald’s also asserted that Durham cannot prove the severe emotional distress element of intentional infliction of emotional distress. The motion pointed out that the trial court could make the “gatekeeper” or threshold determination concerning this element [and resolve it against Durham] based on the federal court disposition of the ADA claims. [It is important to note, however, that] the federal court did not determine whether Durham suffered severe emotional distress. Our review of [Durham’s] evidentiary materials leads us to the . . . conclusion [that there is a substantial controversy between the parties regarding the severe emotional distress element].

Intentional infliction of emotional distress does not provide redress for every invasion of emotional serenity or every anti-social act that may produce hurt feelings. While emotional distress can include all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea, it must be so severe that no reasonable person could be expected to endure it. The intensity and duration of the distress are factors to be considered in determining severity, but the type of distress must be reasonable and justified under the circumstances. It is for the court to determine, in the first instance, whether based upon the evidence presented, severe emotional distress can be found. [Citations omitted.]

At the time the manager refused permission to take the anti-seizure medicine, Durham related that he “was getting scared he might die [or] he could bite off his tongue or fall and hurt himself.” After the manager called him a “f . . . ing retard,” he ran out the door crying. As a consequence of this treatment, Durham stated he became “withdrawn” and “a recluse.” He recounted that “[h]e felt he couldn’t do anything [and] was afraid he would suffer the same experience at another job.” His mother related that he “wouldn’t go outside, slept all day, and had to be home schooled.” She stated that he “became depressed and introverted.” She reported that “he was no longer active [and] lost interest in everything.” Durham believed that a school friend who worked at McDonald’s told other school friends about the incident. They began calling plaintiff a “f . . . ing retard” and teased him by saying, “I hear you can’t even keep a job at McDonald’s because you’re a f . . . ing retard.”

Viewing the evidentiary materials in a light most favorable to plaintiff Durham [(as we are required to do in reviewing the grant of summary judgment against him], we hold that the highly unpleasant mental reactions that plaintiff Durham and his mother described are reasonable and justified under the circumstances. We also hold that they go beyond mere hurt feelings, insult, indignity, and annoyance and could be reasonably regarded to constitute emotional distress so severe that no reasonable person could be expected to endure it. In such cases, “[i]t is for the jury to determine whether, on the evidence, severe emotional distress in fact existed.” [Citation omitted.]

Grant of summary judgment in favor of McDonald’s reversed; case remanded for further proceedings.

Most intentional infliction of emotional distress cases are based on allegedly outrageous conduct. What about allegedly outrageous speech? May it be the basis of a valid emotional distress claim? The potential First Amendment implications of allowing emotional distress liability to be based on speech—particularly when the plaintiff is a famous person who was the target or subject of the defendant’s statements—occupied the attention of the U.S. Supreme Court in Hustler Magazine, Inc. v. Falwell (1986). On First Amendment grounds, the Court

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unanimously struck down a damages award received in the lower courts by the Rev. Jerry Falwell as a result of offensive statements about him in an adult magazine. In doing so, the Court severely restricted the ability of public figures to win speech-related intentional infliction of emotional distress cases by requiring that such plaintiffs prove the same stern First Amendment–based requirements imposed on public figure plaintiffs in defamation cases. (A later section in this chapter includes extensive discussion of defamation law, including the First Amendment–based requirements that public figures must satisfy when they sue for defamation.)

The Court had no occasion to rule in Falwell on whether the First Amendment would restrict the ability of a private figure (i.e., a person who is not well known and thus is not a public figure) to base an emotional distress claim on a defendant’s allegedly outrageous speech about him or her. The parallel drawn in Falwell to the constitutional requirements in defamation cases could signify somewhat less of a role for the First Amendment in intentional infliction of emotional distress cases brought by private figure plaintiffs regarding speech about them. The matter remains uncertain, however.

What about instances in which the allegedly outrageous speech was not about the plaintiff but caused the plaintiff to experience significant emotional harm? The Supreme Court addressed such an instance in a controversial and much-publicized decision, Snyder v. Phelps, 562 U.S. 443 (2011). The plaintiff, Albert Snyder, was the father of a deceased soldier who had been killed in the line of duty. At the time of the soldier’s funeral and in relatively close proximity to where it was held, the defendants (the Rev. Fred Phelps and other individuals associated with the Westboro Baptist Church) displayed picket signs communicating strongly worded anti-gay messages. The plaintiff saw the signs on the way to the funeral and learned of their specific content a few hours later. He regarded the defendants’ messages and their decision to target the funeral for their protest as a distress-causing, unwelcome intrusion into an intensely personal event for the Snyder family. In his lawsuit, therefore, Snyder alleged claims for intentional infliction of emotional distress and invasion of privacy. This was not the first time the defendants had picketed at a deceased soldier’s funeral. They had done so frequently in order to express their view that God hates homosexuals and that American soldiers die because of God’s displeasure with attitudes of tolerance toward gays.

The Supreme Court held in Snyder v. Phelps that Snyder could not prevail and that the defendants’ speech was fully protected under the First Amendment because it dealt with a matter of public concern. The Court acknowledged the offensive nature of the defendants’ speech, particularly under the circumstances in which the defendants communicated it, but stressed that the First Amendment protects a great deal of speech that listeners or viewers may find objectionable or unwelcome. After the decisions in Falwell and Snyder, it is fair to say that the First Amendment makes a speech-based intentional infliction of emotional distress case very hard to win. Of course, when a defendant’s conduct—as opposed to speech—serves as the basis for an emotional distress case, the First Amendment does not even potentially furnish the defendant any protection against liability.

False Imprisonment

List and explain the elements of false imprisonment.

False imprisonment  is the intentional confinement of another person for an appreciable time (a few minutes is enough) without his consent. The confinement element essentially involves the defendant’s keeping the plaintiff within a circle that the defendant has created. It may result from physical barriers to the plaintiff’s freedom of movement, such as locking a person in a room with no other doors or windows, or from the use or threat of physical force against the plaintiff. Confinement also may result from the unfounded assertion of legal authority to detain the plaintiff, or from the detention of the plaintiff’s property (e.g., a purse containing a large sum of money). Likewise, a threat to harm another, such as the plaintiff’s spouse or child, can also cause confinement if it prevents the plaintiff from moving.

The confinement must be complete. Partial confinement of another by blocking her path or by depriving her of one means of escape where several exist, such as locking one door of a building having several unlocked doors, is not false imprisonment. The fact that a means of escape exists, however, does not relieve the defendant of liability if the plaintiff cannot reasonably be expected to know of its existence. The same is true if using the escape route would present some unreasonable risk of harm to the plaintiff or would involve some affront to the plaintiff’s sense of personal dignity.

Although there is some disagreement on the subject, courts usually hold that the plaintiff must have knowledge of his confinement in order for liability for false imprisonment to arise. In addition, there is no liability if the plaintiff has consented to his confinement. Such consent, however, must be freely given; consent in the face of an implied or actual threat of force or an assertion of legal authority is not freely given.

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Today, many false imprisonment cases involve a store’s detention of persons suspected of shoplifting. In an attempt to accommodate the legitimate interests of store owners, most states have passed statutes giving them a conditional privilege to stop suspected shoplifters. To obtain this defense, the owner usually must act with reasonable cause and in a reasonable manner, and must detain the suspect for no longer than a reasonable length of time. These privilege statutes typically extend to other intentional torts besides false imprisonment.

The Farrell case, which follows, examines the elements of false imprisonment and considers the role a privilege statute may play.

Farrell v. Macy’s Retail Holdings, Inc. 2016 U.S. App. LEXIS 6791 (4th Cir. 2016)

Stephanie and William Farrell were shopping at a Macy’s department store that was located in a Maryland mall. The asset protection manager for Macy’s observed William, and then the couple, and saw what is set forth in this statement of facts. Initially, William walked around the store wearing a jacket that he had not yet purchased. Then after removing the jacket, William selected several items from sales racks, removed the items from their hangers, and placed the items into a bag. He also appeared to move away from where he selected the jacket before placing it into the bag and leaving the jacket’s hanger on a different rack. After the Farrells began shopping together, the couple selected a robe for William, and he again removed it from the hanger and placed it in the bag. The Farrells then approached the exit to the mall, where two mall security officers, one of whom was wearing his security uniform, were sitting. After getting within 5 to 10 feet of the exit, the Farrells turned back into the store. Suspecting that the Farrells were attempting to shoplift store items, Macy’s employees then stopped them, detained them, and questioned them. The store employees released the Farrells after determining that they were not shoplifting.

Relying on diversity of citizenship principles, the Farrells sued Macy’s in a federal district court on the theory that the above-described detention constituted false imprisonment. Maryland has a so-called shopkeeper’s statute. Such a statute protects store owners and their employees against false imprisonment liability for detaining customers on suspicion of shoplifting even though the customers were innocent in that regard, if there was probable cause for the theft suspicion and the detention was conducted reasonably. Largely on the basis of the shopkeeper’s statute, the district court granted summary judgment in favor of Macy’s. The Farrells appealed to the U.S. Court of Appeals for the Fourth Circuit.

Per Curiam

The district court granted summary judgment [in favor of Macy’s] based on its determination that [the Macy’s employees] had probable cause to detain William Farrell. We review de novo a district court’s order granting summary judgment. [The Federal Rules of Civil Procedure provide that summary judgment is to be granted] “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” In determining whether a genuine issue of material fact exists, “we view the facts and all justifiable inferences arising therefrom in the light most favorable to . . . the nonmoving party.” [Case citation omitted.]

The Farrells argue that the Defendants’ employees lacked probable cause to detain them. Under Maryland law, “[f]or a plaintiff to succeed on a false arrest or false imprisonment claim, the plaintiff must establish that the defendant deprived the plaintiff of his or her liberty without consent and without legal justification.” State v. Roshchin, 130 A.3d 453, 459 (Md. 2016). However, [a Maryland statute provides that] a merchant cannot be held liable for false imprisonment if it “had, at the time of the detention . . . , probable cause to believe that the person committed the crime of ‘theft,’ as prohibited by [Maryland law]. [Probable cause] is defined in terms of facts and circumstances sufficient to warrant a prudent person in believing that the suspect had committed or was committing an offense.” DiPino v. Davis, 729 A.2d 354, 361 (Md. 1999).

Maryland defines theft as “willfully and knowingly obtaining unauthorized control over the property or services of another; by deception or otherwise; with intent to deprive the owner of his property. . . . ” Lee v. State, 474 A.2d 537, 540-41 (Md. Ct. Spec. App. 1984). In Lee, the court noted that “several factors should be assessed to determine whether the accused [in a shoplifting case] intended to deprive the owner of property,” including “concealment of [the] goods[,]. . . . [o]ther furtive or unusual behavior[,]. . . . [t]he customer’s proximity to the store’s exits[,] . . . and possession by the customer of a shoplifting device with which to conceal merchandise.” Id. at 542-43. Although Lee addressed these factors in determining whether sufficient evidence supported a conviction for theft, its discussion also is relevant to whether probable cause existed to believe that a person is committing theft.

We conclude that [on the basis of the observations of the Macy’s asset-protection manager, as described in the above statement of facts,] the Macy’s employees had probable cause to detain the Farrells at the time of the detention. The Farrells argue that the district court did not view the evidence in the proper light because it failed to consider their deposition testimony that they intended to purchase the items at the sales counter near where they had entered the store and, therefore, that they had not passed all points ofsale prior to their apprehension. However, “[w]hether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the [detaining] officer at the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). The Farrells have not argued or offered any evidence demonstrating that, at the time he detained them, the asset-protection manager knew they intended to pay for the items William Farrell had placed into the bag he was carrying. Moreover, the court’s finding that the Farrells had passed all points of sale is supported by the store’s video surveillance; the couple is seen walking toward the exit to the mall and, as Stephanie Farrell testified at her deposition, coming within approximately five to ten feet of the exit while looking at a table displaying merchandise for sale.

[Because the Macy’s employees had probable cause to detain the Farrells, the statute referred to above protects Macy’s against liability for false imprisonment. The district court, therefore, correctly granted summary judgment in favor of Macy’s.]

District court’s grant of summary judgment in favor of defendant affirmed.

Defamation

List and explain the common law elements of defamation.

Claims for defamation are recognized in order to protect the reputational interest of the plaintiff (whether an individual person or a corporation). Defamation is ordinarily defined as the (1) unprivileged (2) publication of (3) false and defamatory (4) statements concerning another. Before examining each of these elements, we must consider the distinction between two forms of defamation:  libel  and  slander .

The Libel–Slander Distinction Libel refers to written or printed defamation or to other defamation having a physical form, such as a defamatory picture, sign, or statue. Slander refers to all other defamatory statements—mainly oral defamation. Today, however, the great majority of courts treat defamatory statements in radio and television broadcasts as libel. The same is true of defamatory statements made on the Internet.

Why does the libel–slander distinction matter? Because of libel’s more permanent nature and the seriousness we usually attach to the written word, the common law has traditionally allowed plaintiffs to recover for libel without proof of  actual damages  (reputional injury and other harm such as emotional distress). Presumed damages have long been allowed by the common law in libel cases. Described by the U.S. Supreme Court as an “oddity of tort law,” presumed damages “compensate” for reputational harm that is presumed to have occurred but does not have to be proven by the plaintiff.

Slander, on the other hand, is generally not actionable without proof of special damages, unless the nature of the slanderous statement is so serious that it can be classified as slander per se. In cases of slander per se, presumed damages are allowed by the common law. Slander per se ordinarily includes false statements that the plaintiff (1) has committed a crime involving moral turpitude or potential imprisonment, (2) has a loathsome disease, (3) is professionally incompetent or guilty of professional misconduct, or (4) is guilty of serious sexual misconduct.

False and Defamatory Statement Included among the elements of defamation are the separate requirements that the defendant’s statement be both falseand defamatory. Truth is a complete defense in a defamation case. A defamatory statement is one that is likely to harm the reputation of another by injuring his community’s estimation of him or by deterring others from associating or dealing with him.

“Of and Concerning” the Plaintiff Because the defamation cause of action serves to protect reputation, an essential element of the tort is that the alleged defamatory statement must be “of and concerning” the plaintiff. That is, the statement must be about—and thus bear upon the reputation of—the party who brought the case. This requirement presents problems whose complexities are beyond the scope of this text. The rules sketched below, therefore, are sometimes subject to exceptions not explained here.

What about allegedly fictional accounts whose characters resemble real people? Most courts say that

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fictional accounts may be defamatory if a reasonable reader would identify the plaintiff as the subject of the story. Similarly, humorous or satirical accountsordinarily are not defamation unless a reasonable reader would believe that they purport to describe real events or actual facts.

Statements of pure opinion do not amount to defamation because they are not statements of “fact” concerning the plaintiff. However, statements that mix elements of opinion with elements of supposed “fact” may be actionable. Neumann v. Liles, which follows shortly, explains and applies the factors courts take into account in deciding whether a statement is actionable as a false statement of supposed fact or is, instead, a nonactionable statement of opinion. The Obsidian Finance Group case, which appears later in the chapter, also touches on the fact-versus-opinion issue.

Do defamatory statements concerning particular groups of people also defame the individuals who belong to those groups? Generally, an individual member of a defamed group cannot recover for damage to her own reputation unless the group is so small that the statement can reasonably be understood as referring to individual group members.

