Vermont Civil Jury Instruction Committee

Plain English Jury Instructions

Section 10. Defamation (DRAFT)

Table of Contents

10.0 Introductory Defamation Instructions

10.1 False and Defamatory Statements

10.2 Publication

10.3 The Fault–Privilege Element

10.4 Privileges

10.5 Actual Harm Warranting Compensatory Damages and Special Damages (Slander as a Matter of Law)

Reporter’s Notes

The following instructions are draft versions and reflect the Committee’s preliminary understanding and refinement of the subject.

10.0 Introductory Defamation Instruction

[Name of plaintiff] claims that [name of defendant] negligently published a [describe the statement] that was false and a defamatory statement, which [damaged Plaintiff’s reputation and/or subjected Plaintiff to public contempt, disgrace or ridicule] [and caused [name of plaintiff] to suffer [describe additional damages]].

Reporter’s Notes

This instruction is intended as an introductory sentence. The following instructions are the remaining elements of defamation and should be incorporated into any charge as required by Plaintiff’s factual pleadings, evidence at trial, and the relevant privilege defenses raised by Defendant. See generally Lent v. Huntoon, 143 Vt. 539 (1983) and Crump v. P & C Food Markets, Inc., 154 Vt. 284 (1990).

Before any defamation charge is brought to a jury, the court must consider whether the alleged defaming statement or act is “libel as a matter of law.” See Lent, 143 Vt. at 546–47; Blouin v. Anton, 139 Vt. 618, 621 (1981). This concept should not be confused with “slander per se,” which is a determination that certain statements are actionable as slander as a matter of law. As Lent states and Blouin illustrates, “libel as a matter of law” requires the court to weigh the evidence to determine if the alleged statements are defamatory as a matter of law. Blouin, 139 Vt. at 621 (holding that inflammatory words spoken in the context of a political skirmish were not defamatory as a matter of law). If the trial court, after weighing the evidence, remains in doubt about the defamatory nature of the alleged statements, it should include the alternative instruction included in Section 10.1 to put the issue properly before the jury.

10.1 False and Defamatory Statements

[Alternative 1 Falsity:

[Name of plaintiff] must show that the statement[s] made by [name of defendant] were false. If [name of plaintiff] has not proven that the statements were false, then you should not consider any other part of this claim.]

[Alternative 2 Affirmative Defense of Truth:

It is up to [Name of defendant] to show that the statements are true. If [he/she] has proved that the statements were true, it is a complete defense to this claim and you should not go any further.]

[Alternative 3 Defamatory Statements:

[Name of plaintiff] must also prove that the statement made by [name of Defendant] tended to lower [him/her] in the opinion of a substantial respectable group or to deter other people from dealing with her. [Name of plaintiff] need not prove that anything [name of defendant] said actually did lower [him/her] in the opinion of another person, or that any statement actually did cause any person not to associate or deal with [him/her]. [He/She] must prove that the statement tended to do that. Plaintiff’s feelings about Defendant’s words are not enough. You must decide whether Defendant’s words alone or how and when Defendant said them have a tendency to lower other people’s opinion of Plaintiff.]

Reporter’s Notes

See Ryan v. Herald Assoc., Inc., 152 Vt. 275, 283 (1989); Burgess v. Reformer Publishing Corp., 146 Vt. 612, 619 (1986). Depending on the evidence offered by Plaintiff, Defendant may be entitled to a corrective instruction on the use of rumor and innuendo to interpret a defamatory statement. Longey v. Slator, 118 Vt. 251, 255–56 (1954). The Court in Longey held:

An innuendo is merely explanatory of what is already set forth. It is an averment of the meaning of the alleged libelous words. It does not and cannot add to, enlarge or change the sense of the words charged. If an alleged libel is not capable of the construction which is given it in an innuendo it is proper, on demurrer, to reject the innuendo as surplusage.

Id.

The third paragraph of this instruction addressing the defamatory nature of a statement does not appear to be necessary for a claim of “slander per se” and should not be included when the statement has been established as defamatory as a matter of law. Lent v. Huntoon, 143 Vt. 539, 546 (1983); see also Reporter’s Note Sections 10.0, 10.5.

