19. Is the candidate entitled to recover?

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.

As held by the United States Supreme Court in Gertz v. Robert Welch, to prevail against a defendant on defamation of a private person involving a matter of public concern, the plaintiff must demonstrate that (i) the defamation was false; (ii) the defendant was negligent; and that (ii) the defendant's negligence caused actual harm to the plaintiff.

B is correct. Because the candidate was a public figure rather than a private individual who was the subject of public concern, to prevail on a defamation claim, the candidate would need to make a prima facie case for defamation and show actual malice by the newspaper. To show actual malice, the candidate would need to demonstrate that the newspaper knowingly published a false story or acted with a reckless disregard for truth or falsity. Mere negligence by the newspaper editor would not be sufficient for the candidate to prevail.

Under the facts here, the candidate can make a prima facie case of defamation, because the newspaper published information which was false and injurious to his reputation. Further, the editor of the story was clearly negligent, since the editor unreasonably did not investigate the truth of the accusation before publishing it. However, the editor was not motivated by actual malice, because the editor honestly believed the story was true. Therefore, he did not knowingly publish false statements or act with a reckless disregard for truth or falsity. Therefore, because the candidate cannot show actual malice by the newspaper, the candidate will not prevail.

A is incorrect. The candidate would not prevail because although the newspaper editor was negligent, the editor did not display the requisite actual malice for the candidate to prevail. However, the placement of the defamation in the editorial section would not cut short the newspaper's liability. Defamation turns on what is conveyed in the statement published by the defendant. Depending on the circumstances, statements in editorials or advertisements can be factual, just like statements in news reports. Here, the defamatory statement in the editorial purported to be a statement of fact. Thus, the newspaper would still be potentially liable for defamation.

C is incorrect. Although calling someone an illegal drug user is defamation per se, this factor would be irrelevant to the candidate's ability to recover. Defamation per se pertains to types of statements which are considered so inherently offensive that damage to reputation is assumed, making it unnecessary for a plaintiff to prove special damages. Accusations considered defamation per se concern the following: (i) criminal activity; (ii) professional misconduct; (iii) sexual misconduct; or (iv) loathsome disease.

Under the facts here, as an accusation of criminal activity, the statement that the candidate used illegal drugs would qualify as defamation per se. However, that would be of no benefit to the candidate's claim. Because the defamation here was written and not spoken, there would be no need for the candidate to prove special damages in order to make a prima facie case. Further, although the candidate can establish a prima facie case for defamation based on the newspaper editorial being false and injurious to the candidate's reputation, the candidate's claim would ultimately fail, because the candidate could not show actual malice.

D is incorrect. Although the newspaper editorial was false and injurious to the candidate's reputation, the candidate would not prevail on a defamation claim against the newspaper. As a public figure, the candidate would need to show that the newspaper published the defamation with actual malice, either knowing that the story was false or acting with a reckless disregard for truth or falsity. Because the newspaper editorial was false and injurious to the candidate's reputation and was clearly published to third parties, the candidate could easily make a prima facie case of defamation. However, the candidate will not be able to prove actual malice by the newspaper. According to the facts, the newspaper editor was negligent, failing to investigate the story before publishing it. However, the facts also indicate that the editor honestly believed that the story was true. Consequently, since the editor did not knowingly publish a false story nor entertain serious doubts about the story's truth, the candidate would not prevail, despite the story being defamatory.