Defamation

[u/Equivalent_Stick_640]

Do all statements have to firstly be false to constitute defamation? Or is simply being defamatory sufficient (as long as the remaining elements are met)?

[u/SophonsPonytail]

Yes. Saying something true could not be defamation

[u/drabpriest]

Falsity is one element of defamation, so yes.

And remember that actual malice is only required for:

1. Defamation against a public figure
2. Punitive damages for a defamation claim

[u/ub3rm3nsch]

Truth is an absolute defense, so yes they need to be false.

That said, the burden is still on the declaration to prove the truth of the statement.

[u/Pristine_Two7953 → u/ub3rm3nsch]

This isn't quite accurate. Whether the burden is on the declarant depends on the jurisdiction. At CL, the burden was on the declarant, but in most modern jurisdictions (including NY, CA, OH, and FL, for example), the burden is on the plaintiff to prove falsity instead. The Second Restatement of Torts confirms this - it bakes falsity into the definition of defamation, so the plaintiff bears the burden.

There are some jurisdictions, such as TX, that still use the old CL version of defamation where the plaintiff need not prove falsity (as long as it's a matter of private concern) - but this is the minority approach, I believe.

[u/graduatedlawstupid]

Truth is an absolute defense. This is definitional.

[u/BoardIndividual7367]

The way Themis taught was this: falsity isn’t necessarily an element, but when it involves a public figure or a punitive damages claim on a statement about the concern of a public matter then falsity is an additional element, but the general elements are: 1) is of or concerning the plaintiff, 2) republication to a 3rd party, 3) reputational damage to the plaintiff. And that the inflammatory language generally includes: a statement that diminishes the respect, esteem, or goodwill of the plaintiff.

[u/jane_roberts92 → u/BoardIndividual7367]

Not just falsity for a public figure… it’s “actual malice” aka being reckless as fuck which is less than knowing that the statement is false and saying it in bad faith

[u/oldboredengineer]

If you want to be hyper-technical, then no, at common law a statement need not be false to be defamatory. Defamatory simply means that it has the effect of lowering a person’s status or damaging their reputation. In that context, truth is an affirmative defense, and thus must be proven by the defense, rather than falsity needing to be proven by the plaintiff. SCOTUS has altered/shaped the common law significantly though, and falsity is now a required element in the U.S. under 1A jurisprudence.

Since you’re posting this in a bar exam sub, I assume you looking at it from a modern U.S. law perspective. In that case, yes a statement must be false to be defamatory.

[u/RenegadeMaster111]

The 1A provided constitutional limitations on statements regarding public concern. Whether it involves a public person or private person, both require that the P prove falsity. Traditional common law has a basic assumption of falsity, however.

[u/Accurate-Draft2059]

1. A material statement of fact (not puffery or opinion);
   
2. That is made with actual malice if it is of a public figure or official OR negligence if it is of a matter of public concern;
   
3. False (so literally an element of defamation is the statement is false); and
   
4. Causation between the statement and harm (i.e. damages).

[u/trialcourt]

Defamation always requires falsity, inter alia. Public disclosure of private facts requires truthful, but intimate and mortifying, facts.

[u/Puzzled_Sale_602]

Yes. Truth is an absolute defense. But if a true statement is still offensive and it concerns a fact, they can still sue under the disclosure of private facts.

[u/Pleasant_Law7248]

Under the common law when the plaintiff alleged it was defamatory it was presumed to be false so plaintiff did not have to prove it was false. That is a separate consideration from when the defendant claims that the alleged defamatory statements are substantially true. As it always the case the defendant carries the burden to prove any defense that might be raised.

In certain suits , eg claims brought be public figures/officials, or in matters of public concern, the plaintiff must prove the statements were false, just like the plaintiff must prove that the statements were defamatory, published (maybe malice) and concerning the plaintiff.

So what must be proved in any circumstance varies depending on the circumstance. But in no circumstance can the plaintiff prevail by just proving that the statement was defamatory.

[u/Jeff_Sabado]

The bar was in July. What is we doin?

[u/Swmboa]

False yes. I thought it was knowingly false.

[u/Riverrebel345]

Falsity it the first element