A Little Libel, A Lot of Trouble - National Association of College and

A LITTLE LIBEL, A LOT OF TROUBLE: DEFAMATION AND RELATED ISSUES IN HIGHER EDUCATION June 16-19, 2004 Robert C. Clothier, Esquire1 High, Swartz, Roberts & Seidel, LLP Norristown, PA 19404 I.

LIBEL IN HIGHER EDUCATION

Defamation involves a false statement that defames or harms another person’s reputation. Defamatory statements are categorized as “libel” or “slander.” “Libel” is written or visual defamation, and “slander” is spoken or oral defamation. Generally speaking, it is more difficult to make out a cause of action for slander than for libel, on the view that written defamation is far more damaging than oral. Defamation consists of the following elements: (1) false statement of fact; (2) capable of a defamatory meaning; (3) of and concerning another living person; (4) publication to a third party; (5) some degree of fault on the part of the person making the statement; and (6) harm to the reputation of the person defamed. Even if a defamation plaintiff is able to establish these elements, the defendant might be able to show that the communication was privileged. If so, the burden shifts to the plaintiff to show an abuse of privilege. Although these elements are simply stated, they are difficult to apply largely because so much of the law of defamation has been “constitutionalized” by relatively recent Supreme Court precedent. As a result, these elements will vary depending on the identity of the plaintiff and the defendant, the nature of the allegedly defamatory statement and the jurisdiction whose law applies. See generally Rodney A. Smolla, LAW OF DEFAMATION (2nd Ed. 2003); Robert D. Sack, SACK ON DEFAMATION (3rd Ed. 1999). This outline will first summarize these basic principles of defamation and then analyze cases involving typical defamation scenarios in the higher education context. A.

Elements of Defamation Law 1. False Statement of Fact

The first element of defamation is a false statement of fact. There must be a statement, which may be verbal or visual. Although signs or symbols may qualify as communications, see 1

The author acknowledges and extends his appreciation to Francine Tilewick Bazluke, whose NACUA pamphlet “Defamation Issues in Higher Education” provided the foundation for this manuscript. National Association of College and University Attorneys

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Smolla, supra, § 4.30, actions will not necessarily be construed as forms of defamatory communication. See, e.g., Hicks v. Stone, 425 So.2d 807 (La. Ct. App. 1982), writ. denied, 429 So.2d 129 (La. 1983) (board action in firing a dean was not itself a published “statement”).

The statement must be false. If a statement is in fact true, no defamation action may be advanced, no matter how defamatory the statement is. In some jurisdictions, however, a literally true statement could be actionable if it carries a false implication. See generally Sack, supra, § 3.8; see, e.g., Campanelli v. University of California, 51 Cal.Rptr.2d 891 (Ct. App. 1996) (athletic director’s statements about terminated basketball coach were substantially true); Wynne v. Loyola University of Chicago, 741 N.E.2d 669 (Ill.App. 2000) (statements made by dean about professor in memorandum sent to senior member of department were “substantially true”); Williams v. University of Cincinnati, 752 N.E.2d 367 (Ct.Clms. Ohio 2001) (university’s statements to NCAA about college basketball player student were true); Hupp v. Sasser, 490 S.E.2d 880 (Va. 1997) (certain of statements made by university dean about former graduate student (e.g., that he was the subject of multiple complaints) were true); Collins v. Martinez, 709 F.Supp. 311 (D.P.R. 1989), aff’d., 894 F.2d 474 (1st Cir. 1990) (largely true statements to agencies regarding alleged unprofessional conduct in research were non-actionable); Keddie v. Penn. State Univ., 412 F.Supp. 1264 (M.D. Pa. 1976) (statements about plaintiff’s academic performance and tenure denial were “in effect” true). The disputed statement must also express or imply an assertion of fact rather than opinion. In Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), the U.S. Supreme Court ruled that the First Amendment permits defamation actions under state law only where a communication states or implies actual facts. The Milkovich Court nonetheless declined to accord statements of opinion any constitutionally-based “privilege.” See generally Smolla, supra, ch. 6, esp. §§ 6:15-6:27; Sack, supra, § 4.2.4. Merely couching an assertion of fact as an opinion – e.g., “it is my opinion that the professor stole money” -- will not render the statement protected. So long as a statement explicitly or implicitly makes assertions that are provably true or false, it is a statement of fact that can form the basis of a defamation claim. An opinion, on the other hand, reflects a speaker’s subjective view and attitude towards people or events. For example, to say that plaintiff, a college basketball coach, “usually finds a way to screw up” is protected opinion. Washington v. Smith, 893 F. Supp. 60 (D.D.C. 1995), aff’d, 80 F.3d. 555 (D.C. Cir. 1995). Similarly, it is opinion to refer to the university’s vice president of student affairs as the “Director of Butt Licking.” Yeagle v. Collegiate Times, 255 Va. 293, 497 S.E. 2d 136 (1998). Vigorous epithets, name calling, rhetorical hyperbole and satire are particular types of opinions that are protected even though they may sometimes, on their face, appear to state facts (e.g., to call someone “insane” or “paranoid” can be either a statement of fact or merely an epithet). See generally Smolla, supra, § 6:90; Sack, supra, § 4.3.3. As a matter of constitutional law, the party who bears the burden of proving falsity is National Association of College and University Attorneys

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almost always the plaintiff. See New York Times v. Sullivan, 376 U.S. 254 (1964). But the common law rule that falsity was presumed and truth an affirmative defense remains in some private figure cases in some jurisdictions. 2.

Capable of a Defamatory Meaning

The disputed statement also must have a defamatory meaning -- that is, it must be capable of harming a person’s reputation in the eyes of a reasonable person. A statement can be defamatory on its face (e.g., calling a student a “liar” or a “thief”), or it can imply a defamatory meaning. Thus, a statement that is, on its face, not defamatory is nonetheless actionable if the defamatory implication or innuendo becomes reasonably apparent with the addition of other facts, whether contained in the publication itself or otherwise known to the reader or listener. See Smolla, supra, §§ 4.16-19; Sack, supra, § 2.4.5. Context is critically important in determining whether a statement is defamatory. Courts will not isolate particular words or phrases, instead looking at the entire publication in which the allegedly defamatory statement(s) appear. A statement standing alone may be rendered nondefamatory when considered in the larger context; conversely, an otherwise innocuous statement may be construed to be defamatory in light of the surrounding statements. Words are to be given their ordinary, every day meaning as understood by a reasonable person of ordinary intelligence. As with the fact/opinion distinction, what is defamatory is not easy to delineate. The Restatement of Torts defines a defamatory communication as one that “tends so to harm the reputation of another as to lower him in the estimation of the community or deter third persons from associating or dealing with him.” See Restatement (Second) of Torts § 559 (1977). Courts generally agree that statements that are merely embarrassing, unflattering or annoying are not defamatory. Rather, the statement must expose one to public hatred, contempt or ridicule, cause him or her to be shunned, and/or tend to injure one in his or her profession. See, e.g., Stiner v. University of Delaware, 243 F.Supp.2d 106 (D. Del. 2003) (university’s listing professor as “academically unqualified” for purposes of accreditation review was capable of a defamatory meaning); Cobb v. University of Virginia, 69 F.Supp.2d 815 (W.D. Va. 1999) (vice president of university affairs’ statement that student had admitted to an honor code violation was actionable defamation); Nazeri v. Mo. Valley College, 860 S.W.2d 303 (Mo. 1993) (false allegation of homosexuality or serious sexual misconduct such as adultery is actionable). This vague standard often comes down to “you know it when you see it.” Although a court may decide as a matter of law that a statement is incapable of a defamatory meaning, if a statement reasonably has two or more meanings and one of them is defamatory, it is for the jury to determine the meaning actually conveyed. In jurisdictions adopting the “innocent construction rule,” however, a statement is not actionable if it has an innocent and non-defamatory meaning in addition to a meaning that is defamatory. See generally Sack, supra, § 2.4.14. 3.