Finally, courts have placed some limits on the persons or entities that can suffer injury to reputation. No liability attaches, for example, to defamatory statements concerning the dead. Corporations and other business entities have reputational interests and can recover for defamatory statements that harm them in their business or deter others from dealing with them. Statements about a corporation’s officers, employees, or shareholders normally are not defamatory regarding the corporation, however, unless the statements also reflect on the manner in which the corporation conducts its business. 1

Neumann v. Liles 369 P.3d 1117 (Ore. Sup. Ct. 2016)

Carol Neumann is an owner of Dancing Deer Mountain LLC, an Oregon business that arranges and performs wedding events at a property Neumann owns. Christopher Liles attended a wedding and reception held on Neumann’s property. Two days after those events, Liles posted a negative review about Neumann and her business on Google Reviews, a publicly accessible website on which individuals may post comments about services or products they have received. The review was titled “Disaster!!!!! Find a different wedding venue.” The text of the review was as follows:

There are many other great places to get married, this is not that place! The worst wedding experience of my life! The location is beautiful the problem is the owners. Carol (female owner) is two faced, crooked, and was rude to multiple guest[s]. I was only happy with one thing. It was a beautiful wedding, when it wasn’t raining and Carol and Tim stayed away. The owners did not make the rules clear to the people helping with set up even when they saw something they didn’t like they waited until the day of the wedding to bring it up. They also changed the rules as they saw fit. We were told we had to leave at 9pm, but at 8:15 they started telling the guests that they had to leave immediately. The “bridal suite” was a tool shed that was painted pretty, but a shed all the same. In my opinion [s]he will find a why [sic] to keep your $500 deposit, and will try to make you pay even more.

Neumann sued Liles in an Oregon court, alleging that the statements in his review constituted defamation. The court dismissed the case after concluding that Liles’s statements amounted to nonactionable opinion and were otherwise protected by the First Amendment.

Neumann appealed to the Oregon Court of Appeals, which reversed the lower court’s decision. The Court of Appeals concluded that some of the statements Liles made were capable of a defamatory meaning and seemingly factual—meaning that if the statements were false, they could give rise to a valid defamation claim in favor of Neumann. Among the potentially actionable statements, according to the Court of Appeals, were the statements that Neumann was “rude to multiple guest[s],” that she is “crooked,” and that she “will find a [way] to keep your $500 deposit.” Liles then appealed to the Supreme Court of Oregon, which agreed to decide the case in order to “determine how an actionable statement of fact is distinguished from a constitutionally protected expression of opinion in a defamation claim and whether the context in which a statement is made affects that analysis.”

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Baldwin, Judge

This case requires us to decide whether a defamatory statement made in an online business review is entitled to protection under the First Amendment. [More specifically, we must] determine whether a reasonable factfinder could conclude that an allegedly defamatory statement touching on a matter of public concern implies an assertion of objective fact and is therefore not constitutionally protected.

Liles argues that his online review of Neumann’s venue is entitled to protection under the First Amendment. He contends that his review, when read in the context of informal online communication, is properly understood as expressing merely his subjective opinion about the venue that he was reviewing. He also contends that the statements in his review are not provable as true or false. Regarding the words that the Court of Appeals concluded to be capable of defamatory meaning, such as “rude” and “crooked,” he argues that those words are too vague to imply an assertion of fact.

Although our determination of the legal sufficiency of Neumann’s defamation claim hinges on whether Liles’s statements are protected under the First Amendment, we begin our analysis by [noting that under the common law elements of defamation, the plaintiff must show that] a defendant made a defamatory statement about the plaintiff and published the statement to a third party. A defamatory statement is one that would subject the plaintiff “to hatred, contempt or ridicule, [or] tend to diminish the esteem, respect, goodwill or confidence in which [the plaintiff] is held, or [tend] to excite adverse, derogatory or unpleasant feelings or opinions against [the plaintiff].” [Citation omitted.] In the professional context, a statement is defamatory if it falsely “ascribes to another conduct, characteristics, or a condition incompatible with the proper conduct of his lawful business, trade, [or] profession.” [Citation omitted.]

At early common law, defamatory statements were generally deemed actionable regardless of whether they were statements of fact or expressions of opinion. [Over time, however, the common law began to accord some measure of protection for statements of opinion. Later,] the United States Supreme Court determined that the First Amendment places limits on the application of the state law of defamation. The protection afforded under the First Amendment to statements of opinion on matters of public concern reached what one court called its “high-water mark” in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). Keohane v. Stewart, 882 P2d 1293, 1298 (Colo. 1994) (so characterizing the Supreme Court’s opinion in Gertz). In Gertz, the Court stated in dictum: “Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact.” 418 U.S. at 339-40. A majority of state and federal courts interpreted Gertz to have announced that expressions of opinion were absolutely privileged under the First Amendment.

In Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), however, the Supreme Court dispelled the notion that it had announced a “wholesale defamation exemption for anything that might be labeled ‘opinion.’” Id. at 18. In that case, a newspaper published a column that implied that Milkovich, a high school wrestling coach, had lied under oath in a judicial proceeding after his team was involved in an altercation at a wrestling match and the coach’s team was placed on probation. Milkovich filed a libel action against the newspaper and a reporter, alleging that the defendants had accused him of committing the crime of perjury, thereby damaging him in his occupation of coach and teacher. The Supreme Court rejected the defendants’ argument that all defamatory statements that are categorized as “opinion” as opposed to “fact” enjoy blanket First Amendment protection. Id. at 17-18. The Court clarified that the oft-cited passage in Gertz had been “merely a reiteration of Justice Holmes’ classic ‘marketplace of ideas’ concept.” Id. at 18 (citing Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (“[T]he ultimate good desired is better reached by free trade in ideas. . . . [T]he best test of truth is the power of the thought to get itself accepted in the competition of the market.”). Thus, Gertz had not created an additional separate constitutional privilege for anything that might be labeled an “opinion.” In the Court’s view, such an interpretation of Gertz would “ignore the fact that expressions of ‘opinion’ may often imply an assertion of objective fact.” Milkovich, 497 U.S. at 18.

Ultimately, the Court refused to create a separate constitutional privilege for “opinion,” concluding instead that existing constitutional doctrine adequately protected the “uninhibited, robust, and wide-open” debate on public issues. Id. at 20-21. Under that existing doctrine, full constitutional protection is afforded to statements regarding matters of public concern that are not sufficiently factual to be capable of being proved false and statements that cannot reasonably be interpreted as stating actual facts. The dispositive question in determining whether a defamatory statement is constitutionally protected, according to the Court, is whether a reasonable factfinder could conclude that the statement implies an assertion of objective fact about the plaintiff. Id. at 19-21.

Applying that rule to the facts of Milkovich, the Court determined that a reasonable factfinder could conclude that the statements in the newspaper column implied a factual assertion that Milkovich had perjured himself in a judicial proceeding. The Court considered various factors. First, the Court noted that the column had not used “the sort of loose, figurative, or hyperbolic language” that would negate the impression that the writer was seriously maintaining that Milkovich had committed the crime

of perjury. Second, the Court concluded the “general tenor of the article” did not negate that impression. Third, in the Court’s view, the accusation that Milkovich had committed perjury was “sufficiently factual to be susceptible of being proved true or false.” Accordingly, the Court held that the column did not enjoy constitutional protection. Id.

The analytical response of both lower federal courts and state courts to Milkovich has been varied. This case presents the first occasion for this court to announce a framework for analyzing whether a defamatory statement is entitled to First Amendment protection. In the absence of existing law from this court, we look to the approaches of other jurisdictions for guidance.

In Unelko Corp. v. Rooney, 912 F.2d 1049 (9th Cir 1990), decided shortly after Milkovich, the U.S. Court of Appeals for the Ninth Circuit addressed whether certain statements that Andy Rooney had made during two broadcasts of “60 Minutes” were protected as opinion under the First Amendment. The court concluded that, after Milkovich, “the threshold question in defamation suits is not whether a statement might be labeled ‘opinion,’ but rather whether a reasonable factfinder could conclude that the statement impl[ies] an assertion of objective fact.” Id. at 1053. To resolve that threshold question, the Ninth Circuit drew from the factors that the Supreme Court had considered in Milkovich and announced a three-part test: (1) whether the general tenor of the entire work negates the impression that the defendant was asserting an objective fact; (2) whether the defendant used figurative or hyperbolic language that negates that impression; and (3) whether the statement in question is susceptible of being proved true or false. Id. Since Unelko, the Ninth Circuit has consistently used that three-part inquiry to determine whether a reasonable factfinder could conclude that a statement implies an assertion of objective fact. Several other courts also have expressly adopted the Ninth Circuit’s test.

We agree with those courts that have found the Ninth Circuit’s three-part inquiry to be a sound approach for determining whether a statement is entitled to First Amendment protection. The Ninth Circuit’s test appropriately considers the totality of the relevant circumstances, including the context in which particular statements were made and the verifiability of those statements. The Ninth Circuit’s test is also a reasonable interpretation of Milkovich. It explicitly incorporates the factors that the Supreme Court itself considered in deciding Milkovich. Accordingly, we follow the Ninth Circuit’s three-part framework for whether a reasonable factfinder could conclude that a given statement implies a factual assertion.

[We now] apply that test to the facts of this case. Initially, we conclude that, if false, several of Liles’s statements are capable of a defamatory meaning. Throughout his review, Liles ascribed to Neumann conduct that is incompatible with the proper conduct of a wedding venue operator and, as the Court of Appeals noted, “inconsistent with a positive wedding experience.” As a result, a reasonable factfinder could conclude that Liles’s statements were defamatory if he or she found that the statements were false. The question remains, however, whether they are nevertheless protected under the First Amendment.

To resolve that question, we must first determine, by examining the content, form, and context of Liles’s statements, whether those statements involve matters of public concern. Neumann has not disputed that Liles’s statements involve matters of public concern, and we readily conclude that they do. Liles’s review was posted on a publicly accessible website, and the content of his review related to matters of general interest to the public, particularly those members of the public who are in the market for a wedding venue. Next, we must determine whether a reasonable factfinder could interpret Liles’s statements as implying assertions of objective fact. Applying the three-part inquiry that we articulated above, we first consider whether the general tenor of the entire work negates the impression that Liles was asserting objective facts about Neumann. From the outset, it is apparent that the review is describing Liles’s personal view of Neumann’s wedding venue, calling it a “Disaster!!!!!” The general tenor of the piece, beginning with the word Disaster, is that, in Liles’s subjective opinion, the services were grossly inadequate and that the business was poorly operated.

However, read independently, two sentences in the review could create the impression that Liles was asserting an objective fact: “Carol (female owner) is two faced, crooked, and was rude to multiple guest[s]. . . . In my opinion [s]he will find a [way] to keep your $500 deposit, and will try to make you pay even more.” Standing alone, those statements could create the impression that Liles was asserting the fact that Neumann had wrongfully kept a deposit that she was not entitled to keep. In the context of the entire review, however, those sentences do not leave such an impression. Rather, the review as a whole reveals that Liles was an attendee at the wedding in question and suggests that he did not himself purchase wedding services from Neumann. The general tenor of the review thus reflects Liles’s negative personal and subjective impressions and reactions as a guest at the venue and negates the impression that Liles was asserting objective facts.

We next consider whether Liles used figurative or hyperbolic language that negates the impression that he was asserting objective facts. Although the general tenor of the review reveals its hyperbolic nature more clearly than do the individual statements contained therein, several statements can be characterized as hyperbolic. In particular, the title of the review—which starts with the word Disaster and is followed by a histrionic series of exclamation marks—is hyperbolic and sets the tone for the review. The review also includes the exaggerative statements that this was “The worst wedding experience of [Liles’s] life!” and that Liles was “only happy with one thing” about the wedding.

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Such hyperbolic expressions further negate any impression that Liles was asserting objective facts.

Finally, we consider whether Liles’s review is susceptible of being proved true or false. As discussed, Liles’s statements generally reflect a strong personal viewpoint as a guest at the wedding venue, which renders them not susceptible of being proved true or false. Again, the sentences quoted above referring to Neumann as “crooked” and stating that, “[i]n my opinion [s]he will find a [way] to keep your $500 deposit, and will try to make you pay even more” could, standing alone, create the impression that Liles was asserting facts about Neumann. However, viewed in the context of the remainder of the review, those statements are not provably false. The general reference to Neumann as “crooked” is not a verifiable accusation that Neumann committed a specific crime. Moreover, in light of the hyperbolic tenor of the review, the use of the word crooked does not suggest that Liles was seriously maintaining that Neumann had, in fact, committed a crime.

Similarly, Liles’s statement that “[i]n my opinion [Neumann] will find a [way] to keep your $500 deposit, and will try to make you pay even more” is not susceptible of being proved true or false. That statement is explicitly prefaced with the words, “In my opinion”—thereby alerting the reader to the fact that what follows is a subjective viewpoint. Of course, those words alone will not insulate an otherwise factual assertion from liability. See Milkovich, 497 U.S. at 19 (simply couching statements in terms of opinion does not dispel their defamatory implications). However, given that Liles—as a mere guest at the wedding—presumably did not pay the deposit for the wedding involved in this case, his speculation that Neumann would try to keep a couple’s deposit is not susceptible of being proved true or false.

Based on the foregoing factors, we conclude that a reasonable factfinder could not conclude that Liles’s review implies an assertion of objective fact. Rather, his review is an expression of opinion on matters of public concern that is protected under the First Amendment. We therefore further conclude that the trial court did not err in dismissing Neumann’s claim, and we reverse the Court of Appeals determination to the contrary.

Court of Appeals decision reversed; Neumann’s defamation claim dismissed.

Publication Liability for defamation requires publication of the defamatory statement. As a general rule, no widespread communication of a defamatory statement is necessary for publication. The defendant’s communication of the defamatory statement to one person other than the person defamed ordinarily suffices.

So long as no one else receives or overhears it, however, an insulting message communicated directly from the defendant to the plaintiff is not actionable. The long-standing rule is that publication does not take place when the plaintiff herself communicates the offensive statement to another. Courts sometimes make an exception to this rule in cases where a discharged employee is forced to tell a potential future employer about false and defamatory statements made to her by her prior employer.

Some courts still follow the older rule that intracorporate statements (statements by one corporate officer or employee to another officer of the same corporation) do not involve publication. Most courts, however, follow the modern trend and hold that there is publication in such situations.

The general rule is that one who repeats a false and defamatory statement may be liable for defamation. This is true even if he identifies the source of the statement.

A party other than the person who initially made a defamatory statement may be liable along with the original speaker or writer if that other party served as a publisher of the defamatory falsehood but not if the other party was a mere distributor. According to defamation law’s traditional publisher versus distributor distinction, a company that publishes a book or a newspaper may be held liable for defamation on the basis of statements that appear in the book or in the newspaper’s articles. The rationale is that the publishing company possessed considerable editorial control over the content of the book or the articles and would have had the ability to remove the defamatory falsehoods. (The writer of the statements, of course, would be liable as well.) Libraries and bookstores, however, are mere distributors because they lack the editorial control that publishers have. Therefore, libraries and bookstores are not liable for defamation even if defamatory falsehoods appear in books they lend to users or sell to customers.

