Black-letter propositions
- 01
Defamation requires defamatory factual meaning, reference to plaintiff, publication, falsity and fault where constitutionally required, and damage or actionable category.
- 02
Public officials and public figures must prove actual malice, knowledge of falsity or reckless disregard, for relevant claims.
- 03
Private plaintiffs generally need at least negligence for compensatory recovery on public concern and actual malice for presumed or punitive damages absent traditional exceptions.
- 04
Truth is a defense; absolute and qualified privileges protect defined settings and interests.
- 05
Privacy torts include intrusion on seclusion, public disclosure of private facts, false light, and appropriation of name or likeness, subject to newsworthiness and constitutional limits.
Use this attack sequence under time
Frame the issue
Identify exact statement or conduct and audience.
Resolve the next checkpoint
Separate fact from protected opinion using context and verifiability.
Resolve the next checkpoint
Classify plaintiff and public concern.
Resolve the next checkpoint
Choose fault and damage rules.
Finish the conclusion
Apply privilege or privacy elements.
Common wrong turns
- Repeating a rumor is publication and does not avoid liability.
- Actual malice does not mean spite.
- Public-record or newsworthy facts can defeat private-facts liability.
Worked example
A newspaper publishes a serious accusation about a mayor while consciously avoiding obvious proof that it is false.
The mayor is a public official and must prove actual malice. Purposeful avoidance of obvious truth can support reckless disregard if shown clearly and convincingly.
Practice this topic
Defamation
Cornell defines defamation as a statement that harms another person's reputation, including libel, generally written or recorded, and slander, generally spoken. A prima facie claim generally requires a false statement purporting to be fact, publication to a third party, the requisite level of fault and reputational harm. The required fault depends on the plaintiff's status and whether the speech involves a matter of public concern. Statements of pure opinion are generally protected because they cannot be proven true or false, but calling a statement an opinion does not automatically protect it.
Defamation implicates the First Amendment, and elements, defenses and privileges vary by jurisdiction. In New York Times v. Sullivan public figures must prove knowledge of falsity or reckless disregard, as Cornell's speech summary states.
Privacy torts
Cornell says invasion of privacy covers several claims: intrusion on seclusion, public disclosure of private facts, false light and appropriation. All hinge on an unwelcome or unauthorized intrusion upon a person's private life.
Katz v. United States is often cited on the parameters of privacy, though it concerns the Fourth Amendment. Separate the tort claims from the constitutional cases when you write the answer.
Cornell explains that the required level of fault depends on the plaintiff's status and whether the speech involves a matter of public concern. Identify the plaintiff as a public figure or private figure before choosing the fault standard, and identify whether the statement asserts a provable fact or expresses pure opinion. Those two questions decide most defamation fact patterns.
Frequently asked questions
What is the controlling rule for defamation, privileges, and privacy torts?+
Defamation analysis proceeds through factual meaning, publication, plaintiff status, public concern, constitutional fault, damages, and privilege.
How should I analyze defamation, privileges, and privacy torts on the bar exam?+
Identify exact statement or conduct and audience. Classify plaintiff and public concern. Choose fault and damage rules. Apply privilege or privacy elements.
What is defamation on the bar exam?+
A statement that harms another person's reputation, including libel and slander, and one that implicates the First Amendment, according to Cornell.
What is the difference between libel and slander?+
Libel generally involves written or otherwise recorded statements and slander generally involves spoken statements, according to Cornell's summary of defamation.
What must a defamation plaintiff generally prove?+
A false statement purporting to be fact, publication to a third party, the requisite fault and reputational harm.
Are opinions protected on the bar exam?+
Statements of pure opinion are generally protected, but merely labeling a statement an opinion does not automatically protect it.
What are the four invasion of privacy claims Cornell lists?+
Intrusion on seclusion, public disclosure of private facts, false light and appropriation, each hinging on an unwelcome intrusion into private life.