In my notes, I have that the court does not want to go into a constitutional analysis with torts like defamation. I believe we were discussing Near v. MN when I wrote that note. That case involved a newspaper that was banned because it was producing malicious articles. Court said that to ban it was a violation of first amendment.

However, later I have an extensive section on defamation regarding public figures/officials, as well as private individuals. There is a standard that the plaintiff must prove that the statement was false, and that the speaker knew it was false, or failed to ascertain the truth of the statement.

What I think the rule is with defamation is the court will only conduct a constitutional analysis of defamation if it is a public official or figure (NY v. Sullivan case), or in the case of a private individual, if the defamatory speech is of a public concern.

Is this right or am I off?

Test is tomorrow and prof. has the 24 hour question cutoff rule, otherwise I'd just ask him...haha

Just as a note, under the N.Y. Times standard, "failing to ascertain the truth" isn't enough. To meet the actual malice standard, you must either know it's false or act in reckless disregard of its probable falsity. It's not a heightened negligence or reasonable person standard.

Near isn't really important as a defamation case but as the case that really started the presumption that prior restraints are unconstitutional. What was published may very well have been actionable defamation, but the problem was prohibiting publication altogether. In the absence of "exceptional cases" (national security, military recruitment) torts must be dealt with after they are committed, not before.

As far as I know the N.Y. Times standard only applies to public officials, candidates for public office and public figures. Any defamation claim against such figures will have to meet the very strict standard of N.Y. Times. Non-public figures won't, and I think it's fairly unlikely that you'll get tested on such a scenario. Also, remember that the N.Y. Times standard applies to the same way to any claim of IIED the same way it does to defamation (Hustler v. Falwell).

EDIT: Oh, guess I was too late anyway.