“Of And Concerning” A Person National Association of College and University Attorneys

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The defamation must be “of and concerning" a living person. What the author intended is not relevant; the issue is what the reader reasonably understood. “The test is not whom the story intends to name, but who a part of the audience may reasonably think is named – ‘not who is meant but who is hit.’” Granger v. Time, Inc., 568 P.2d 535, 539-40 (1977). The lack of a name is not dispositive if the context would enable the reasonable reader to identify the person. See, e.g., Ditzel v. University of Medicine and Dentistry of New Jersey, 962 F.Supp. 595 (D. N.J. 1997) (statement in vice president of government and public affair’s “message to the community” did not identify terminated manager of publications and thus could not support defamation claim); see generally Sack, supra, § 2.9. Whether a statement is capable of being about the defamation plaintiff is initially a question of law for the court; whether the statement actually applies to the plaintiff is for the jury. One is generally not liable for defaming a group of persons so long as the group is sufficiently large and vague. The injured party may be a corporation; thus, there is at least implied authority for the proposition that a university has the right to sue. See Ithaca College v. Yale Daily News Publishing Co., 433 N.Y.S.2d 530 (N.Y. Sup. Ct. 1980), aff’d., 445 N.Y.S.2d 621 (N.Y. App. Div. 1981); see also Doman v. Rosner, 371 A.2d 1002 (Pa. Super. Ct. 1977) (institute); see generally Smolla, supra note 2, § 4.75-4:76. But a university is not necessarily defamed by statements directed at its administrators, faculty and employees, and vice versa. 4. “Publication”: Communication to a Third Party “Publication” means the intentional or negligent communication (e.g., written, spoken, photograph) of a defamatory statement to a person other than the one claiming harm. The making of an allegedly defamatory statement to one person other than the putative defamation plaintiff is sufficient to establish publication (although such de minimus publication would lessen the likelihood of significant damages). And any repetition of a defamatory communication is considered a separate publication that can also give rise to independent or additional liability exposure. (For a discussion of re-publication liability and related questions, see Smolla, supra, §§ 4.87-4:95 and Sack, supra, § 7.1, et seq.) That is because under the “republication” rule, the person who repeats a defamatory statement (e.g., a newspaper) adopts the statement and is as liable as the person who originally made the statement. Thus, except where a privilege applies (as discussed below), the law generally affords no protection for those who merely repeat what someone else said. While “publication” is usually not disputed, there are two variations relevant to the higher education context: •

In-house or Intra-corporate Communications: The first concerns communications among persons employed by or affiliated with a legal entity, such as a corporation or university. Some courts (but not all) hold that such in-house communications do not constitute "publication" when the communication pertains to corporate concerns, reasoning that individuals are not third parties with respect to their corporation. See National Association of College and University Attorneys

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generally Sack, supra, § 2.5.3; see, e.g., Walter v. Davidson, 104 S.E.2d 113 (Ga. 1958) (statements between two college faculty members charged with duty of maintaining good student behavior do not constitute “publication”). •

Compelled Self-Publication: The second involves statements made by the person defamed. Under the doctrine of “compelled self-publication,” an employer may be held liable for defamation if a former employee is compelled to communicate, to a prospective employer, past negative job performance appraisals or the reason for discharge from past employment. In such an instance, "publication" may be attributed to the former employer if the ex-employee's need to convey the statements is reasonably foreseeable and ethically or otherwise necessitated by the circumstances. See, e.g., Lewis v. Equitable Life Assurance Society, 389 N.W.2d 876 (Minn. 1986) (although approving the doctrine, the Lewis court declined to award punitive damages on this basis); see also Neighbors v. Kirksville College of Osteopathic Medicine, 694 S.W.2d 822 (Mo. Ct. App. 1985). The compelled self-publication doctrine has been criticized on the ground that its application may deter employers from disclosing to employees the reasons for discharge. See generally Annot., Publication of Allegedly Defamatory Matter by Plaintiff (“Self Publication”) As Sufficient To Support A Defamation Action, 62 A.L.R. 4th 616 (1988); Mouser, “Self-Publication Defamation and the Employment Relationship,” 13 INDUSTRIAL RELATIONS LAW JOURNAL 241 (1991/1992); Posey, “Employer Defamation: The Role of Qualified Privilege,” 30 WILLIAM AND MARY LAW REVIEW 469, 480-83 (1989); Charles G. Bakaly, Jr. & Joel M. Grossman, THE MODERN LAW OF EMPLOYMENT RELATIONSHIPS, § 12.3 (1992). 5.

Fault

A libel plaintiff must show some degree of fault on the part of the person publishing the statement. Historically, state law determined the degree of fault, if any, that was required to support a defamation claim. But that was changed in New York Times v. Sullivan, 376 U.S. 254 (1964), where the United State Supreme Court held that, to prevail on a defamation claim, public officials must plead and prove that “the statement was made with ‘actual malice,’ that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” The rationale for imposing this greater burden of proof is two fold. First is the “access to the media” rationale in which public officials and figures have greater access to channels of communication (e.g., the media) and can counter the alleged defamation. Second is the “assumption of the risk” rationale, in which people invite or assume certain risks of commentary through their involvement in matters of public interest, whether by virtue of employment or other activity. The term “actual malice” is ill-defined and inherently misleading because it has nothing to do with the speaker’s attitude towards a person, i.e., whether or not the speaker has animus, ill will or spite – now referred to as “common law malice.” Rather, it focuses on the speaker’s attitude towards the truth. It is a subjective, not objective standard, and it is insufficient if the National Association of College and University Attorneys

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speaker merely should have known that what he was saying was false or should have done something else to determine the truth. The U.S. Supreme Court has stated that actual malice might be shown where the communication was fabricated by the speaker, was the product of his imagination, was based wholly on an unverified phone call, contained allegations so inherently improbable that only reckless person would put them in circulation, is published despite obvious reasons to doubt the veracity of an informant or the accuracy of the informant’s reports. St. Amant v. Thompson, 390 U.S. 727 (1968). Of course, there must be some connection or nexus between the allegedly defamatory information and the nature of the individual’s “public” status, but courts have construed this requirement fairly broadly. If, however, the subject of the defamation at issue is not a matter of public concern, then the actual malice standard is not constitutionally required. The U.S. Supreme Court has since identified two classes of individuals, known as "public officials" and "public figures," who must allege and prove actual malice. •

