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Elvira Schmoltz was recently sued by Bart Harvey based on her statements to a PTA meeting, with over fifty members in attendance, that "Bart is a poor father and a pedophile who enjoys sex with minor children." There is no independent evidence that Bart has engaged in any such conduct and, to the contrary, Bart is a model father to his two sons. Witnesses at the meeting confirm the statement was made. Bart does have a prior conviction for speeding and for trespass on Elvira's property over ten years ago. What tort claims and defenses exist?  

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Bart's strongest claim in this case is for defamation. While various US states have slightly different elements for a defamation claim, generally speaking, these claims require the plaintiff (here, Bart) to prove that the defendant (here, Elvira):

  1. made a statement
  2. of fact
  3. that was false
  4. to at least one person...

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Bart's strongest claim in this case is for defamation. While various US states have slightly different elements for a defamation claim, generally speaking, these claims require the plaintiff (here, Bart) to prove that the defendant (here, Elvira):

  1. made a statement
  2. of fact
  3. that was false
  4. to at least one person who was neither the defendant nor the plaintiff (publication),
  5. either negligently, recklessly, or intentionally disregarding whether or not the statement was true, and
  6. the statement either caused actual harm to the plaintiff's reputation or is an example of defamation per se (i.e., it's one of the types of statements we consider so generally harmful that we automatically assume it harmed the plaintiff's reputation, even if he can't prove it did).

Elvira's comments about Bart would likely be broken down, for defamation purposes, into two separate statements:

  • "Bart is a poor father"
  • "[Bart is] a pedophile who has sex with minor children."

The first statement, "Bart is a poor father," is unlikely in itself to support a defamation claim. "Bart is a poor father" could be understood to be Elvira's opinion rather than a fact. Typically, statements of opinion cannot be the basis for a defamation claim; only statements of fact (meaning "statements that can be proven true or false") can.

"Bart is a pedophile who has sex with minor children," however, can certainly be the basis of a defamation claim. In fact, Bart can likely argue this statement is defamation per se, since both improper sexual behavior and imputation of a crime are categories recognized by most states as defamation per se.

If Bart can establish that "Bart is a pedophile who has sex with minor children" is defamation per se, he will not have to prove that Elvira's comments caused him harm.

For instance, he will not have to demonstrate that the rest of the PTA won't talk to him or that he lost business clients or that his children now need therapy from being bullied on the playground. He can recover damages without having to prove any actual harm at all (although, in practice, even defamation per se plaintiffs will establish actual damages in court if those damages exist).

Meanwhile, Elvira's potential defenses are slim. "Bart is a pedophile who has sex with minor children" is a statement of fact for defamation purposes (that is, we could prove that Bart either does or does not have sex with children). With a live audience of over fifty people in attendance, the statement was definitely published. And, as discussed above, Bart is likely to win an argument that the statement was defamation per se.

That leaves one question not covered by the fact pattern: Was Elvira's statement true?

Truth is an absolute defense to a defamation claim, and the fact pattern here does not mention whether Bart is in fact a pedophile or has had sex with a minor. In fact, it specifically mentions he's a model father but not that he isn't a pedophile or has only had sex with adults.

If Elvira can prove that the statement is true, Bart cannot prevail on his defamation claim.

Even if the statement is false, Elvira may be able to defeat Bart's defamation claim if she can prove that she did not make the statement knowing it was false or with reckless or negligent disregard for whether it was true. In other words, even if the statement is false, Elvira will not be held liable if she can prove that she believed, earnestly and in good faith, that "Bart is a pedophile who has sex with minor children" was true when she said it.

Elvira could certainly testify that she believed this. Evidence that she behaved as if she believed it—for instance, by trying to protect her children from Bart or filing a police report—would also help her establish her claim that she had a good-faith belief Bart was in fact having sex with children.

Elvira could also attempt to argue that even if she defamed Bart, she didn't do any real harm to his reputation, because his prior convictions for speeding and trespass mean that Bart had no reputation to lose. To the extent that Bart argues for actual damages, Elvira's argument that Bart's reputation is already trash may protect her from liability for those damages. It will not, however, protect her from liability for defamation per se.

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