A statement can be defamatory in all respects, but it must be about the plaintiff for a defamation suit to be successful. If the statement is not “of and concerning” (lawyer-speak for “about”) the plaintiff, the suit will not succeed.
Whether a statement is “of and concerning” the plaintiff is often subjective, which leaves a huge amount of grey area for courts and juries to navigate. However, there are a few standout cases that illuminate key issues to help juries determine whether or not a plaintiff satisfies this requirement.
In the 1993 case Weinstein v. Bullick, Sarah Weinstein, a student at Bryn Mawr College, filed a defamation action against Captain Richard Bullick of the Sex Crimes Division of the Philadelphia Police and WCAU-TV. The heart of the case came down to whether or not Ms. Weinstein was identifiable as the victim. After Weinstein reported that she had been raped following a party at the University of Pennsylvania, WCAU broadcasted an interview with Bullock regarding his investigation of the incident. Bullock said he was skeptical that a rape had taken place and insinuated that the encounter may have been consensual. Though Weinstein’s name was never mentioned, many significant details were. WCAU reported that the victim left a party at Penn in a Nissan and headed back to her dorm at Bryn Mawr. Two students submitted affidavits declaring that, immediately following the broadcast, “news of Sarah Weinstein’s rape spread quickly across the campus.” The district court found that while Weinstein had never been identified by name, the specificity of the details combined with the context of the small college was sufficient; the defamatory statement was of and concerning Ms. Weinstein.
The 1954 case Neiman Marcus v. Lait addressed whether or not groups are eligible to sue for defamation. This is a tricky issue because it is hard to prove when a statement is targeting any single individual in a group. In the book U.S.A. Confidential, authors Lait and Mortimer made derogatory statements about the salesmen, saleswomen, and models from a Dallas, Texas Neiman Marcus store. In crude terms, the authors alleged that some of the models and saleswomen were prostitutes, and that the Neiman salesmen were all homosexual. The Neiman Marcus Corporation, 15 salesmen (acting on behalf of 25), 30 saleswomen (acting on behalf of 382), and each of the nine models sued for defamation. Before this case arose, two propositions were widely accepted by the courts: 1) in large groups, no individual may sue for defamation, and 2) in small groups, any individual may sue for defamation. Left to its discretion regarding the definition of a “large” or “small” group, the court allowed the models and salesmen to sue, and dismissed the saleswomen’s claim. Though Neiman Marcus v. Lait did not establish any concrete precedent, the case demonstrates that it is more difficult for large groups to prove defamation.
Neither of these cases paints a black and white portrait of an identifiable victim, though they do help clarify the grey area. As a general rule, the “of and concerning” requirement can be met if the victim is clearly identifiable by even a few readers.
In our next post, we'll take a look at what type of harm qualifies for a defamation claim. After all, how much damage can a statement really do?
Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation and privacy.