“Public officials" typically are persons “who have, or appear to have, substantial responsibility for or over the conduct of governmental affairs.” Generally speaking, this includes all elected officials and some non-elected officials. Rosenblatt v. Baer, 383 U.S. 75, 85 (1966); see also Cloud, “Higher Education Administrators, Defamation and Actual Malice,” 86 EDUCATION LAW REPORTER [593] (Jan. 13, 1994), updated and revised, 166 Education Law Reporter [1] (August 15, 2002); Bjorklun, “Are Teachers Public Officials for Defamation Purposes?”, 80 EDUCATION LAW REPORTER [527] (Apr. 8, 1993); Hopkins, “Teachers as Public Officials in Libel Actions,” 47 EDUCATION LAW REPORTER [353] (Sept. 1, 1988). Persons held to be “public officials” include a vice president of external affairs, university purchasing agent, police official, law professor and vice chancellor for research, and state college director of financial aid. See, e.g., Baxter v. Scott, 847 So.2d 225 (La.App.2nd Cir. 2003) (vice president of external affairs); Davis v. Borskey, 660 So.2d 17 (La. 1995) (purchasing agent); Waterson v. Cleveland State Univ., 639 N.E.2d 1236 (Ohio Ct. App. 1994) (university police official); Grossman v. Smart, 807 F.Supp. 1404 (C.D. Ill.), aff’d other grounds sub nom, Purnell v. Smart, 976 F.2d 735 (7th Cir. 1992) (professor of law and vice chancellor of research but not an assistant professor lacking decision-making responsibility); Van Dyke v. KUTV, 663 P.2d 52 (Utah 1983) (state college director of financial aid); see also LAW OF THE STUDENT PRESS 110-12 (Student Press Law Center 1994) (and cases cited therein). On the other hand, the director of a print shop at a public university was held not to be a public official. Madison v. Yunker, 589 P.2d 126 (Mont. 1978).

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“Public figures" may be defined as persons who achieve pervasive power and influence (“general purpose public figures”), or who have thrust themselves into the forefront of public controversies in order to influence the resolution of the issues involved (“limited purpose public figures”). See Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974). National Association of College and University Attorneys

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“Public figures” have included protesters, a college, an institute, a research scientist, coaches, law school dean, college dean, vice president of external affairs, a state college accounting professor, a group of junior college professors, a state university athletic director and a former college football player; but not a former head community college basketball coach, assistant basketball coach, behavioral scientist, department chair or certain university professors. See, e.g., Baxter v. Scott, 847 So.2d 225 (La.App.2nd Cir. 2003) (vice president of external affairs); Thornton v. Kaplan, 937 F. Supp. 1441 (D. Colo. 1996) (state college accounting professor); Nadel v. Regents of Univ. of Cal., 34 Cal. Rptr.2d 188 (Cal. Ct. App. 1994) , cert. denied, 516 U.S. 1028 (1995) (protestors); Arroyo v. Rosen, 648 A.2d 1074 (Md. Ct. App. 1994) (university department chair); Ithaca College v. Yale Daily News Publishing Co., 433 N.Y.S.2d 530 (N.Y. Sup. Ct. 1980), aff’d., 445 N.Y.S.2d 621 (N.Y. App. Div. 1981) (college); Doman v. Rosner, 371 A.2d 1002 (Pa. Super. Ct. 1977) (institute); Reuber v. Food Chemical News, Inc., 925 F.2d 703 (4th Cir.) cert. denied, 501 U.S. 1212 (1991) (scientist at private research firm); Barry v. Time, Inc., 584 F.Supp. 1110 (N.D. Cal. 1984) (head basketball coach); Holt v. Cox Enterprises, 590 F.Supp. 408 (N.D. Ga. 1984) (former college football player); Grayson v. Curtis Pub. Co., 436 P.2d 756 (Wash. 1967) (college basketball coach); Avins v. White, 627 F.2d 637 (3d Cir.), cert. denied, 449 U.S. (1980) (law school dean); Byers v. Southeastern Newspapers Corp. Inc., 288 S.E.2d 698 (Ga. Ct. App. 1982) (dean of state college); Hicks v. Stone, 425 So.2d 807 (Ct. App. La. 1982) (education dean); Johnson v. Board of Junior College Dist., 334 N.E.2d 442 (Ill. App. Ct. 1975) (junior college professors); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) (state university athletic director). The following individuals were held not to be public figures. See Folse v. Delgado Community College, 776 F.Supp. 1133 (E.D. La. 1991) (head basketball coach); Warford v. Lexington Herald-Leader Co., 789 S.W.2d 758 (Ky. 1990) (assistant basketball coach); Foote v. Sarayan, 432 So.2d 877 (La. Ct. App. 1982), writ denied, 440 So.2d 736 (La. 1983) (department chair and two professors); Staheli v. Smith, 548 So.2d 1299 (Miss. 1989) (college professor); Fleming v. Moore, 275 S.E.2d 632 (Va. 1981), cert. denied, 472 U.S. 1032 (1985) (assistant university professor); see also LAW OF THE STUDENT PRESS, supra note 26, 112-14. •

Private Persons: The status of defamation suits filed by “private” persons, however, remains somewhat unsettled following Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), under which states are assigned the responsibility for determining liability standards. Many states currently impose liability only in the event of negligence, to which the standard of “reasonable care” applies. As explained below, states may require proof of special harm in cases where such evidence is not otherwise required as a matter of federal constitutional law.

Given the lack of any precise definition, it is sometimes difficult to predict who will be a public figure. While courts have generally assumed that the New York Times v. Sullivan actual malice requirement applies to non-media defendants, the United States Supreme Court has never National Association of College and University Attorneys

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so held. The relevancy of the media vs. non-media status of a defendant is one of several issues as yet unresolved. 6.