The instruction for falsity is a relatively recent development in the law. Under the common law, a defamatory statement was presumed to be false and required no additional pleading or instruction as the burden fell on the Defendant to establish that this statement was true. Philadelphia Newspaper, Inc. v. Hepps, 475 U.S. 767, 776 (1986); Restatement (Second) of Torts § 581A, cmt. b. Beginning with New York Times, Co. v. Sullivan, 376 U.S. 254, 272 (1964), the United States Supreme Court announced that the First Amendment required public-figure plaintiffs to establish by clear and convincing proof that the statements were made with either knowledge or their falsity or a reckless disregard for whether the statements were false or not. Id. at 279–80, 285–86. In Philadelphia Newspapers, the Court clarified: “

Our opinions to date have chiefly treated the necessary showings of fault rather than of falsity. Nonetheless, as one might expect given the language of the Court in New York Times, a public-figure plaintiff must show the falsity of the statements at issue in order to prevail in a suit for defamation.

475 U.S. at 775. The holding of Philadelphia Newspapers and Gertz v. Robert Welch, Inc., 418 U.S. 323, 325 (1974), extended this holding to private figures claiming defamation from statements of public concern. 475 U.S. at 776–79. In such cases, the plaintiff bears the burden of proof on the issue of falsity and must present evidence establishing that the statement was false.

It appears that in such cases a defendant’s affirmative defense of truth is really an opportunity to present rebuttal evidence against plaintiff’s case and that plaintiff retains the ultimate burden of proof. In such cases, the instruction for the affirmative defense of truth should not be given.

Although neither the United States nor the Vermont Supreme Courts have addressed the standard for falsity when a private figure claims defamation arising from statements on a private matter, the committee has assumed that the common law would control as the Court’s reasoning is based on a derogation of the common law premised on greater protections required by the Constitution for public speech. In such cases, while falsity is an element of plaintiff’s case, it should not be a separate element of the claim and should be charged as part of the fault element of the case—see § 10.3. In such cases, Philadelphia Newspapers suggests that the burden of falsity is a threshold issue, which then shifts to the defendant who bears the ultimate burden to prove that the statement is true. 475 U.S. at 774 (citing Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985)); see also Restatement (Second) of Torts § 613, caveat, cmt. j (refusing to express “an opinion on the extent to which the common law rule” puts the burden of proof on defendants to establish truth); 2 D. Dobbs, The Law of Torts §§ 410, 420 (2001); R. Sack, Libel, Slander, and Related Problems 40,134–36 (1980); 8 S. Speiser, et al., The American Law of Torts § 29:84, at 582, n. 74 (1991).

10.2 Publication

You must next decide whether [name of Defendant] made at least one [his/her] statement to someone other than Plaintiff.

10.3 The Fault Element

You must next decide whether [name of defendant] [spoke, wrote, or made] the statement when [he/she]

1. knew it to be false,
2. knew it was probably false or had serious doubts as to its truth, or
3. [spoke, wrote, or acted] without learning if it was true or false.

In doing this, you are looking must look to whether [name of defendant] did or did not act as a reasonable person would have acted in the situation.

Reporter’s Notes

Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974), and the line of cases cited in the Reporter’s Notes to § 10.1 stand for the principle that the First Amendment to the Constitution requires all state courts to incorporate a negligence fault element into defamation claims. This standard does not allow for strict liability in any defamation claim. See also Lent v. Huntoon, 143 Vt. 539, 546–47, n. 1 (1983).