What about Internet service providers and website operators? Can they be held liable as publishers of statements posted online by other parties? The answer might initially seem to be “yes” in instances where the service provider or website operator reserved some measure of editorial control, but the actual answer is “no.” Section 230 of the federal Communications Decency Act establishes a national rule that “no provider or user of an interactive computer service shall be treated as the publisher or

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speaker of any information provided by another information content provider.” This section has been applied by courts in a significant number of defamation cases and in various other types of cases in which liability for someone else’s online statements is at issue.

Defenses and Privileges Even though defamation is called an intentional tort, the common law contemplated a form of strict liability for defamation. Defenses are available, however, in certain defamation cases. Of course, the truth of the defamatory statement is a complete defense to liability. Defamatory statements may be privileged as well. Privileges to defamation liability recognize that in some circumstances, other social interests are more important than an individual’s right to reputation. Privileges can be absolute or conditional.

An absolute privilege shields the author of a defamatory statement regardless of her knowledge, motive, or intent. When such a privilege applies, it operates as a complete defense to defamation liability. Absolutely privileged statements include those made by participants in judicial proceedings, by legislators or witnesses in the course of legislative proceedings, by certain executive officials in the course of their duties, and by one spouse to the other in private. In each case, the theory underlying the privilege is that complete freedom of expression is essential to the proper functioning of the relevant activity, and that potential liability for defamation would inhibit free expression.

Conditional (or qualified) privileges give the defendant a defense unless the privilege is abused. What constitutes abuse varies with the privilege in question. In general, conditional privileges are abused when the statement is made with knowledge of its falsity or with reckless disregard for the truth, when the statement does not advance the purposes supporting the privilege, or when it is unnecessarily made to inappropriate people.

There are various conditional privileges. One important conditional privilege involves statements made to protect or further the legitimate interests of another. One of the most common business-related examples is the employment reference. Suppose that Parker’s former employer, Dorfman, has good reason to believe—and does in fact believe—that Parker embezzled money from Dorfman’s business while Parker was a Dorfman employee. Trumbull, who is deciding whether to hire Parker, contacts Dorfman to ask about Parker’s work record and performance as an employee. During the conversation, Dorfman tells Trumbull that he believes Parker committed embezzlement while working for him. On these facts, Dorfman will be protected by a conditional privilege against defamation liability to Parker because Dorfman’s statement was designed to further Trumbull’s legitimate interest in making an intelligent hiring decision. Dorfman’s reasonably based belief in the truth of his statement about Parker is critical to his ability to rely on the conditional privilege. If Dorfman had known his statement was false or had made it with reckless disregard for the truth, Dorfman would have abused the conditional privilege and would have lost its protection against liability.

A second important type of conditional privilege concerns statements made to promote a common interest. Intracorporate communications serve as an example, as do communications to law enforcement agencies and professional disciplinary bodies.

A further example can be found in a recent U.S. Supreme Court decision, Air Wisconsin Airlines Corp. v. Hoeper, 134 S. Ct. 852 (2014). In that case, the Court interpreted a federal statute that establishes a conditional privilege protecting airlines and their employees from civil liability for the content of their reports on suspicious behavior to the Transportation Security Administration (TSA). Hoeper claimed he was defamed when airline officials relayed their concerns about his behavior and “mental stability” to the TSA. When they made this report, the airline officials knew that Hoeper had been visibly angry after failing (for the fourth time) a certification test he had to pass in order to keep his job as a pilot. They also knew he had made a statement to the effect that the testing program was rigged against him. In addition, the airline officials were aware that Hoeper was scheduled to board a flight to go home from the testing center. They were concerned that he could be carrying a firearm because he had been among the pilots permitted to do so. After receiving the report, the TSA had Hoeper removed from the plane he had boarded for his flight home.

In rejecting Hoeper’s defamation claim, the Court ruled that the gist of the report to the TSA was not materially false despite the “mental stability” speculation and the report’s reference to Hoeper as a terminated employee (when in reality the termination would not occur until the next day). Importantly, Hoeper still would have lost the case even if the report had been materially false. In that event, the defendants would have been protected under the statute’s conditional privilege absent a showing—which Hoeper would not have been able to make—that they abused the privilege by making a report with knowledge of its falsity or with reckless disregard for the truth.

Finally, many courts recognize a privilege called fair comment. That privilege protects fair and accurate media reports of defamatory statements that appear in proceedings of official government action or originate from public meetings.

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Defamation and the Constitution Until approximately 55 years ago, the First Amendment’s guarantees of freedom of speech and press were not considered relevant to defamation cases. The common law’s strict liability approach meant that unless one of the privileges discussed earlier applied, a speaker or writer who made a false statement believing it to be true had no more protection against defamation liability than the deliberate liar had. In a series of cases dating back to 1964, however, the U.S. Supreme Court has concluded that the common law’s approach is too heavily weighted in favor of plaintiffs’ reputational interests and not sufficiently protective of defendants’ free speech and free press interests. The Court has recognized that when coupled with the potential availability of presumed damages, a strict liability regime could deter would-be speakers from contributing true statements to public debate out of fear of the costly liability that might result if the jury somehow concluded that the statements were false. Recognizing the need to guard against this “chilling effect” and the resulting restriction on the flow of information that is important to a free society, the Court determined in New York Times Co. v. Sullivan(1964) that the First Amendment has a role to play in certain defamation cases. The Court reasoned that judicial enforcement of the legal rules of defamation served as the government action necessary to trigger application of the First Amendment.

Explain what a public official plaintiff or a public figure plaintiff must prove, for constitutional reasons, in order to win a defamation case.

Public Official Plaintiff Cases In New York Times, the Court held that when a public official brings a defamation case, he or she must prove not only the usual elements of defamation but also a First Amendment–based fault requirement known as actual malice. The Court gave actual malice a special meaning: knowledge of falsity or reckless disregard for the truth. Thus, after New York Times, a defendant who makes a false and defamatory statement about a public official plaintiff will not be held liable unless the public official proves that the defendant made the statement either (1) knowing it was false or (2) recklessly. Moreover, the Court held in New York Times that as a further First Amendment–based safeguard, the public official plaintiff must prove actual malice by clear and convincing evidence—a higher standard of proof than the preponderance of the evidence standard applicable to every other element of a defamation claim and to civil cases generally. The public official category includes many high-level government officials, whether elected or appointed.

Public Figure Plaintiff Cases Three years after New York Times, the Supreme Court extended the proof-of-actual-malice requirement to defamation cases in which the plaintiff is a public figure. The Court also mandated that such a plaintiff prove actual malice by clear and convincing evidence. Individual persons or corporations are public figures if they either (1) are well known to large segments of society through their own voluntary efforts, or (2) have voluntarily placed themselves, in the words of the Supreme Court, at “the forefront of a particular public controversy.” The first type of public figure, sometimes given the “general-purpose” designation, includes well-known corporations, political candidates who are not already holders of public office, and ex-government officials. It also includes a diverse collection of celebrities, near celebrities, and well-known persons ranging from familiar actors, entertainers, and media figures to famous athletes or coaches and others with high public visibility in their chosen professions. The second type of public figure, sometimes assigned the “limited-purpose” label, is not well known by large segments of society but has chosen to take a prominent leadership role regarding a matter of public debate (e.g., the abortion rights controversy, the debate over whether certain drugs should be legalized, or disputes over the extent to which environmental regulations should restrict business activity). A general-purpose public figure must prove actual malice in any defamation case in which he, she, or it is the plaintiff. A limited-purpose public figure, on the other hand, must prove actual malice when the statement giving rise to the case relates in some sense to the public controversy as to which the plaintiff is a public figure.

The proof-of-actual-malice requirement poses a very substantial hurdle for public officials and public figures to clear. That is by design, according to the Supreme Court. Defendants have especially strong First Amendment interests in regard to statements about public officials and public figures, given the high level of public interest and concern that attaches almost automatically to matters involving such persons.

Knowledge of falsity—one of the two forms of actual malice—is difficult to prove. When the defendant who made a false statement can point to an arguably credible source on which he, she, or it relied as a supposed indicator of the statement’s truth, the defendant presumably did not have knowledge of the statement’s falsity. Neither did the defendant speak or write with the other form of actual malice—reckless disregard for the truth—in such an instance. According to the Supreme Court, reckless disregard has been demonstrated when the plaintiff proves either (1) that the defendant “in fact entertained

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serious doubts” about the statement’s truth but made the statement anyway or (2) that the defendant consciously rejected overwhelming evidence of falsity and chose instead to rely on a much less significant bit of evidence that would have indicated truth only if the contrary evidence had not also been part of the picture. When the defendant relied on an arguably credible source that tended to indicate the statement was true, the defendant presumably did not entertain serious doubts and did not consciously reject overwhelming evidence of falsity. Such a defendant, therefore, did not display reckless disregard for the truth. If a reasonable person in the defendant’s position would not have relied on a lone source despite its credibility and would have ascertained the statement’s falsity through further investigation, the defendant who failed to investigate further has been negligent. Negligence, however, is not as severe a degree of fault as reckless disregard and does not constitute actual malice.

Most defamation cases brought by public official or public figure plaintiffs are won by the defendant—if not at trial, then on appeal. That is often the result because the plaintiff was unable to prove actual malice even though the statement was false and tended to harm reputation. Sometimes, however, the public official or public figure plaintiff accomplishes the daunting task of proving actual malice. When that occurs, the First Amendment does not bar such a plaintiff from winning the case and recovering compensatory damages (including those of the presumed variety) as well as punitive damages.

In Bertrand v. Mullin, which follows, the Supreme Court of Iowa focuses on the actual malice element that public official plaintiffs and public figure plaintiffs must prove if they are to win a defamation case. The decision explores the First Amendment foundations of the actual malice element and illustrates the difficulty of proving either of the forms it may take.

Bertrand v. Mullin 846 N.W.2d 884 (Iowa Sup. Ct. 2014)

Republican Rick Bertrand and Democrat Rick Mullin were candidates for the Iowa Senate in the 2010 election. Bertrand owned businesses in Sioux City, Iowa. From 1999 until 2009, however, he served as a salesperson and district manager for Takeda Pharmaceuticals. Bertrand worked in a Takeda division that marketed the diabetes drug Actos. Another Takeda division sold Rozerem, a prescription sleep aid. Bertrand never personally sold Rozerem.

In October 2010, Bertrand ran a televised campaign advertisement that contrasted Mullin’s current policy positions with positions he had taken in the past. The ad angered Mullin and, according to his campaign’s internal polling, adversely affected his support. His campaign manager told him that “Bertrand hit you hard. Hit him back harder.”

Research conducted for Mullin revealed a newspaper article about a consumer group’s disclosure of a Food and Drug Administration (FDA) report finding that 388 patients had been hospitalized for heart problems after taking Actos. Research also revealed that the FDA had criticized Takeda’s marketing of Rozerem—especially an ad in which Rozerem seemingly was being marketed to children. Finally, research uncovered a newspaper article noting that a consumer advocacy group had labeled Takeda “the most unethical drug company in the world.”

This research furnished the basis for a televised ad run by Mullin in response to Bertrand’s ad. When Mullin and Iowa Democratic Party staff members discussed the proposed script for the ad in mid-October, Mullin disliked its tone. In a later e-mail, Mullin called a rewrite of the script “less vile.” He eventually approved the script.

The Mullin ad—titled “Secrets”—first aired on TV on October 17. The audio portion contained these statements:

Rick Bertrand said he would run a positive campaign but now he is falsely attacking Rick Mullin. Why? Because Bertrand doesn’t want you to know he put his profits ahead of children’s health. Bertrand was a sales agent for a big drug company that was rated the most unethical company in the world. The FDA singled out Bertrand’s company for marketing a dangerous sleep drug to children.

Rick Bertrand. Broken promises. A record of deceit.

At the bottom of the screen during one shot, this statement appeared: “BERTRAND’S COMPANY MARKETED SLEEP DRUG TO CHILDREN.” The statements in the ad cited the above-mentioned newspaper articles, which also flashed across the screen. Mullin later admitted that he did not know whether Bertrand had ever sold Rozerem or marketed dangerous drugs to children. In addition, Mullin admitted that when he approved the ad’s script, he liked the reference to profiting at the expense of children.

At an October 21 public debate, Bertrand called the Mullin ad false and demanded that Mullin stop airing it. The next day, Bertrand filed a defamation lawsuit against Mullin and the Iowa Democratic Party in a state district court. Mullin kept running the ad through October 31, two days before the election. Bertrand won the election by 222 votes.

The trial court ruled that of the 10 supposedly defamatory statements in the Mullin ad and in related campaign mailings, eight were not actionable as a matter of law. However, the court permitted the jury to consider two statements from the ad: “The FDA singled out Bertrand’s company for the marketing of dangerous drugs to children.”; and “BERTRAND’S COMPANY MARKETED SLEEP DRUG TO CHILDREN.” According to the court, “a reasonable jury [could] find that these statements imply a false fact, namely that Rick Bertrand personally sold a dangerous sleep drug to children, or that he owns a company that sold a dangerous sleep drug to children.” Besides denying that the statements and implications were false, Mullin argued that Bertrand could not prove they were made with actual malice.

At the close of the evidence, the court denied the defendants’ motion for a directed verdict. The jury returned a verdict in favor of Bertrand for $31,000 in damages against Mullin and $200,000 against the Iowa Democratic Party. In response to the defendants’ motion for judgment notwithstanding the verdict (JNOV), the court concluded that it should have granted a directed verdict for the defendants regarding the alleged implication that Bertrand owned a company that sold Rozerem. No reasonable juror could conclude that Takeda was Bertrand’s company, the court determined, because reasonable viewers of the ad could not ignore the statement that Bertrand had been a Takeda sales agent (a statement that preceded the “Bertrand’s company” line in the ad).

The above ruling did not change the case’s outcome, however, because the court concluded that in view of “the language and juxtaposition of the phrases,” reasonable jurors could have regarded—and apparently did regard—the ad’s statement as implying that Bertrand personally sold Rozerem. The court reasoned that even if Mullin literally expressed a legitimate point about the company for which Bertrand had worked, reasonable persons hearing the statement could infer that Bertrand personally sold the product. In addition, the court concluded that sufficient evidence of actual malice had been presented. The court therefore allowed the jury verdict for Bertrand to stand. The defendants appealed to the Supreme Court of Iowa.

Cady, Chief Justice

In an ordinary case, a plaintiff establishes a prima facie claim for defamation by showing the defendant (1) published a statement that (2) was false and defamatory (3) of and concerning the plaintiff, and (4) resulted in injury to the plaintiff. We have previously held the defamatory publication need not be explicit, but may be implied “by a careful choice of words in juxtaposition of statements.” [Citation omitted.] A plaintiff who is a candidate for public office [is treated, for defamation purposes, as if he were] a public official. Monitor Patriot Co. v. Roy, 401 U.S. 265, 271–72 (1971). When a plaintiff is [a public figure or a] public official, the First Amendment adds [the requirement of proving] actual malice. New York Times v. Sullivan, 376 U.S. 254, 279–80 (1964).

