Defenses to Defamation on the UBE and Their Application on the MBE and MEE

-

             The tort of defamation can be rather confusing on the UBE, not just in terms of its elements and/or the applicable defenses, but more so because the MBE and MEE questions on defamation can be rather confusing.  In fact, defamation ranks as one of the top two most difficult areas of tort law along with Products Liability!

     This blog post is designed to explain the three affirmative defenses to defamation.  There is a separate blog post that pertains specifically to defamation, generally, so if need be, you should search for that post.

  Affirmative Defenses to Defamation – (3 of them) –

1 – The Defense of Consent – This defense does not come up very often but be aware for it and note that consent can be express or implied.

 

2 – The Defense of Truth (Proof) – This defense requires proof that the statement is factually correct. Proving that the statement is factually accurate will satisfy the requirement and the defense will be properly asserted.

 

3 – The Defense of Privileges – (2 different forms of privilege) –

A – Absolute Privilege – (Arises on/with the identification or status of the defendant) –

(i) – spouses who communicate w/ each other meaning that the domestic privilege affords a spouse the absolute privilege to make defamatory statements about a third person to their spouse;

(ii) – fair reporting priv (given to media) and;

(iii) – officials of 3 branches of gov and this includes all federal and state legislative officials have absolute privilege to utter defamatory statements while on the floor of the legislatures or in committee sessions. Further, there is no requirement of relevancy here. Defamatory statements made on the floor of the legislature or in a committee session are privileged even if they are completely irrelevant to the proceedings being conducted.

       In short, the definition of an absolute privilege is as follows: A privilege that immunizes a defendant from suit, no matter how wrongful the action might be, and even though the action might have been done with improper motives.

 

 B – Qualified Privilege – (These are NOT based on the identification of the defendant, but on the circumstances or occasion of the defamation being alleged).  Arises in the public interest of encouraging candor and they include:

(i) – letters of recommendation or reference with the reason being that we want to encourage truth telling even if harmful without fear of repercussions;

(ii) – statements made to investigating officials for the same reason mentioned above and;

(iii) – The Attorney / Client Priv.

         In short, the definition of a qualified privilege is as follows:  A privilege that immunizes a defendant from suit only when the privilege is properly exercised in the performance of a legal or moral duty.

 Conclusion

            It is extremely important to understand how to apply the three defenses to defamation.  Success on the likely 1-2 MBE questions in this area of law, and perhaps success on a MEE issue depends on your knowledge of the law. For more information concerning this section of Tort law, another area of Tort law, or a different legal topic tested on the UBE, please do not hesitate to contact us at PassYourBarExam@gmail.com

Comments

Post a Comment

Popular posts from this blog

Defamation on the UBE - A Step by Step Guide for the MBE and MEE

-
The tort of defamation can be rather confusing on the UBE, not just in terms of its elements and/or the applicable defenses, but more so because the MBE and MEE questions on defamation can be rather confusing.  In fact, defamation ranks as one of the top two most difficult areas of tort law along with Products Liability!   This blog post has been written to try and clean up some of the confusion associated with this tort.  For starters, let us begin with the three elements of defamation:   1 – W e need a defamatory stmnt made by the defendant that specifically identifies the plaintiff; 2 – We need a publication of that stmnt and;                    3 – Resulting d amage .   BAR EXAM NOTE – If the plaintiff is a PRIVATE PERSON? They must prove that the statement was made with NEGLIGENCE .  Conversely, if the plaintiff is a PUBLIC FIGURE ?   They m...
Read more

Per Capita vs. Per Stirpes - Making Sense of the Difference for the MEE on the UBE

-
Image
One of the more common areas of confusion within the subject of Wills is the distinction between the two methods of intestacy distribution known as Per Capita and Per Stirpes.  This blog post was created to shed some light on how best to approach these distribution methods when tackling a common Wills MEE issue on the examination.     I. Intestate Prop erty Definition This includes assets held in the decedent’s name alone that do not pass by operation of law or by a will.  It should be noted that operation of law means that a non-probate assets that passes automatically because of the way the property title is held, REGARDLESS of the existence of a will. Keep in mind that the residuary (aka the rest left over) is calculated after claims, taxes, and other particular.   II. The Application of the Intest acy Rules Intestacy Rules Apply when 1) the decedent left NO WILL OR DID NOT properly execute a will, OR 2) the will DOES NOT provide for a proper distribu...
Read more

Adding Parties & Claims in Fed Civ Pro - Interpleader, Impleader, Joinder and Intervention

-
Understanding the Differences Between Impleader, Interpleader, Joinder and Intervention Federal Civil Procedure on the UBE contains a major section that pertains to adding parties and/or claims to an already existing suit.  There are four subsections relevant to this area of law known as impleader, interpleader, intervention and joinder.   It is imperative to know the distinctions between each of these subsections. At the outset, it would behoove you to create a chart or graph to capture the distinctions between these four legal mechanisms.  Understanding the nuanced differences between these mechanisms, memorizing necessary vs. permissive joinder, and understanding the difference between intervention as a right and permissive intervention is paramount for success on MBE questions pertaining to this area of the law.  Moreover, while not as common on an MEE essay as personal jurisdiction, subject matter jurisdiction or venue, we can easily see an issu...
Read more