Group Defamation: Five Guiding Factors


Texas Law Review
November 1985




Copyright (c) 1985 Texas Law Review
Texas Law Review

November, 1985

64 Tex. L. Rev. 591

LENGTH: 24895 words



NOTE: Group Defamation: Five Guiding Factors.



Jeffrey S. Bromme

SUMMARY:
  ... Defamation law is replete with inconsistencies and historical distinctions that have no modern justification, and the amorphous legal principles that make up group defamation law contribute a large share of this confusion. The group defamation rule prevents a member of a defamed group from recovering unless he proves that the defamation referred to him. ... A more stringent formulation denies recovery unless the plaintiff can show that "the recipients of the defamatory matter are likely to identify some, if not all, of the [members of the group] as intended objects of the defamation." ... By 1944, the judicial focus had become so transfixed on size that Lord Atkin, who delivered an opinion in Knupffer v. London Express Newspaper, Ltd., is considered insightful for commenting that size should not be the sole factor in deciding these cases. ... Noting that no single factor is conclusive, he added that an extravagant charge can offset large group size: "I can imagine it being said that each member of a body, however large, was defamed where the libel consisted in the assertion that no one of the members . . . was elected as a member unless he had committed a murder." ... Any local reader of the paper likely would have paused long enough to connect the defamation with the local franchise. ...  

TEXT:
 [*591]  I. Introduction

Defamation law is replete with inconsistencies and historical distinctions that have no modern justification, n1 and the amorphous legal principles that make up group defamation law contribute a large share of this confusion. The group defamation rule n2 prevents a member of a defamed group from recovering unless he proves that the defamation referred to him. n3 Although any plaintiff who brings a defamation action must meet this requirement, n4 a group member's task is more difficult because the  [*592]  defendant has not named him specifically; instead, the plaintiff claims damages simply because he belongs to the group. n5

As a general rule, the larger the group, the more difficult it is for the plaintiff to convince the court that a group defamation referred to him. n6 When the plaintiff cannot make this showing, courts traditionally have held that there is no cause of action. n7 On the other hand, members of  [*593]  smaller groups have been more successful. n8 In some cases, although the group is small enough not to preclude a cause of action, other facts make it impossible for a jury to find that the defamation referred to the plaintiff. n9 Therefore, a group defamation plaintiff encounters two barriers to the case going forward: first, whether there is a cause of action, n10 and second, whether the case goes to the jury.

To address these questions, most courts have used a conclusory analysis focusing primarily on group size. n11 Such abbreviated reasoning is most likely in the easy case: if the group has only two or three members, it is reasonable to assume that the defamation referred to any one of them. n12 Conversely, a member of a group of thousands or millions cannot recover for a defamation directed at the group. n13 But the cases between these extremes have vexed the courts. n14 A careful reading of cases  [*594]  involving groups of all sizes, however, shows that the following five factors explain their holdings: (1) the nature of the defamation, (2) the credibility of the defamer, (3) the structure of the group and the plaintiff's position in the group, (4) the popularity of the group, and (5) the public interest in an open discussion of public issues. Holdings that are inconsistent with an analysis of these factors are arguably incorrect. Recognizing that these factors explain previous group defamation cases should prompt future courts to include an examination of each factor in their analyses of both whether there is a cause of action and whether the case goes to the jury. If the case is submitted to the jury, the charge should incorporate these factors as well.

Part II of this Note discusses two areas of confusion that have developed in group defamation law. Part III traces the English roots of group defamation law. Part IV follows the development of that law in the United States. Part V explains the proposed five-factor analysis. Part VI demonstrates how to use these factors by applying them to three cases.
 
II. The Existing Confusion

In attempting to fashion a coherent doctrine for group defamation cases, courts have encountered two stumbling blocks. The first is whether the plaintiff must show that the defamation referred to all members of the group. The second arises out of the difficulty of applying one test to all fact situations; a variety of formulations of the group defamation rule have emerged, none of which is entirely satisfactory.
 
A. All or Nothing?

There is conflicting authority as to whether a cause of action exists if the defamation did not refer to all members of the group. Over fifty years ago, Judge Augustus Hand explained the traditional approach:

It is an old rule of the common law that, where words complained of reflect on a class of persons generally without making it evident that every person of the class is referred to, no member can maintain an action . . . . When, however, the words reflect on every member of a class, each one may have an action, because the charge is made broadly against all. n15
 
 [*595]  This formulation still appears in modern cases. n16

The alternative view is that the plaintiff has a cause of action when the defamation referred to a substantial number of group members. The court in Farrell v. Triangle Publications, Inc. n17 allowed one of thirteen township commissioners to bring an action even though the audience was likely to identify only some of the group members as targets of the defamation. n18 Neiman-Marcus v. Lait, n19 a leading case, contains an excellent discussion of the two approaches and concludes that a defamation against some of the group is sufficient: "An imputation of gross immorality to some of a small group casts suspicion upon all, where no attempt is made to exclude the innocent." n20

The approach in Farrell and Neiman-Marcus is preferable. The plaintiff retains the burden of showing that the defamation referred to him, but he need not show that it referred to everyone else in the group. If the defamation referred to fewer than all group members, his task will be justifiably greater, because he may not have been included in this smaller group. But under the traditional approach, a defamer could protect himself absolutely by excluding just one member of the group. This result is both illogical and unjust. n21
 
B. Various Formulations

A second area of confusion is the different language courts use to rationalize their holdings. Although the holdings are fairly consistent, the tests that courts purport to apply are not. In effect, most cases seem to be decided on the basis of group size.

Some courts have relied on the "reasonable man" test. n22 Under this  [*596]  test, if the judge concludes that it would be reasonable for a jury to find that the group defamation applied to the plaintiff, the case must go to the jury. The "reasonable man" test has been phrased in a variety of ways, some of which ease the plaintiff's burden. For example, a leading New York case stated that a plaintiff has a cause of action "unless it is manifest and unquestionable, that the charge is clearly made against a class . . . and cannot possibly import any personal application." n23 Another early case held that a plaintiff has a cause of action unless the defamation was so general that "no individual damage could be presumed to the plaintiffs." n24 These standards are not difficult to meet. n25

A more stringent formulation denies recovery unless the plaintiff can show that "the recipients of the defamatory matter are likely to identify some, if not all, of the [members of the group] as intended objects of the defamation." n26 One court said that if a person may "readily" apply  [*597]  the group defamation to the plaintiff then there is a cause of action; n27 however, no cause of action exists if there is "no likelihood" that the group defamation applied to the plaintiff. n28 This court did not explain how to decide cases in which there is some likelihood of individual identification, but such identification cannot be readily made.

At least two courts have taken a more sophisticated approach and applied an "intensity of suspicion" test, n29 not based solely on group size. Under this test the court examines whether, by virtue of the plaintiff's prominence within a clearly defined group, the defamation has cast an intensity of suspicion on him that makes it fair for him to recover. If so, the fact that the group is large does not hinder the plaintiff's case. n30

The focus on group size has permitted courts to escape the tangle of these varied tests by following prior holdings without adopting the language of any one case. One early case warned, however, that "each case must rest largely on its own facts, since there are usually variations in the facts of [other cases] as to make them not persuasive." n31 A more comprehensive method of analyzing and deciding group defamation cases is even more important today because, as our society has matured and grown, it has spawned groups in a multitude of sizes. n32 Modern courts  [*598]  often face group defamation complaints from plaintiffs in mid-size groups; thus, an analysis that looks only to group size is inadequate.
 
III. The English Roots of the Group Defamation Rule

At first, group defamation principles did not focus on group size. The brevity of old English case reports makes it difficult to determine their rationale precisely, but apparently the main question was whether, considering all the facts (including group size), the defamation referred to the plaintiff.

The first reported English group defamation case was Foxcroft v. Lacy. n33 Lacy accused Foxcroft and sixteen others of murdering Henry Farrer. The court held that each member of this group had a cause of action, as if they had been singled out by name. n34 Even though Foxcroft did not rely on group size, the case is cited for the proposition that members in groups of this size may recover. n35 Ironically, there is some evidence that the plaintiff did not prevail in Foxcroft. Less than fifty years later, Symm's Case n36 stated that in Foxcroft "it was adjudged that the action would not lie." n37 A commentator in the late eighteenth century  [*599]  noted this conflict, though his treatise suggests that plaintiff did recover. n38 In one of this country's first group defamation cases, the court suggested that the plaintiff in Foxcroft was unsuccessful. n39 But whatever its actual holding, for 150 years courts have assumed that the plaintiff in Foxcroft had a cause of action n40 .

Another well-known English group defamation case is Le Fanu v. Malcolmson. n41 The defendant, who described inhumane working conditions in some Irish factories, argued that the defamation's generality made it impossible for any factory owner to show that the defamation referred to him. n42 The trial judge allowed the plaintiffs to take their case to the jury, which found for them. On appeal the judgment was affirmed. n43 Lord Campbell went so far as to assert that defendant's argument was not supported by authority. n44 He added,

[I]t may very well be that the slander refers to a particular individual. That is a matter of which evidence is to be laid before the jury, and the jurors are to determine whether, when a class is referred to, the individual who complains that the slander applied to him is, in point of fact, justified in making such complaint. n45

In Eastwood v. Holmes, n46 decided in 1858, a scholarly journal had reported that recently discovered lead artifacts were not antique originals  [*600]  as claimed, but of recent construction. Plaintiff was an antiques dealer. The court held for defendant on three separate grounds, one of which was that the article referred only to antiques dealers as a class and contained nothing to point to the plaintiff. n47 Plaintiff was unsuccessful because there was no evidence that the group defamation referred to him and not because of a per se rule against recovery for a member of a large group. n48 Under Eastwood's language, a member of even a large group should be able to recover damages if he can show that the defamation referred to him. It is in Eastwood that this familiar statement is found: "If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there is something to point to the particular individual . . . ." n49

These and other leading English cases did not rely primarily on group size. Although losing plaintiffs ordinarily were members of large groups, it was not size alone that blocked recovery; rather, recovery was prohibited because the groups' size in combination with the particular facts of the case made it unreasonable to find that the plaintiff had been defamed. n50

 [*601]  By 1944, the judicial focus had become so transfixed on size that Lord Atkin, who delivered an opinion in Knupffer v. London Express Newspaper, Ltd., n51 is considered insightful n52 for commenting that size should not be the sole factor in deciding these cases. n53 Instead, "to be actionable the defamatory words must be understood to be published of and concerning the plaintiff . . . . [F]uture . . . lawyers [should] concentrate on the question whether the words were published of the plaintiff rather than on the question whether they were spoken of a class." n54

Except for the vague test of whether the words are capable of referring to the plaintiff, English precedent leaves courts bereft of practical guidance in deciding group defamation cases. American courts have had little more success at articulating a workable standard.
 