[The public official] plaintiff bears the burden of showing actual malice by clear and convincing evidence. The burden to establish actual malice was deliberately set high . . . in New York Times [because the First Amendment contemplates] 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.” Id. at 270. At its core, the First Amendment guarantee “has its fullest and most urgent application precisely to the conduct of campaigns for political office.” Monitor Patriot, 401 U.S. at 272. [C]onstitutional protection for political speech in the context of a campaign extends to “anything which might touch on an official’s fitness for office.” Garrison v. Louisiana, 379 U.S. 64, 77 (1964).

A statement is made with actual malice when accompanied by “knowledge that it was false or with reckless disregard for its truth or falsity.” New York Times, 376 U.S. at 279–80. A knowing falsehood may be easy to identify in theory, but any effort to peer into the recesses of human attitudes towards the truthfulness of a statement is certain to be difficult.

“Reckless disregard . . . cannot be fully encompassed in one infallible definition.” St. Amant v. Thompson, 390 U.S. 727, 730 (1968). Yet, in the half century the New York Times rule has preserved the First Amendment’s guarantee of uninhibited commentary regarding public officials and figures, the Supreme Court has crafted some useful guideposts. Most prominently, an early case nearly contemporaneous with New York Times opined that statements made with a “high degree of awareness of their probable falsity” may subject the speaker to civil damages. Garrison, 379 U.S. at 74. The negative implication, of course, is that a court may not award damages against one who negligently communicates a falsehood about a public official [or public figure]. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991) (“Mere negligence does not suffice.”). The Supreme Court has explained its reasoning:

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[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.

St. Amant, 390 U.S. at 731 (emphasis added).

Candidly, the New York Times standard tilts the balance strongly in favor of negligent defendants. “[F]ailure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard.” Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688 (1989). Similarly, “[r]eliance on a single source, in the absence of a high degree of awareness of probable falsity, does not constitute actual malice.” [Citation omitted.] Nor does a “shoddy” investigation constitute actual malice. [Citation omitted.] “[F]ailure to follow journalistic standards and lack of investigation may establish irresponsibility or even possibly gross irresponsibility, but not reckless disregard of truth.” [Citation omitted.]

Mullin and the Iowa Democratic Party challenge the judgment entered on the claim of defamation on several grounds, including the sufficiency of evidence to support the actual malice element of the tort. In considering the actual malice element, we must decide if the evidence supports a finding that the defendants “in fact entertained serious doubts as to the truth” of the implied communication in the commercial—that Bertrand personally sold a dangerous drug—or if they had “a high degree of awareness of [its] probable falsity.” St. Amant, 390 U.S. at 731 (first quotation); Garrison, 379 U.S. at 74 (second quotation).

Bertrand argues actual malice was supported by the evidence in a number of ways. First, he claims the evidence showed that the defendants knew the implication in the commercial at issue was false because they knew that none of his Sioux City companies sold drugs and [because they neither knew] which pharmaceutical company [division] Bertrand worked in [nor] which division of the company sold the drug in dispute. Second, Bertrand claims Mullin and the Iowa Democratic Party should have known the implication in the commercial was false because Mullin expressed doubts about the commercial before it aired. Third, Bertrand claims actual malice was supported by evidence that the defendants acquired ill will towards him after he aired his own hard-hitting commercial. Fourth, Bertrand asserts the jury could have found actual malice because the purpose of the commercial was to curtail electoral support for Bertrand.

We first consider the evidence to support a finding that Mullin and the Iowa Democratic Party had actual knowledge of the falsity of the implied statement in the commercial. In doing so, we clarify that the district court ultimately found the only actionable defamation claim was based on the implication that Bertrand sold drugs to children, reported to be dangerous, when he worked for a pharmaceutical company. Thus, any knowledge by the defendants that Bertrand’s Sioux City businesses never marketed drugs to children has no impact on the pertinent question whether they knew that Bertrand never sold a dangerous drug to children when he worked for the pharmaceutical company. [T]he evidence of actual malice necessary to support the implied defamation in this case [would need to center] on knowledge of the falsity of the implied statement that Bertrand personally marketed Rozerem, not on knowledge that he did not own the company that marketed the drug or that the businesses he actually owned did not market the drug.

The evidence at trial established that Mullin and the Iowa Democratic Party did not know [whether] Bertrand was personally responsible in any way for marketing or selling the drug. They conducted some research . . . and concluded from [it] that Bertrand worked for the drug company and the company marketed the drug. The research revealed that the FDA and others criticized Takeda for selling Rozerem. These statements were true and formed the basis for their claim that Bertrand was associated with an unethical business. Yet, Mullin and the Iowa Democratic Party did not look into the matter further to uncover the complete story. The truth, of course, was that Bertrand never worked in the particular division of the company that marketed the drug and never sold the drug. Nevertheless, there was no evidence that Mullin or the Iowa Democratic Party knew the implied statement that Bertrand sold the drug was false.

Without evidence of actual knowledge, we consider [whether] the implied statement was made with reckless disregard for its truth or falsity. We begin by considering the degree of awareness of the probable falsity and any doubts that may have existed about the truth or falsity of the implied statement.

Mullin and the Iowa Democratic Party asserted the implication that Bertrand sold a dangerous drug was made in good faith because they only wanted to inform voters that Bertrand was associated with an unethical company. While this assertion is alone insufficient to conclusively establish the absence of actual malice, it is important to recognize that the nondefamatory implication the defendants sought to communicate—Bertrand was associated with an unethical company that sold a dangerous drug—can be [inferred] from the advertisement. [Even if the false implication that Bertrand personally sold the drug is also present in the ad], the general background story from which both implications were derived was not false. Thus, the defamatory statement in this case was not built on a totally fabricated story.

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It is also important to observe that the sources [used in gathering] the background information for the advertisement were not so unreliable as to be unworthy of credence and indicative of reckless disregard for the truth. Some of the reports may not have been neutral, but mere reliance on sources with predisposed viewpoints does not establish actual malice.

We next consider the evidence that Mullin initially [disliked] the tone of the commercial as proof of actual malice. There was no evidence [, however,] that the concerns expressed by Mullin pertained to the falsity of any statements. The expressions of doubt were not evidence of actual malice, but were pragmatic and expedient considerations of tenor and political image-crafting with which the First Amendment is fundamentally unconcerned.

We next consider the evidence that Mullin was angry at Bertrand for running his negative campaign advertisement and sought to “hit back” hard at him. This is the type of evidence, however, that demonstrates common law malice, [not] actual malice. As used in the First Amendment context, actual malice . . . “has nothing to do with bad motive or ill will.” Harte-Hanks Communications, 491 U.S. at 666 n.7. “[U]nlike the common law definition of malice, New York Times actual malice focuses upon the attitudes of defendants vis-à-vis the truth of their statements, as opposed to their attitudes towards plaintiffs.” [Citation omitted.]

We next consider the claim by Bertrand that actual malice was established because the very purpose of the commercial was to attack, and thereby negatively affect, a candidate’s reputation. An intent to inflict harm is insufficient to demonstrate a reckless disregard for the truth. The very point of the trenchant public discourse protected under the legal standards of New York Times is oftentimes to weaken the support for political rivals in future elections. The standards of New York Times do not constrain First Amendment protection to political discourse of a sterile, academic character or an undiluted high-minded nature.

[Although] the ordinary purpose of a defamation action is to vindicate and protect a person’s common law reputational interest [, the] First Amendment protects public discourse—even in the form of withering criticism of a political opponent’s past dealings or associations—unless the lodged attack is clearly shown to be false and made with actual malice. After all, New York Times and its progeny even reach so far as to protect pillorying barbs some may regard as offensive and outrageous. See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55 (1988) (rejecting an “outrageous[ness]” exception to traditional public official [and public figure] tort suit rules).

Overall, we conclude the evidence failed to establish actual malice. The failure to write the advertisement in a way to avoid the false implication may have been negligence, but it did not rise to the level of reckless disregard for the truth. The evidence failed to support [the] high degree of subjective awareness of falsity needed for a public official to recover for defamation.

The result of this case is not to imply that actual malice cannot exist within the rough and tumble Wild West approach to negative commercials that have seemingly become standard discourse in many political campaigns. Protection from defamatory statements does exist and should exist, but the high standards established under the First Amendment to permit a free exchange of ideas within the same discourse must also be protected. Among public figures and officials, an added layer of toughness is expected, and a greater showing of culpability is required under our governing legal standards to make sure the freedom of political speech . . . is not suppressed or chilled. [T]he protective constitutional line of free speech in the arena of public officials is drawn at actual malice. Within this arena, speech cannot become actionable defamation until the line has been crossed. It was not in this case.

Jury verdict in favor of Bertrand reversed; case dismissed.

Private Figure Plaintiff Cases

Explain what a private figure plaintiff must prove, for constitutional reasons, in order to win a defamation case.

What about defamation cases brought by private figures, those corporations that are not public figures and those individual persons who are neither public figures nor public officials? In Gertz v. Robert Welch, Inc. (1974), the Supreme Court concluded that private figure plaintiffs should not be expected to prove actual malice in order to win defamation cases, despite defendants’ meaningful free speech and press interests. The Court noted that such plaintiffs have neither sought, nor do they command, the higher level of attention desired and achieved by public officials and public figures. Requiring private figure plaintiffs to prove actual malice would tip the balance too heavily in favor of defendants’ First Amendment interests and would do so at the expense of plaintiffs’ reputational interests. The Court sought to balance the respective interests more suitably by developing, in Gertz, a two-rule approach under which the first rule focused on liability and the second focused on damages.

The first Gertz rule provided that in order to win a defamation case, the private figure plaintiff must prove some level of fault as set by state law, so long as that level

of fault was at least negligence (in the sense discussed earlier). After Gertz, almost every state chose negligence as the applicable fault requirement. The second Gertz rule addressed recoverable damages. It provided that if a private figure plaintiff proved only negligence on the defendant’s part—the level of fault necessary to enable the plaintiff to win the case—the recoverable damages would be restricted to compensatory damages for proven reputational harm and other actual injury. Presumed damages and punitive damages would not be recoverable in such an instance. The second Gertz rule also spoke to the availability of presumed and punitive damages by providing that if the private figure plaintiff wanted to recover such damages (either instead of or in addition to damages for demonstrated harm), he, she, or it would need to prove actual malice by clear and convincing evidence.

In a 1985 decision, Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., the Court injected a public concern versus private concern distinction into at least the second, if not both, of the two Gertz rules. The Court held in Dun & Bradstreet that the second Gertz rule (the one requiring proof of actual malice as a condition of recovering presumed and punitive damages) applies only when the private figure plaintiff’s case is based on a statement that addressed a matter of public concern. If the private figure plaintiff’s case pertains to a statement that addressed a matter of only private concern, the second Gertz rule does not apply—meaning that presumed and punitive damages are recoverable instead of or in addition to damages for proven actual injury, even though the plaintiff established nothing more than the negligence presumably necessary to win the case. “Presumably necessary” is an apt characterization because it is a matter of interpretation and debate whether, after Dun & Bradstreet, the basic fault requirement of negligence still applies to a private figure plaintiff case involving a statement on a matter of private concern.

Only the second Gertz rule was at issue in Dun & Bradstreet, which, according to the Court, was a private figure–private concern case. Negligence on the defendant’s part was present in the facts and was not a contested issue when the case reached the Supreme Court. Even so, it is not unreasonable to assert that if the Court was injecting a public concern qualifier into the second Gertz rule, it logically would also have been contemplating a public concern qualifier for the first Gertz rule (the rule requiring proof of at least negligence to establish liability). Under this reading of Dun & Bradstreet, the common law’s liability-without-fault approach would again govern defamation cases of the private figure– private concern variety. Those who read Dun & Bradstreet more narrowly, however, are inclined to restrict it to what the Supreme Court actually held (i.e., that a public concern element is part of the second Gertz rule) and to assume that the basic fault requirement of negligence continues to apply to all private figure plaintiff cases until the Supreme Court specifically holds to the contrary. The narrower reading of Dun & Bradstreet may have slightly more adherents among lower courts and legal commentators, but it is a close call.

The Obsidian Finance Group case, which follows shortly, illustrates the application of the two Gertz rules to a private figure plaintiff case.

As the above discussion indicates, public concern determinations have become important in private figure plaintiff cases. (Note that the Supreme Court has not made the public concern–private concern distinction a requirement for public officials’ and public figures’ defamation cases—probably because the public concern character of statements about such prominent persons is essentially a “given.”) What sorts of statements, then, deal with matters of public concern? The Supreme Court provided little guidance on this issue in Dun & Bradstreet. Lower court decisions, however, have consistently established that statements dealing with crime address matters of public concern. The same is true of a broad range of statements dealing with public health, safety, or welfare, or with comparably important matters that capture society’s attention. For further discussion of what may constitute a public concern, see the Obsidian Finance Group case.

The Media–Nonmedia Issue (or Nonissue?) A final set of issues concerning defamation’s First Amendment–based fault requirements is whether they apply only when the defendant is a member of the media (i.e., the press), or in all defamation cases. In phrasing its holdings in certain defamation decisions, the Supreme Court has sometimes employed media-oriented language. That may have been done, however, because the cases involved media defendants. The Court contributed to confusion on this point in one decision with an inaccurate footnote asserting that the Court had never decided whether the First Amendment–based fault requirements apply in nonmedia defendant cases. Yet the Court clearly had done so. The landmark New York Times case included media and nonmedia defendants. There, the Court held that the public official plaintiff needed to prove actual malice on the part of all of the defendants.

Although the Court has not officially addressed the media–nonmedia issue in recent decisions, some justices over the years have unofficially rejected such a distinction by making comments along those lines in concurring and dissenting opinions. In view of those comments, the decision in New York Times, the equal billing the First Amendment gives to freedom of “speech” and freedom of the

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“press,” and the disapproval of a media–nonmedia distinction by most lower courts and an overwhelming majority of legal commentators, it seems extremely likely that if the Supreme Court now faced the issue squarely, it would hold that the First Amendment–based fault requirements apply to all defamation cases without regard for whether the defendant is a member of the media.

Besides addressing the rules for private figure plaintiff cases and the role of the public concern element, the court in Obsidian Finance Group rejects the argument that the First Amendment aspects of defamation should apply only in cases against media defendants. That decision appears next.  Figure 1 ’s summary of the relevant First Amendment rules follows.

Obsidian Finance Group, LLC v. Cox 740 F.3d 1284 (9th Cir. 2014)

Kevin Padrick was a principal in Obsidian Finance Group, which provides advice to financially distressed businesses. Summit Accommodators Inc. retained Obsidian in connection with a contemplated bankruptcy. After Summit filed for reorganization, the bankruptcy court appointed Padrick as the  Chapter 11  trustee. Because Summit had misappropriated funds from clients, Padrick’s main task was to marshal the firm’s assets for the benefit of those clients.

After Padrick’s appointment, Crystal Cox published blog posts on several websites that she created. These blog posts accused Padrick and Obsidian of fraud, corruption, money laundering, and other illegal activities in connection with the Summit bankruptcy. Despite a cease-and-desist letter from Padrick and Obsidian, Cox continued posting allegations. Padrick and Obsidian then sued her for defamation.

The federal district court held that all but one of Cox’s blog posts were constitutionally protected opinions because they employed figurative and hyperbolic language and could not be proven true or false. The court held, however, that a December 25 blog post on bankruptcycorruption.com made “fairly specific allegations [that] a reasonable reader could understand . . . to imply a provable fact assertion”—that is, that Padrick, in his capacity as bankruptcy trustee, failed to pay $174,000 in taxes owed by Summit. The district judge therefore allowed that single defamation claim to proceed to a jury trial.