Proof of Harm and Recoverable Damages

Defamation further requires proof of harm to the reputation of the person defamed. Unfortunately, this area of libel law is quite confusing and often makes little sense. Perhaps this is one reason that jury awards tend to be large and hard to explain. More recently, however, the U.S. Supreme Court has placed constitutional limits on damages that may be awarded. Thus, to understand damages in libel cases, one must understand the old common law rules as well as the constitutional requirements that have altered those common law rules. But while U.S. Supreme Court precedent establishes minimum proof requirements, state law must be consulted to resolve whether more stringent rules of proof apply. Dun & Bradstreet, 472 U.S. 749 (1985); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); see generally Smolla, supra note 2, ch. 7 and esp. § 7.13. (a) Common Law Rules: There are two common law distinctions that are important to understand: •

Libel Per Se vs. Libel Per Quod: The law traditionally distinguished between libel per se, where the defamatory meaning is self-evident (and which are actionable without proof of special damage) and libel per quod, where additional facts are necessary to reveal their defamatory meaning (and thus require proof of special damage). See Nehls v. Hillsdale College, 65 Fed.Appx. 984 (6th Cir. 2003) (allegedly defamatory statement made in connection with student’s expulsion was not defamatory per se and, as a result, defamation claim properly dismissed because plaintiff adduced no evidence of special damages); Moore v. University of Notre Dame, 968 F.Supp. 1330 (N.D. Ind. 1997) (statements by head football coach about offensive line coach (e.g., that he “could only coach one or two more years” and “was no longer physically capable” of coaching) were not defamatory per se); Anderson v. Vanden Dorpel, 667 N.E.2d 1296 (Ill. 1996) (supervisor’s statement that university’s director of corporate relations “did not follow up on assignments” and “could not get along with her coworkers” was not defamatory per se).

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Slander v. Slander Per Se: Slander cases required proof of special, or pecuniary, damage unless the statement fell into a category of “slander per se,” such as job incompetence, the commission of a serious crime involving moral turpitude, possession of a loathsome disease and unchastity in a woman. Bauer v. Murphy, 530 N.W.2d 1 (Wis. App. 1995) (alleged statement by coach at team meeting that former basketball player was a “disgrace” not slanderous per se); Nazeri v. Missouri Valley College, 860 S.W.2d 303 (Mo. 1993) (alleged remarks regarding professional skills and fitness as well as alleged homosexuality and adultery were slanderous per se); see generally Smolla, supra note 2, § 7:10-7:18. National Association of College and University Attorneys

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(b) Constitutional Requirements: In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the United States Supreme Court held that in private figure defamation lawsuits where “actual malice has not been established, damages must be “supported by competent evidence,” must represent compensation for no more than “actual injury,” must not be “presumed,” and must not constitute punitive damages in disguise. See generally Sack, supra, § 10.2. The Gertz rule, however, is inapplicable to cases where actual malice is established or where the statements at issue do not involve matters of public concern. See Dun & Bradstreet, Inc. v. Greenmoss, 472 U.S. 749 (1985). And in some states, Gertz does not apply to non-media defendants. For a good discussion of the interplay of these common law and constitutional concepts, see Nazeri v. Missouri Valley College, 860 S.W.2d 303 (Mo. 1993). (c) Types of Damages in Defamation Cases: With these general rules in mind, we can discuss the many types of damages in libel cases: •

Nominal Damages: A successful plaintiff is minimally entitled to nominal damages, usually amounting to no more than a few dollars, even if he or she has not established any actual harm from the publication. As a practical matter, nominal damages are awarded only in cases involving libel per se or slander per se, where special damages need not be proved. Nominal damages, however, can support a punitive damage award.

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General damages are awarded for non-pecuniary losses, such as injury to reputation and community standing, humiliation, emotional distress, and other intangible factors. They are analytically subdivided into actual and presumed damages.

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Presumed Damages: Historically, damage was simply presumed in libel cases. In slander cases, on the other hand, plaintiff was required to prove special, or pecuniary, damage unless the statement fell into a category of slander per se. Constitutional restrictions have substantially overridden these common law rules. Under the First Amendment, harm may be presumed in two instances: (1) where the plaintiff is a “private” person and the communication does not involve matters of public concern; and (2) in all cases in which actual malice is proven. See Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Dun & Bradstreet, Inc. v. Greenmoss, 472 U.S. 749 (1985). States are, of course, not required to permit presumed damages, so it is important to check the laws of the applicable jurisdiction.

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Actual damages: Actual damages or actual harm means harm to reputation, personal humiliation and mental suffering. Because there is generally no evidentiary requirement giving a precise monetary value to such harm, juries have leeway in awarding actual damages. Actual damages (as opposed to special damages) must be established in cases involving matters of public concern, regardless of the plaintiff’s status.

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Special damages are awarded to compensate for economic loss demonstrably caused by the defamation, such as loss of employment or business. Such damages are usually very difficult to prove. Special damages must be alleged and proved in slander cases where National Association of College and University Attorneys

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the alleged statements are not slander per se. •

Punitive damages may be available to punish the defendant and to deter similar conduct. Under Gertz, a libel must establish actual malice to receive an award of punitive damages.

For an extensive discussion of the complicated rules governing recoverable damages, see Smolla, supra, ch. 9 & Sack, supra, § 10.1 et seq. See also Sleem, 843 F.Supp. 57. A number of states have “retraction statutes,” compliance with which may mitigate damages for media defendants; see generally LAW OF THE STUDENT PRESS, supra note 26 at 123, and Smolla, supra note 2, § 9.12. 7.

Lack of Privilege

The foregoing elements must be established in order to win a defamation case. Even so, an otherwise viable claim of defamation may fail if the defending party successfully asserts that the communication is “privileged.” There are two types of privilege: (1) absolute, and (2) conditional or qualified. 1. Absolute Privilege: An “absolute” privilege is a form of immunity that completely bars recovery for defamation, regardless of the motive or fault of the publisher. Generally speaking, there are three kinds of absolute privilege: •

Statements by Public Officials/Statements Made in Public Proceedings: It generally applies to communications made by public officials, judicial officers, legislators and executive officers acting in the course of performing their duties, and to participants in proceedings conducted by such officials, regardless of whether the speaker knew that the statements were false or made the statements out of malice. See infra notes 42 & 48; see also Neary v. Regents of Univ. of Ca., 230 Cal. Rptr. 281 (Cal. Ct. App. 1986) (“official duty privilege” potentially applicable to university veterinarians’ report analyzing reasons for deaths of plaintiff rancher’s cattle); but see Slater v. Marshall, 895 F.Supp. 93 (E.D. Pa. 1995) (student’s reporting to a teacher that professor sexually harassed and stalked her was not absolutely privileged under the judicial proceedings privilege). The scope of this privilege varies significantly from jurisdiction to jurisdiction. See generally Sack, supra, § 8.1, et seq.

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Sovereign Immunity: State and federal governments are generally protected from tort claims under the doctrine of sovereign immunity unless there is waiver. Whether such waiver applies to defamation differs jurisdiction by jurisdiction. See, e.g., Board of Regents of Univ. of Minn. v. Reid, 522 N.W.2d 344 (Minn. Ct. App. 1994) (absolute immunity extended to statements of high level university officials).