10.4 Privileges

[Alternative 1 (if Plaintiff is determined to be a public figure/official):

[Name of plaintiff] is a [public official/figure]. Any statements concerning [name of plaintiff]’s official actions or activities are protected by the law. If you find that [name of defendant]’s statement directly involved Plaintiff’s official duties and activities as [title of plaintiff (e.g., city manager, lister, commissioner, etc.), you must be clearly convinced that [name of defendant] [spoke, wrote, or made] the statement when [he/she]:

1. knew it to be false;
2. [spoke, wrote, or acted] with a reckless disregard as to whether it was false;
3. showed ill will toward [name of plaintiff];
4. acted with a complete disregard of [name of plaintiff]’s rights; or
5. [spoke, wrote, or acted] in a way that shows insult or oppression. ]

[Alternative 2 (common interest/business privilege):

If [name of Defendant] reasonably believed that [he/she] was sharing information about a common interest and [name of third party receiving the statement] was entitled to know this, then the statement is protected as a matter of law. You must be clearly convinced that [name of defendant] [spoke, wrote, or made] the statement when [he/she]:

1. knew it to be false;

2. [spoke, wrote, or acted] with a reckless disregard as to whether it was false;

3. showed ill will toward [name of plaintiff];

4. acted with a complete disregard of [name of plaintiff]’s rights; or

5. [spoke, wrote, or acted] in a way that shows insult or oppression. ]

[Alternative 3 (report of an official action or meeting open to the public):

If you find that [Name of defendant] [spoke, wrote, or made] the statement while making a report of [describe the official action or proceeding or of a meeting open to the public that deals with a matter of public concern cited by defendant], then you must be clearly convinced that [name of defendant] [spoke, wrote, or made] the statement when [he/she]:

1. knew it to be false;

2. [spoke, wrote, or acted] with a reckless disregard as to whether it was false;

3. showed hatred or spite toward [name of plaintiff];

4. acted with a complete disregard of [name of plaintiff]’s rights; or

5. [spoke, wrote, or acted] in a way that shows insult or oppression. ]

[Alternative 4 (response to a request):

If [name of defendant] [spoke, wrote, or made] the statement in response to a request and acted in good faith in preparing the statement, then you must be clearly convinced that [he/she]:

1. knew it to be false;

2. [spoke, wrote, or acted] with a reckless disregard as to whether it was false;

3. showed hatred or spite toward [name of plaintiff];

4. acted with a complete disregard of [name of plaintiff]’s rights; or

5. [spoke, wrote, or acted] in a way that shows insult or oppression. ]

Reporter’s Notes

The conditional privilege element of a defamation claim is expressed to the jury through the element of negligence. See Crump v. P & C Food Markets, Inc., 154 Vt. 284, 293 (1990). Once established, a conditional privilege may be overcome with “clear and convincing” evidence of malice. Rubin v. Sterling Enters., 164 Vt. 582, 585 (1996); see also Gertz. v. Robert Welch, Inc., 418 U.S. 323, 342 (1974); New York Times Co . v. Sullivan, 376 U.S. 254, 285–86 (1964). The committee has chosen to omit the term negligence in the instruction in favor of language that lays out the jury’s specific fact finding tasks. In most cases, the evidence will make the issue of privilege clear before the jury is charged. This instruction should be modified as the evidence requires, and the committee strongly encourages removing any of the five possible proofs for malice from the final instruction that are not established by the evidence.

Under Vermont law a plaintiff deemed to be a “public figure” has a higher burden of establishing that a statement was not merely negligent but made with malice. Crump, 154 Vt. at 293; Ryan v. Herald Assoc., Inc., 152 Vt. 275, 280–81 (1989); see also Palmer v. Benn. School Dist., 159 Vt. 31, 35–39 (1992). Determination of whether an individual is a “public figure” is a legal question for the Court to decide. Cooper v. Meyer, 2007 VT 131, ¶ 6 (mem.).

Vermont law also grants a higher burden in cases of common interest. This is also known as the common business privilege. Crump, 154 Vt. 293; Restatement (Second) Torts §596 (1977).

The third qualified immunity privilege has not been adopted by the Vermont Supreme Court. The higher standard for a privileged report of an official action or proceeding or statement made in an open meeting is laid out in the Restatement (Second) Torts §611. A claim involving government employees may also touch upon the area of sovereign immunity. Cronin v. State of Vermont, 148 Vt. 252, 256 (1987).