In a pretrial memorandum, dealing with proposed jury instructions, Cox argued that because the December 25 blog post involved a matter of public concern, Padrick and Obsidian had the burden of proving her negligence in order to recover for defamation and that they could not recover presumed damages absent proof that she acted with actual malice. Cox alternatively argued that Padrick and Obsidian were public figures and thus were required to prove that Cox made the statements against them with actual malice. Rejecting both of Cox’s arguments, the district court explained that Padrick and Obsidian were not required to prove either negligence or actual damages because Cox had failed to submit “evidence suggestive of her status as a journalist.” The court also ruled that neither Padrick nor Obsidian was a public figure.

After the parties presented their evidence and made their closing arguments, the district judge instructed the jury that the plaintiffs “are entitled to receive reasonable compensation for harm to reputation, humiliation, or mental suffering even if [they did] not present evidence that proves actual damages . . . because the law presumes that the plaintiffs suffered these damages.” The jury returned a verdict in favor of Padrick and Obsidian, awarding Padrick $1.5 million and Obsidian $1 million in compensatory damages. After the district court denied her motion for a new trial, Cox appealed to the U.S. Court of Appeals for the Ninth Circuit. Obsidian and Padrick cross-appealed, contending that their defamation claims about the other blog posts should have gone to the jury.

Hurwitz, Circuit Judge

Cox does not contest the district court’s finding that the December 25 blog post contained an assertion of fact; nor does she contest the jury’s conclusions that the post was false and defamatory. She challenges only the district court’s rulings that (a) liability could be imposed without a showing of fault or actual damages, and (b) Padrick and Obsidian were not public officials.

The Supreme Court’s landmark opinion in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), began the construction of a First Amendment framework concerning the level of fault required for defamation liability. New York Times held that when a public official seeks damages for defamation, the official must show “actual malice”—that the defendant published the defamatory statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 280. A decade later, Gertz v. Robert Welch, Inc., held that the First Amendment required only a “negligence standard for private defamation actions.” 418 U.S. 323, 350 (1974). This case involves the intersection between New York Times and Gertz, an area not yet fully explored by this Circuit, in the context of a medium of publication—the Internet—entirely unknown at the time of those decisions.

Padrick and Obsidian first argue that the Gertz negligence requirement applies only to suits against the institutional press. [They] are correct in noting that Gertz involved an institutional

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media defendant and that the Court’s opinion specifically cited the need to shield “the press and broadcast media from the rigors of strict liability for defamation.” 418 U.S. at 348. We conclude, however, that the holding in Gertz sweeps more broadly.

The Gertz court did not expressly limit its holding to the defamation of institutional media defendants. And, although the Supreme Court has never directly held that the Gertz rule applies beyond the institutional press, it has [applied the New York Times rules in defamation cases against non-media defendants].

[In addition, the Supreme Court has] “repeatedly refused in non-defamation contexts to accord greater First Amendment protection to the institutional media than to other speakers. The Supreme Court recently emphasized the point in Citizens United v. Federal Election Commission: “We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.” 558 U.S. 310, 352 (2010). In construing the constitutionality of campaign finance statutes, the Court cited with approval the position of five Justices in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., that “in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals engaged in the same activities.” 472 U.S. 749, 784 (1985) (Brennan, J., dissenting); id. at 773 (White, J., concurring in the judgment). Dun & Bradstreet held that presumed and punitive damages are constitutionally permitted in defamation cases without a showing of actual malice when the defamatory statements at issue do not involve matters of public concern. See 472 U.S. at 763.

Like the Supreme Court, the Ninth Circuit has not directly addressed whether First Amendment defamation rules apply equally to both the institutional press and individual speakers. But every other circuit to consider the issue has held that the First Amendment defamation rules in New York Times and its progeny apply equally to the institutional press and individual speakers. We agree with our sister circuits. The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable: “With the advent of the Internet and the decline of print and broadcast media . . . the line between the media and others who wish to comment on political and social issues becomes far more blurred.” Citizens United, 558 U.S. at 352. In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue—not the identity of the speaker—provide the First Amendment touchstones.

We therefore hold that the Gertz negligence requirement for private defamation actions is not limited to cases with institutional media defendants. But this does not completely resolve the Gertz dispute. Padrick and Obsidian also argue that they were not required to prove Cox’s negligence because Gertz involved a matter of public concern and this case does not.

The Supreme Court has “never considered whether the Gertz balance obtains when the defamatory statements involve no issue of public concern.” Dun & Bradstreet, 472 U.S. at 757 (plurality opinion). Dun & Bradstreet dealt only with the Gertz rule on presumed damages, not the Gertz negligence standard. See 472 U.S. at 754-55. But even assuming that Gertz is limited to statements involving matters of public concern, Cox’s blog post qualifies.

The December 25 post alleged that Padrick, a court-appointed trustee, committed tax fraud while administering the assets of a company in a  Chapter 11  reorganization, and called for the “IRS and the Oregon Department of Revenue to look” into the matter. Public allegations that someone is involved in crime generally are speech on a matter of public concern. This court has held that even consumer complaints of non-criminal conduct by a business can constitute matters of public concern.

Cox’s allegations in this case are similarly a matter of public concern. Padrick was appointed by a United States Bankruptcy Court as the  Chapter 11  trustee of a company that had defrauded its investors through a Ponzi scheme. That company retained him and Obsidian to advise it shortly before it filed for bankruptcy. The allegations against Padrick and his company raised questions about whether they were failing to protect the defrauded investors because they were in league with their original clients. Unlike the speech at issue in Dun & Bradstreet that the Court found to be a matter only of private concern, Cox’s December 25 blog post was not “solely in the individual interest of the speaker and its specific business audience.” 472 U.S. at 762 (plurality opinion). The post was published to the public at large, not simply made “available to only five subscribers, who, under the terms of the subscription agreement, could not disseminate it further. . . . ” Id.

Because Cox’s blog post addressed a matter of public concern, even assuming that Gertz is limited to such speech, the district court should have instructed the jury that it could not find Cox liable for defamation unless it found that she acted negligently. See Gertz, 418 U.S. at 350. The court also should have instructed the jury that it could not award presumed damages unless it found that Cox acted with actual malice. Id. at 349.

Cox also argues that Padrick and Obsidian are “tantamount to public officials,” because Padrick was a court-appointed bankruptcy trustee. (She [unsuccessfully] argued in her pretrial memorandum that Padrick and Obsidian were public figures, but . . . raises only the public official argument on appeal.) Cox contends that the jury therefore should have been instructed that, under the New York Times standard, it could impose liability for defamation only if she acted with actual malice. We disagree.

Although bankruptcy trustees are an integral part of the judicial process, neither Padrick nor Obsidian became a public official simply by virtue of Padrick’s appointment. Padrick was neither elected nor appointed to a government position, and he did not exercise “substantial . . . control over the conduct of governmental affairs.” Rosenblatt v. Baer, 383 U.S. 75, 85 (1966). A Chapter 11 trustee can be appointed by the bankruptcy court [but] an appointed trustee simply substitutes for, and largely exercises the powers of, a debtor-in-possession. No one would contend that a debtor-in-possession has become a public official simply by virtue of seeking Chapter 11 protection, and we can reach no different conclusion as to the trustee who substitutes for the debtor in administering a Chapter 11 estate.

Padrick and Obsidian argue on cross-appeal that the district court erred in granting Cox summary judgment as to her other blog posts. Among other things, those posts accuse Padrick and Obsidian of engaging in “illegal activity,” including “corruption,” “fraud,” “deceit on the government,” “money laundering,” “defamation,” “harassment,” “tax crimes,” and “fraud against the government.” Cox also claimed that Obsidian paid off “media” and “politicians” and may have hired a hit man to kill her.

In Milkovich v. Lorain Journal Co., the Supreme Court refused to create a blanket defamation exemption for “anything that might be labeled ‘opinion.’” 497 U.S. 1, 18 (1990). This court has held that “while ‘pure’ opinions are protected by the First Amendment, a statement that ‘may . . . imply a false assertion of fact’ is actionable.” [citation omitted.] Partington v. Bugliosi, 56 F.3d 1147, 1153 (9th Cir. 1995) (quoting Milkovich, 497 U.S. at 19). We have developed a three-part test to determine whether a statement contains an assertion of objective fact. See Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 (9th Cir. 1990). The test considers (1) whether the general tenor of the entire work negates the impression that the defendant was asserting an objective fact, (2) whether the defendant used figurative or hyperbolic language that negates that impression, and (3) whether the statement in question is susceptible of being proved true or false.

As to the first factor, the general tenor of Cox’s blog posts negates the impression that she was asserting objective facts. The statements were posted on obsidianfinancesucks.com, a website name that leads “the reader of the statements [to be] predisposed to view them with a certain amount of skepticism and with an understanding that they will likely present one-sided viewpoints rather than assertions of provable facts” [(quoting the district court’s decision)]. The district judge correctly concluded that the “occasional and somewhat run-on[,] almost ‘stream of consciousness’-like sentences read more like a journal or diary entry revealing [Cox’s] feelings rather than assertions of fact.”

As to the second factor, Cox’s consistent use of extreme language negates the impression that the blog posts assert objective facts. Cox regularly employed hyperbolic language in the posts, including terms such as “immoral,” “really bad,” “thugs,” and “evil-doers.” Cox’s assertions that “Padrick hired a ‘hit man’ to kill her” or “that the entire bankruptcy court system is corrupt” similarly dispel any reasonable expectation that the statements assert facts. And, as to the third factor, the district court correctly found that, in the context of a non-professional website containing consistently hyperbolic language, Cox’s blog posts are “not sufficiently factual to be proved true or false.” We find no error in the court’s application of the Unelko test and reject the cross-appeal.

District court judgment based on jury verdict in favor of plaintiffs reversed; case remanded for new trial on December 25 blog post; district court decision in favor of Cox on other blog posts affirmed.

Figure 1 Constitutional Aspects of Defamation—Fault Requirements and Rules on Damages *

	Public Official Plaintiff or Public Figure Plaintiff	Private Figure Plaintiff and Subject of Public Concern	Private Figure Plaintiff and Subject of Private Concern
What Plaintiff Must Prove to Win Case	Actual malice, by clear and convincing evidence	Fault—at least negligence	Perhaps (probably?) fault—at least negligence
Damages Recoverable If Plaintiff Wins Case	Damages for proven actual injury and/or presumed damages, as well as punitive damages	Damages for proven actual injury, if plaintiff proves only negligence. For presumed and punitive damages, plaintiff must prove actual malice, by clear and convincing evidence.	Damages for proven actual injury and/or presumed damages, as well as punitive damages

*These requirements and rules apply at least in defamation cases against a media defendant. Although the Supreme Court has left some uncertainty on this point, the requirements and rules set forth here probably apply in all defamation cases, regardless of the defendant’s media or nonmedia status.

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Invasion of Privacy

Distinguish among the four types of invasion of privacy.

In tort law, the term invasion of privacy refers to four distinct torts. Each involves a different sense of the term privacy.

Intrusion on Solitude or Seclusion Any intentional intrusion on the solitude or seclusion of another constitutes an invasion of privacy if that intrusion would be highly offensive to a reasonable individual. The intrusion in question may be physical, such as an illegal search of a person’s home or body or the opening of his mail. It may also be a nonphysical intrusion such as tapping another’s telephone, examining her bank account, or subjecting her to harassing telephone calls. However, the tort applies only where there is a reasonable expectation of privacy. As a general rule, therefore, there is no liability for examining public records concerning a person, or for observing or photographing him in a public place.

Public Disclosure of Private Facts Publicizing facts concerning someone’s private life can be an invasion of privacy if the publicity would be highly offensive to a reasonable person. The idea is that the public has no

Ethics in Action

 In Hernandez v. Hillsides, Inc., 211 P.3d 1063 (2009), the Supreme Court of California considered an invasion of privacy case arising out of the defendants’ installation of a video surveillance system in an office shared by the plaintiffs. The defendants were the director of a residential facility for abused children and the two companies that operated the facility. The two plaintiffs were employees at the facility.

The defendant director had the video surveillance system installed in the plaintiffs’ office without their knowledge because of reports from the defendants’ computer technician that someone—evidently neither of the plaintiffs—had been accessing pornographic websites at night from one of the computers in the plaintiffs’ office. The defendants activated the surveillance system only at night and after the plaintiffs’ regular work hours had ended for the day. The plaintiffs were not depicted in any of the video generated. Although no individual was identified as the person who accessed pornographic websites, such accessing appeared to cease within roughly a month of the surveillance system’s installation. The defendants therefore stopped using the system.

After the plaintiffs learned of the system’s existence and operation, the director apologized for not having informed them and explained his rationale for using the system. The apology and explanation did not satisfy the plaintiffs, who sued on the theory that the facts constituted an unlawful intrusion on solitude. The trial court granted summary judgment in favor of the defendants but the California Court of Appeal reversed, holding that the plaintiffs had a reasonable expectation of privacy in their office and that the defendants’ actions would have been highly offensive to a reasonable person. The Supreme Court of California, however, reversed and directed that summary judgment be entered in favor of the defendants.

Although the Supreme Court recognized that the plaintiffs possessed a privacy interest in regard to their office, the court concluded that under the circumstances, the intrusion at issue would not have been highly offensive to reasonable persons. The surveillance was conducted for a limited period of time and only at night, and thus was suitably tailored to important rationales: finding out who was misusing the computers; and protecting minors at the facility against someone who might pose a danger to them.

The fact that courts at different levels of the review process in Hernandez disagreed on the appropriate analysis indicates the sensitive interests at stake when privacy interests and countervailing considerations come into conflict in an employment setting. Now consider relevant ethical questions that go beyond the pure legal issues facing the courts in Hernandez and similar cases. Give some thought, for instance, to these questions:

· When employers seek to monitor employees’ actions through a video surveillance system, are there ethical obligations that constrain—or should constrain—employers? If so, what are those obligations, and how are they satisfied? Does it matter whether the employers have reason to suspect wrongdoing on the part of employees? Does it matter why the employers decide to use such a system?

· In the situation that led to the plaintiffs’ lawsuit in Hernandez, did the defendants act ethically in not informing the plaintiffs about the video surveillance system? If the defendants had informed the plaintiffs of the plan to install the system but the plaintiffs objected, would it have been ethical for the defendants to proceed with the installation of the system anyway?

· If an employer owns the computers in employees’ offices and the employer operates the network or system of which those machines are a part, is it ethical for the employer to engage in secret monitoring of employees’ use of the computers? Is it ethical for the employer to monitor employees’ e-mail?

Be prepared to discuss the above questions and the reasons for the conclusions you draw.

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legitimate right to know certain aspects of a person’s private life. Thus, publicity concerning someone’s failure to pay his debts, humiliating illnesses he has suffered, or information about his sex life may constitute an invasion of privacy. Truth is not a defense to this type of invasion of privacy because the essence of the tort is giving unjustified publicity to purely private matters. Here, in further contrast to defamation, publicity means a widespread communication of private details. For example, publication on the Internet would suffice.