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Consent: Consent is a complete defense to defamation. Its applicability often turns on whether the publication exceeded the scope of the consent. National Association of College and University Attorneys

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2. Qualified Privilege: There are a number of qualified privileges. These privileges are qualified or conditional. That means that they do not apply if abused. Abuse typically occurs where the speaker had no reason to make the statement to the recipient, or if the speaker made the statement out of spite or ill will. •

Common Interest Privilege: Most importantly, a “qualified” privilege governs communications between persons who share a common interest in, or duty relative to, the subject matter, such as communications between organization personnel. The conditional nature of this privilege, or its "qualification," typically depends on whether the communication is made on a proper occasion, in good faith and without excessive publication. Many courts have extended this privilege to faculty evaluations and employment references, as discussed below. See generally Smolla, supra note 2, §8.08[3]; 1 Lex K. Larson & Philip Borowsky, UNJUST DISMISSAL §§ 4.06[2] (1996); Stevens, “Evaluation of Faculty Competence as a ‘Privileged Occasion,’” 4 JOURNAL OF COLLEGE & UNIVERSITY LAW 281, 283 (1977).

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Fair Report and Neutral Reportage Privilege: There are other qualified privileges that more typically apply to media defendants but which may nonetheless have some applicability in the higher education context. For example, there is the fair report privilege, which allows media re-publication of fair and accurate reports of certain proceedings. See, e.g., Reuber v. Food Chemical News, Inc., 925 F.2d 703 (4th Cir.), cert. denied, 501 U.S. 1212 (1991) (fair report privilege); see generally Smolla, supra, §§ 8.66-8:77; Sack, supra, ch. 7. While the fair report privilege is well accepted by courts, the more recent neutral reportage privilege is not. It protects serious charges made by a responsible, prominent person or organization about a public figure on the theory that what is newsworthy about the accusations is the fact that they were made. See, e.g., Edwards v. National Audubon Society, 556 F.2d 113 (2nd Cir.), cert. denied, 434 U.S. 1002 (1977); Barry v. Time, Inc., 584 F.Supp. 1110 (N.D. Cal. 1984); see generally Smolla, supra, §§ 4.96-4:101; Sack, supra, ch. 7. B.

COMMON DEFAMATION SCENARIOS IN HIGHER EDUCATION 1.

Employee Performance Evaluations

Disputes relating to performance evaluations, especially in the context of tenure decisions, frequently include defamation claims. A number of defenses may defeat liability: •

Opinion: An evaluation may be found to be non-actionable opinion insofar as it is based on highly subjective qualitative judgments or is nothing more than rhetorical hyperbole. See, e.g., Wynne v. Loyola University of Chicago, 741 N.E.2d 669 (Ill.App. 2000) (statements made by dean about professor in memorandum sent to senior member of department were expressions of opinion and not actionable); Hupp v. Sasser, 490 S.E.2d 880 (Va. 1997) (statements made by university dean about former graduate student (e.g., National Association of College and University Attorneys

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that he was a “bully” and exhibited unprofessional and unacceptable behavior) were largely protected opinion); Washington v. Smith, 893 F.Supp. 60 (D.D.C. 1995), aff’d., 80 F.3d 555 (D.C. Cir. 1996) (Milkovich applied to sports article about women’s basketball coach); Hylton v. American Ass’n for Vocational Instructional Materials, Inc., 448 S.E.2d 741 (Ga. Ct. App. 1994) (resolution announcing administrator leave of absence expressed opinions not facts); Kimura v. Superior Court, 281 Cal. Rptr. 691 (Cal. Ct.App. 1991) (budget director’s letter accusing bursar of racism and bigotry was not “literal, factual accusation” and therefore not actionable), cert. denied, 112 S.Ct. 937 (1992) (California decision ordered unpublished; may not be cited); Lester v. Powers, 596 A.2d 65 (Me. 1991) (student letter sent in connection with tenure review contained non-actionable statements of opinion); Baker v. Lafayette College, 504 A.2d 247 (Pa. Super. Ct. 1986), aff’d., 532 A.2d 399 (Pa. 1987) (memorandum from college professor to provost commenting unfavorably on presence of professor’s wife in his classes was protected opinion; evaluation of professor written by one outside the college to provost was also opinion); Belliveau v. Rerick, 504 A.2d 1360 (RI 1986) (department chairman’s statements about merits of applicant for promotion was protected opinion based on fully disclosed facts); cf. Maynard v. Daily Gazette Co., 447 S.E.2d 293 (W.Va. 1994) (newspaper editorial concerning former university athletic program director contained protected opinion). •

Not Defamatory: Courts also find that many of the statements placed at issue by libel plaintiffs are nothing more than a tempest in a teapot. See, e.g., Constantino v. University of Pittsburgh, 766 A.2d 1285 (Pa. Super. Ct. 2001) (letter sent by administrator at healthcare facility owned by university to dean of university’s nursing school requesting faculty member’s removal from healthcare facility as clinical instructor was not defamatory); Hupp v. Sasser, 490 S.E.2d 880 (Va. 1997) (statements made by university dean about former graduate student (e.g., that he lacked authorization to use school owned equipment) were not defamatory); Anderson v. Vanden Dorpel, 667 N.E.2d 1296 (Ill. 1996) (supervisor’s statement that university’s director of corporate relations “did not follow up on assignments” and “could not get along with her coworkers” was not defamatory); Hylton v. American Ass’n for Vocational Instructional Materials, Inc., 448 S.E.2d 741 (Ga. Ct. App. 1994) (resolution announcing administrator leave of absence not defamatory per se nor capable of defamatory construction by innuendo); Livingston v. Murray, 612 A.2d 443 (Pa. Super. Ct.), appeal denied, 617 A.2d 1275 (Pa. 1992) (newspaper article statements concerning comparative qualifications of new athletic director not defamatory); Rubenstein v. Univ. of Wisc. Bd. of Regents, 422 F.Supp. 61 (E.D. Wis. 1976) (calling assistant professor an “old biddy” and commenting that she was just out to make trouble not defamatory); Johnson v. Bd. of Junior College Dist., 334 N.E.2d 442 (Ill. App. Ct. 1975) (chancellor’s statement that professors would be transferred because of their teaching abilities not defamatory).

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No Publication: If the statements at issue are circulated among just a few people with a valid reason to know, courts sometimes find that there has been no publication. See, e.g., Hylton v. American Ass’n for Vocational Instructional Materials, Inc., 448 S.E.2d 741 National Association of College and University Attorneys

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(Ga. Ct. App. 1994) (memorandum circulated only to persons at corporate board meeting not “published”); Handler v. Arends, No. 0527732S 1995 WL 107328 (Conn. Super. Ct. March 1, 1995) (no publication so long as each co-employee recipient “had a valid business reason to receive” the allegedly defamatory materials at issue); Walter v. Davidson, 104 S.E.2d 113 (Ga. Ct. App. Div. 1958) (no “publication” as between college personnel charged with duty of student oversight); see also Taggart v. Drake University, 549 N.W.2d 796 (Iowa 1996) (discussing, without deciding, whether statements among members of faculty evaluation committee in tenure matter were “published”). Even where the key elements of defamation are otherwise established, a defense of privilege typically is raised and often successful. •

