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Barbri has taught me that the elements of defamation are (i) a defamatory statement, (ii) about the plaintiff, (iii) to another, (iv) which harms the plaintiff's reputation.

I sat the NCBE practice test 4 today and 100% confident in my answer to a question on defamation. In the hypo, the single person to whom the statement was published knew for a fact that the statement wasn't true. I took this as a clear attempt to negate element (iv) and selected an answer choice on this basis. I was wrong, and I am now thoroughly confused. Can anyone clarify?

Assuming imgur works and this doesn't break any rules, the Q I got wrong can be seen here.

handwritingdoofus wrote:Barbri has taught me that the elements of defamation are (i) a defamatory statement, (ii) about the plaintiff, (iii) to another, (iv) which harms the plaintiff's reputation.

I sat the NCBE practice test 4 today and 100% confident in my answer to a question on defamation. In the hypo, the single person to whom the statement was published knew for a fact that the statement wasn't true. I took this as a clear attempt to negate element (iv) and selected an answer choice on this basis. I was wrong, and I am now thoroughly confused. Can anyone clarify?

Assuming imgur works and this doesn't break any rules, the Q I got wrong can be seen here.

It's mainly because defendant (the neighbor) made the oral statement itself and essentially communicated/published it to a third party (the friend) -- which "arguably" caused very minimal damage to the man's reputation at best (NCBE screwing with facts here imo lol).

First, the neighbor's verbal statement clearly falls under slander per se (attributes that the man committed a SERIOUS CRIME of MORAL TURPITUDE); where, as here, is an allegation that the man committed arson. While truth is usually always a defense, the facts state that the neighbor knew it was false anyway. Because slander per se doesn't require proof of special (pecuniary) damages, the harm to his reputation (maybe even nominal damages?) to the man is presumed and, as such, the man doesn't have to prove those special damages (meaning any minimal harm to his reputation would suffice).

For me, I understand slander per se best by thinking it has a lighter burden if the statement falls within any of the four exceptions: (1) crime of moral turpitude (usually any felony); (2) loathsome disease; (3) concern's plaintiff's business/professional integrity by alleging misconduct; and (4) chastity about an unmarried woman.
Hope my explanation helps somewhat.

handwritingdoofus wrote:Barbri has taught me that the elements of defamation are (i) a defamatory statement, (ii) about the plaintiff, (iii) to another, (iv) which harms the plaintiff's reputation.

I sat the NCBE practice test 4 today and 100% confident in my answer to a question on defamation. In the hypo, the single person to whom the statement was published knew for a fact that the statement wasn't true. I took this as a clear attempt to negate element (iv) and selected an answer choice on this basis. I was wrong, and I am now thoroughly confused. Can anyone clarify?

Assuming imgur works and this doesn't break any rules, the Q I got wrong can be seen here.

The hypo says the friend did not "believe" the statement, not the friend "knew the statement was false."

It's a small distinction, but knowledge and belief are different. You would be right if it said the friend knew that the statement was false.

estefanchanning wrote:

handwritingdoofus wrote:Barbri has taught me that the elements of defamation are (i) a defamatory statement, (ii) about the plaintiff, (iii) to another, (iv) which harms the plaintiff's reputation.

I sat the NCBE practice test 4 today and 100% confident in my answer to a question on defamation. In the hypo, the single person to whom the statement was published knew for a fact that the statement wasn't true. I took this as a clear attempt to negate element (iv) and selected an answer choice on this basis. I was wrong, and I am now thoroughly confused. Can anyone clarify?

Assuming imgur works and this doesn't break any rules, the Q I got wrong can be seen here.

The hypo says the friend did not "believe" the statement, not the friend "knew the statement was false."

It's a small distinction, but knowledge and belief are different. You would be right if it said the friend knew that the statement was false.

Yeah, you're right, and my OP was inaccurate - but can I just verify that this is what the question turns on? It seems illogical that the friend didn't believe the statement yet somehow the plaintiff's reputation was still harmed. Is that actually how the law is?

handwritingdoofus wrote:

estefanchanning wrote:

handwritingdoofus wrote:Barbri has taught me that the elements of defamation are (i) a defamatory statement, (ii) about the plaintiff, (iii) to another, (iv) which harms the plaintiff's reputation.

I sat the NCBE practice test 4 today and 100% confident in my answer to a question on defamation. In the hypo, the single person to whom the statement was published knew for a fact that the statement wasn't true. I took this as a clear attempt to negate element (iv) and selected an answer choice on this basis. I was wrong, and I am now thoroughly confused. Can anyone clarify?

Assuming imgur works and this doesn't break any rules, the Q I got wrong can be seen here.

The hypo says the friend did not "believe" the statement, not the friend "knew the statement was false."

It's a small distinction, but knowledge and belief are different. You would be right if it said the friend knew that the statement was false.

Yeah, you're right, and my OP was inaccurate - but can I just verify that this is what the question turns on? It seems illogical that the friend didn't believe the statement yet somehow the plaintiff's reputation was still harmed. Is that actually how the law is?

When you accuse someone of a crime, that is defamation per se and damages are presumed. The test is not whether that particular person believed the statement. It's whether a reasonable person would believe it.

Okay, thanks - so it's inaccurate to say the fourth element of defamation is harm to the plaintiff's reputation? In fact, is it inaccurate to say there even is a fourth element? Can the presumption of damages be rebutted?

handwritingdoofus wrote:Okay, thanks - so it's inaccurate to say the fourth element of defamation is harm to the plaintiff's reputation? In fact, is it inaccurate to say there even is a fourth element? Can the presumption of damages be rebutted?

It's not that harm to plaintiff's reputation is not an element. It is. But it is automatically met in the case of defamation per se. No, you can't rebut presumed damages. You'll have to defeat the other defamation elements.

estefanchanning wrote:

handwritingdoofus wrote:Okay, thanks - so it's inaccurate to say the fourth element of defamation is harm to the plaintiff's reputation? In fact, is it inaccurate to say there even is a fourth element? Can the presumption of damages be rebutted?

It's not that harm to plaintiff's reputation is not an element. It is. But it is automatically met in the case of defamation per se. No, you can't rebut presumed damages. You'll have to defeat the other defamation elements.

Brill, that's super helpful. Thanks!