1. Will the governor prevail?

To establish a prima facie case for defamation, the following elements must be proved: (i) defamatory language on the part of the defendant; (ii) that the defamatory language was of or concerning the plaintiff; (iii) publication of the defamatory language by the defendant to a third person; and (iv) damage to the reputation of the plaintiff. Where defamation refers to a public figure or involves a matter of public concern, the plaintiff also needs to prove (v) falsity and (vi) fault by the defendant.

As held by the United States Supreme Court in New York Times v. Sullivan, to prevail against a defendant on defamation of a public figure, the plaintiff must establish actual malice by the defendant by demonstrating that the defendant (i) knew the statement was false; or (ii) had a reckless disregard as to its truth or falsity.

Further, where defamation is spoken (slander), the plaintiff must prove special (i.e., pecuniary) damages, unless the verbal defamation falls within one of four exceptions, which are considered slander per se: (i) criminal activity; (ii) occupational misconduct; (iii) sexual misconduct; or (iv) loathsome disease.

D is correct.As a public figure, the governor would need to show that the television station acted with knowing falsity or with a reckless disregard for the truth or falsity of the statement to ultimately succeed. However, under the facts as presented, his claim would fail before there was any need for him to prove this standard. Here, one finding by the jury, was that although the signs caused the public to hold the governor in lower esteem, the only reasonable interpretation of the signs was that the term «murderer» was intended as a characterization of anyone who would sign a death warrant. To this end, while the signs were clearly «defamatory,» they were only statements of negative opinion. Consequently, because there were no false statements of fact at issue, the governor's defamation claim would fail at the outset.

A is incorrect. Although the news coverage of the signs caused the public to view the governor with lowered esteem, the governor's defamation claim would still fail. While damage to reputation is an element of defamation, it is only one element. For a statement to be defamatory, it must be a provably false statement of fact. Here, a jury found that the negative statements about the governor on the protest signs were clearly broad statements of opinion regarding anyone who would approve an execution, rather than false statements of fact about the governor specifically. Consequently, despite the damage to the governor's reputation, he would not have a cognizable claim for defamation.

B is incorrect. Even if the governor could prove that the television station acted with knowledge of falsity or reckless disregard for truth or falsity, he would not prevail on a defamation claim against the station. For be defamatory a statement must be a provably false statement of fact. Here, a jury found that the protest signs covered by the television station were clearly statements of opinion, not statements of fact. Consequently, regardless of the station's motives for publishing the signs, they were not legally defamation and therefore the governor would not prevail.

C is incorrect. Although the governor would not prevail, because the protest signs were statements of opinion and not fact, his defamation claim would not fail on the basis that he could only establish reputational damage, and could not prove special (i.e., pecuniary) damages. In general, courts treat television broadcasts like written defamation/libel. Under a libel claim, a plaintiff is not required to prove special damages. Further, even if the television broadcast here was treated as verbal defamation/slander, the governor would nonetheless not have to prove special damages to prevail. Although slander claims generally require proof of special damages, there are four categories of exceptions which are considered slander per se and therefore do not require proof of special damages: (i) criminal activity; (ii) occupational misconduct; (iii) sexual misconduct; or (iv) loathsome disease. The accusation of being a «murderer» would qualify as an accusation of criminal activity, and consequently would be slander per se and thus not require a showing of pecuniary loss.