 [*602]  IV. American Group Defamation Law: Its Roots and Development

The first American group defamation cases were brought in the early nineteenth century. After a stumble in Sumner v. Buel, n55 the courts correctly applied the cryptic principles first enunciated in England.
 
A. Early American Cases: Groping for a Rule

In the earliest reported American case, Gidney v. Blake, n56 the defendant said to plaintiff's father, "Your children are thieves and I can prove it." n57 Relying on Foxcroft v. Lacy, n58 the appellate court reversed the trial court, which had granted defendant's demurrer. n59 This result is consistent with the factors explained in Part V of this Note.

The next year, the same court reached a different result in Sumner v. Buel. n60 In that case, three companies of a certain regiment were called for a few weeks of service. All but one man refused to come because, according to the defamatory article in the Albany Argus, their nine officers deceived them into believing that the government had no power to call them out. n61 After the plaintiff officers took a default judgment the New York Supreme Court granted defendant's motion to arrest the judgment. The majority said, "[W]here the libel has no particular and personal application, and is so general that no individual damages can be presumed, and the class or individuals so numerous to whom it would apply . . ., no private suit shall be sustained, but proceedings against the offender must be by indictment." n62 Although this is an accurate formulation of the group defamation rule, the dissent characterized its application to the facts of the case as "absurd," because of the small group size. n63

Twenty-two years later, in White v. Delavan, n64 the same court relied on Sumner to deny recovery to a brewer who was allegedly defamed by an article charging a group of twelve with using putrid water in preparing the brew. The court did not even mention the small size of the group. n65 At least in Sumner the court had examined whether a group  [*603]  with nine members was too large for recovery; group size did not even merit discussion in White. If the Sumner-White approach had taken hold, no group member could recover unless singled out by name, regardless of group size.

Ryckman v. Delavan n66 reversed White v. Delavan n67 and cast a pall across Sumner. The majority opinion in Ryckman did not question the principle stated in Sumner but suggested that it was not applicable to the facts of that case. n68 Furthermore, the majority noted, Sumner was contrary to precedent. n69 In contrast to White and Sumner, the Ryckman majority stated a test that makes it very easy for the plaintiff to assert a cause of action:

[A] declaration on libel cannot be adjudged insufficient, by reason of the accusation being directed against a class of society, unless it is manifest and unquestionable, that the charge is clearly made against a class of society or an order or body of men as such, and cannot possibly import any personal application tending to private injury. n70

This language does not indicate whether a judge, having found that the plaintiff has a cause of action, must submit the case to the jury. But, the opinion suggested earlier that unless a court held the plaintiff's pleading insufficient to state a cause of action, the plaintiff would have the right to a jury determination of whether the defamation had damaged the plaintiff. n71 Therefore, this test almost always would allow the case go to the jury, because it is seldom impossible for a group defamation to "import  [*604]  any personal application tending to private injury." n72

The remaining reported nineteenth century cases involved groups that probably had fewer than twenty members. n73 In all these cases, the plaintiffs were allowed to go to the jury or were at least given a cause of action. To the extent that these opinions focus on size, they do so only to confirm that the group is not too large. The nineteenth-century courts were not very articulate at explaining their holdings, however, and courts in this century have, for the most part, been no more cogent.
 
B. Leading Decisions of the Twentieth Century: A Focus on Size

In most twentieth-century cases involving groups with about twenty or fewer members, the courts have favored the plaintiff. n74 One exception is Service Parking Corp. v. Washington Times Co. n75 Although the defendant in that case defamed a group of ten to twelve parking lot owners, the appellate court affirmed the trial court's directed verdict for the defendant. n76 This result parallels that reached in Sumner v. Buel n77 and seems  [*605]  equally incorrect. Part VI examines this case.

For the first time there have been cases involving extremely large groups, and in these cases an analytical shift toward emphasizing size may be discerned. No plaintiff has succeeded in a large-group case. Thus, in 1906, a trading stamp company had no cause of action for a defamation of the trading stamp industry. n78 In one case involving a defamation of owners of "wine joints," n79 and another involving a defamation against alleged "wholesale smugglers of whiskey and dope," n80 the plaintiffs had no cause of action because the groups were too large. n81 In 1940, Noral v. Hearst Publications, Inc. n82 held that a member of a 162-member group had no cause of action, again because the group was too large: "Where a group is very large and nothing that is said applies in particular to the plaintiff he cannot recover." n83 This language is almost identical to that in Eastwood. n84 In Eastwood, the plaintiff had a chance to present evidence that, despite the size of the group, the defamation referred to him; n85 in Noral, however, the trial court sustained the defendant's demurrer. n86

The distinctions drawn between various groups of plaintiffs in Neiman-Marcus v. Lait n87 Illustrate the importance given to size. The defendant defamed three groups, of which the first included 9 store models, some of whom were described as "call girls." n88 The second group was composed of 25 salesmen, most of whom, according to the defendant, were "fairies." n89 The third group consisted of 382 saleswomen, an unstated number of whom the defendant implied were "call girls." n90 The court denied the defendant's motion to dismiss the complaint of the 25 salesmen. However, for several reasons the court held that no saleswoman in the larger group had a cause of action. First, there were no cases allowing a member of a group that large to recover. Second, the language referred to no ascertainable saleswoman. Although this was equally true as to the first two groups, the court explained that they were  [*606]  smaller. n91 Finally, no reasonable man would take the defamation of the third group seriously. n92 The holding in Neiman-Marcus probably had more influence than any other case in prompting courts to focus on size; it influenced Dean Prosser's hornbook, n93 which, in turn, was often cited by other courts in later decisions. n94 Part VI demonstrates that two of the factors suggested in this Note satisfactorily explain this case.
 
C. The "Intensity of Suspicion" Test: A New Approach

In 1934 one commentator suggested that a more realistic test would be "the intensity of the suspicion cast upon the plaintiff [by the defamation]. This is a purely factual inquiry, to be undertaken in the light of an objective theory of defamation." n95 The relevant factors under this test are group size and group structure. n96 Almost thirty years later, Fawcett Publications, Inc. v. Morris adopted this more liberal approach. n97 True magazine published an article that accused all members of the 1956 University  [*607]  of Oklahoma football team of taking amphetamines. The plaintiff was one of some sixty to seventy members of the team. The state supreme court affirmed a directed verdict for the plaintiff. Although the group size was almost three times that of the largest successful group in Neiman-Marcus, n98 the court said it found no substantial reason why size alone should be conclusive. n99 Instead, the court found it important that the plaintiff was well known and was identified by his membership in the group. n100 The court held in his favor because any reader with knowledge of the team would infer from the article that the plaintiff was using amphetamines. n101

The Oklahoma Supreme Court refined its holding Fawcett in two subsequent cases. In Layman v. Readers Digest Association, n102 the defendant referred to "one contractor" who had done a shoddy job of constructing a certain stretch of highway. n103 The plaintiff lost because, in contrast to Fawcett, there was no evidence that subscribers to Reader's Digest understood the defamation to apply to the plaintiff individually. n104 Therefore, there is a threshold requirement for the "intensity of suspicion" test: there must be some evidence suggesting that the defamation refers to the plaintiff. In McCullough v. Cities Service Co. n105 the court refused to extend the Fawcett rationale to a group with 19,686 members. The trial court, perhaps relying on Fawcett, had refused to sustain defendant's demurrer, but the Oklahoma Supreme Court reversed. Because the plaintiff conceded that the defamation had no particular or personal  [*608]  reference to him, n106 the court held that "there [could] be no intensity of suspicion cast upon the plaintiff." n107

The intensity of suspicion test is more conceptually justified than a purely size-oriented test n108 because it focuses on whether the group defamation has injured the individual plaintiff. However, the major flaw of both tests is that neither is a complete explanation of the existing case law. Thus, both are deficient guides to an accurate resolution of future cases.
 
V. Five Factors

When deciding whether to let the plaintiff's case go to the jury, the court must determine how reasonable it would be to find that the defamation referred to the plaintiff. If the jury hears the case, it must decide whether the defamation referred to the plaintiff. n109 This Note asserts that the following four factors should guide courts and juries as they decide these questions: (1) the nature of the defamation, (2) the credibility of the defamer, (3) the structure of the group and the plaintiff's position in the group, and (4) the popularity of the group. A fifth factor, the public interest in an uninhibited discussion of public issues, does not help determine whether the plaintiff has been defamed, but can tip the scales against recovery in close cases.
 
A. Nature of the Defamation

The most important factor that a court should consider is the nature of the defamation. When a defamation takes the form of an opinion,  [*609]  rather than a statement of fact, it is not actionable. n110 There is considerable disagreement over the boundary between fact and opinion. n111 But among fact-type defamations there are some types of statements that more easily support a cause of action. The more heinous the accusation is, the more likely the court should be to recognize a cause of action. n112

The importance of this factor is supported by the rationale underlying the law of defamation. A defamed plaintiff is compensated for damages suffered because the words tended to lower the regard in which the public holds him. n113 In the first edition of his hornbook, Dean Prosser put it this way: "Defamation is an invasion of the interest in reputation and good name, by communication to others which tends to diminish the esteem in which the plaintiff is held, or to excite adverse feelings or opinions against him." n114 If the plaintiff is not specifically named, however,  [*610]  the audience must be able to connect the defamation with the plaintiff for the plaintiff to recover. n115 An outlandish accusation is likely to catch the attention of the audience and prompt it to make the association that the defamer did not make explicit. On the other hand, a mild defamation will not be connected with the plaintiff because the audience is unlikely to notice it. n116 In sum, if the audience could not have made this connection, the plaintiff cannot show that the words referred to him.

