Defamation Flowchart

PART ONE: CONSTITUTIONAL LAW DEFAMATION FLOWCHART

FIRST AMENDMENT APPLICABILITY: Is the plaintiff a public official or public figure, or does the statement involve a matter of public concern?

If NO, then the First Amendment does not come into play. Just analyze under the common law. GO ON TO COMMON LAW ANALYSIS (starting at Step 3, found under “Part Two: Common Law Defamation Flowchart”).

GO ON TO COMMON LAW ANALYSIS

YES

If YES, then the First Amendment does come into play. Go on to the next step (Step 2).

Is the plaintiff a public official or public figure, or is the plaintiff a private person?

PUBLIC OFFICIAL OR PUBLIC FIGURE

If PUBLIC OFFICIAL OR PUBLIC FIGURE, then the plaintiff must prove, as part of the prima facie case, that the statement is false (that is, that the statement is purported fact, as opposed to opinion, and that the statement is not true), AND the plaintiff must prove the defendant’s actual malice (that is, that the defendant acted with knowledge that the statement was false or with reckless disregard as to the truth or falsity of the statement).

In which case, GO ON TO COMMON LAW ANALYSIS (starting at Step 3) (modifying elements and defenses as advised)

PRIVATE PERSON RE MATTER OF PUBLIC CONCERN

If PRIVATE PERSON RE MATTER OF PUBLIC CONCERN, then the plaintiff must prove, as part of the prima facie case, that the statement is false (that is, that the statement is purported fact, as opposed to opinion, and that the statement is not true), AND the plaintiff must either:

prove the defendant’s actual malice (that is, that the defendant acted with knowledge that the statement was false or with reckless disregard as to the truth or falsity of the statement)
OR

prove negligence (that is, not taking the care the reasonable person would concerning the truth or falsity of the statement) PLUS prove actual injury (such as lost wages or sales)

In either case, GO ON TO COMMON LAW ANALYSIS (starting at Step 3), and modify the common-law elements and defenses as required to accommodate the First Amendment.

GO ON TO COMMON LAW ANALYSIS

PART TWO: COMMON LAW DEFAMATION FLOWCHART

3. PRIMA FACIE ELEMENTS:

3.1

Is there a defamatory statement?

This means tending to injure reputation, i.e., deter others from dealing with the person, from the viewpoint of any substantial and morally respectable group (per se categorization is sufficient, but not necessary).

3.2

Is the statement regarding a matter of fact?

(statements of opinion don’t qualify)

3.3

Is the statement of and concerning the plaintiff?

(identification of person can be implicit; can be by group identification if group is small)

3.4

Was the statement published by the defendant?

(published means intentionally or negligently actually communicated to at least one third person)

3.5

Is there an “extra condition”?

(statement is libel per se, libel per quod, slander per se, or special damages are proven)

4. “EXTRA CONDITION” ANALYSIS

4.1

Is it libel or slander?

SLANDER

If SLANDER, then go on to slander per se analysis (which is the same as libel per quod analysis) (Step 4.2).

LIBEL

If LIBEL, then choose whether it is libel per se or libel per quod.

LIBEL PER SE

If it is LIBEL PER SE (i.e., no external information is needed to understand defamatory import), then a prima facie case has been established. GO ON TO DEFENSES (Step 5).

LIBEL PER QUOD

If it is LIBEL PER QUOD (i.e., innuendo, etc.; some external information is needed for defamatory import), then go on to libel per quod analysis (same as slander per se analysis).

SLANDER / LIBEL PER QUOD

4.2. SLANDER PER SE / LIBEL PER QUOD ANALYSIS

4.2.1

Does the statement’s defamatory import arise by way of any of these?

adverse to one’s profession or business
loathsome disease
guilt of crime involving moral turpitude
lack of chastity

YES

If YES, then a prima facie case has been established and no special damages need be proven. GO ON TO DEFENSES (Step 5).

GO ON TO DEFENSES

If NO, then special damages must be proven.

PROVEN

If PROVEN, then a prima facie case has been established. GO ON TO DEFENSES (Step 5).

NOT PROVED

If NOT PROVED, then there is no liability.

5. DEFENSES:

5.1

Is the statement substantially true?

(The statement is substantially true if the statement is true, or if it is at least close enough to the truth that the false part doesn’t matter.)

5.2

Is the statement protected by absolute privilege?

(court proceedings, legislative proceedings, high-level government executive communications, spouse-to-spouse)

5.3

Is the defendant immune via the §230 safe harbor?

(internet republication under 47 U.S.C. §230)

5.4

Is the statement protected by qualified privilege?

(fair and accurate reporting, neutral reportage, employment reference, other)

5.4.2.1

Is the qualified privilege exceeded?

