What types of torts questions are routinely tested on the bar exam? Products Liability? Defamation? Privacy? This would be a great forum for you to post your rules and not only discuss their validity but, more important, how they are applied.
Defamation of the Dead?
Recently, Congressman Peter King made statements about Michael Jackson (MJ) who had died a week eariler. King said: “…I don’t know how long now, this lowlife Michael Jackson, his name, his face, his picture is all over the newspapers, television, radio. All we hear about is Michael Jackson. And let’s knock out the psychobabble. This guy was a pervert, a child molester, he was a pedophile, and to be giving this much coverage to him day in and day out, what does it say about us and this country? …There’s nothing good about this guy….”
If this fact pattern were on a law school essay or state bar exam, what would a model answer look like? I would like to see additional discussion about it for educational purposes. What would a model answer look like? Certainly not the one that I provided below since it is only an example! However, it would seem to me that a court would rule there were allegations of criminal behavior because of statements like “This guy was a pervert, a child molester, he was a pedophile…” Under tort law, defamation is a false statement of material fact that is published to others about the plaintiff causing damage to reputation. During law school we learned that with certain types of defamation, damages are presumed. Injury to someones’ reputation is presumed or slander per se in these situations. I remember these types as CLUB 1. Alligations of Criminal Behavior, 2. Loathsome Disease, 3. Unchasity and 4. Unfair Business Practices.
If this fact pattern were an essay, we would need to break each element down and discuss them individually using separate heading and underlining where appropriate.
Were Kings’ statements about Jackson FALSE?
Here, the Jackson family would assert that Kings’ statement about Michael Jackson was FALSEsince charges of molestation and pedophilia were alleged against MJ and a Court of competent jurisdiction acquited him. Therefore, statements made by King were false.
Were statements by King a material fact?
The Jackson family would prove that Kings’ statements about MJ was a material fact because it was foreseeable that such statements would harm Jacksons’ reputation as an entertainer and would likely lead to financial loss regarding merchandise sales. Thus, Kings’ statement about Jackson was a material fact.
Were Kings’ statements about MJ PUBLISHED?
A statement about another person is published when it is communicated to a third party. If King had said these things to Jackson privately, there would have been no publication because there would have been no communication to a third party – only to Jackson himself. However, Congressman King posted his statements on UTube which were broadcast to the entire Internet community. Thus, King published his statements about Jackson.
Were Kings’ statements about the plaintiff?
Here, statements about MJ were NOT about the plaintiff because MJ had died a week earlier averting the possibility of MJ being the plaintiff. The primary issue in this case is whether a Court of competent jurisdiction would entertain the estate of Michael Jackson to bring charges against King on behalf of their deceased son. The Jackson estate would strongly assert that future sales of MJ products would suffer a dramatic financial loss because of defamation of Michael Jackson. Because the Jackson estate would suffer the financial loss rather than Michael Jackson himself, the Court could permit charges against Kings on their sons’ behalf. Therefore, statements made by Congressman King about Michael Jackson were about the plaintiff in the context that the Jackson estate were representing their sons’ financial interest to preserve the integrety of his estate.
Did Kings’ statements about MJ cause damage to Jacksons’ REPUTATION?
Here, the King estate would claim that damages to MJ’s reputation were presumed because they alleged CRIMINAL BEHAVIOR. However, the Jackson estate could also assert that it would be FORESEEABLE to a reasonable person that such statements would cause damage to Jacksons’ reputation because fans would become outragedif they remembered MJ as someone who was a pedophile and would be less likely to purchase his memorbillia. Thus, the Court will find that DAMAGES were presumed.
The Court would find that Congressman Peter King DEFAMED Micheal Jackson when he published defamatory statements about Micheal Jackon on the Internet using Utube. This ruling could only be possible if a Court of competent jurisdiction would allow the Jackson estate to bring defamation charges against King on behalf of MJ since Michael Jackson was deceased and MJ was not the plaintiff – His estate was! Finally, there would be a major hurdle to overcome to convience the Court that a dead person can be defamed because of the harm such defamatory statements will have on the deceased estate and ultimately the financial harm impacting beneficiary’s like his children, parents, etc.