This factor has ample case support. Lord Porter, concurring in Knupffer v. London Express Newspaper, Ltd., n117 said that, in addition to size, a court should consider "the generality of the charge and the extravagance of the accusation." n118 Noting that no single factor is conclusive, he added that an extravagant charge can offset large group size: "I can imagine it being said that each member of a body, however large, was defamed where the libel consisted in the assertion that no one of the members . . . was elected as a member unless he had committed a murder." n119 In Farrell v. Triangle Publications, Inc., n120 the defendant published a defamatory article that accused "a number of township commissioners and others" n121 of criminal conduct. There were thirteen commissioners and an unnamed number of "others." n122 Reversing the trial court, which had dismissed plaintiff's complaint, the appellate court noted that readers of the publication

who, prior to the defamatory article, had not known the identity of all of the township's commissioners, were impelled by the scandalous nature of the charges to make inquiry and find out who the commissioners were -- a process which would almost inevitably lead to connecting the plaintiff's name with the alleged corruption in office. n123
 
The nature of the defamation helps explain the result in Spangler v. Glover as well. n124 In that case, during a union election campaign the defendant published a circular that accused those who opposed the reelection  [*611]  of a certain union official of being proemployer. n125 The Washington Supreme Court affirmed a jury verdict for plaintiff, without specifying the size of the group:

Surely, such accusations, published in a community composed largely of union members and their families, tended to deprive the persons referred to of the benefit of public confidence and to injure them in their business and social relationships with their fellow union members and in the pursuit of their occupation. n126

The facts of other cases illustrate less inflammatory defamations. For example, if defendant says that residents of a certain subdivision suffer from a higher than normal cancer rate, n127 the residents will suffer little diminution in esteem -- the audience may feel sympathy for the residents and be unlikely to blame victims of cancer for contracting the illness. Similarly, the public is likely to dismiss as mere puffery an advertisement for the book How to Avoid Lawyers that holds out the promise of helping its readers "avoid traps" and "stop being cheated." n128 A defamation broadcast as a momentary backdrop to a televised news report is sufficiently attenuated that a jury finding that plaintiff was defamed would be unreasonable. n129 The nature of each of these defamations makes it unlikely that the public will connect the defamation to any particular group member.

Arguably, a heinous accusation may be so outlandish that the public will not take it seriously. In Riss & Co. v. Association of American Railroads, n130 the defendant, in essence, accused the "railroads" of treason. n131  [*612]  In granting summary judgment for defendant the court relied on the fact that the group numbered between 101 and 131. n132 However, this result is also supported by the implausibility of the charge. n133
 
B. The Credibility of the Defamer

The second factor that a court should consider is the credibility of the defamer. This factor also is supported by the fundamental rationale for defamation law -- redressing injuries to reputation. n134 A credible defamer's statements are more likely to catch the public's attention long enough for it to draw a connection between the defamation and an individual plaintiff in the group. Additionally, the speaker's credibility lends plausibility to an otherwise implausible accusation. If the speaker's credibility is low, the public is likely to disregard his comments without connecting them to a particular plaintiff. n135

This factor may be analyzed in two ways: by examining either the credibility of the speaker or the credibility of the medium. For instance, when a journal publishes an editorial or news article, the appropriate issue is the credibility of the journal. Similarly, reports by recognized sources of national news n136 are more credible than reports by journals whose primary purpose is perceived as something other than the promulgation of news, n137 or media whose reputation for objective news reporting  [*613]  is less than sterling. n138 When a journal merely quotes the defamer, however, courts should focus on the credibility of the speaker.

In either case, if the defamation extends only to an identifiable audience, the court should determine whether that particular audience would have considered the speaker or the medium credible enough to link the statement to the plaintiff and imbue it with plausibility.

In Kentucky Fried Chicken, Inc. v. Sanders, n139 the court should have considered the credibility of the speaker in deciding whether a particular franchise was likely to suffer reputational injury. In an interview with the Bowling Green newspaper, Colonel Sanders described the Kentucky Fried Chicken gravy as "horrible" and mocked the food chain's new "crispy" recipe as "'nothing in the world but a damn fried doughball stuck on some chicken.'" n140 The Bowling Green franchise sued, but the court denied recovery, without discussing credibility, because there were 5,000 Kentucky Fried Chicken franchises worldwide. Any local reader of the paper likely would have paused long enough to connect the defamation with the local franchise.

Other speakers with his credibility include elected officials n141 and respected entertainers. n142 A government news release that describes health-food makers as "quacks" is credible. n143 A defamer who purports to speak from personal experience is more credible than one who reports events second-hand. n144 Of course, any readily apparent ulterior motive diminishes the speaker's credibility. n145
 
 [*614]  C. Group Structure and Plaintiff's Position in the Group

A third factor that a court should weigh is the structure of the group and the plaintiff's position within the group. n146 The plaintiff cannot recover unless the audience's connection of the defamation to the plaintiff is reasonable. Therefore, members of groups with clear membership indicia and members whose notoriety arises solely because of group membership should get to the jury more easily than members of vaguely defined groups, or low-profile group members. For example, if the defamer says, "All Baptists are thieves," no individual Baptist should recover because the group is too amorphous: there is no basis for determining whether the defamer means practicing Baptists, nominal Baptists, or Baptists by birth. Unless the subgroup to which the speaker refers is clear, any connection with an individual member is purely speculative. n147 As one court said, "[T]he connection must be reasonable under the circumstances." n148

Supporting this factor is Mick v. American Dental Association, n149 in which the plaintiff was a dentist who opposed the fluoridation of water. The defendant defamed opponents of fluoridation as "food faddists," "quacks," "faith healers," and "cultists." n150 The court concluded that the group was too large and "amorphous" n151 to allow plaintiff to maintain  [*615]  his cause of action, because opponents of fluoridation did not enjoy particular indicia of group membership. A more recent group defamation opinion stated that a court should consider "the definiteness in number and composition of the group and its degree of organization." n152

In some instances, no individual member can recover, even though the defamer has been very specific about the group to which he refers. For example, if the defamer says, "All persons born in 1960 to parents who attended the Baptist church at least 35 times that year are thieves," no individual member can sue. At most the audience will interpret the defamation as a ridiculous exaggeration. n153 Although the plaintiff might be annoyed and humiliated, there is no injury to reputation because no reasonable person could take the defamation seriously; a slur that cannot reasonably be believed does not damage a member's reputation.

Because amorphousness generally increases with group size, group size usually is considered as an element of group structure. As one court said, "[I]f the group is so large that [it would be unreasonable for] a reader [to] understand the article to refer to any particular member of the group, it is not libelous." n154 There are some groups, however, that retain rigidly drawn membership lines even though they increase in size. A plaintiff could argue in such a case that, despite its size, the group's clearly delineated membership makes a connection of the defamation to the plaintiff reasonable. This argument would be strengthened by evidence that the group has some external membership insignia. Examples of such groups include a football team, n155 a group of indicted policemen, n156 and the class of European sovereigns. n157 A plaintiff's case is even stronger if he is a publicly prominent member of the group. The  [*616]  Fawcett n158 court emphasized this factor in noting that the plaintiff was "well-known and identified in connection with the group." n159
 
D. Group Popularity

The fourth factor that the court should weigh is the popularity of the group. When the plaintiff is a member of a very popular group, a court ought to be less willing to let the case go forward, because the public is likely to be skeptical of the defamation and thus unlikely to associate it with any specific group member. Conversely, if the group to which the plaintiff belongs is held in public disrepute, the court should be more hesitant to grant the defendant's preemptive motion. n160

This factor can be inferred from language in Weston v. Commercial Advertiser Association, n161 in which the defendant libeled the four Manhattan coroners by suggesting that they had extorted bribes from hotels and from relatives of deceased persons who might be embarrassed by the results of an autopsy. The court could have disposed of the appeal solely under the size-oriented test by holding that the group was small enough for plaintiff to get to the jury. In holding for plaintiff, however, the court also said, "The article was written at a time when the criminal conviction of a coroner was apt to attract close and unfavorable attention to the office and its occupants." n162

To avoid forcing the judge into the role of a pollster, this factor should come into play only when the extent of the group's popularity is clear within the relevant audience. For example, among some audiences  [*617]  a defamatory reference to a particular labor union n163 would be a rallying point of support for the union. No diminution of esteem is likely to result. On the other hand, in antiunion communities, a plaintiff challenging such an accusation should be more likely to get to the jury. n164

Group popularity is a factor of limited usefulness because it is easily outweighed by the other factors. For example, in the case that provided the labor union hypothetical, n165 this factor would have been outweighed by group size -- there were only seven local leaders. n166 Nonetheless, weighing the group's popularity is a principled way to tip the balance in close cases.
 
E. Open Discussion of Public Issues

Since the earliest days of group defamation law in America, courts have been sensitive to the policy favoring untrammeled discussion of public issues. The first group defamation case expressing a strong interest in uninhibited discussion of public issues was decided in 1840, n167 and several recent cases have reiterated this interest. n168 The alleged defamation in Michigan United Conservation Clubs v. CBS News n169 occurred in two televised reports that portraved hunters and their sport in a bad light. The plaintiff was a hunter, along with more than one million  [*618]  others in the same state. In granting the defendant's motion for summary judgment the court said, "If plaintiffs were allowed to proceed with this claim, it could . . . seriously interfer with public discussion of issues, or groups, which are in the public eye." n170 Khalid Abdullah Tariq Al Mansour Faissal Fahd Al Talal v. Fanning n171 involved the alleged defamation of 600 million Muslims by the movie Death of a Princess. n172 The court said the group was too large for an individual to maintain an action and added, "If the court were to permit an action to lie for the defamation of such a multitudinous group we would render meaningless the rights guaranteed by the First Amendment to explore issues of public import." n173 The court in Brady v. Ottaway Newspapers, Inc., n174 surprisingly oblivious to the English roots of the group defamation rule, said, "The rule was designed to encourage frank discussions of matters of public concern under the First Amendment guarantees." n175 These courts seem to be recognizing that sometimes the interest in encouraging open comment about important issues outweighs the interest in compensating the plaintiff for his injury. n176

The first amendment concern is intertwined with a public interest in avoiding vexatious litigation. This was expressed in Ewell v. Boutwell, n177 a case in which the defendant described the plaintiff's group as "promoting the smuggling of whiskey and dope" n178 and alluded to "several unscrupulous 'rich men.'" n179 The court sustained defendant's demurrer with the comment that if plaintiff could sue, the floodgates of litigation would be opened because "many persons might allege that these libelous words were spoken of and concerning each of them." n180

 [*619]  When the facts raise the public comment issue, a court ought to be more hesitant to recognize a cause of action. A defamation implicates this factor only if it has an arguable nexus to some public issue. But if commercial commentary on the Muslim culture constitutes discussion of a public issue, n181 this nexus is not an onerous requirement. n182
 
VI. Applying the Factors

This Part analyzes three group defamation cases to demonstrate how a court might use these factors, and, in two of the cases, to show how the factors better explain a result rationalized primarily on the basis of group size.
 