(lack of subjective belief in truth, lack of objectively reasonable belief in truth, excessive publication)

Text Outline

Prof. Eric E. Johnson

Dated: October 19, 2026

PART ONE: CONSTITUTIONAL LAW DEFAMATION FLOWCHART

FIRST AMENDMENT APPLICABILITY: Is the plaintiff a public official or public figure, or does the statement involve a matter of public concern?
1. If NO, then the First Amendment does not come into play. Just analyze under the common law. GO ON TO COMMON LAW ANALYSIS (starting at Step 3, found under “Part Two: Common Law Defamation Flowchart”).
2. If YES, then the First Amendment does come into play. Go on to the next step (Step 2).
Is the plaintiff a public official or public figure, or is the plaintiff a private person?
1. If PUBLIC OFFICIAL OR PUBLIC FIGURE, then the plaintiff must prove, as part of the prima facie case, that the statement is false (that is, that the statement is purported fact, as opposed to opinion, and that the statement is not true), AND the plaintiff must prove the defendant’s actual malice (that is, that the defendant acted with knowledge that the statement was false or with reckless disregard as to the truth or falsity of the statement).
  1. In which case, GO ON TO COMMON LAW ANALYSIS (starting at Step 3) (modifying elements and defenses as advised)
2. If PRIVATE PERSON RE MATTER OF PUBLIC CONCERN, then the plaintiff must prove, as part of the prima facie case, that the statement is false (that is, that the statement is purported fact, as opposed to opinion, and that the statement is not true), AND the plaintiff must either:
  1. prove the defendant’s actual malice (that is, that the defendant acted with knowledge that the statement was false or with reckless disregard as to the truth or falsity of the statement)
    OR
  2. prove negligence (that is, not taking the care the reasonable person would concerning the truth or falsity of the statement) PLUS prove actual injury (such as lost wages or sales)
  3. In either case, GO ON TO COMMON LAW ANALYSIS (starting at Step 3), and modify the common-law elements and defenses as required to accommodate the First Amendment.

PART TWO: COMMON LAW DEFAMATION FLOWCHART

PRIMA FACIE ELEMENTS:
1. Is there a defamatory statement? This means tending to injure reputation, i.e., deter others from dealing with the person, from the viewpoint of any substantial and morally respectable group (per se categorization is sufficient, but not necessary).
  1. If NO, then there is no liability.
  2. If YES, then go on with the analysis (Step 3.2).
2. Is the statement regarding a matter of fact? (statements of opinion don’t qualify)
  1. If NO, then there is no liability.
  2. If YES, then go on with the analysis (Step 3.3).
3. Is the statement of and concerning the plaintiff? (identification of person can be implicit; can be by group identification if group is small)
  1. If NO, then there is no liability.
  2. If YES, then go on with the analysis (Step 3.4).
4. Was the statement published by the defendant? (published means intentionally or negligently actually communicated to at least one third person)
  1. If NO, then there is no liability.
  2. If YES, then go on with the analysis (Step 3.5).
5. Is there an “extra condition”? (statement is libel per se, libel per quod, slander per se, or special damages are proven)
  1. Go on to the next set of questions (Step 4) to determine if there is an “extra condition”.
“EXTRA CONDITION” ANALYSIS
1. Is it libel or slander?
  1. If SLANDER, then go on to slander per se analysis (which is the same as libel per quod analysis) (Step 4.2).
  2. If LIBEL, then choose whether it is libel per se or libel per quod.
    1. If it is LIBEL PER SE (i.e., no external information is needed to understand defamatory import), then a prima facie case has been established. GO ON TO DEFENSES (Step 5).
    2. If it is LIBEL PER QUOD (i.e., innuendo, etc.; some external information is needed for defamatory import), then go on to libel per quod analysis (same as slander per se analysis).
2. SLANDER PER SE / LIBEL PER QUOD ANALYSIS
  1. Does the statement’s defamatory import arise by way of any of these?
    - adverse to one’s profession or business
    - loathsome disease
    - guilt of crime involving moral turpitude
    - lack of chastity
    1. If YES, then a prima facie case has been established and no special damages need be proven. GO ON TO DEFENSES (Step 5).
    2. If NO, then special damages must be proven.
      1. If PROVEN, then a prima facie case has been established. GO ON TO DEFENSES (Step 5).
      2. If NOT PROVED, then there is no liability.
DEFENSES:
1. Is the statement substantially true? (The statement is substantially true if the statement is true, or if it is at least close enough to the truth that the false part doesn’t matter.)
  1. If YES, then there is no liability.
  2. If NO, then go on to the next step.
2. Is the statement protected by absolute privilege? (court proceedings, legislative proceedings, high-level government executive communications, spouse-to-spouse)
  1. If YES, then there is no liability.
  2. If NO, then go on to the next step.
3. Is the defendant immune via the §230 safe harbor? (internet republication under 47 U.S.C. §230)
  1. If YES, then there is no liability.
  2. If NO, then go on to the next step.
4. Is the statement protected by qualified privilege? (fair and accurate reporting, neutral reportage, employment reference, other)
  1. If NO, then there is LIABILITY.
  2. If YES, then go on to the next step.
    1. Is the qualified privilege exceeded? (lack of subjective belief in truth, lack of objectively reasonable belief in truth, excessive publication)
      1. If EXCEEDED, then there is LIABILITY.
      2. If NOT EXCEEDED, then there is no liability.