Absolute Privilege: Some courts consider performance evaluations absolutely privileged, reasoning, for example, that the evaluating official is executing a legally-mandated duty, while other courts apply a common law or statutory privilege to evaluative judgments communicated in administrative or quasi-judicial employment proceedings (such as grievance or disciplinary hearings). See, e.g., Sodergren v. Johns Hopkins University Applied Physics Lab., 773 A.2d 592 (Md. Ct. App. 2001) (absolute judicial privilege protected letters of apology written by university administrator as part of a settlement agreement in sexual harassment suit against university employee); Neary v. Regents of University of California, 185 Cal.App.3d 1136 (statements made by vice chancellor about rancher protected by official duty privilege so long as they were made while vice chancellor exercised policy-making function and acted within scope of duty); Dixon v. Superior Court, 36 Cal.Rptr.2d 687 (Cal. Ct. App.1994) (absolute privilege extended to university professor’s statements made in connection with environmental proceedings); Chonich v. Ford, 321 N.W.2d 693 (Mich. Ct. App. 1982) (absolute privilege applied to written statement read at meeting of college board of trustees acting as “subordinate legislative body”); Cripe v. Board of Regents, 358 So.2d 244 (Fla. Ct. App. 1978) (absolute privilege extended to evaluation report about employee as required by state law); Petroni v. Bd. of Regents, 566 P.2d 1038 (Ariz. Ct. App. 1977) (absolute privilege protected report on plaintiff’s qualifications for promotion and tenure); Shearer v. Lambert, 547 P.2d 98 (Ore. 1976) (department head’s letter about assistant professor covered by absolute privilege so long as head was required or authorized to make statement evaluating the professor to persons other than professor’s superior). But see, e.g., Arroyo v. Rosen, 648 A.2d 1074 (Ct. Spec.App. Md. 1994) (absolute privilege held inapplicable to statements made to university investigatory committee by research associate about chairman’s scientific practices); Stukuls v. State of N.Y., 366 N.E.2d 829 (N.Y. 1977) (absolute privilege did not extend to statement made by acting state university president about a candidate for tenure; only qualified privilege applied).

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Consent: A few courts hold that the plaintiff consented to the proceeding that gave rise to the disputed communication. See, e.g., Bloch v. Temple University, 939 F.Supp. 387 (E.D. Pa. 1996) (statements made by officials at public university during professor’s tenure evaluation which were repeated in front of faculty personnel committee were National Association of College and University Attorneys

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absolutely privileged because plaintiff professor, who was denied tenure, consented to review of his tenure file by the faculty personnel committee); Sophianopoulos v. McCormick, 385 S.E.2d 682 (Ga. Ct. App. 1989) (no publication because plaintiff “invited libel” by soliciting from an association of university professors what turned out to be allegedly defamatory materials); Baker v. Lafayette College, 504 A.2d 431 (Pa. Super. 1986) (college professor contractually agreed to evaluation process and, as a result, consented to the publication of an allegedly defamatory evaluation). Compare Tacka v. Georgetown University, 193 F.Supp.2d 43 (D.D.C. 2001) (music professor’s consent to tenure review process created only a qualified privilege for the university’s publication of evaluations to the department’s tenure committee, which privilege could be overcome by evidence of excessive publication or malice). •

Qualified Privilege: Performance evaluations are often entitled to a qualified privilege. To preserve the privilege, courts generally require proof that (1) the evaluation was undertaken by an appropriate university official (as determined by established procedures and/or customary institutional practice); (2) the disputed communications were relevant to the employment issues reviewed; and (3) the official conveyed the evaluation only to persons with a legitimate interest in, or duty regarding, the subject matter. See, e.g., Tacka v. Georgetown University, 193 F.Supp.2d 43 (D.D.C. 2001) (qualified privilege extended to university’s publication of evaluation of music professor; whether privilege was abused by excessive publication or malice was jury question); Taggart v. Drake University, 549 N.W.2d 796 (Iowa 1996) (statements among members of faculty evaluation committee in tenure matter were protected by qualified privilege); Gallo v. Princeton Univ., 656 A.2d 1267 (N.J. Super. Ct. App. Div. 1995), rev. denied, 663 A.2d 1359 (N.J. 1995) (“qualified privilege” extended to statements about university investigation into alleged facilities department improprieties; publication not excessive in light of nature of university community); Koerselman v. Rhynard, 875 S.W.2d 347 (Tex. Ct. App. 1994) (department chair’s statements during tenure review were conditionally privileged because they were “made in the course of duty, on a subject in which the author has an interest, and in good faith without actual malice”); Lester v. Powers, 596 A.2d 656 (Me. 1991) (student letter solicited by tenure review committee subject to conditional privilege); Rosenthal v. Regents of Univ. of Cal., 269 Cal. Rptr. 788 (Cal. Ct. App. 1990) (report by university committee relative to academic program and performance of former chair was either non-actionable opinion or privileged) (opinion may not be cited); Gautschi v. Maisel, 565 A.2d 1009 (Me. 1989) (tenure committee member had qualified privilege to share with committee comments made by a faculty member at another institution regarding candidate’s qualifications); Belliveau v. Rerick, 504 A.2d 1360 (RI 1986) (qualified privilege covered department chairman’s statements about merits of applicant for promotion); Kaplan v. MacNamara, 497 N.Y.S.2d 710 (N.Y. App. Div. 1986) (qualified privilege protected department chairperson’s statement relating to faculty member’s denial of tenure); Stukuls v. State of N.Y., 366 N.E.2d 829 (N.Y. 1977) (qualified privilege protected statement made by acting state university president about a candidate for tenure); Doman v. Rosner, 371 A.2d 1002 (Pa. Super. Ct. 1977) (conditional privilege protected research scientist’s report). National Association of College and University Attorneys

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Because the question of whether the qualified privilege was abused is almost always a jury question, courts rarely grant motions to dismiss or for summary judgment on this basis. See, e.g., Stiner v. University of Delaware, 243 F.Supp.2d 106 (D. Del. 2003) (qualified privilege applied to university’s listing professor as “academically unqualified” for purposes of accreditation review; whether privilege abused was question for the jury); Tacka v. Georgetown University, 193 F.Supp.2d 43 (D.D.C. 2001) (qualified privilege extended to university’s publication of evaluation of music professor; whether privilege was abused by excessive publication or malice was jury question); Handler v. Arends, No. 0527732S 1995 WL 107328 (Conn. Super. Ct. March 1, 1995) (qualified privilege extended to memorandum stating that assistant professor was denied tenure; jury question on whether privilege abused); Moshtaghi v. The Citadel, 443 S.E.2d 915 (S.C. 1994) (application of “employer-employee privilege” inappropriate for summary judgment); Aldridge v. De Los Santos, 878 S.W.2d 288 (Tex. Ct. App. 1994) (application of qualified “official immunity” for faculty senate censure not appropriate for summary judgment); Neighbors v. Kirksville College of Osteopathic Medicine, 694 S.W.2d 822 (Mo. Ct. App. 1985) (qualified privilege extended to “service letter” issued upon termination of employee; because abuse of privilege properly pleaded, motion to dismiss was denied). For an interesting discussion of an employer’s qualified privilege to publicize application of its anti-sexual harassment policy to its employee, see Garziano v. E.I. Du Pont DeNemours & Co., 818 F.2d 380 (5th Cir. 1987). See also Rosenboom v. Vanek, 451 N.W.2d 520 (Mich. App. 1989) (“shared interest” qualified privilege extends to “moral and social obligations” as well as legal duties; thus, faculty member, who did not establish actual malice viz. allegedly slanderous remarks to his superior regarding a sexual assault, failed to overcome the privilege). 2.