A. Service Parking Garage Corp. v. Washington Times Co. n183

In Service Parking, the alleged defamation was a newspaper article reporting that American Automobile Association observers had seen parking lot owners in downtown Washington, D.C., moving cars off their lots onto the streets. This practice opened more space on the lots, and when a car was ticketed, the parking lot owner paid the fine. The District of Columbia police superintendent confirmed these observations. The article also reported that the police intended to encourage any patron whose car was moved to file suit against the lot owner for obtaining money under false pretenses. n184 The headlines had referred to the owners  [*620]  as "chiselers" who ran a "parking lot racket." n185 Plaintiff was one of twelve owners of downtown parking lots. n186 The appellate court upheld the trial court's grant of defendant's motion for directed verdict because opinion evidence by a layman that he understood the article to refer to the plaintiff was inadmissible. Without this evidence, the court held that the plaintiff was inherently unable to satisfy the "of and concerning" requirement. This result is incorrect, and the factors explain why.

The nature of this defamation was startling enough to absorb the attention of any reader, certainly one who parked on a downtown lot. A reader would have paused long enough to make the connection between the defamation and a parking lot owner. Thus, this first factor favors the plaintiff. Closely related to the nature of the defamation is the speaker's credibility. People ordinarily rely on newspapers for accurate accounts, so a newspaper was a credible source for this report. This second factor also favors the plaintiff. The third factor is the group's structure and the plaitiff's position in the group. In this case, there were twenty to thirty lots in the area that the article described, owned by about twelve persons. The plaintiff owned nine of the lots, so he was a prominent member of the group. Thus, this factor also favors the plaintiff. The group popularity factor suggests that parking lot owners are not so popular that the public is likely to dismiss any slur against them. The public issue factor is the only one that arguably favors the defendant. Shoddy local business practices probably qualify as a public issue under the broad scope generally afforded that term by the courts. However, this factor assumes its greatest importance in close cases, and in this case all other factors favor the plaintiff. Therefore, under the multifactor test, Service Parking was incorrectly decided; the court should have let the jury hear the case.
 
B. Gross v. Cantor n187

Gross v. Cantor was decided one year earlier than Service Parking on analogous facts, but the court reached a different result. Eddie Cantor was a prominent comedian of the time; Gross was a "radio editor", a newspaper editor who wrote about radio programs. Radio Guide magazine published a telegram in which Cantor wrote, "I shall continue to fight those New York radio editors who are experts at log rolling, who use their columns for delving into personalities that have nothing to do with radio and whose various rackets are a disgrace to the newspaper  [*621]  profession," n188 He added that there was only one radio editor in New York City "who ha[d] the necessary background, dignity and honesty of purpose." n189 The plaintiff was one of about twelve radio editors writing for newspapers in New York City.

Although this defamation was milder than that in Service Parking because Cantor did not accuse the editors of illegal activity, the specificity and directness of the accusation do attract attention. The defamer, a noted entertainer, was credible. No ulterior motive such as a personal grudge was evident, because the speaker expressed respect for radio editors outside New York even though they also criticized him. The difference, said Cantor, was that "theirs was honest criticism with nothing personal behind it." n190 Cantor's credibility was enhanced when the Radio Guide, in its introduction to the telegram, described Cantor's criticism as "a gesture of fearlessness." n191 This characterization implied that Cantor was telling the truth. The defamed group had clear membership indicia: the authorship of a regular entertainment column in a New York newspaper. This factor favored the plaintiff even though there was no evidence that plaintiff was prominent within the group. It is not clear whether radio editors were particularly popular, but it seems doubtful that they were so highly esteemed as to preclude the public from associating the defamation with any individual editor. Finally, given the breadth of the court's definition of the term, the freedom to disagree with the opinions of the established media is an important "public issue." On the other hand, it is at least arguable that this discussion regarding the qualifications of entertainment editors was not an issue that warranted immediate and prolonged public attention. On the whole, the first amendment factor does not overcome the other factors, all of which favor recognizing plaintiff's cause of action.

Under this analysis, the court correctly decided the case by concluding that the plaintiff had a cause of action n192 and implying that on remand he should be allowed to take his case to the jury:

It does not . . . appear that the publication was so scattered a generality [factor one] or described so large a class [factor three] that no one could have been personally injured by it. Perhaps the plaintiff will be able to satisfy a jury . . . that the article was directed at him as an individual and did not miss the mark." n193
 
 [*622]  C. Neiman-Marcus v. Lait n194

In Neiman-Marcus v. Lait, the defendant authored a book entitled U.S.A. Confidential. After a general description of modern changes in the profession of prostitution, the book defamed three groups of Neiman-Marcus employees. First, it described "some Neiman models [as] call girls." n195 All 9 models sued. Second, the book asserted, "'The salesgirls are good, too -- pretty, and often much cheaper -- twenty bucks on the average. They're more fun, too, not as snooty as the models.'" n196 Thirty of the 382 in this group sued. Finally, the book claimed that "most of the sales staff [in the men's department were] fairies, too." n197 Fifteen of the 25 in this group sued. The defendants moved that the complaints of the salesmen and saleswomen be dismissed. The court concluded that the salesmen had a cause of action, but the saleswomen did not. n198

The multifactor analysis explains this result. First, those factors that do not help distinguish between the groups should be discarded. The defamer was as credible with regard to one group as to the others. The groups were equally popular or unpopular; therefore, that factor is unhelpful. Nor does the first amendment factor vary for each group. As for the group structure factor, all three groups were clearly delineated. Any customer of the store could have spotted the saleswomen just as easily as the salesmen and models. The large number of saleswomen did not increase the groups' amorphousness.

The nature of the defamation is the critical factor in this analysis. The defamations regarding the models and the salesmen were quite direct: "some models are call girls;" "most of the sales staff [in the men's store] are fairies." The defamation of the saleswomen was less direct. There is no doubt that the defamer charged some of saleswomen with prostitution. In context, this defamation can reasonably be interpreted as not including all of the saleswomen when the italicized words are added:

Some of Neiman's models are call girls -- the top babes in town. The guy who escorts one feels in the same league with the playboys who took out Ziegfeld's glorified. Price, a hundred bucks a night.

The salesgirls [who are call girls] are good, too -- pretty, and often much cheapter -- twenty bucks on the average. They're more fun, too, not as snooty as the models. n199

In other words, among the saleswomen one could find pretty, fun,  [*623]  and inexpensive alternatives to the snooty models. This did not necessarily mean that any substantial number of saleswomen fit that description. As the court itself said, "Different allegedly libellous statements were made as to each of the groups . . . ." n200 The defamation, as written, was fantastic and broad in scope and this made it hard to take seriously the charge that a substantial number of saleswomen at a sophisticated store are prostitutes. As the court noted, "[N]o reasonable man would take the writers seriously . . . ." n201

On the other hand, if, as suggested above, the defendant was referring to only a few of the saleswomen, this factor cuts conclusively against plaintiff because any mental connection that a reader would make with a specific saleswoman would be unreasonable. There would be a far greater probability -- as a matter of arithmetic if nothing else -- that the defamation did not refer to any individual. n202

The factor regarding the nature of the defamation is the most useful factor, but it works together with another factor: group structure. All three groups were readily identifiable. Any customer of the store could spot the saleswomen just as easily as the salesmen and models. This is a case, then, in which the large size of the group probably did not increase its amorphousness. However, group size is analyzed under this factor and on these facts size is important. It must be emphasized that group size, by itself, should not be determinative. Group size, however, makes the nature of the defamation in Neiman-Marcus implausible. n203

The result in Neiman-Marcus seems intuitively correct. However, intuition is confirmed only when the case is examined under the glass of the multifactor test.
 
VII. Conclusion

The problem for a plaintiff in a group defamation case is the defendant's failure to identify specifically any individual. The court therefore must decide whether the jury could find that the defamation referred to  [*624]  the plaintiff. If the court lets the case go to the jury, the jury makes the objective determination whether the defamation in fact referred to the plaintiff.

The test for answering this question was conceived in the seventeenth century and eventually has come to focus on the size of the group. Today, there are many identifiable groups of intermediate size; the size-oriented test does not adequately assist a judge in modern group defamation cases. This Note suggests that a multifactor test should replace the focus on size. First, the judge should examine the nature of the defamation. The more heinous the defamation is, the more prepared the judge should be to recognize a cause of action and to let the plaintiff take the case to the jury, unless the defamation is wildly implausible. Second, the judge should examine the credibility of the defamer. If the speaker or the medium is one the public is likely to believe, the court should be more willing to let the jury hear the case. Third, the judge should examine the group's structure and plaintiff's position in the group. If the group is well organized and characterized by clear membership requirements, or if the plaintiff derives his notoriety from group membership, the judge should be more inclined to let the jury hear the case. Fourth, the judge should determine whether the group is one that is clearly held in high esteem. If the group is so viewed, the judge should hesitate to recognize a cause of action. Finally, if the judge determines that the alleged defamation concerns a public issue, the public interest in free discussion may outweigh the plaintiff's interest in going forward with his case. If the judge decides to send the case to the jury, the jury instruction should incorporate these factors. n204

A deliberate analysis of these five factors will reduce the number of conclusory comments that are often proffered as explanations for the results in group defamation cases, infuse those cases with principle and legitimacy, and thus enhance both their precedential value and the justice of their results. n205

FOOTNOTES:
n1 It has been said that "there is a great deal of the law of defamation which makes no sense. It contains anomalies and absurdities for which no legal writer ever has had a kind word . . . ." PROSSER AND KEETON ON THE LAW OF TORTS 111, at 771 (W.P. Keeton ed., 5th ed. 1984) (footnote omitted) [hereinafter cited as PROSSER & KEETON].