The fourth qualified immunity privilege is based on an emerging area of the law recognizing a privilege when a communication is made in good faith as part of a response to a private duty or request. See, e.g., Zuniga v. Sears, Roebuck & Co., 671 P.2d 662 (N.M. Ct. App. 1983). The validity of this defense is suspect in Vermont. The Vermont Supreme Court has previously refused to extend this privilege to a credit reporting agency who erroneously reported that a company had filed bankruptcy. Greenmoss Builders, Inc. v. Dun & Bradstreet, Inc., 143 Vt. 66, 75–79 (1983), aff’d, 472 U.S. 749 (1985).

10.5 Actual Harm Warranting Compensatory Damages and Special Damages (Slander as a Matter of Law)

[Alternative 1 Actual Harm:

For you to award [name of plaintiff] damages, [he/she] must show that [name of defendant]’s statement caused [him/her] embarrassment, personal humiliation, mental anguish and suffering, or loss of [his/her] reputation and standing in the community. You may award damages for any injury that [name of plaintiff] suffered as a result.]

[Alternative 2 Special Damages:

For you to award [name of plaintiff] damages, [he/she] must show that [name of defendant]’s statements caused [him/her] to [describe alleged pecuniary loss such as loss of customers or business, loss of contracts, or loss of employment]. If and only if you find that [name of plaintiff] suffered such damages, you may also award [name of plaintiff] for any damages that resulted because [name of defendant]’s statement caused [him/her] embarrassment, personal humiliation, mental anguish and suffering, or loss of [his/her] reputation and standing in the community.]

Reporter’s Notes

The committee has drafted the first alternative instruction for claims of libel and “slander per se.” Under Vermont law once libel (written defamation) is established, it becomes actionable per se and does not require evidence of special (pecuniary) damages. Ryan v. Herald Assoc., Inc., 152 Vt. 275, 281–82 (1989); Lent v. Huntoon, 143 Vt. 539, 545–46 (1983).

Slander (spoken defamation) however, is not generally actionable per se and may require some showing of special (pecuniary damages. The exception is when the slander is considered “slander per se.” Under the framework of “slander per se” or “slander as a matter of law,” the trial court makes an initial determination that the alleged act is “slander as a matter of law.” Lent, 143 Vt. at 545–46. This decision is made without reference to the veracity of the allegation and goes simply to the form and nature of the statement. Historically, there have been only four categories of “slander per se”: (1) accusations of a crime; (2) statements injurious to business interests; (3) charges of having a loathsome disease; and (4) accusation that a woman is unchaste. Lent, 143 Vt. at 546; see also Crump v. P&C Food Market, 154 Vt. 284, 295 (1990) (accusations of thievery were slander per se).

A Plaintiff, who claims libel or “slander per se,” does not need to allege or prove “special damages.” Lent defines such damages as “those of a pecuniary nature, and historically they have included loss of customers or business, loss of contracts, or loss of employment.” Id. at 546. As Crump clarifies, the Plaintiff must still demonstrate some actual injury stemming from the defaming statement, but the claim may be established at the minimum as a general claim of pain and suffering. Crump, 154 Vt. at 295 (“Such cases may go to the jury, as did this case, on broad jury instructions.”); Solomon v. Atlantis Dev., Inc., 147 Vt. 349, 359 (1986) (holding that proof of “embarrassment and temporary injury to reputation” would be sufficient to support an award of “actual damages”); see also Cooper v. Meyer, 2007 VT 131, ¶ 9 (ruling that “emotional strain, embarrassment and humiliation,” and the compulsion “to spend substantial time defending himself against the accusations to employees and community members” constitutes actual harm); Wood v. Wood, 166 Vt. 608, 609 (1997) (mem.) (evidence of “embarrassment and temporary injury to reputation” is sufficient to establish actual harm).

In all other slander (spoken defamation) cases, Plaintiffs must allege some pecuniary damage. In such cases, the jury must find special damages before it can award damages for pain and suffering injuries beyond the pecuniary. Lent, 143 Vt. at 549.

In the case of either instruction, the Committee recommends that the court include proximate cause and damage instructions beyond these elements.