As does defamation, this form of invasion of privacy potentially conflicts with the First Amendment. Courts have attempted to resolve this conflict in two major ways. First, no liability ordinarily attaches to publicity concerning matters of public record or legitimate public interest. Second, public figures and public officials have no right of privacy concerning information that is reasonably related to their public lives.

False Light Publicity Publicity that places a person in a false light in the public eye can be an invasion of privacy if that false light would be highly offensive to a reasonable person. What is required is unreasonable and highly objectionable publicity attributing to a person characteristics that she does not possess or beliefs that she does not hold. Examples include signing a person’s name to a public letter that violates her deeply held beliefs or attributing authorship of an inferior scholarly or artistic work to her. As in defamation cases, truth is a defense to liability. It is not necessary, however, that a person be defamed by the false light in which he is placed. For instance, signing a gun rights advocate’s name to a petition urging adoption of gun-control measures could create liability for false light publicity but probably not for defamation.

In view of the overlap between false light publicity and defamation, and the obvious First Amendment issues at stake, defendants in false light cases enjoy constitutional protections matching those enjoyed by defamation defendants.

Commercial Appropriation of Name or Likeness

Identify circumstances in which a celebrity’s right of publicity is implicated.

Liability for invasion of privacy can exist when, without that person’s consent, the defendant commercially uses someone’s name or likeness, normally to imply her endorsement of a product or service or a nonexistent connection with the defendant’s business.

This form of invasion of privacy also draws on the personal property right connected with a person’s identity and her exclusive right to control it. In recent decades, recognition of this property right has given rise to a separate legal doctrine known as the right of publicity, under which public figures, celebrities, and entertainers have a cause of action against defendants who, without consent, use the right holders’ names, likenesses, or identities for commercial purposes. Protected attributes of a celebrity’s identity may include such things as a distinctive singing voice. Use of a celebrity’s name or a “soundalike” of her in an advertisement for a product would be a classic example of a commercial use, as would use of an entertainer’s picture as a commercially sold poster. Not all uses are commercial in nature, however, even if there is an underlying profit motive at stake. For example, though the cases are not entirely consistent on this point, a television show or movie that uses a celebrity’s name, likeness, or identity is likely to be classified as noncommercial and thus not a violation of the right of publicity. Some uses are close to the line and require courts to make difficult determinations regarding the use’s commercial or noncommercial nature.

As the foregoing examples suggest, First Amendment interests may arise in right of publicity cases. Courts tend to hold that the intermediate level of First Amendment protection extended to commercial speech does not insulate a defendant against liability for having used the plaintiff’s name, likeness, or identity in the context of commercial speech. (Discussion of the distinction between commercial speech and noncommercial speech appears in Chapter 3.) If, on the other hand, the defendant’s speech was noncommercial, the First Amendment could come to the defendant’s rescue. Whether it does so depends upon the case’s particular facts and upon which one of various possible tests the court chooses to apply in balancing the plaintiff’s property interest against the defendant’s speech interest.

In Jordan v. Jewel Food Stores, which follows shortly, the Seventh Circuit Court of Appeals must decide the appropriate speech classification for a grocery chain’s advertisement congratulating Michael Jordan on his induction into a basketball hall of fame. Is it commercial speech that potentially violates Jordan’s right of publicity, or, instead, is it noncommercial speech that the First Amendment may shield? (For discussion of whether college athletes should be entitled to the right of publicity, see Figure 2, which appears after the Jordan case.)

States that recognize the right of publicity usually consider it inheritable—meaning that it may survive the death of the celebrity who held the right during his or her lifetime. There is little agreement among the states, however, on how long the right persists after the celebrity’s death.

Jordan v. Jewel Food Stores, Inc. 743 F.3d 509 (7th Cir. 2014)

Jewel Food Stores, Inc. operates 175 Jewel-Osco supermarkets in and around Chicago. Basketball legend Michael Jordan, who spent most of his playing career in Chicago, is exceedingly well known and is widely regarded as one of the greatest players in history. On the occasion of Jordan’s September 2009 induction into the Naismith Memorial Basketball Hall of Fame, Time Inc., the publisher of Sports Illustrated magazine, produced a special commemorative issue devoted exclusively to Jordan’s remarkable career. The commemorative issue was sold in stores and at newsstands from late October 2009 until late January 2010.

Approximately a month prior to the scheduled publication of the commemorative issue, a Time sales representative contacted Jewel to offer free advertising space in the issue in return for Jewel’s promise to stock and sell the magazines in its stores. Jewel agreed to the proposal and had its marketing department design a full-page color ad. The ad combined textual, photographic, and graphic elements and prominently included the Jewel-Osco logo as well as the supermarket chain’s marketing slogan, “Good things are just around the corner.” The logo and slogan were positioned in the middle of the page, above a photo of a pair of basketball shoes. Each shoe bore Jordan’s familiar jersey number, 23. The ad’s text read as follows:

A Shoe In! After six NBA championships, scores of rewritten record books and numerous buzzer beaters, Michael Jordan’s elevation in the Basketball Hall of Fame was never in doubt! Jewel-Osco salutes #23 on his many accomplishments as we honor a fellow Chicagoan who was “just around the corner” for so many years.

Time accepted Jewel’s ad and placed it on the inside back cover of the commemorative issue. Besides featuring Sports Illustrated editorial content and photographs from the magazine’s prior coverage of Jordan’s career, the commemorative issue featured congratulatory ads from various parties.

Soon after the commemorative issue was released, Jordan sued Jewel for allegedly violating his right of publicity. (Jordan also invoked various other legal theories, but the right of publicity claim receives the bulk of the attention here.) Jewel later sought summary judgment, raising the First Amendment as a defense against liability and arguing that its ad was noncommercial speech entitled to full First Amendment protection. (For discussion of the First Amendment distinction between commercial speech and noncommercial speech, see  Chapter 3 .) Jordan also sought summary judgment, arguing that Jewel’s ad was a commercial use of his identity and therefore a potential violation of his right of publicity. The federal district court held that the ad was noncommercial speech and granted summary judgment in favor of Jewel. Jordan appealed to the U.S. Court of Appeals for the Seventh Circuit.

Sykes, Circuit Judge

Jewel maintains that its ad is noncommercial speech and thus has full First Amendment protection. Jordan insists that the ad is garden-variety commercial speech, which gets reduced constitutional protection and may give rise to liability for the private wrongs he alleges in this case. As the case comes to us, the commercial/noncommercial distinction is potentially dispositive. If the ad is properly classified as commercial speech, then it may be regulated, normal liability rules apply (statutory and common law), and the battle moves to the merits of Jordan’s claims. If, on the other hand, the ad is fully protected expression, then Jordan agrees with Jewel that the First Amendment provides a complete defense and his claims cannot proceed.

The First Amendment prohibits the government from “abridging the freedom of speech.” U.S. Const. amend. I. Because “not all speech is of equal First Amendment importance,” [citation omitted], certain categories of speech receive a lesser degree of constitutional protection. Commercial speech was initially viewed as being outside the ambit of the First Amendment altogether. Current doctrine holds that commercial speech is constitutionally protected but governmental burdens on this category of speech are scrutinized more leniently than burdens on fully protected noncommercial speech.

To determine whether speech falls on the commercial or noncommercial side of the constitutional line, the Court has provided this basic definition: Commercial speech is “speech that proposes a commercial transaction.” Board of Trustees v. Fox, 492 U.S. 469, 482 (1989). It is important to recognize, however, that [the basic definition] is just a starting point. Speech that does no more than propose a commercial transaction “fall[s] within the core notion of commercial speech,” Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 66 (1983), but other communications also may “constitute commercial speech notwithstanding the fact that they contain discussions of important public issues.” Fox, 492 U.S. at 475 (quoting Bolger, 463 U.S. at 67–68).

Indeed, the Supreme Court has “made clear that advertising which links a product to a current public debate is not thereby entitled to the constitutional protection afforded noncommercial speech.” Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 637 n.7 (1985) (quoting Bolger, 463 U.S. at 68). Although commercial-speech cases generally rely on the distinction between speech that proposes a commercial transaction and other varieties

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of speech, it is a mistake to assume that the boundaries of the commercial-speech category are marked exclusively by this “core” definition. To the contrary, there is a “commonsense distinction” between commercial speech and other varieties of speech, and we are to give effect to that distinction. [Citation omitted.]

The Supreme Court’s decision in Bolger is instructive on this point. Bolger dealt with the question of how to classify speech with both noncommercial and commercial elements. There, a prophylactics manufacturer published informational pamphlets providing general factual information about prophylactics but also containing information about the manufacturer’s products in particular. Bolger, 463 U.S. at 62. The manufacturer brought a pre-enforcement challenge to a federal statute that prohibited the unsolicited mailing of advertisements about contraceptives. The Supreme Court held that although the pamphlets did not expressly propose a commercial transaction, they were nonetheless properly classified as commercial speech based on the following attributes: the pamphlets were a form of advertising, they referred to specific commercial products, and they were distributed by the manufacturer for economic purposes. Id. at 66–67.

We have read Bolger as suggesting certain guideposts for classifying speech that contains both commercial and noncommercial elements; relevant considerations include “whether: (1) the speech is an advertisement; (2) the speech refers to a specific product; and (3) the speaker has an economic motivation for the speech.” [Citation omitted.] This is just a general framework, however; no one factor is sufficient, and Bolgerstrongly implied that all are not necessary.

Jewel argues that its ad doesn’t propose a commercial transaction and therefore flunks the leading test for commercial speech. As we have explained, the commercial-speech category is not limited to speech that directly or indirectly proposes a commercial transaction. Jewel nonetheless places substantial weight on this test, and the district judge did as well, . . . so we will start there.

It is clear that the textual focus of Jewel’s ad is a congratulatory salute to Jordan on his induction into the Hall of Fame. If the literal import of the words were all that mattered, this celebratory tribute would be noncommercial. But evaluating the text requires consideration of its context, and this truism has special force when applying the commercial-speech doctrine. Modern commercial advertising is enormously varied in form and style.

We know from common experience that commercial advertising occupies diverse media, draws on a limitless array of imaginative techniques, and is often supported by sophisticated marketing research. It is highly creative, sometimes abstract, and frequently relies on subtle cues. The notion that an advertisement counts as “commercial” only if it makes an appeal to purchase a particular product makes no sense today, and we doubt that it ever did. An advertisement is no less “commercial” because it promotes brand awareness or loyalty rather than explicitly proposing a transaction in a specific product or service. Applying the “core” definition of commercial speech too rigidly ignores this reality. Very often the commercial message is general and implicit rather than specific and explicit.

Jewel’s ad served two functions: congratulating Jordan on his induction into the Hall of Fame and promoting Jewel’s supermarkets. The first is explicit and readily apparent. The ad contains a congratulatory message remarking on Jordan’s record-breaking career and celebrating his rightful place in the Basketball Hall of Fame. Jewel points to its longstanding corporate practice of commending local community groups on notable achievements, giving as examples two public-service ads celebrating the work of Chicago’s Hispanocare and South Side Community Services. The suggestion seems to be that the Jordan ad belongs in this “civic booster” category: A praiseworthy “fellow Chicagoan” was receiving an important honor, and Jewel took the opportunity to join in the applause.

But considered in context, and without the rose-colored glasses, Jewel’s ad has an unmistakable commercial function: enhancing the Jewel-Osco brand in the minds of consumers. This commercial message is implicit but easily inferred, and is the dominant one. [A] point that should be obvious . . . seems lost on Jewel: There is a world of difference between an ad congratulating a local community group and an ad congratulating a famous athlete. Both ads will generate goodwill for the advertiser. But an ad congratulating a famous athlete can only be understood as a promotional device for the advertiser. Unlike a community group, the athlete needs no gratuitous promotion and his identity has commercial value. Jewel’s ad cannot be construed as a benevolent act of good corporate citizenship.

As for the other elements of the ad, Jewel-Osco’s graphic logo and slogan appear just below the textual salute to Jordan. The bold red logo is prominently featured in the center of the ad and in a font size larger than any other on the page. Both the logo and the slogan are styled in their trademarked ways. Their style, size, and color set them off from the congratulatory text, drawing attention to Jewel-Osco’s sponsorship of the tribute. Apart from the basketball shoes, the Jewel-Osco brand-name is the center of visual attention on the page. And the congratulatory message specifically incorporates Jewel’s slogan: “as we honor a fellow Chicagoan who was ‘just around the corner’ for so many years.” The ad is plainly aimed at fostering goodwill for the Jewel brand among the targeted consumer group—“fellow Chicagoans” and fans of Michael Jordan—for the purpose of increasing patronage at Jewel-Osco stores.

The district judge nonetheless concluded that the ad was not commercial speech based in part on his view that “readers would be at a loss to explain what they have been invited to buy,” a reference to the fact that the ad features only the tribute to Jordan, the Jewel-Osco logo and slogan, and a pair of basketball shoes. Granted, Jewel does not sell basketball shoes; it is a chain of grocery stores, and this ad contains not a single word about the

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specific products that Jewel-Osco sells, nor any product-specific art or photography. The Supreme Court has said that the failure to reference a specific product is a relevant consideration in the commercial-speech determination. See Bolger, 463 U.S. at 66–67. But it is far from dispositive, especially where “image” or brand advertising rather than product advertising is concerned.

Image advertising is ubiquitous in all media. Jewel’s ad is an example of a neighborly form of general brand promotion by a large urban supermarket chain. What does it invite readers to buy? Whatever they need from a grocery store—a loaf of bread, a gallon of milk, perhaps the next edition of Sports Illustrated—from Jewel-Osco, where “good things are just around the corner.” The ad implicitly encourages readers to patronize their local Jewel-Osco store. That it doesn’t mention a specific product means only that this is a different genre of advertising. It promotes brand loyalty rather than a specific product, but that doesn’t mean it is noncommercial.

The district judge was not inclined to put much stock in the ad’s use of Jewel-Osco’s slogan and graphic logo. Specifically, he considered the logo as little more than a convenient method of identifying the speaker and characterized the slogan as simply a means of ensuring “that the congratulatory message sounded like it was coming from Jewel.” Dismissing the logo and slogan as mere nametags overlooks their value as advertising tools. The slogan is attached to the Jewel-Osco graphic logo and is repeated in the congratulatory message itself, which describes Jordan as “a fellow Chicagoan who was ‘just around the corner’ for so many years.” This linkage only makes sense if the aim is to promote shopping at Jewel-Osco stores. Indeed, Jewel’s copywriter viewed the repetition of the slogan the same way we do; she thought it was “too selly” and “hitting too over the head.”

In short, the ad’s commercial nature is readily apparent. It may be generic and implicit, but it is nonetheless clear. The ad is a form of image advertising aimed at promoting goodwill for the Jewel-Osco brand by exploiting public affection for Jordan at an auspicious moment in his career.

Our conclusion is confirmed by application of the Bolger framework, which applies to speech that contains both commercial and noncommercial elements. Again, the Bolger inquiry asks whether the speech in question is in the form of an advertisement, refers to a specific product, and has an economic motive. Jewel’s ad certainly qualifies as an advertisement in form. Although the text is congratulatory, the page nonetheless promotes something to potential buyers: Jewel-Osco supermarkets. [T]he ad obviously isn’t part of the editorial coverage of Jordan’s career. It isn’t an article, a column, or a news photograph or illustration. It looks like, and is, an advertisement.