Evidently not much has changed since 1868 when John Townshend wrote:

[L]ibel . . . is a branch of the law in which, perhaps, more than any other, principles have, from various causes, been most subject to perversion by undue influences, have been less scientifically treated and more superficially considered. The law of libel has been denounced as vague, fluctuating and incomprehensible. Of the decisions on the subject many are conflicting, more are scarcely reconcilable, and the reasoning in support of all is, with very few exceptions, more or less weak, obscure, and unsatisfactory.
J. TOWNSHEND, LIBEL & SLANDER 15, at 24 (1868).

The historical distinction between libel and slander, that has continued to modern times, is not the subject of this Note. Interested readers will find RESTATEMENT (FIRST) OF TORTS 568 comment b (1938) a useful starting point on this subject. This Note adopts Professor Eldredge's suggestion that libel and slander be considered under the general heading of defamation. L. ELDREDGE, THE LAW OF DEFAMATION 13, at 81 (1978). Thus, cases discussed in this Note will not be distinguished according to whether the defamation took the form of slander or libel.

n2 See, e.g., Church of Scientology v. Flynn, 744 F.2d 694, 697 (9th Cir. 1984) (referring to the group libel rule as barring actions "to which it applies"); Brady v. Ottaway Newspapers, Inc., 84 A.D.2d 226, 229, 445 N.Y.S.2d 786, 789 (1982) (same).

The Restatement defines group defamation as follows:

One who publishes defamatory matter concerning a group or class of persons is subject to liability to an individual member of it if, but only if,

(a) the group or class is so small that the matter can reasonably be understood to refer to the member, or

(b) the circumstances of publication reasonably give rise to the conclusion that there is particular reference to the member.
RESTATEMENT (SECOND) OF TORTS 564A (1977).

n3 PROSSER & KEETON, supra note 1, 113, at 802. The familiar jargon is that the plaintiff must show that the defamation was "of and concerning" him. Id. Whether the group defamation referred to the plaintiff is an objective inquiry and does not turn on whether the defendant actually intended to refer to the plaintiff. The defendant may not have had the subjective intent to defame the plaintiff.

n4 L. ELDREDGE, supra note 1, 10, at 50. A plaintiff's prima facie case must include, in addition to the "of and concerning" requirement, see supra note 3, a claim that the defendant published the statement and that it was defamatory. PROSSER & KEETON, supra note 1, 113, at 802. The common-law rule that "the burden of proving the truth of a matter rested on the defendant-publisher," id. 113, at 804, has now been reversed in cases involving a private-figure plaintiff and a media defendant, at least if the defamation related to an issue of public concern. Pennsylvania Newspapers, Inc. v. Hepps, 106 S. Ct. 1558, 1563-64 (1986). Thus, the burden of proving the falsity of an allegedly defamatory statement now falls on the plaintiff in such cases. The cases cited in this Note, however, were decided under the traditional allocation of proof, and, as a result, did not normally reach the issue of the statement's truth until the plaintiff had established a prima facie case. In group defamation cases, the "of and concerning" requirement is usually the most difficult element of a prima facie case; thus, that element -- rather than the publication, defamatory nature, or truth of a statement -- is the focus of this Note.

n5 In civil group defamation cases, the plaintiff seeks compensation for the damage caused to his reputation. PROSSER & KEETON, supra note 1, 111, at 744; see also RESTATEMENT (SECOND) OF TORTS 559 (1977) ("A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.").

Criminal group defamation cases, authorized by statute and brought by the state, are based on the notion that defamation of some groups tends to breach the peace. See Beauharnais v. Illinois, 343 U.S. 250, 254 (1951); People v. Spielman, 318 Ill. 482, 489, 149 N.E. 466, 469 (1925); People v. Eastman, 188 N.Y. 478, 481, 81 N.E. 459, 460 (1907); Note, Liability for Defamation of a Group, 34 COLUM. L. REV. 1322, 1334 (1934) [hereinafter cited as Defamation of a Group]. For further discussion of criminal group cases, see T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 391-99 (1970); Tanenhaus, Group Libel, 35 CORNELL L.Q. 261 (1950); Note, Group Libel Laws: Abortive Efforts to Combat Hate Propaganda, 61 YALE L.J. 252 (1952).

The United States Supreme Court has held constitutional a state criminal group defamation statute. Beauharnais, 343 U.S. at 266-67. However, there were several strong dissents, id. at 267 (Black, J., dissenting); Id. at 277 (Reed, J., dissenting); id. at 284 (Douglas, J., dissenting); id. at 287 (Jackson, J., dissenting), and recent cases and commentators have cast doubt upon the continuing vitality of Beauharnais. See Garrison v. Louisiana, 379 U.S. 64, 68 n.3 (1964) (noting that criminal libel statutes are not immune from inquiry into whether their use violates constitutional limitations on freedom of expression); Collin v. Smith, 578 F.2d 1197, 1205 (7th Cir.), aff'g 447 F. Supp. 676, 694 (N.D. Ill.), cert. denied, 439 U.S. 916 (1978); Tollett v. United States, 485 F.2d 1087, 1094 n.14 (8th Cir. 1973); Anti-Defamation League of B'nai B'rith, Pac. Southwest Regional Office v. FCC, 403 F.2d 169, 174 n.5 (D.C. Cir. 1968) (Wright, J., concurring), cert. denied, 394 U.S. 930 (1969); City of Cincinnati v. Black, 8 Ohio App. 2d 143, 154, 220 N.E.2d 821, 828 (1966); T. EMERSON, supra, at 396; H. KALVEN, JR., THE NEGRO AND THE FIRST AMENDMENT 64 (1965). But see Arkes, Civility and the Restriction of Speech: Rediscovering the Defamation of Groups, 1974 SUP. CT. REV. 281, 284, 287 (1974) (noting that although some treat the concept of criminal group libel actions as an "anachronism," the status of Beauharnais is a "live question"); Note, Group Vilification Reconsidered, 89 YALE L. J. 308, 309 (1979) ("[T]here exists a readily discernible category of group-vilifying speech that can be prohibited by criminal statute without infringing the First Amendment.").

n6 See infra notes 74-94 and accompanying text.

n7 See Arcand v. Evening Call Publishing Co., 567 F.2d 1163, 1164 (1st Cir. 1977) (no cause of action for 21 members of police department when the defamation referred to one anonymous officer). For a succinct statement of the rule, see Church of Scientology v. Flynn, 744 F.2d 694, 697 (9th Cir. 1984); Khalid Abdullah Tariq Al Mansour Faissal Fahd Al Talal v. Fanning, 506 F. Supp. 186, 187 (N.D. Cal. 1980) (dictum).

The most notable instance of judicial misunderstanding of the group defamation rule is found in Blaser v. Krattiger, 99 Or. 392, 195 P. 359 (1921). In that case the plaintiff was a guest at the defendant's Portland hotel. While the plaintiff was conversing in a room with 20-25 other men, the defendant burst in and accused one of them of stealing jewelry worth $ 1,000. The defendant inadvertantly wrapped herself in an impregnable shield of immunity when she referred to the unknown thief as a "son of a bitch." The court assumed that this accusation did not defame the group in the room, because the court had another group in mind: "[U]nless the plaintiff can show that he belongs to that class whose ancestry is ascribed to a canine of the female sex, he cannot sustain an action, because he is not the particular one of those against whom as an individual the charge of larceny was directed." Id. at 395, 195 P. at 360. Although the court's stated reasoning is comical, the result is correct. RESTATEMENT (SECOND) OF TORTS 564A comment c (1977) ("[T]he assertion that one man out of a group of 25 has stolen an automobile may not sufficiently defame any member of the group . . . .").

n8 E.g., American Broadcasting-Paramount Theatres, Inc. v. Simpson, 106 Ga. App. 230, 246, 126 S.E.2d 873, 883 (1962) (plaintiff was one of two prison guards defamed by a television broadcast); Ellis v. Kimball, 33 Mass. (16 Pick.) 132, 135 (1834) (plaintiff was a member of the defamed court-martial tribunal); Ryer v. Fireman's Journal Co., 11 Daly 251, 253-54 (N.Y. Ct. Common Pleas 1882) (plaintiff was one of three harness makers for the New York Fire Department); Marr v. Putnam, 196 Or. 1, 24, 246 P.2d 509, 520 (1952) (plaintiffs were the only two radio set repairmen in Salem); Lathrop v. Sundberg, 104 P. 176, 178 (Wash. 1909) (plaintiff was a member of a small group of tenants at which defamatory publication was aimed).

n9 E.g., Service Parking Corp. v. Washington Times Co., 92 F.2d 502, 506 (D.C. Cir. 1937) (upholding directed verdict against plaintiff because testimony from a reader that he understood the statement to refer to plaintiff was inadmissible).

n10 One commentator has persuasively argued that no group defamation plaintiff should ever be denied a cause of action. Comment, Group Defamation and Individual Actions: A New Look at an Old Rule, 71 CALIF. L. REV. 1532 (1983).

n11 See Belton, The Control of Group Defamation: A Comparative Study of Law and Its Limitations, 34 TUL. L. REV. 469, 495 (1960) (noting that courts faced with a group defamation case often rely on empty labels to decide cases, such as the distinction between "class" and "restricted class").

n12 See, e.g., cases cited supra note 8.

n13 E.g., Khalid Abdullah Tariq Al Mansour Faissal Fahd Al Talal v. Fanning, 506 F. Supp. 186, 187 (N.D. Cal. 1980) (holding that no individual had a cause of action for an alleged defamation of an estimated 600 million Muslims in the movie Death of a Princess); Mikolinski v. Burt Reynolds Prod. Co., 10 Mass. App. Ct. 895, 896, 409 N.E.2d 1324, 1325 (1980) (holding that no Pole had cause of action arising out of alleged defamation of all persons of Polish descent).

n14 See United Medical Laboratories, Inc. v. CBS, 404 F.2d 706, 708 (9th Cir. 1968) (noting that the class defamation limitation "has not had and perhaps cannot be given any definitiveness"), cert. denied, 394 U.S. 921 (1969); Note, Libel and Slander -- Defamation of a Group -- Civil and Criminal Liability, 33 OR. L. REV. 68, 69 (1953) ("[T]he finding of the exact place at which to draw the line between a group small enough to allow individual recovery, and one too large to allow individual recovery, has troubled the courts since the early development of the law concerning group defamation.").

