Note: This page contains an ungraded, "trial exam" given in Law of Electronic Media, September 27, 2006. It was presented as an exercise for students to focus, primarily, on the organization of an essay question answer -- as distinguished from spotting all the issues, or coming up with the "correct" answer. As such, it is a skill equally useful in sorting through a client's story, description of facts, and why they believe themselves to have been legally harmed; or in drafting pleadings, or an appellate court brief. What follows is, first, the exam question that was handed out, followed by a sample answer prepared by a student in response (whose identity is unknown to the instructor under the University of Iowa system). It is not necessarily the "best" answer, nor is it the case that it could not have been improved. But it does come close to what the exercise was designed to encourage.
 

UI Law of Electronic Media, Trial Exam, Defamation
September 27, 2006

There has been much speculation as to why Warren Buffett would give away $37 billion of his $44 billion fortune to the Bill and Melinda Gates Foundation.

Weekly World News, primarily noted for its news of invading aliens and Elvis sightings, has put a reporter, Sandy Scoop, on the story.

Sandy managed to get herself invited to an evening gathering of local computer hackers, almost all of whom were Mac users. As the evening wore on, and the liquor flowed, Sandy waited for the most appropriate lull in the conversation to ask, “Any of you guys ever thought about why Warren Buffett would have given his billions to the Gates Foundation?”

“Yeah,” said Harry Hacker, a former Microsoft employee visiting from Seattle, “It’s probably because he’s been having an affair with Melinda. It will soften the blow when Bill finds out.”

Sandy dutifully wrote down in her reporter’s notebook what Harry said, and later wrote and filed her story. In the next issue, under a picture of Buffett and Melinda Gates together, was the headline and story:

“World’s Costliest Affair: $37 Billion”
“According to Microsoft insiders, philandering philanthropist Warren Buffett’s ‘gift’ to the Gates Foundation was primarily for Melinda rather than Bill.”
The next day a gossip columnist for the dominant Seattle paper, the Seattle Post-Intelligencer, under a headline of “No Comment,” simply reprinted the Weekly World News story, crediting the source.

Melinda Gates is furious. She holds her first news conference ever, well attended by the national television networks, newspapers and trade press, and wants to sue the Seattle P-I for defamation. She has approached the senior partner for whom you work, who has now asked you for a memo analyzing her case.

Sample Answer
Trial Exam: Defamation

Law of Electronic Media
Professor Nicholas Johnson
September 27, 2006

Melinda Gates seeks to sue the Seattle P-I for reprinting a story initially published by the Weekly World News on a theory of defamation.  The basic elements of defamation are a false statement, made to a third  party, of and concerning the plaintiff, which caused harm to plaintiff’s reputation.  If Ms. Gates is a public figure, she must also prove that the Seattle P-I acted with actual malice.

False Statement

The story published by the Seattle P-I would likely qualify as "a statement."  It is a factual assertion, not opinion nor obvious satire.  In order to sustain the cause of action for defamation, the statement that purposely harmed Ms. Gates must be actually false, or at least not something the defense could prove is true.

It is not clear from the text of the story itself that the statement actually alleges Ms. Gates had an affair with Mr. Buffet, so if this is the alleged harm to her reputation, she would have to prove that this is the understanding a reasonable reader of the publication would come to.

A consideration in this analysis will be that the original story was published by the Weekly World News.  A court may conclude that no reasonable reader would conclude anything factual upon reading a story cited to that source, and so a defamation action would not hold against the Seattle P-I or that determination.

3d Party

There is little doubt a story published in the Seattle P-I was made to a third party.  On its face, the statement appears to be "of and concerning Melinda Gates."  The exact factual assertion, as alluded to above, is not as clear.  There is little ambiguity as to the identity of Melinda Gates in the statement; however, without establishing that the statement alleges through innuendo that Ms. Gates and Mr. Buffet had an affair, the facts may not sustain a defamation cause of action.

Harm to Reputation

Provided Ms. Gates can prove the story caused harm to her reputation and meets the above-mentioned requirements she may be able to recover compensatory damages.  This will require Ms. Gates to identify the scope of the harm caused, and to identify the relevant community in which her reputation suffered harm.

Actual Malice

If it turns out that Melinda Gates is a public figure, she would have to establish that the Seattle P-I acted with actual malice – recklessness or knowing disregard for the truth or falsity of the assertion.  This is a high burden to meet, and must be proved by clear and convincing evidence.  Fortunately, Ms. Gates, an otherwise private citizen, would not likely be judged a public figure in this instance.  She did not voluntarily thrust herself in the public news.  (See, Time v. Firestone).

Conclusion

Because the ambiguity of the story and its citation to the Weekly World News significantly impairs the likelihood of proving harm to Ms. Gate’s reputation on the basis of a reasonable reader, an action probably cannot be sustained.