We can make quick work of the second and third Bolger factors. As we have explained, although no specific product or service is offered, the ad promotes patronage at Jewel-Osco stores more generally. And there is no question that the ad serves an economic purpose: to burnish the Jewel-Osco brand name and enhance consumer goodwill. The record reflects that Jewel received Time’s offer of free advertising space enthusiastically; its marketing representatives said it was a “great offer” and it “would be good for us to have our logo in Sports Illustrated” because “having your logo in any location where people see it is going to help your company.” Indeed, Jewel gave Time valuable consideration—floor space in Jewel-Osco grocery stores—in exchange for the full-page ad in the magazine, suggesting that it expected valuable brand-enhancement benefit from it. We don’t doubt that Jewel’s tribute was in a certain sense public-spirited. We only recognize the obvious: that Jewel had something to gain by conspicuously joining the chorus of congratulations on the much-anticipated occasion of Jordan’s induction into the Basketball Hall of Fame. Jewel’s ad is commercial speech.

A contrary holding would have sweeping and troublesome implications for athletes, actors, celebrities, and trademark holders seeking to protect the use of their identities or marks. Image advertising is commonplace in our society. [F]or illustrative purposes, think of the television spots by the corporate sponsors of the Olympics. Many of these ads consist entirely of images of the American athletes coupled with the advertiser’s logo or brand name and an expression of support for the U.S. Olympic team; nothing is explicitly offered for sale. Jewel’s ad in the commemorative issue belongs in this genre. It portrays Jewel-Osco in a positive light without mentioning a specific product or service—in this case, by invoking a superstar athlete and a celebratory message with particular salience to Jewel’s customer base. To say that the ad is noncommercial because it lacks an outright sales pitch is to artificially distinguish between product advertising and image advertising. Classifying this kind of advertising as constitutionally immune noncommercial speech would permit advertisers to misappropriate the identity of athletes and other celebrities with impunity.

Nothing we say here is meant to suggest that a company cannot use its graphic logo or slogan in an otherwise noncommercial way without thereby transforming the communication into commercial speech. Our holding is tied to the particular content and context of Jewel’s ad as it appeared in the commemorative issue of Sport Illustrated Presents.

[Our holding] that Jewel’s ad in the commemorative issue qualifies as commercial speech . . . defeats Jewel’s constitutional defense, permitting Jordan’s case to go forward. The substance of Jordan’s case remains untested, however, [because] the district court’s First Amendment ruling halted further consideration of the merits. We [therefore] remand for further proceedings.

District court’s grant of summary judgment in favor of Jewel reversed; case remanded for further proceedings on Jordan’s right of publicity claim and other claims.

Figure 2 College Athletes and the Right of Publicity?

Although college athletes who become well known might seem to be among those who would qualify for the right of publicity, the traditional assumption has been that the amateur status requirement under which they must operate not only distinguishes them from professional athletes but makes them ineligible for the right of publicity. That traditional assumption has been challenged in recent years, as current and former college athletes have filed right of publicity lawsuits against video game producers and against the National Collegiate Athletics Association (NCAA), the governing body that sets rules under which many schools’ athletic programs operate.

NCAA rules require that college athletes maintain amateur status and prohibit those athletes from garnering financial benefits of the sort that would come from exercising a right of publicity if one were to be recognized. For instance, NCAA rules bar a college athlete from receiving compensation associated with sales of jerseys bearing his familiar number, whereas a professional athlete could utilize his right of publicity to derive a financial benefit from such activity insofar as it was connected with his professional exploits (as opposed to his college career). Universities themselves, however, may earn significant sums from those jersey sales, from other memorabilia sales, and from licensing other parties to make uses that arguably draw upon players’ identities. Moreover, universities presumably have been free to do so without compensating their athletes despite the key role the athletes play in enhancing the value of such items and the value of the licensing right. Some universities have demonstrated sensitivity to such concerns by opting to have jersey and memorabilia sales draw upon the school or team generally, as opposed to invoking the identities of particular athletes. Clearly, however, not all universities have made such a change in their jersey and memorabilia sales practices. With current and former college athletes having instituted litigation in an effort to seek recognition of a full-fledged right of publicity (and with a settlement having taken place in one major case, as noted below), the relevant litigation and regulatory landscape has shown signs of shifting.

Another part of that landscape was an important case in which former college athletes employed other legal grounds to challenge the NCAA rules that restrict athletes from receiving right-of-publicity-like compensation and other financial benefits. The plaintiffs in the O’Bannon case (so named because the lead plaintiff was former UCLA basketball star Ed O’Bannon) attacked the pertinent NCAA rules and universities’ agreement to abide by them as unreasonable restraints of trade in violation of a major antitrust statute, § 1 of the Sherman Act. (Antitrust law is the subject of Chapters 49 and 50.) A federal district court agreed with the plaintiffs’ argument that § 1 was violated. The district court held that as a remedy, NCAA member schools should be permitted to compensate scholarship athletes up to the full cost of attendance. (At that time, NCAA rules on full scholarships left a gap between what the scholarship covered and the full cost of attendance, and barred member schools from financially covering that gap for the athletes.) In addition, the district court concluded that an appropriate remedy was to permit universities to set up accounts for athletes in amounts up to $5,000 in recognition of the use of their identities, with the monies to be paid to the athletes once their college playing eligibility was exhausted. In the judgment of the court, that remedy for the antitrust violation recognized the athletes’ interests in their identities without unduly compromising the NCAA’s (and universities’) interests in promoting amateurism and furthering related educational concerns.

On appeal, however, the U.S. Court of Appeals for the Ninth Circuit only partially agreed with the district court’s decision. The Ninth Circuit held that there was indeed an antitrust violation, but that the district court’s remedy of permitting payments up to $5,000 was inappropriate. O’Bannon v. National Collegiate Athletic Association, 802 F.3d 1049 (9th Cir. 2015). Instead, the Ninth Circuit reasoned that the appropriate remedy was to permit NCAA member institutions to pay scholarship athletes amounts equal to the full cost of attendance—something that the NCAA had very recently changed its rules to allow member schools to do. The Ninth Circuit’s decision in O’Bannon was thus a mixed bag for college athletes. Whether the decision leads to other changes in the status quo for college athletes will certainly bear watching.

The previously mentioned right of publicity actions against a video game maker have borne some fruit for former college athletes. Two federal courts of appeal have held that the First Amendment did not furnish a defense to Electronic Arts, whose college football video game arguably invoked the college identities of former players (though not their names). The alleged uses of the players’ identities occurred without their consent but with the permission of a licensing organization that is affiliated with the NCAA and represents many universities. The two cases are Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013), and Keller v. NCAA, 724 F.3d 1268 (9th Cir. 2013).

Although the Supreme Court has held in another context that video games have significant expressive content and therefore may merit substantial First Amendment protection (see the discussion of Brown v. Entertainment Merchants Association in Chapter 3), the courts in Hart and Keller focused on what was, and was not, present in the video game at issue. Both courts stressed that the First Amendment should not protect Electronic Arts because the defendants’ video game appeared merely to use the payers’ identities without being transformative in the sense of adding significant new creative or expressive content. The rejection of the First Amendment defense cleared the way for the plaintiffs’ cases to proceed—prompting Electronic Arts to enter into a financial settlement with the plaintiffs and to announce that it would cease making a college football game of the sort it had produced. The NCAA also reached a financial settlement with the former college players regarding the NCAA’s alleged role in granting the video game maker permission to use aspects of the players’ identities.

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Misuse of Legal Proceedings Three intentional torts protect people against the harm that can result from wrongfully instituted legal proceedings.  Malicious prosecution  affords a remedy for the wrongful institution of criminal proceedings. Recovery for malicious prosecution requires proof that (1) the defendant caused the criminal proceedings to be initiated against the plaintiff without probable cause to believe that an offense had been committed, (2) the defendant did so for an improper purpose, and (3) the criminal proceedings eventually were terminated in the plaintiff’s favor.  Wrongful use of civil proceedings  is designed to protect people from wrongfully instituted civil suits. Its elements are very similar to those for malicious prosecution.

Abuse of process  imposes liability on those who initiate legal proceedings, whether criminal or civil, for a primary purpose other than the one for which the proceedings were designed. Abuse of process cases tend to involve situations in which the legal proceedings compel the other person to take some action unrelated to the subject of the suit. For example, Rogers wishes to buy Herbert’s property, but Herbert refuses to sell. To pressure him into selling, Rogers files a private nuisance suit against Herbert, contending that Herbert’s activities on his land interfere with Rogers’s use and enjoyment of his adjoining property. Rogers may be liable to Herbert for abuse of process even if Rogers otherwise had reason to file the case.

The Global Business Environment

Does the right of publicity appl1y in a case brought in a court in the United States if the activities about which the plaintiff complains occurred outside the United States and in a nation that does not recognize the right of publicity as a part of its law? In Love v. Associated Newspapers, Ltd., 611 F.3d 601 (2010), the U.S. Court of Appeals for the Ninth Circuit provided a “no” answer.

With some original members of the famous musical group known as The Beach Boys having died and others having gone their separate ways, the group no longer exists in its original form. As part of a settlement of earlier litigation, Mike Love, a founding member of the group, acquired the right to use The Beach Boys name in live performances. Love regularly tours with a varying lineup of musicians and uses The Beach Boys name in those appearances. Love sued former Beach Boy Brian Wilson and various other defendants—including British firms—in federal district court in California on the basis of the facts set forth here.

Wilson, also a founding member of The Beach Boys, wrote or co-wrote most of the group’s hits before leaving the group many years ago. In 2004, Wilson released a solo album titled Smile. He and a backup band embarked on a tour to promote the album. As part of the promotional efforts for Wilson’s Smile-themed tour, the British newspaper Mail on Sunday distributed a CD with approximately 2.6 million copies of an edition of the newspaper. The CD, titled Good Vibrations, consisted of Wilson’s solo version of Beach Boys songs and other solo work by him. The editions of Mail on Sunday, complete with the CD, were distributed in the United Kingdom. Roughly 425 copies of the paper were distributed in the United States (including 18 in California), but without the CD. The front page of the Mail on Sunday edition prominently advertised the Good Vibrations CD and included an image of the CD’s cover, which featured a photo of Wilson and three smaller photos of The Beach Boys. Love appeared in the photos of the group.

Because Love appeared in the pictures on the CD’s cover, the right of publicity (as recognized under statute and common law in California) was among the various legal theories Love relied on in his lawsuit. Love later reached a settlement with Wilson. The federal district court dismissed various defendants from the case, some because they had nothing to do with the promotion of Wilson’s tour and others for lack of in personam jurisdiction. (For discussion of in personam jurisdiction, see Chapter 2.) The British company that published Mail on Sunday remained as a defendant concerning the right of publicity claim.

The district court dismissed Love’s right of publicity claim after holding that English law, which does not recognize the right of publicity, controlled the case. (The court also dismissed Love’s various other legal claims.) Love appealed to the U.S. Court of Appeals for the Ninth Circuit, but fared no better there. The Ninth Circuit concluded that although California recognizes the right of publicity, the state “has no interest in applying its law to the conduct in question.” The court stressed that the remaining defendant in the right of publicity component of the case was a British firm, that the allegedly wrongful behavior Love complained about “occurred almost exclusively” in the United Kingdom and that “[a]t most, de minimis conduct occurred in California when a handful of copies of [Mail on Sunday] were delivered without the CD and a handful of copies of Good Vibrations were went sent to Wilson’s attorney in California.” In addition, the Ninth Circuit emphasized that “England’s interests would be . . . greatly impaired by a failure to apply English law.” Firmly rejecting Love’s attempt to invoke the right of publicity, the court stated:

Even if California has an interest in protecting the right of an entertainer with economic ties to the state to exploit his image overseas, that interest is not nearly as significant as England’s interest in (not) regulating the distribution of millions of copies of a newspaper and millions of compact discs by a British paper primarily in the United Kingdom.

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Deceit (Fraud)  Deceit  (or fraud) is the formal name for the tort claim that is available to victims of knowing misrepresentations. Liability for fraud usually requires proof of a false statement of material fact that was knowingly or recklessly made by the defendant with the intent to deceive the plaintiff, along with actual, justifiable, and detrimental reliance on the part of the plaintiff. Because most fraud actions arise in a contractual setting, and because a tort action is only one of the remedies available to a victim of fraud, a more complete discussion of this topic is deferred until Chapter 13.

Interference with Property Rights

Explain the difference between trespass to land and private nuisance.

Trespass to Land  Trespass  to land may be defined as any unauthorized or unprivileged intentional intrusion upon another’s real property. Such intrusions include (1) physically entering the plaintiff’s land, (2) causing another to do so (e.g., by chasing someone onto the land), (3) remaining on the land after one’s right to remain has ceased (e.g., staying past the term of a lease), (4) failing to remove from the land anything one has a duty to remove, (5) causing an object or other thing to enter the land (although some overlap with nuisance exists here), and (6) invading the airspace above the land or the subsurface beneath it (if property law and federal, state, and local regulations give the plaintiff rights to the airspace or subsurface and do not allow the defendant to intrude).

The intent required for trespass liability is simply the intent to be on the land or to cause it to be invaded. A person, therefore, may be liable for trespass even though the trespass resulted from his mistaken belief that his entry was legally justified. Where the trespass was specifically intended, no actual harm to the land is required for liability, but actual harm is required for reckless or negligent trespasses.

Private Nuisance In general, a private nuisance involves some interference with the plaintiff’s use and enjoyment of her land. Unlike trespass to land, nuisance usually does not involve any physical invasion of the plaintiff’s property. Trespass normally requires an invasion of tangible matter, whereas nuisance involves other interferences. Examples of such other interferences include odors, noise, smoke, light, and vibration. For nuisance liability to exist, however, the interference must be substantial and unreasonable. The defendant, moreover, must intend the interference.

Nuisance law distinguishes between private nuisances and public nuisances. In a private nuisance case, the plaintiff landowner has sustained a particular harm of the sort described above—one that pertains to his, her, or its own property and is not a harm common to the public generally. If the only harm a plaintiff landowner can demonstrate is the same one that the public in general has sustained as a result of the defendant’s supposed nuisance, the plaintiff cannot prove what is necessary to win a private nuisance case. Any nuisance present in such an instance would likely be a public nuisance. As a general rule, the government is the appropriate party to seek abatement (i.e., elimination) of a public nuisance.

The Toyo Tire case, which follows, illustrates private nuisance and trespass principles and explores issues concerning recoverable damages.

Toyo Tire North America Manufacturing, Inc. v. Davis 787 S.E.2d (Ga. Sup. Ct. 2016)

Lynn and Duron Davis owned and resided in a house located on four acres adjacent to a highway in Bartow County, Georgia. As of 1995, the year the Davises began residing in the house, the general area was zoned for low-density residential or agricultural use. In 2004, however, the property located across the highway from the Davises’ property was rezoned for heavy industrial use. That same year, Toyo Tire North America Manufacturing, Inc. began building a manufacturing and distribution facility on approximately 260 acres across the road from the Davises’ home.