n15 American Civil Liberties Union, Inc. v. Kiely, 40 F.2d 451, 453 (2d Cir. 1930); see also Louisville Times Co. v. Emrich, 252 Ky. 210, 215, 66 S.W.2d 73, 75 (1933) ("To defame a class, the libelous article must be applicable to every member of the class."); Kassowitz v. Sentinel Co., 226 Wis. 468, 471, 277 N.W. 177, 179 (1938) (when defamation referred only to "part-time doctors" employed by county, no individual doctor had a cause of action because the defamation did not clearly include all of the four doctors).

n16 E.g., National Nutritional Foods Ass'n v. Whelan, 492 F. Supp. 374, 380 (S.D.N.Y. 1980) (no member can sue unless the defamation applies to all group members); Granger v. Time, Inc., 174 Mont. 42, 48, 568 P.2d 535, 539 (1977) (stating that there is no cause of action unless "the defamation may reasonably be understood to apply to each group member").

n17 399 Pa. 102, 105, 159 A.2d 734, 736 (1960).

n18 The court evidently would have felt more comfortable if the defamation had referred to all group members. Id. at 104-05, 159 A.2d at 737; cf. Arcand v. Evening Call Publishing Co., 567 F.2d 1163, 1165 (1st Cir. 1977) (refusing to decide whether "some of the old cases barring suit when fewer than an entire group are defamed" were "obsolete").

n19 13 F.R.D. 311 (S.D.N.Y. 1952).

n20 Id. at 315-16; see also Le Fanu v. Malcolmson, 1 Clark's H.L.C. 637, 670, 9 Eng. Rep. 910, 924 (1848) (affirming jury verdict for plaintiff even though defamation referred only to some group members).

n21 See Neiman-Marcus, 13 F.R.D. at 315.

n22 See, e.g., Church of Scientology v. Flynn, 744 F.2d 694, 697 (9th Cir. 1984) (commenting that "[a] jury could reasonably find that . . . [defendant] was referring to a specific actor"); Michigan United Conservation Clubs v. CBS News, 485 F. Supp. 893, 897 (W.D. Mich. 1980) (commenting that the court must determine whether the alleged defamation "is reasonably capable of bearing an application to the plaintiffs"), aff'd, 665 F.2d 110 (6th Cir. 1981); Neiman-Marcus v. Lait, 13 F.R.D. 311, 316 (S.D.N.Y. 1952) (commenting that "no reasonable man would take the writers seriously and conclude from the publication a reference to any individual saleswoman"); Schonek v. WJAC, Inc., 436 Pa. 78, 84, 258 A.2d 504, 507 (1969) (affirming lower court's judgment for defendant because the defamation "could not be reasonably understood to have any personal application to any individual"); cf. New Testament Missionary Fellowship v. E.P. Dutton & Co., 112 A.D. 55, 56-57, 491 N.Y.S.2d 626, 628 (1985) (suggesting that the jury decides whether a reasonable person would believe that the defamation referred to the individual plaintiff).

n23 Ryckman v. Delavan, 25 Wend. 186, 203 (N.Y. 1840). Of course, the existence of a cause of action does not necessarily mean the jury will hear the case.

n24 Haverilla v. Lembick, 18 Luz. 183, 184, 43 Pa. C. 639, 640 (Ct. Common Pleas 1915) (defendant defamed "all the head officers" of the Pennsylvania Slovak Roman and Greek Catholic Union).

n25 In Ryckman the court reversed the trial court's grant of defendant's demurrer, although the group size was 12. 25 Wend. at 203.

n26 Farrell v. Triangle Publications, Inc., 399 Pa. 102, 105, 159 A.2d 734, 736-37 (1960) (emphasis added). The court allowed 1 of 13 township commissioners to bring an action against the defendant who defamed the group. Id. at 100, 159 A.2d at 739.

In a similar vein, one court required that the plaintiff show "some nexus" between himself and the defamation. Klauder v. Philadelphia Newspapers, Inc., 66 Pa. D. & C.2d 271, 275 (Ct. Common Pleas 1973) (denying a cause of action to individual member of a 8,200-person police force). Two courts have labeled their analysis the "zero plus zero equals zero" test: if no single group member has a cause of action, neither do all of them together. Mullins v. Brando, 13 Cal. App. 3d 409, 423, 91 Cal. Rptr. 796, 805 (1970) (no cause of action for alleged defamation by Marlon Brando of the entire 650-person Oakland police force on a television talk show), cert. denied, 403 U.S. 923 (1971); Klauder v. Philadelphia Newspapers, Inc., 66 Pa. D. & C.2d 271, 280 (Ct. Common Pleas 1973).

In Schuster v. U.S. News & World Report, Inc., 459 F. Supp. 973 (D. Minn. 1978) (denying recovery to members of a group of 1,000), the plaintiffs argued that their case should go to the jury if some readers would understand the group defamation to apply to the plaintiffs. The court responded, "This argument is correct only when the circumstances of publication reasonably give rise to the conclusion that there is a personal reference to the class member." Id. at 977; see also McCaulay v. Bryan, 75 Nev. 278, 339 P.2d 337 (1959) (denying recovery to a member of a group with about 12,500 members); Hays v. American Defense Soc'y, Inc., 252 N.Y. 266, 166 N.E. 380 (1929) (denying recovery to group of about 160).

In Hays, the court denied recovery because "no one . . . would be justified" in concluding that the group defamation smeared plaintiff individually. Id. at 276, 169 N.E. at 380. The necessary corollary of this formulation is that if some would be justified in reaching the conclusion that the plaintiff was defamed individually, then the case goes to the jury. Unfortunately, the court did not indicate how many people would have to be justified in reaching that conclusion before the case must be submitted to the jury.

In MaCaulay, the court acknowledged that even if the group is very large a plaintiff can suffer personal humiliation from a group defamation. The humiliation arises because acquaintances of the plaintiff who hear the remark presumably associate the remark with the plaintiff. Although such personal humiliation is "inevitable," it is not actionable. 75 Nev. at 282, 339 P.2d at 378-79.

n27 Golden N. Airways, Inc. v. Tanana Publishing Co., 218 F.2d 612, 618 (9th Cir. 1954) (group size was between 5 and 10, but plaintiff failed to prove that the defamation was understood to refer to plaintiff).

n28 Id.

n29 McCullough v. Cities Serv. Co., 676 P.2d 833, 836 (Okla. 1984) (denying recovery to a member of a group of nearly 20,000); Fawcett Publications, Inc. v. Morris, 377 P.2d 42, 51-52 (Okla. 1962), cert. denied, 376 U.S. 513 (1964) (allowing recovery to a member of a 60- to 70-man football squad). The Fawcett case has met with approval. See L. ELDREDGE, supra note 1, 10, at 58 (opining that Fawcett may become a "landmark" in American libel law); W. PROSSER AND W. P. KEETON, supra note 1, 111, at 784 (same); Comment, supra note 10, at 1535 n.23 (1983) (noting with approval that the Fawcett court refused to be bound by the size-oriented test). The "intensity of suspicion" test was suggested by Note, Defamation of a Group, supra note 5, at 1325 (1934).

The court in Granger v. Time, Inc., 174 Mont. 42, 568 P.2d 535 (1977), also showed a more flexible approach to the group defamation rule. The group had about 200 members, yet the court granted the defendant's motion for summary judgment only after a careful discussion of what evidence would have defeated the motion. Id. at 49-50, 568 P.2d at 540. The court suggested that it would have denied the defendant's motion if the plaintiffs had introduced statements from readers of the defamation asserting that the readers knew the defamation was directed at plaintiffs. Id. This approach is in stark contrast to that of many other courts which, relying on the large group size, would have peremptorily granted defendant's motion. Cf. cases cited infra notes 78-82.

n30 Fawcett Publications, Inc. v. Morris, 377 P.2d 42, 51 (Okla. 1962), cert. denied, 376 U.S. 513 (1964).

n31 Service Parking Corp. v. Washington Times Co., 92 F.2d 502, 506 (D.C. Cir. 1937).

n32 See A. ETZIONI, MODERN ORGANIZATIONS 1-2, 2 (1964) (noting that [m]odern society . . . has more organizations, these fulfilling a greater variety of societal and personal needs, involving a greater proportion of its citizens, and affecting a larger segment of their lives," and comparing this situation to "more traditional society where human groupings were small, intimate, and inefficient"); W. MOORE, SOCIAL CHANGE 104 (1963) (commenting that "[m]odernization brings in its wake a proliferation of interest groups and associations, representing not only occupational or other economic interests and divisions but also various common interests in hobbies"); Owen, The Community, in CONTEMPORARY SOCIOLOGY 29, 29 (J. Roucek ed. 1958) (including on a list of changes in American life "the establishment and growth of many voluntary bodies for the improvement of community living, especially in the fields of health, welfare, education, and recreation"); cf. Beth, Group Libel and Free Speech, 39 MINN. L. REV. 167, 183 (1955) (referring to the "modern importance of groups" and to the "dominating role of groups in American life"); Riesman, Democracy and Defamation: Control of Group Libel, 42 COLUM, L. REV. 727, 731 (1942) (asserting that "modern democracy operates through the interplay of group activities, and it is through participation in groups that persons contribute to the social welfare"); Wittenberg, Individual Recovery for Defamation of a Group, 15 OHIO ST. L.J. 273, 275 (1954) (commenting that "[t]he industrial revolution was creating new legal organizations"). Many of these groups are increasingly active and important as advocates of particular viewpoints in the system of free speech. T. EMERSON, supra note 5, at 675-96 (discussing freedom of associational expression). Thus, defamation suits involving members of advocacy groups will be increasingly limited by constitutional norms. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 105 S. Ct. 2939 (1985) (holding that when "matters of public concern" are at issue, constitutional limits on liability must be observed).

n33 1614 Hobart 89, 80 Eng. Rep. 239.

n34 Id. at 89, 80 Eng. Rep. at 239.

n35 Cf. Knupffer v. London Express Newspaper, Ltd., 1944 A.C. 116, 124 (opinion of L. Porter) (citing Foxcroft for the proposition that a defamation "combined with the relevant circumstances" can refer individually to some smaller group out of a larger class).

n36 1653 Godbolt 391, 78 Eng. Rep. 230.

n37 The entire passage reads: "[C]ertain persons being defendants in the Star-Chamber, one having speech of them, said, These defendants did murder Farrer; and it was adjudged that the action would not lie, for two causes: first because the words (these) was uncertain in the person: and secondly it was uncertain in the thing . . . ." Id. at 391, 78 Eng. Rep. at 230-31.

n38 1 C. VINER, A GENERAL ABRIDGEMENT OF LAW AND EQUITY 510 (1791).

n39 Sumner v. Buel, 12 Johns. 407, 411 (N.Y. Sup. Ct. 1815). However, the dissent in Ryckman v. Delavan, 25 Wend. 186 (N.Y. 1840), disagreed with this implication that Foxcroft had held against the members of the 17-person group. Id. at 193. The majority did not discuss its view of the holding in Foxcroft although it cited the case. Id. at 203.

n40 E.g., Neiman-Marcus Co. v. Lait, 107 F. Supp. 96, 99 (S.D.N.Y. 1952); Knupffer v. London Express Newspaper, Ltd., 1944 A.C. 116, 124 (opinion of L. Porter).

n41 1 Clark's H.L.C. 637, 9 Eng. Rep. 910 (1848).

n42 Id. at 646-55, 9 Eng. Rep. at 914-18.

n43 Id. at 670, 9 Eng. Rep. at 924.