Employee Terminations for Cause

Because employment termination for cause is a more serious action than nonreappointment, it presents a more significant libel risk. For-cause termination customarily occurs in cases of gross nonfeasance or malfeasance, thus setting the stage for a per se defamation claim. Therefore, considerable caution must be exercised with respect to defamation when investigating performance concerns or misconduct, particularly if the investigative findings may lead to for-cause termination. As with performance evaluations, there are numerous defenses that minimize the risks: •

Opinion: Courts have protected non-factual, non-defamatory expressions of opinion. See, e.g., Campanelli v. University of California, 51 Cal.Rptr.2d 891 (Ct. App. 1996) (vice chancellor’s and athletic director’s statements about terminated basketball coach were expressions of opinion and/or rhetorical hyperbole); Livingston v. Murray, 612 A.2d 443 (Pa. Super. Ct.), appeal denied, 617 A.2d 1275 (Pa. 1992) (statements comparing fired athletic director with qualifications of new athletic director were non-defamatory expressions of opinion); McConnell v. Howard Univ., 621 F.Supp. 327 (D.D.C. 1985), modified, 818 F.2d 58 (D.C. Cir. 1987) (statements made by university personnel relating National Association of College and University Attorneys

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to termination of professor were non-actionable “evaluative opinions”); Keddie v. Penn. State Univ., 412 F.Supp. 1264 (M.D. Pa. 1976) (communications among university administration about termination matter were not defamatory). •

Absolute Privilege -- Consent: See, e.g., Glaze v. Marcus, 729 P.2d 342 (Ariz. 1986) (terminated university safety coordinator impliedly consented to allegedly defamatory statements made at dean of law school at a public grievance hearing).

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Absolute Privilege – Judicial Proceedings: See, e.g., Webster v. Byrd, 494 So.2d 31 (Ala. 1986) (letter of termination made in course of quasi-judicial tenure proceeding was absolutely privileged so long as no excessive publication).

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Qualified Privilege: To ensure protection under a qualified privilege, confidentiality is critical. Communications should be limited to persons who have an undisputable “need to know” or who have knowledge of facts essential to resolving the matter. See, e.g., Washington v. Central State University, 699 N.E.2d 1016 (Ct.Clms.Ohio 1998) (allegedly defamatory statements made about terminated vice president for academic affairs in president’s report to board of trustees were protected by qualified privilege); Holm v. Ithaca College, 669 N.Y.S.2d 483 (S.Ct. 1998) (statements made by college about terminated faculty member’s conduct protected by qualified privilege); Moshtaghi v. The Citadel, 443 S.E.2d 915 (S.C. 1994) (qualified “employer-employee privilege” might extend to statements made by university president about terminated professor; summary judgment denied); McConnell v. Howard Univ., 621 F.Supp. 327 (D.D.C. 1985), modified, 818 F.2d 58 (D.C. Cir. 1987) (statements made by university personnel relating to termination of professor were “qualifiedly privileged”); Keddie v. Penn. State Univ., 412 F.Supp. 1264 (M.D. Pa. 1976) (communications among university administration about termination matter were qualifiedly privileged); Greenya v. George Washington Univ., 512 F.2d 556 (D.C. Cir. 1975), cert. denied, 423 U.S. 995 (1975) (qualified privilege protected written statement about terminated part time instructor); McCunn v. Cal. Teachers Ass’n, 83 Cal. Rptr. 846 (Cal. Ct. App. 1970) (conditional privilege protected investigation panel’s report that resulted in junior college superintendent’s discharge). 3.

Employment References

Employment references present special risks. Fortunately, the defenses of opinion and privilege often apply. •

Opinion: See, e.g., Hunt v. University of Minnesota, 465 N.W.2d 88 (Ct. App. Minn. 1991) (university vice president’s unfavorable reference contained protected opinion).

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Absolute Privilege -- Consent: See, e.g., Ostasz v. Medical College of Ohio, 691 N.E.2d 371 (Ct.Clms. Ohio 1997) (where the court held that plaintiff physician, by identifying college as institution where he completed his residency, consented to allegedly National Association of College and University Attorneys

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defamatory letter reference sent by college to hospital where he sought privileges). •

Qualified Privilege: Most jurisdictions recognize a qualified privilege for references, reasoning that former and prospective employers share a legitimate interest in the subject matter of the reference. The privilege may be forfeited, however, if its necessary scope is exceeded, such as where damaging information is shared with persons who do not need to know, or where information is maliciously, gratuitously or otherwise improperly disseminated. See, e.g., Ostasz v. Medical College of Ohio, 691 N.E.2d 371 (Ct.Clms. Ohio 1997) (allegedly defamatory letter reference sent by college to hospital where plaintiff physician had sought privileges was protected by qualified privilege); Olsson v. Indiana Univ. Board of Trustees, 571 N.E.2d 585 (Ind. Ct. App. 1991) (university supervisor’s letter reference about teacher was qualifiedly privileged); Hunt v. University of Minnesota, 465 N.W.2d 88 (Ct. App. Minn. 1991) (university vice president’s unfavorable reference was conditionally privileged); Garvey v. Dickinson College, 763 F.Supp. 796 (M.D. Pa. 1991) (college dean’s veiled reference to one faculty member as a “hostile junior colleague” in reference provided for another faculty member subject to conditional privilege. 4.

Students as Defamation Victims

Various situations prompt students to file defamation claims. Academic evaluations and suspension or expulsion decisions, for example, involve judgments and facts that could harm a student’s reputation. See, e.g., Cobb v. University of Virginia, 69 F.Supp.2d 815 (W.D. Va. 1999) (vice president of university affairs’ statement that student had admitted to an honor code violation was actionable defamation). There is a greater risk of defamation liability in connection with statements made in the context of disciplinary actions as opposed to academic evaluations, since factual allegations (as opposed to opinions) usually form the basis of disciplinary charges. Moreover, institutional policy may require that disciplinary charges be stated in writing and communicated to various individuals within the university. There are other areas that present risks of defamation lawsuits. References and letters of recommendation pose additional areas for potential conflict. And students may also become the subject of campus commentary, whether in student newspapers, local media or more casual campus settings. See, e.g., Holt v. Cox Enterprises, 590 F.Supp. 408 (N.D. Ga. 1984) (former college football player); Klahr v. Winterble, 418 P.2d 404 (Ariz. Ct. App. 1966) (student senator as public official). Defenses include: •

