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Truth, defense?


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#1 stebbinsd

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Posted 15 April 2010 - 10:42 PM

I recently read on the W**** article on "absolute defense" that truth is an absolute defense to defamation.

Now, normally, if something is an absolute defense, that means the defendant holds the burden of proof!

So, if Joe sues Bob for defamation, does Joe have to prove that the statements were false, or does Bob have to prove that the statements were true?

For example, Bob tells John, the manager, that Joe called John's wife a whore.  John fires Joe, and Joe sues Bob for defamation.  Does Bob have to prove that John DID say that, or does Joe have to prove that he DIDN'T?

If it is the latter, then why is truth and absolute DEFENSE to defamation?


[This post has been edited to remove personal or identifying information. -Moderator]




#2 pg1067

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Posted 16 April 2010 - 02:49 AM

"Now, normally, if something is an absolute defense, that means the defendant holds the burden of proof!"


The term "absolute defense" does not really have any specific legal meaning, and I would disagree that what you say is necessarily true or even true the majority of the time.  One could reasonably say that it is an "absolute defense" to a breach of contract claim that there was no valid contract, but that doesn't mean the defendant has the burden to disprove the contract.


"So, if Joe sues Bob for defamation, does Joe have to prove that the statements were false, or does Bob have to prove that the statements were true?"


Depends on the applicable state law and, in some states, whether Joe is a public figure and/or the subject of the alleged defamatory statement(s) is a matter of public concern.


"For example, Bob tells John, the manager, that Joe called John's wife a whore.  John fires Joe, and Joe sues Bob for defamation.  Does Bob have to prove that John DID say that, or does Joe have to prove that he DIDN'T?"


That the alleged defamatory statement actually was made and whether or not the statement is true are completely different issues.  The plaintiff in a defamation case always has the burden of proving that the alleged defamatory statement was made.


"why is truth and absolute DEFENSE to defamation?"


Because someone somewhere in history made a comment to that effect, and it sounded reasonable.



#3 stebbinsd

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Posted 16 April 2010 - 02:54 AM

That the alleged defamatory statement actually was made and whether or
not the statement is true are completely different issues.  The
plaintiff in a defamation case always has the burden of proving that the
alleged defamatory statement was made.



The alleged defamatory statement was that Joe called John's wife a whore.

When I'm talking about "truth," as opposed to "opinion," I am talking about whether or not Joe made those comments, not whether or not John's wife really is a whore.

If John really did make those comments, then Bob's statements are not defamatory, due to Bob's statements (regarding Joe's statements) being true.

If Bob completely lied about what Joe said in an attempt to get Joe fired, then the statements are defamatory, because, for example, Joe didn't even know that John was married.


#4 Tax_Counsel

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Posted 16 April 2010 - 06:43 AM

If Amy sued Bob for defamation claiming that Bob told Carol "Amy stole $10,000 from me," Amy will always bear the burden to prove that Bob made the statement. That can be satisfied by having Carol testify as to what Bob said to her. As to who bears the ultimate burden to prove whether the statement itself was true, i.e. whether Amy did, in fact, steal $10,000 from Bob, that depends on the applicable state law and the details of the situation (e.g. is Bob a public figure, etc.).

I used this example because a claim of whether someone is a "whore" is one of opinion, not one of fact.


#5 stebbinsd

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Posted 16 April 2010 - 07:28 AM

I used this example because a claim of whether someone is a "whore"
is one of opinion, not one of fact.

Jesus Christ, that is absolutely, positively, the exact OPPOSITE of what I was trying to say.

I understand that someone's status as a "whore" is an opinion.  Why did you think I didn't know that?

However, whether or not he made those claims is a fact, not an opinion.

Did Joe make that statement?  Yes, or no?  One, or zero?


#6 Tax_Counsel

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Posted 16 April 2010 - 08:40 AM

stebbinsd said...
I understand that
someone's status as a "whore" is an opinion.  Why did you think I didn't
know that?