Frequently, if the trial judge allows the jury to hear the case, and the jury finds for the plaintiff, the appeals court will affirm the jury's finding. E.g., Byers v. Martin, 2 Colo. 605, 608 (1875); Caruth v. Richeson, 96 Mo. 186, 192, 9 S.W. 633, 635 (1888); Maybee v. Fisk, 42 Barb. 326, 328 (N.Y. Sup. Ct. 1864); Chapa v. Abernethy, 175 S.W. 166, 168 (Tex. Civ. App. -- San Antonio 1915, writ ref'd); Spangler v. Glover, 50 Wash. 473, 483, 313 P.2d 354, 360 (1957). But see Louisville Times v. Stivers, 252 Ky. 843, 849, 68 S.W.2d 411, 413 (1934) (reversing a $ 10,000 judgment rendered for one member of a family that a newspaper article described as having engaged in a violent feud with another family for over 50 years); Smart v. Blanchard, 42 N.H. 137, 149 (1860) (holding, despite jury finding to contrary, that a visitor at a party could not recover for damage allegedly caused by a defamation that libeled all those in attendance at the party).

n44 1 Clark's H.L.C. at 668, 9 Eng. Rep. at 923 (opinion of L. Campbell).

n45 Id. Curiously, neither side cited Foxcroft v. Lacy, 1614 Hobart 89, 80 Eng. Rep. 239.

Lord Campbell's reference to a "class" requires an explanation. Many cases refer to a large group of persons, like "all lawyers," as a class, and deny a cause of action. Smaller segments of a class, like "all lawyers in Mayberry," are referred to as groups. Group members have a cause of action. However, relying on labels to solve these cases means that courts avoid directly answering whether and why the defamation is capable of referring to plaintiff. See generally L. ELDREDGE, supra note 1, 10, at 59-60 (discussing and eschewing the analysis based on labels). Early jurisprudence based on these labels is largely responsible for the eventual focus on group size.

n46 1 F. & F. 347, 175 Eng. Rep. 758 (1858).

n47 Id. at 349-50, 175 Eng. Rep. at 759.

n48 The plaintiff put on a witness who evidently was prepared to say that he understood the libel to refer to plaintiff. The judge, however, sustained defendant's objection to this questioning, thus denying plaintiff the opportunity to present the very evidence that the court said was missing from plaintiff's case. Id. at 349, 175 Eng. Rep. at 759; cf. Service Parking Corp. v. Washington Times Co., 92 F.2d 502, 506 (D.C. Cir. 1937) (upholding directed verdict after ruling that testimony from a reader that he understood the statements to refer to plaintiff was inadmissible). This suggests that the court was applying a per se rule against recovery for a member of a large group. Another independent basis for the court's holding was that the article was not libelous. 1 F. & F. 347, 350, 175 Eng. Rep. 758, 759. Perhaps by the time plaintiff presented this witness (who was the last of five witnesses to testify) the court had decided there was no libel at all and felt no need to hear testimony showing that the article was understood to apply to plaintiff.

n49 1 F. & F. 347, 349-50, 175 Eng. Rep. 758, 759 (emphasis added).

n50 Early criminal group defamation cases contain similar analyses. The entire opinion in one report of King v. Alme & Nott, 3 Salk. 224, 91 Eng. Rep. 790, 1 Ld. Rayd. 486, 91 Eng. Rep. 1224 (1700) (per curiam), reads, "Where a writing inveighs against mankind in general, or against a particular order of men, as for instance, men of the gown, this is no libel, but it must descend to particulars and individuals to make it a libel." Id. at 224, 91 Eng. Rep. at 790. Alme & Nott was distinguished in King v. Osborn, 2 Barn. K.B. 138, 166, 94 Eng. Rep. 406, 425, 2 Swans. 532, 532, 36 Eng. Rep. 717, 717, W. Kel. 230, 230-31, 25 Eng. Rep. 584, 584 (1732). In Osborn the defendant published an article charging that Portuguese Jews had burned a bastard child "begotten by a Christian on the body of a Jewish woman." Id. at 138, 94 Eng. Rep. at 406, 2 Swans. at 532, 36 Eng. Rep. at 717, W. Kel. at 231, 25 Eng. Rep. at 484-85. The defendant relied on Alme & Nott, but the court held against him. Id. at 166, 94 Eng. Rep. at 425, 2 Swans. at 532, 36 Eng. Rep. at 717, W. Kel. at 230-31, 25 Eng. Rep. at 584. Osborn is consistent with the rationale underlying criminal group defamation suits: preventing breach of the peace. See supra note 5. The libel in Osborn was demagogic and incendiary and, given its effects on the lower instincts of the populace, clearly posed a danger of triggering mob violence against all Jews. For a thorough discussion of these two cases, see Tanenhaus, supra note 5, at 267-68.

In Gathercole's Case, 2 Lew. C.C. 237, 168 Eng. Rep. 1140 (1838), the defendant published a vulgar attack on the morality of Catholic nuns and priests, but did not single out the nearby Catholic convent. The court instructed the jury, "If [the alleged defamation] was merely an attack upon the Roman Catholic Church, and in no respect an attack on [the nearby convent], then he is entitled to an acquittal, otherwise you must find him guilty." Id. at 256, 168 Eng. Rep. at 1145.

In two subsequent criminal group defamation cases the courts considered more than the size of the group. Rex v. Antonelli & Barberi, 70 J.P. 4 (1905); Queen v. Most, 7 Q.B. 244 (1881). In Most, the defendant published an article encouraging the murder of the "sovereigns and rulers of Europe." 7 Q.B.D. at 245. At trial the defendant failed to raise the group defamation defense. Id. at 256. In affirming his conviction, several judges commented that the generality of the incitement did not excuse the defendant. Id. at 251. Antonelli was a similar case. On the fifth anniversary of the murder of King Humbert of Italy, Antonelli published a report calling for the murder of other "sovereigns and rulers of Europe." 70 J.P. at 5. Although the defendant raised the group defamation defense, the trial court allowed the case to go to the jury, which found him guilty. Justice Phillimore explained:

The word "rulers" is, perhaps, a somewhat vague word, and I should have been happier if it had been left out, as I don't quite know what rulers are. But if you once get a class, and a well-defined class, that is sufficient. There are, I believe, some eighteen or twenty sovereigns in Europe, and I think that this is a sufficiently well-defined class.
Id. at 6.

The judge did not disclose why a class of 18-20 was sufficiently well defined. There was no precedent for a rigid numerical definition of "well-defined." One plausible interpretation of Justice Phillimore's comments is that by "well-defined" he meant that there was a clear demarcation between members of the group and nonmembers. To describe someone as a sovereign is to denote an obvious difference between that person and anyone else.

n51 1944 A.C. 166 (H.L.).

n52 See L. ELDREDGE, supra note 1, 10, at 64.

n53 Knupffer, 1944 A.C. at 121. The defendant had libeled a group of emigre Russians by charging that the group members were working with Hitler, who would choose from their ranks a "puppet fuehrer" to replace the Soviet leaders. Id. at 116. There were about 2,000 members in the group, but only 24 members in England. Several witnesses testified that they thought the defamation referred to the plaintiff. Accordingly, the trial judge held that the libel referred to the plaintiff and entered a judgment for him. Id. at 117. The Court of Appeal reversed and the House of Lords affirmed the Court of Appeal. Viscount Simon, L.C., posed a two-part inquiry for group defamation cases. First, as a matter of law, can the language be considered capable of referring to the plaintiff? Second, as a matter of fact, does the language refer to the plaintiff? Unless the first question is answered affirmatively the second question is not reached. Id. at 121. The trial judge erred, he said, by "treating evidence to support the identification in fact as governing the matter, when the first question is necessarily, as a matter of law, to be answered in the negative." Id. Plaintiff lost because the defamation did not limit itself to British members of the group. Thus, the group referred to had 2,000 members, rather than 24.

n54 Id. at 121-22. The House of Lords agreed to dismiss the plaintiff's appeal. Viscount Simon, L.C., Lord Atkins, Lord Russell, and Lord Porter delivered opinions.

n55 12 Johns. 407 (N.Y. Sup. Ct. 1815).

n56 11 Johns. 59 (N.Y. Sup. Ct. 1814).

n57 Id. at 60.

n58 1614 Hobart 89, 80 Eng. Rep. 239.

n59 Gidney, 11 Johns. at 61.

n60 12 Johns. 407 (N.Y. Sup. Ct. 1815).

n61 Id. at 412 (Van Ness, J., dissenting).

n62 Id. at 410.

n63 Id. at 412 (Van Ness, J., dissenting).

n64 17 Wend. 49 (Sup. Ct. 1837), rev'd sub nom. Ryckman v. Delavan, 25 Wend. 186 (N.Y. 1840).

