In order for a statement to be defamatory, it must be published. This means that the statement must be seen or read, as well as understood by a third party. So, your little brother finding your diary where you “defamed” him won’t count, nor will sending a defamatory letter to someone who can’t read your sloppy handwriting.
In the 1964 case filed by Curtis “Curly” Hunter against Harry Hornby of the Uvalde Leader-News, the Texas Court of Civil Appeals upheld the district court’s verdict, ruling that a newspaper is considered published as soon as it goes into circulation.
The case involved an article published in the Uvalde Leader-News, where Mr. Hornby reported that a warrant for Mr. Hunter was issued in connection with the theft of a stolen Cadillac. The trial court confirmed that the article was referring to Hunter, yet Hunter had no connection whatsoever to the stolen car. The Court found that the article was defamation per se. Hornby then filed an appeal to the trial court’s ruling, making three main arguments: 1) there was in fact a pending indictment against Hunter; 2) Hornby had not explicitly accused Hunter of violating any criminal statute; and 3) Mr. Hunter had no proof that the material was ever read.
The appellate court rejected all three of the defendant’s arguments. Though there was a pending indictment against Hunter for receiving and concealing of stolen items, the Court held that an individual’s guilt for one crime was not a sufficient defense for defamation concerning a falsified and unrelated second crime. While Hornby did not write that Hunter had actually stolen the car, the claim that there was a warrant out for his arrest pertaining to the stolen car was sufficient cause for a reasonable person to assume guilt. Finally, while Hunter lived in Nueces County, some 200 miles from where the newspaper was published, Hornby’s wife testified that several Nueces County businesses subscribed to the paper and the article in question had been distributed in Nueces County. The Court ruled that a newspaper article is published as soon as it is circulated, and it is not necessary for a victim of defamation to prove that the article was actually read.
In our next post, we'll take a look at the "of and concerning" element of a defamation claim and dive into how a person who has not been identified by name can prove they are the subject of a defamatory statement.
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.