I had no way to know one way or the other what you knew. I'm not a mind reader now, am I? Moreover, even though you may know, others reading the thread may not. So I made it clear. My example was designed to illustrate both parts of the burden issue, not just the one you asked about. if you don't like it, that's not my problem. I answered your question, so why are you complaining that i added a bit more?

stebbinsd said...

However, whether or not he made those claims is a
fact, not an opinion.



Did Joe make that statement?  Yes, or no? 
One, or zero?










Ok, do I have to spell it out for you? I thought you'd get it from the last response I gave. Joe will bear the burden on the issue of whether Bob made the statement to John. Presumably he'll do that by calling John to testify on that point.

Bob's defense that he did not make the statement is not a truth defense; it is rebutting the assertion that the statement was made at all. The defense of truth in defamation claims means that the asserted statement assuming it was made was true. In your example, that issue never really arises because the complained about statement is one of opinion, not of fact. That's why I used the illustration I did, to show a situation in which the truth defense would arise.


#7 pg1067

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Posted 16 April 2010 - 10:33 AM

"When I'm talking about 'truth,' as opposed to 'opinion,' I am talking about whether or not Joe made those comments, not whether or not John's wife really is a whore."


Ok...I see now.  The alleged defamatory statement is Bob's statement to John that "Joe called your wife a whore."  In that case, then Joe will have the burden of proving that Bob made the statement to John.  As noted in my prior response, who has the burden of proving the truth or falsity of the statement (i.e., whether or not Joe actually made the statement) depends on the applicable state law.


"If John really did make those comments, then Bob's statements are not defamatory, due to Bob's statements (regarding Joe's statements) being true."


Now you've raised -- probably unintentionally -- a different issue.  Whether or not a statement is defamatory is not dependent on whether or not it is true.  A true statement can be defamatory (i.e., "Dave has a loathesome disease" if, in fact, Dave does have such a disease).  In your hypothetical, the statement at issue "Joe called your [John's] wife a whore" is arguably not defamatory because doesn't implicate Joe's character or reputation.  It's no different in kind than a statement that "Joe ordered a BLT for lunch" or "Joe went to H**** and cheered as the Habs took the first game of the series from the Caps."  In theory at least, John might fire Joe for going to H**** if he thinks H*** is a sexist establishment or for cheering for the Canadiens if John happens to be a die-hard Capitals fan.  If, however, instead of going to H***** and cheering for the Habs, Joe watched the game at home and cried himself to sleep after the Habs stole the game in OT, the statement would be false, but it wouldn't be defamatory.  And, if John fired Joe based on Bob's false statement, Joe would not have a viable defamation claim.

"If Bob completely lied about what Joe said in an attempt to get Joe fired, then the statements are defamatory, because, for example, Joe didn't even know that John was married."


I would take the position that, while Joe might have some other sort of claim against Bob, he doesn't have a defamation claim.


[This post has been edited to remove personal or identifying information. -Moderator]



#8 pg1067

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Posted 16 April 2010 - 10:39 AM

"a claim of whether someone is a 'whore' is one of opinion, not one of fact."


Umm...last time I checked, "whore" is still a synonym for "prostitute."  If Edward tells his lawyer, Philip, that "Vivian is a whore," it may well be that Edward is doing nothing more than expressing his opinion regarding Vivian's loose sexual morals.  However, in the abstract and without any context, it's equally as likely that Edward is making a statement of fact:  that Vivian has sex with others in exchange for money.  Whether Edward is making a statement of fact or one of opinion will depend on the context in which the statement is made.



#9 Tax_Counsel

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Posted 16 April 2010 - 12:30 PM

pg1067 said...
Umm...last time I checked, "whore" is still a synonym for "prostitute."

That is one of its possible meanings, true, but it is not exactly synonymous with prostitute, as the term is also commonly used more widely to simply refer to someone of loose sexual morals. Indeed, Webster's Collegiate Dictionary 11th Ed. states both as the primary meaning of the word. I'll grant you that the person might have used it in the sense of a prostitute, and thus a statement of fact, but I submit in most cases the context will be simply an insult claiming the person has loose sexual morals and is thus one of opinion.





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