MUJI 2d CV1601

The law of defamation is unique. Although defamation is a common law tort, it is bounded by protections for free speech embodied in the First Amendment to the United States Constitution and Article I, sections 1 and 15 of the Utah Constitution. These instructions are based on the law of defamation as interpreted by the Utah courts and, in certain areas, by governing precedent of the United States Supreme Court.

In some areas of the law, open questions remain. One of those areas is the standard of fault in cases involving a private plaintiff and speech that does not relate to a matter of public concern. The United States Supreme Court has held that the First Amendment requires the standard of fault to be actual malice for claims involving public officials, see New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and public figures, see Curtis Publ'g Co. v. Butts, 389 U.S. 889 (1967). It has also held that the standard of fault in cases involving speech relating to a matter of public concern must be at least negligence. See Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). But a majority of the Court has never resolved whether the same constitutional limitations require a standard of fault above strict liability for private plaintiff, non-public concern cases. Cf. Dun & Bradstreet v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) (Powell, J.) (in plurality opinion, declining to extend actual malice rule). The Utah Supreme Court has likewise not resolved this issue. See Ferguson v. Williams & Hunt, Inc., 2009 UT 49, para. 26, 221 P.3d 205. As a result, the committee has not included an instruction on the standard of fault for knowledge of falsity in such cases, leaving to the parties the task of arguing for a resolution of that question. See CV1604A-E for a discussion of the different types of plaintiffs in defamation cases.

This is not to suggest there is no constitutional protection in private figure, non-public concern cases. The Utah Supreme Court has, in other contexts, stated that defamation claims always implicate the First Amendment. See Jensen v. Sawyers, 2005 UT 81, para. 50, 130 P.3d 325 ("Defamation claims always reside in the shadow of the First Amendment."); O'Connor v. Burningham, 2007 UT 58, para. 27, 165 P.3d 1214 ("Defamation requires a departure from the standard treatment, however, primarily because it never arrives at court without its companion and antagonist, the First Amendment, in tow."). And though it declined to extend the actual malice fault standard to private figure, non-public concern cases, the plurality in Greenmoss Builders likewise recognized that such "speech is not totally unprotected by the First Amendment." 472 U.S. at 760. The Utah Supreme Court has also recognized that "[t]he First Amendment creates a broad, uniform 'floor' or minimum level of protection that state law must respect," West v. Thomson Newspapers, 872 P.2d 999, 1007 (Utah 1994), but that Article I, section 15 of the Utah Constitution "is somewhat broader than the federal clause." Provo City Corp. v. Willden, 768 P.2d 455, 456 n.2 (Utah 1989); cf. West, 872 P.2d at 1004 n.4 ("The scope of the state constitutional protection for expression may be broader or narrower than the federal, depending on the state constitution's language, history, and interpretation. In any event, state tort law may not impair state constitutional guarantees and is properly confined to constitutionally permissible limits."). It is thus possible that the standard of fault question in private figure, non-public concern cases would implicate the Utah Constitution even if strict liability is not precluded by the First Amendment.

Similarly, the United States Supreme Court has held that punitive and presumed damages may not be awarded in cases involving speech relating to matters of public concern absent a showing of actual malice. Gertz, 418 U.S. at 350. But other than addressing the issue in the plurality decision in Greenmoss Builders and declining to extend the rule, the Court has not resolved whether the same constitutional limitation applies in private figure, non-public concern cases. The committee has nonetheless included an instruction for punitive damages in that context stating the statutory requirements for punitive damages under Utah law, but notes that an argument could be made for applying the heightened actual malice standard for punitive damages in all defamation cases.

Finally, these instructions use the term "defamation" throughout, which refers to the claim regardless of the medium of expression. Historically, defamation claims were separated into "slander," which referred to oral communications, and "libel," which referred to written publications. That distinction has become increasingly anachronistic given certain forms of electronic communication (e.g., SMS (text messages), IM (instant messaging), MMS (multi-media messaging services), and online video) that could arguably fall into either category, and it also fails to account for other non-verbal forms of communication that can, in some circumstances, form the basis of a defamation claim. In addition, the distinction between libel and slander is conceivably relevant only to one narrow legal issue-the test for whether a statement is defamatory per se for purposes of presumed damages. Because, as explained in the Committee Notes for CV1614 (Presumed Damages), it appears the Utah Supreme Court has merged the historical tests for slander per se and libel per se, these instructions refer simply to defamation and do not draw any distinction between the medium or form of expression.