Qualified Privilege
The following is a writing template, or “canned answer,” for qualified privilege, as a defense to defamation. The analysis for defamation consists of an umbrella rule that identifies four elements, each of which is analyzed in turn. Uniquely, defamation also consists of additional elements if the plaintiff qualifies for one of three classes (see item 5 below).
This page includes a writing template for analyzing this topic and usage notes to guide its application. In general, the template is designed to serve as a starting point for your analysis. It should be adapted to fit the specific facts of your case and your professor’s preferences.
On this page:
Writing Template
Issue
I: The issue is whether Defendant may avoid liability for Plaintiff’s injuries under a theory of qualified privilege.
Analysis
R: See page 77 in the outline.
1. Defamatory Language
R: Language is defamatory if it harms a person’s reputation by (1) diminishing respect, esteem, or goodwill toward them or by (2) deterring others from associating with them.
A: Here, [apply rule to facts].
C: Therefore, the first element [is/is not] satisfied.
2. Concerning the Plaintiff
R: A reasonable person must believe that defamatory communication refers to the specific plaintiff and subjects the plaintiff to scorn or ridicule in the eyes of a substantial number of community members.
A: Here, [apply rule to facts].
C: Therefore, the second element [is/is not] satisfied.
3. Publication
R: The defamatory matter must be intentionally or negligently communicated to a third party who understands its defamatory nature.
A: Here, [apply rule to facts].
C: Therefore, the third element [is/is not] satisfied.
4. Damage
R: The defamatory matter must damage the plaintiff’s reputation.
A: Here, [apply rule to facts].
C: Therefore, the fourth element [is/is not] satisfied.
5. Constitutional Protections
R: To protect defendant’s free speech, the Supreme Court has held that the First Amendment affects the plaintiff’s rights to recover under defamation. Thus, defendants’ statements directed at (1) public officials, (2) public figures, or (3) concern the public must prove additional elements to satisfy defamation.
A: Here, Defendant is [state facts relevant to identifying the type of defendant].
C: Therefore, Plaintiff likely [is a public official/is a public figure/is raising a matter of public concern/does not qualify as any of the protected classes].
a. Public [Official/Figure]
R: A public official is a government employee with substantial responsibility for or control over government affairs, including candidates for such positions.
R: A plaintiff is a public figure if they occupy positions of persuasive power and influence in society or if they thrust themselves to the forefront of a particular public controversy to influence its resolution. If the defamatory statement does not relate to their participation in the controversy, they are treated as private figures.
A: Here, [apply rule to facts].
C: Therefore, Plaintiff is indeed a [public official/public figure].
b. Falsity
R: If the plaintiff qualifies as any one of the three constitutionally protected categories, they must also prove that the defamatory statement is factually false.
A: Here, [apply rule to facts].
C: Therefore, this element [is/is not] satisfied.
c. Malice
R: If the plaintiff is a public official or public figure, they must also prove that the defendant acted with actual malice. To prove actual malice, the plaintiff must show that the defendant (1) knew the statement was false or (2) acted with reckless disregard for its truth or falsity. To demonstrate reckless disregard, the plaintiff must prove that the defendant entertained serious doubts about the statement’s truthfulness; simply failing to check facts is not sufficient.
A: Here, [apply rule to facts].
C: Therefore, this element [is/is not] satisfied.
d. Fault
R: If the plaintiff is a private person and the defendant’s statement concerns a matter of public interest, the plaintiff must also prove that the defendant acted with fault. Fault can be established by proving either negligence or malice.
i. [Negligence/Malice]
R&A: [Insert analysis of negligence (linked here) or malice (from above).]
C: Therefore, this element [is/is not] satisfied.
Conclusion
C: Therefore, since all the required elements [are/are not] met, Defendant [is/is not] liable for Plaintiff’s injuries under a theory of defamation.
Notes
JurisJotter templates synthesize legal principles into a practical format that supports the development of well-structured, point-rich analyses in a timed exam.
The template features (1) headers identifying the overall issue, analysis, and conclusion. If the analysis begins with an umbrella rule that identifies elements, factors, or steps of the analysis, it will be followed by subheaders that signpost the analysis of each component.
The template also features (2) IRAC labels at the beginning of each paragraph. These headers and labels are included for educational purposes, offering guidance on structuring your analysis. Your usage of the headers is optional but can be helpful to readers. We advise against including the IRAC labels in submitted work.
The templates serve as a general guide for writing and should be adapted to align with (1) your specific factual circumstances and (2) your professor’s preferences, particularly if your professor provides explicit formulations of rules or analyses. For example, you may add or subtract an element or modify its language. Regardless of whether your professor provides explicit formulations, (3) this template will assist you in crafting point-rich analyses.
Please note that these templates are writing aids and not finished products. They are efficiently designed for exam essays to demonstrate conceptual understanding; thus, they are not comprehensive outlines with historical context or dicta.
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