Opinion: Most qualitative judgments regarding student performance contain opinions and, therefore, are non-actionable, at least if not explicitly or implicitly based on provably false “fact.” See, e.g., Altschuler v. University of Pennsylvania Law School, 1998 WL 113989 (S.D.N.Y. 1998) (law school’s statement about student to law firm hiring committee was mere opinion); Hupp v. Sasser, 490 S.E.2d 880 (Va. 1997) (statements National Association of College and University Attorneys

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made by university dean about former graduate student (e.g., that he was a “bully” and exhibited unprofessional and unacceptable behavior) were largely protected opinion); Baldwin v. University of Texas, 945 F.Supp. 1022 (S.D. Texas 1996) (evaluations and performance reviews of medical resident were protected expressions of opinion); Banks v. Dominican College, 42 Cal. Rptr.2d 110 (Cal. Ct. App. 1995) (explanation of reasons for dismissal of student from teacher certification program is protected statement of opinion); Assaad-Faltas v. Univ. of Arkansas for Medical Sciences, 708 F.Supp. 1026 (E.D. Ark. 1989), aff’d., 902 F.2d 1571 (8th Cir. 1990) (statements by faculty members and residents as to medical resident’s professional competence or personal characteristics related to her job performance are protected opinion). •

Publication: “Publication” of the disputed comments may be ruled absent based on the in-house communications rationale described earlier.

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Absolute Privilege -- Consent: It may also be argued that a student implicitly consents to evaluation upon enrollment in a course of study, under a quasi-contractual theory that binds students to institutional policies and procedures. See, e.g., Kraft v. William Alanson White Psychiatric Found., 498 A.2d 1145 (D.C. App. 1985) (faculty member protected by absolute privilege where student had impliedly consented to evaluations as set forth in the institution’s catalogue distributed to all students).

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Qualified Privilege: Courts typically accord faculty broad discretion in their evaluation of student academic performance, in keeping with a long tradition of judicial deference to such judgments. A qualified privilege to comment will generally be recognized if the evaluation occurs in the proper context, such as where a faculty member is serving as a course instructor, advisor, or clinical supervisor. See, e.g., Olsson, 571 N.E.2d 585 and see discussion of privileges above. See also Williams v. University of Cincinnati, 752 N.E.2d 367 (Ct.Clms. Ohio 2001) (university’s statements to NCAA about college basketball player student were protected by qualified privilege); Baldwin v. University of Texas, 945 F.Supp. 1022 (S.D. Texas 1996) (evaluations and performance reviews of medical resident were protected by qualified privilege); Vargo v. Hunt, 581 A.2d 625 (Pa. Super. Ct. 1990) (student disclosure of alleged student honor code violation was conditionally privileged); Cohen v. Hartlage, 348 S.E.2d 331 (Ga. Ct. App. 1986) (intern’s supervisor’s report submitted to state board of examiners was conditionally privileged). 5. Students as Alleged Defamers: Liability for Student Speech and Commentary

Students can also defame others. Indeed, students are increasingly facing defamation claims advanced by university officials and fellow students. See, e.g., Slater, 895 F.Supp. 93 (professor counterclaimed defamation in connection with allegation of stalking in student sexual harassment case); Lester, 596 A.2d 65 (student letter challenged as defamatory in tenure review matter); Vargo, 581 A.2d 625 (student brought defamation action against fellow student for National Association of College and University Attorneys

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reporting perceived honor code violation). And students are subjected to potential defamation liability through their own published commentary, although student commentary is perhaps too tame to invite many defamation lawsuits. Most cases involve situations where newspapers issue “spoof” or “joke” editions or otherwise publish humorous accounts that others find defamatory. Usually courts find that these joke editions are non-factual, non-defamatory and non-actionable. See, e.g., Baxter v. Scott, 847 So.2d 225 (La.App.2d Cir. 2003) (references to administrator as “hatchet man”, “Vice President of Excremental Affairs” and a member of the “sewer staff” were non-actionable hyperbole); Walko v. Kean College of N.J., 561 A.2d 680 (N.J. Super. Ct. Law Div. 1988) (college newspaper “spoof” edition’s “announcement” could not have been reasonably understood as factual statement that college official could be reached by calling “Whoreline” for “good telephone sex”); Salek v. Passaic Collegiate School, 605 A.2d 276 (N.J. Super. Ct. App. Div. 1992) (humorous yearbook photographs that allegedly implied that plaintiff faculty member proposed to engage in sexual relations with another faculty member were not factual and not defamatory). Universities, however, are not generally liable for statements made in student publications because universities have little if any control over these publications’ content. In general, public university officials may not lawfully screen student newspapers for defamation, suppress the publication of commentary likely to defame, or discipline student editors for publishing defamatory material. See, e.g., Bazaar v. Fortune, 476 F.2d 570 (5th Cir.), modified, 489 F.2d 225 (5th Cir. 1973), cert. denied, 416 U.S. 995 (1974) (state university not allowed to censor student literary magazine; Antonelli v. Hammond, 308 F.Supp. 1329 (D. Mass. 1970) (state university held no right of editorial control of campus newspaper); cf. Schneider v. Indian River Community College Found., Inc., 875 F.2d 1537 (11th Cir. 1989) (college trustees’ control over news programming at non-commercial community college radio station is not infringement of employees’ First Amendment rights, as those rights vest in trustees as station licensees). And because universities have no such editorial control, several courts have concluded that universities should not be held legally responsible for student press defamation. See, e.g., McEvaddy v. CUNY, 633 N.Y.S.2d 4 (N.Y. App. Div. 1995) app. denied, 642 N.Y.S.2d 195 (N.Y. 1996) (student newspaper not “agent” of university and, therefore, university could not be held liable for allegedly defamatory article published in student newspaper); Mazart v. State, 109 Misc.2d 1092, 441 N.Y.S.2d 600 (N.Y. Ct. Cl. 1981) (state university could not be held liable on a theory of agency for alleged defamation because state university had no right of control over student newspaper); see Milliner v. Turner, 436 So.2d 1300 (La. Ct. App. 1983) (because the First Amendment barred the college from exercising anything but advisory control over student newspaper, the university could not be held liable for defamation published in paper); compare Gallo, 656 A.2d 1267 (statements appearing in independent student and alum publications not attributable to private university), and Wallace, 372 N.Y.S.2d 416 (control is a question of fact at private university). Private institutions, on the other hand, are rarely subject to the constraints of the First Amendment, although similar entitlements may arise under state law, university governance National Association of College and University Attorneys

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documents, or university policy statements of a contractual nature. See e.g., Wallace v. Weiss, 372 N.Y.S.2d 416 (N.Y. Sup. Ct. 1975). A court may, however, find that private institutions have a duty to establish publication guidelines and otherwise oversee operations, and it may apply a negligence standard in analyzing whether that duty was properly discharged. See Salek, 605 A.2d 276 (school officials did not negligently supervise yearbook). It is also possible that a court will decline to impose such a duty in light of the relative maturity of college students. See Mazart, 441 N.Y.S.2d 600.

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