During the roughly five-year period after operations began at the Toyo Tire facility in January 2006, the facility underwent three expansions. In these expansions, the number of employees working at the facility went from 400 in 2006 to 570 in 2008 to 1,000 in mid-2011, and the number of tires produced per day went from 3,000 in 2006 to 4,500 in 2008 to 13,500 in mid-2011. In March 2014, with the litigation described below being under way, the facility was undergoing a fourth expansion.

That expansion was expected to increase the number of employees to 1,450 and the number of tires per day to approximately 19,200. With employees working 12-hour shifts, the Toyo Tire facility operated around the clock every day.

In late 2007, the Davises sent a letter to Toyo Tire through their counsel, alluding to possible trespass and nuisance claims and requesting that Toyo Tire purchase their home (as it had done with the two properties next door to the Davises’ property). Toyo Tire declined. In early 2013, the Davises sued Toyo Tire in a Georgia court. They alleged that the noise, lights, odors, black dust, and increased traffic from the facility constituted a nuisance. They also alleged that the black dust emitted by the facility constituted a trespass.

During the discovery phase of the case, Toyo Tire took the Davises’ depositions. In those depositions, the Davises explained how Toyo Tire’s operations—including the loud noises, bright lights, odors, and black dust emissions from the facility; its equipment; and frequent truck deliveries, as well as the increased traffic from both trucks and employees—interfered with their use and enjoyment of the property and with their daily lives. They testified, for example, that their sleep was interrupted by the light and noise from the facility. They also testified that they wore masks when they went outside and that they could no longer use their large yard for family gatherings because of the odors emitted from the facility, the danger from the increased traffic, and the black dust that settled in their yard.

Bruce Penn, a real estate appraisal expert hired by the Davises, was also deposed. He testified that the value of the Davises’ property would be $280,000 if not for the presence and effects of the Toyo Tire plant. Penn also testified about his depreciation analysis, which led him to conclude that the nuisance of the Toyo Tire facility had decreased the value of the Davises’ property by about 35 to 40%, with the black dust as a trespass decreasing the value by an additional 10 to 15%.

After the completion of discovery, Toyo Tire moved for summary judgment, arguing that the Davises failed to prove that the specific interferences they alleged had caused their property value to decrease and that, under Georgia law, the Davises could not recover both for diminution of property value and for discomfort and annoyance caused by a nuisance. Toyo Tire did not argue that Penn’s expert testimony was inadmissible. The trial court denied Toyo Tire’s summary judgment motion, concluding that material issues of fact existed. Toyo Tire appealed, but the Georgia Court of Appeals affirmed the denial of the summary judgment motion. Toyo Tire appealed further to the Supreme Court of Georgia, which agreed to decide the case.

Nahmias, Justice

First, we consider Toyo Tire’s argument that the Davises presented insufficient evidence, at the summary judgment stage of the case, to show that the decrease in their property value was proximately caused by the alleged nuisance and trespass. Second, we consider Toyo Tire’s argument that even if the Davises can establish causation, they cannot recover damages both for their discomfort and annoyance and for the diminution in their property value, because that would constitute an impermissible double recovery.

Toyo Tire [bases its above-noted first argument on the notion that] the Davises’ appraisal expert, Bruce Penn, did not consider the specific interferences alleged by the Davises but rather looked at depreciation caused by industries in general. In his deposition, Penn explained that he had over 30 years of experience as a real estate appraiser, had done several hundred appraisals in the Bartow County area, and was certified in the top tier of licensing for appraising in Georgia. He testified that in his expert opinion, the Toyo Tire facility and its black dust emissions caused the Davises’ property value to decrease by 50%—35 to 40% due to the nuisance and 10 to 15% due to the black dust trespass. Penn arrived at this conclusion primarily by conducting a “paired sales” analysis, in which he compared the sales prices of three pairs of houses. One house in each pair was very close to an industrial facility in the vicinity of Bartow County, and the other was far away but still in the same general market area; the houses in each pair were otherwise similar. The three industrial facilities used were the Dobbins Air Reserve base, the Shaw carpet plant, and the Budweiser beer plant. He based the additional decrease in value resulting from the black dust trespass on research he previously conducted to determine the decrease in the value of homes affected by concrete dust from a concrete recycling plant in west Atlanta. He also relied generally on other work he had done during his career examining the effects of industrial sites on residential property values.

The dissent in the Court of Appeals focused on several aspects of Penn’s methodology that [might] call into genuine question its validity and reliability, including Penn’s admission that he did not gather any evidence about the specific invasions involved here or conduct any analysis of whether the other industrial sites in his paired sales analysis involved similar situations. It is appropriate to question why an expert of this type did not actually visit the industrial facilities and residential properties that he was comparing to better determine whether the interferences caused by an Air Force base, a carpet factory, and a beer-brewing facility are really similar in type and degree to the interferences allegedly caused by a tire manufacturing and

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distribution facility. The flaw in the dissent’s analysis, however, is that these potential deficiencies in Penn’s methodology relate to whether his testimony should be admissible as expert opinion (and if so, what weight the factfinder should give his testimony), not to whether his opinions provide the evidence necessary on a motion for summary judgment to show causation. At this point in the case, only the latter question is properly presented for decision. Toyo Tire has not challenged the admissibility of Penn’s expert testimony in the trial court, and that court therefore has not considered whether Penn’s methodology [is sufficiently sound to warrant permitting him to testify as an expert]. An appellate court should not conduct the analysis of Penn’s methodology in the first instance. “Whether the opinions of the experts are admissible . . . is something that must be determined in the first instance by the [trial] court. . . . ” [Citation omitted.] Consequently, we will consider only whether the record as we now find it—including the opinions of the expert—is enough to get the Davises past summary judgment.

Toyo Tire maintains that even if Penn’s testimony is admissible, the Davises have failed to show causation. We disagree. Although Penn acknowledged in his deposition that he had not visited the Davises’ property or considered separately each specific claim of interference the Davises have made, he also testified that he was made generally aware of the characteristics of the Toyo Tire facility, including its “round-the-clock shifts” and the “middle of the night traffic,” and interferences resulting from those characteristics, such as increased traffic, lights, noise, and emissions. He explained his belief that these are common byproducts of industry. Viewed in its full context, Penn’s conclusion was not that Toyo Tire’s mere presence near the Davises’ property was a nuisance, but that the facility’s industrial operations (which he would expect to include things such as odors, light, noise, and traffic) caused the value of the Davises’ adjacent property to diminish.

The testimony from the Davises amply described the alleged nuisance and the specific interferences coming from it, so this is not a case where there is no evidence that the alleged nuisance has interfered with the plaintiffs’ property. The Davises also testified about the black dust coming across the road from the tire factory onto their property, and Penn factored that alleged trespass into his diminution of value calculations. In sum, although it might not convince a jury at trial, the combined testimony of Penn and the Davises suffices to defeat Toyo Tire’s challenge to causation on motion for summary judgment. Accordingly, the Court of Appeals did not err in affirming the trial court’s denial of Toyo Tire’s summary judgment motion on this issue.

We turn now to the second question presented—whether allowing the Davises to seek to recover both for their discomfort and annoyance caused by the alleged nuisance and for the diminution in their property value would permit a double recovery. Georgia courts have made it clear in nuisance and trespass cases . . . that a plaintiff cannot recover twice for the same injury. [In this case, however,] the alleged discomfort and annoyance experienced by the Davises and the alleged diminution in their property’s fair market value are two separate injuries that cannot be fixed by one recovery. Recovery for their discomfort and annoyance is designed to compensate them for what they have already experienced as residents of the property due to the Toyo Tire factory. [C]ompensation for past discomfort and annoyance will not eliminate the discomfort and annoyance that will be experienced by future residents of the Davises’ property. That future discomfort and annoyance is reflected in the diminished fair market value of the property. This ongoing diminution in property value is therefore a second injury, which should be separately compensated (assuming it is proved at trial).

The distinction between these injuries may be more easily grasped where non-owner residents of the property suffer the discomfort and annoyance caused by a nuisance, and non-resident owners suffer the diminution in the value of their property. Both groups have been injured, and both can seek recovery under a theory of nuisance; when, as here, the residents and owners are the same, they can recover for both kinds of injuries. The distinction between the two kinds of damages is also clear in the timing of the harms each is meant to address.

The discomfort and annoyance damages would compensate the Davises for the interference with the use and enjoyment of their property that they have allegedly endured while living on the property. See Restatement (Second) of Torts § 929 (1) (c) (1979) (explaining that damages for harm to land resulting from a past invasion include “discomfort and annoyance to [the plaintiff] as an occupant”). The prospective damages available to the Davises as owners, on the other hand, are measured not through speculation about how much discomfort and annoyance they (or other occupants) may suffer in the future, but rather by how much the market value of their property has diminished based on the expectation of such continued discomfort and annoyance. See Restatement (Second) of Torts § 930 (3) (explaining that the prospective damages for continuing invasions include “either the decrease in the value of the land caused by the prospect of the continuance of the invasion . . . or the reasonable cost to the plaintiff of avoiding future invasions”).

For these reasons, the Davises can potentially recover for their past discomfort and annoyance as well as the diminution in their property value.

Judgment of Court of Appeals affirmed; Toyo Tire’s motion for summary judgment correctly denied.

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Conversion Conversion is the defendant’s intentional exercise of dominion or control over the plaintiff’s personal property without the plaintiff’s consent. Usually, the personal property in question is the plaintiff’s goods. This can happen through the defendant’s (1) acquisition of the plaintiff’s property (e.g., theft, fraud, and even the purchase of stolen property), (2) removal of the plaintiff’s property (e.g., taking that property to the dump or moving the plaintiff’s car), (3) transfer of the plaintiff’s property (e.g., selling stolen goods or misdelivering property), (4) withholding possession of the plaintiff’s property (e.g., refusing to return a car one was to repair), (5) destruction or alteration of the plaintiff’s property, or (6) using the plaintiff’s property (e.g., driving a car left by its owner for storage purposes only).

In each case, the necessary intent is merely the intent to exercise dominion or control over the property. It is therefore possible for the defendant to be liable if she buys or sells stolen property in good faith. However, conversion is limited to serious interferences with the plaintiff’s property rights.

If there is a serious interference and conversion, the defendant is liable for the full value of the property. What happens when the interference is nonserious? Although it has largely been superseded by conversion and its elements are hazy, a tort called trespass to personal property may come into play here. Suppose that Richards goes to Metzger Motors and asks to test-drive a new Corvette. If Richards either wrecks the car, causing major damage, or drives it across the United States, he is probably liable for conversion and obligated to pay Metzger the reasonable value of the car. On the other hand, if Richards is merely involved in a fender-bender, or keeps the car for eight hours, he is probably liable only for trespass. Therefore, he is obligated to pay only damages to compensate Metzger for the loss in value of the car or for its loss of use of the car.

A very different attempted application of trespass principles was unsuccessful in the Intel case, which is discussed in the nearby Cyberlaw in Action box.

Other Examples of Intentional Tort Liability

Chapter 8 discusses three additional intentional torts that protect various economic interests and often involve unfair competition: injurious falsehood (a type of business “defamation”), intentional interference with contractual relations, and interference with prospective advantage. Chapter 51 examines an intentional tortlike recovery for wrongful discharge called the public policy exception to employment at will.

CYBERLAW IN ACTION

If a person uses a corporation’s e-mail system to distribute unsolicited e-mails to large numbers of the corporation’s employees and does so without the consent of the corporation, has the distributor committed the tort of trespass to personal property? That was the issue addressed by the Supreme Court of California in a 2003 decision.

After being fired from his job at Intel, Kourosh Hamidi obtained the company’s e-mail address list without breaching Intel’s computer security system; instead, an anonymous source sent the list to Hamidi on a computer disk. Over a period of approximately two years, Hamidi sent six e-mails to each of at least 8,000, and perhaps as many as 35,000, Intel employees. Hamidi’s e-mails discussed his grievances against Intel and criticized the company’s employment practices. A number of Intel employees complained to their employer about having received Hamidi’s e-mails. Hamidi offered, however, to remove from his distribution list the addresses of Intel employees who requested that their addresses be removed. When employees so requested, Hamidi followed through on his removal offer.

After Intel’s attempts to block Hamidi’s e-mails proved largely unsuccessful and Hamidi ignored Intel’s demands that he cease sending messages to the firm’s employees, Intel sued Hamidi. Intel alleged that it owned the e-mail system, that the system was intended primarily for business use by Intel employees, that the address list was confidential, and that Hamidi had continued his mass e-mailings despite demands from Intel that he stop. Contending that Hamidi’s actions amounted to trespass to chattels (i.e., trespass to personal property), Intel asked the court for an injunction barring Hamidi from sending further e-mails to Intel employees at their Intel addresses. A California trial court later granted summary judgment in favor of Intel and issued the requested injunction.

Hamidi appealed to the California Court of Appeal, which affirmed the lower court’s decision. The appellate court concluded that injunctive relief was appropriate in view of the disruption to Intel’s business that resulted from Hamidi’s intentional interference with the company’s e-mail system. This interference, the court reasoned, brought the case within the ownership and possession-related interests protected by the legal theory of trespass to personal property.

Again Hamidi appealed, this time to the Supreme Court of California. In Intel Corp. v. Hamidi, 71 P.3d 296 (2003), the Supreme Court reversed the lower courts’ decisions. The court observed that Hamidi’s e-mails neither physically damaged nor functionally disrupted Intel’s computers and did not prevent Intel from using its computers. These key facts caused the court to regard trespass to personal property as an ill-fitting theory. The court held that the trespass theory

does not encompass, and should not be extended to encompass, an electronic communication that neither damages the recipient computer system nor impairs its functioning. Such an electronic communication does not constitute an actionable trespass to personal property, i.e., the computer system, because it does not interfere with the possessor’s use or possession of, or any other legally protected interest in, the personal property itself.

Although Intel argued that it had suffered harm in the form of lost productivity resulting from the fact that employees read and reacted to Hamidi’s messages, the Supreme Court noted that any such harm did not help Intel establish the necessary elements of a trespass claim. Such supposed harm was “not an injury to the company’s interest in its computers—which worked as intended and were unharmed by the communications—any more than the personal distress caused by reading an unpleasant letter would be an injury to the recipient’s mailbox. . . .” Intel’s real concern, the court concluded, pertained to the content of Hamidi’s messages. The court was unwilling to allow the trespass to personal property theory, whether in traditional or modified form, to be employed as a means of squelching speech that Intel found objectionable. Although the court only briefly touched on the potential First Amendment implications of a contrary holding, the decision appeared to have been influenced by the free speech arguments of organizations that had filed amicus curiae (friend-of-the-court) briefs in the case.

In rejecting Intel’s attempt to employ the trespass to personal property theory to the facts at hand, the Supreme Court emphasized that its holding would not prohibit Internet service providers (ISPs) from invoking trespass principles as a basis for legal relief against senders of “unsolicited commercial bulk e-mail, also known as ‘spam.’” Citing cases in which spammers had been held liable to ISPs, the court noted that in those cases, the trespass to personal property theory was applicable because “the extraordinary quantity of [spam] impaired the [relevant] computer system’s functioning.” The supposed injury in Intel v. Hamidi, by contrast, took the form of “the disruption or distraction caused to recipients by the contents of the e-mail messages, an injury . . . not directly affecting the possession or value of personal property.”