The Defendant’s Case: Defense Issues and Strategies
Explore all the possible defenses to protect against the libel claims by the plaintiff. The defenses, of course, should include constitutional and common law defenses. They also might cover any “emerging” defenses such as the “neutral reportage” doctrine, or common law defenses unique to the state law which will apply to your case.
Introduction (Can be the same as your group project)
Describe the factual background in connection with who’s suing whom over what. Yes, identify who’s defamed by whom in what way; name the parties—plaintiff(s) and defendant(s). In placing the allegedly defamatory story in context, focus on the most significant and relevant information from a libel law perspective
Defenses. You should discuss in detail your argument for one or more of the possible defenses listed below. The ones you choose will depend on the facts of your case. Be sure to cite at least three relevant previous cases to support your argument – one central case and two others.
Statute of limitations? Was the lawsuit filed before the statute of limitation (one year after publication in Oregon) ran?
Truth: Is the story true—at least substantially? Can it be proved to be true? Note that truth as a libel defense has little to do with the “accuracy” of your story insofar as the defamatory statement is accurately quoted. Moreover, it’s not easy to maintain as a defense and it’s often costly.
Opinion: Is the defamatory statement protectable as an opinion?
Rhetorical hyperbole? Exaggeration for effect – is protected under common law on the theory that a false statement must be believable before it can be considered defamatory.
Fair comment and criticism: Is the story a commentary on public individuals, public institutions, or matters of public interest? This common law defense protects criticism based on true facts that are stated, privileged or otherwise widely known or available to the public.
Fair report privilege: Is the allegedly defamatory story based on information relating to government proceedings (government agency meetings, congressional/state legislature hearings, court trials, etc.) Is it the fair and accurate reporting of the proceeding with no common law malice?
CDA 230 immunity: Was the story published by Internet service providers under section 230 of the Communications Decency Act and is the defendant the third party who provide the platform for the story: Facebook, Instagram, etc? If so, there’s absolute immunity for the story from liability for defamation.
Summary and Conclusions