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Reputation and Character in Defamation Actions

Publication Title

Washington University Law Quarterly

Abstract

This Article will focus on a number of evidentiary issues relating to the plaintiff's reputation and character which arise in light of Gertz and Dun & Bradstreet. Although a public-issue plaintiff must show actual injury, there has been little attention given to modem evidentiary techniques available to either party to accurately show whether any injury occurred. In addition to discussing these methods, this Article recommends the use of public opinion surveys as a technique for determining the fact, and measuring the extent, of any reputational damage. Although damages for emotional suffering are recoverable under Gertz, this Article considers whether a plaintiff should recover under state defamation law for emotional injury without accompanying proof of injury to reputation. Asserting that proof of injury to reputation should be a predicate requirement, the Article analyzes the policies underlying the limitations generally imposed upon recovery for emotional damages in negligence and other tort actions and recommends their general application in defamation actions. With the resurrection of presumed damages, reputation and character evidence may be offered by both parties. This Article explores whether the plaintiff may offer evidence of his actual injury while at the same time relying upon the presumption and considers the types of evidence that may be employed.

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