Re: Case Studies

Sheldon Halpern writes:
>
> An "educational" setting does not per se create insulation from defamation
> liability, anymore than it automatically creates a copyright fair use,
> escept to the extent that the setting creates a context in which it might
> be claimed that the utterance is a joke or hyperbolic. If it is simply an
> "informative" repetition of another's defamatory remarks (irrespective of
> the republishers subjective attitude toward those remarks) then liability
> for republication can attach if the requisite degree of fault is found.
> There is no blanket privilege to report another's charges. There is of
> course the recognized "record libel" or "reporters' privilege" that
> attaches to the reporting of certain kinds of public events, but that is
> not what this question is about. The classroom does not automatically
> provide either privilege or license but of course it does provide context
> for determining if there is a defamatory utterance in the first place.
> But that again is another issue, separate from that of repeating
> another's clearly defamatory utterance.

Sheldon is clearly write that the classroom does create a per se insultation from defamation. But that is because one can find very few absolute defenses. The question is how I would advise an instructor who wants to discuss the issue of whether a statement is libelous. I would predict that a court would not find libel in the case where a law professor handed out a newspaper article and asked whether the article was libelous. I'm not claiming a blanket privilege - this is not the New Times reporting a libelous statement printed in the Washington Post. In reality, one can not discuss certain issues in an academic setting without "republishing" the libel. So on the facts as I understood them I would advise a responsible teacher to go ahead hold the discussion.

How would you handle this case? Plaintiff is libeled and wins a verdict. D appeals and the court affirms the Plaintiff's verdict but "republishes" the libel in writing its opinion. I take it that distributing a copy of the opinion is not libel - how about distributing the complaint before trial - how about distributing the article to ask students whether its worth filing a complaint? But perhaps I missing something and should be more cautious in the advise I give.

  Don Berman --  

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