n65 That number was supplied in Ryckman, 25 Wend. at 195.

n66 25 Wend. 186 (N.Y. 1840).

n67 17 Wend. 49 (N.Y. Sup. Ct. 1837).

n68 25 Wend. at 202. Curiously, the majority suggested that Sumner was not as persuasive as it might be because the decision was divided three-to-two; the Ryckman court was divided ten-to-nine. Verplanck said he would have voted with the Sumner dissenters. Id.

n69 Id. at 202-03.

n70 Id. at 203. The Ryckman dissent was written by the president of the state temperance society, who felt compelled at the close of his opinion to profess objectivity despite the fact that the defamation was "intended to aid that cause with which I have been so long and so intimately connected." Id. at 197.

n71 25 Wend, at 202. However, New York had departed from the English practice of guaranteeing a plaintiff a jury trial. Instead, New York courts were empowered to deliver a "compulsory nonsuit" against a plaintiff if the evidence as fully developed would not support a jury verdict in his favor. Pratt v. Hull, 13 Johns. 334 (N.Y. Sup. Ct. 1816); see also D. GRAHAM, A TREATISE ON THE PRACTICE OF THE SUPREME COURT OF THE STATE OF NEW YORK 311-12 (2d ed. 1836) (describing the English practice and the New York exception to it). Thus, as a procedural matter at least, it was possible for a plaintiff to present evidence regarding a group defamation and then to suffer a compulsory nonsuit if it would be unreasonable for a jury to find that the defamation referred to him personally. The tenor of the majority opinion in Ryckman, however, suggests a strong inclination to allow jury findings in defamation cases. Furthermore, it seems that a defendant who demurred to the plaintiff's declaration (as the defendant did in Ryckman) took a chance that if the court overruled the demurrer, it would have no basis for later granting a compulsory nonsuit. This was so because "a demurrer admits all such matters of fact, as are sufficiently pleaded." Id. at 755.

n72 Id. at 203. Ryckman eclipsed Sumner as the leading American group defamation case. Furthermore, one case noted recently that the majority opinion in Sumner "has since fallen into disrepute." Brady v. Ottaway Newspapers, Inc., 84 A.D.2d 226, 234, 445 N.Y.S.2d 786, 792 (1982 (citing 1 E. SEELMAN, THE LAW OF LIBEL AND SLANDER IN NEW YORK PP98-100 (1964)), aff'd, 63 N.Y.2d 1031, 473 N.E.2d 1172, 484 N.Y.S.2d 298 (1984); see also Wittenberg, supra note 23, at 274 (referring to Sumner as a "false start").

n73 For example, Ellis v. Kimball, 33 Mass. (16 Pick.) 132 (1834), contains this familiar statement of the group defamation rule: "[W]here many individuals are severally included in the same attack . . . the plaintiff is not the less entitled to redress, because others are injured by the same act." Id. at 135. In that case, the plaintiff was a member of a court-martial tribunal that the defendant libeled. Although the court did not say so, it seems likely that the tribunal had fewer than 10 members. The Massachusetts Supreme Court denied the defendant's motion to arrest the judgment rendered for plaintiff. Id.; see also Wofford v. Meeks, 129 Ala. 349, 358, 30 So. 625, 628 (1900) (plaintiff county commissioner could maintain an action based on a defamation directed at the entire board); Byers v. Martin, 2 Colo. 605, 608 (1875) (holding that a jury member could recover for a libel directed at the entire 12-person panel); Hardy v. Williamson, 86 Ga. 551, 557, 12 S.E. 874, 876 (1890) (holding that one of 11 engineers on a construction project could sue for damages caused by a defamation directed at the group); Boehmer v. Detroit Free Press Co., 94 Mich. 7, 10, 53 N.W. 822, 823 (1892) (plaintiff member of government board was allowed to take his case to the jury); Caruth v. Richeson, 96 Mo. 186, 192, 9 S.W. 633, 635-36 (1888) (plaintiff was one of five members on the governing board of police commissioners; trial court let the jury decide whether the group defamation applied to the plaintiff); Maybee v. Fisk, 42 Barb. 326, 335 (N.Y. Sup. Ct. 1864) (holding that one of three children could recover from defendant who told their father, "Your boys stole my corn"); Ryer v. Fireman's Journal Co., 11 Daly 251, 254 (N.Y. Ct. Common Pleas 1882) (court affirmed verdict for member of the defamed three-person group); Fenstermaker v. Tribune Publishing Co., 12 Utah 439, 449, 45 P. 1097, 1099 (1896) (member of family accused of abandoning a foster child in the desert could sue).

n74 One example is Gross v. Cantor, 270 N.Y. 93, 200 N.E. 592 (1936), discussed infra subpart VI(B), in which the defendant defamed all but one of about 12 "radio editors" in New York City. The trial judge granted defendant's motion to dismiss the complaint, but the Court of Appeals reversed.

n75 92 F.2d 502 (D.C. Cir. 1937).

n76 Id. at 506.

n77 12 Johns. 407 (N.Y. Sup. Ct. 1815), discussed supra notes 60-63 and accompanying text.

n78 Watson v. Detroit Journal Co., 143 Mich. 430, 440, 107 N.W. 81, 85 (1906).

n79 Comes v. Cruce, 85 Ark. 79, 80, 107 S.W. 185, 186 (1908).

n80 Ewell v. Boutwell, 138 Va. 402, 406, 121 S.E. 912, 913 (1924).

n81 Comes, 85 Ark. at 81, 107 S.W. at 186; Ewell, 138 Va. at 412, 121 S.E. at 915.

n82 40 Cal. App. 2d 348, 104 P.2d 860 (1940).

n83 Id. at 351, 104 P.2d at 862.

n84 Eastwood v. Holmes, 1 F. & F. 347, 175 Eng. Rep. 758 (1858); discussed supra notes 46-49 and accompanying text.

n85 Eastwood, 1 F. & F. at 349, 175 Eng. Rep. at 759.

n86 Noral, 40 Cal. App. 2d at 349, 104 P.2d at 861.

n87 13 F.R.D. 311 (S.D.N.Y. 1952).

n88 Id. at 313.

n89 Id.

n90 Id.

n91 Id. at 316.

n92 Id. The court described the group of saleswomen as "extremely large" and said, "[N]o reasonable man would take the writer's [defamation] seriously and conclude from the publication a reference to any individual saleswoman." Id.

n93 Professor Prosser published the first edition of his torts hornbook in 1941. That edition said, "[S]ome difficulty arises when the defamatory words are directed at a group or class of persons. The plaintiff must first of all bring himself within the class defamed; and beyond this, he must establish some reasonable personal application to himself." W. PROSSER, HANDBOOK OF THE LAW OF TORTS 91, at 792 (1st ed. 1941) (footnote omitted). The 1941 edition did not mention any group defamation "rule," nor is any line drawn at any particular group size. The second edition, published in 1955, however, included both elements: "The [group defamation] rule has been applied quite uniformly to comparatively large groups or classes of a definite number, exceeding, say twenty-five persons. When the group becomes smaller than that . . . the courts have been willing to permit the conclusion that the finger of defamation is pointed at each individual [member]." Id. 92, at 583-84 (2d ed. 1955). Professor Prosser cited only Neiman-Marcus as authority for this change.

This revised formulation is found in both the third and fourth editions. Id. 106, at 768 (3d ed. 1964); id. 112, at 750-51 (4th ed. 1971). The current fifth edition has retained reference to the number 25, but asserts that "most courts today would probably take into consideration the circumstances and decide each case on the basis of the magnitude of the suspicion cast on each person in the group." PROSSER & KEETON, supra note 1, 111, at 784.

A review of the cases indicates that until 1962 no member of any group larger than 25 had survived defendant's preliminary motion for dismissal, summary judgment, directed verdict, or arrest of judgment. Although the Restatement does not explicitly say that members of groups larger than 25 cannot recover, 564A comments b and c, and illustration 4 mention the magic number 25. Comment b, for example, reads, "[T]he cases in which recovery has been allowed usually have involved numbers of 25 or fewer." RESTATEMENT (SECOND) OF TORTS 565A comment b (1977). The Restatement mysteriously overlooks Fawcett Publications, Inc. v. Morris, 377 P.2d 42 (Okla. 1962), appeal dismissed per curiam, 376 U.S. 513 (1964), discussed infra notes 97-101 and accompanying text, in its comments and illustrations to this section.

n94 E.g., Robinson v. Guy Gannett Publishing Co., 297 F. Supp. 722, 726 (D. Me. 1969); Mikolinski v. Burt Reynolds Prod. Co., 10 Mass. App. Ct. 895, 895, 409 N.E.2d 1324, 1324 (1980); cf. Brady v. Ottaway Newspapers, Inc., 84 A.D.2d 226, 234, 445 N.Y.S.2d 786, 792 (1982) (citing the hornbook, but refusing to set an absolute 25-member limit on group size).

n95 Note, Defamation of a Group, supra note 5, at 1325 (footnotes omitted).

n96 Id. at 1325-26.

n97 377 P.2d 42 (Okla. 1962), appeal dismissed per curiam, 376 U.S. 513 (1964).

n98 See supra notes 87-93 and accompanying text.

n99 377 P.2d at 51.

n100 Id. at 51-52. This is very similar to a factor suggested in Part V -- the nature of the group.

n101 Id. at 54. Justices Black and Douglas voted to hear the case either on appeal or certiorari. 376 U.S. 513 (1964).

Commentators have opined that Fawcett might become the landmark American case on group defamation. L. ELDREDGE, supra note 1, 10, at 58; PROSSER & KEETON, supra note 1, 111, at 784. Fawcett apparently has not had the influence its notoriety would suggest.

The court in Watson v. Detroit Journal Co., 143 Mich. 430, 107 N.W. 81 (1906), probably would have disagreed with the Oklahoma Supreme Court. In that case the plaintiff, a member of the trading stamp industry, was not allowed to recover from the defendant, who disparagingly referred to the trading stamp industry as, inter alia, a "get-rich-quick" industry, id. at 432, 107 N.W. at 82, and referred to the "trading stamp fake," id. at 440, 107 N.W. at 85. The court sustained the defendant's demurrer to the complaint and posed a hypothetical to support its holding: "[S]uppose in a community where there was but one football team a paper was to publish an article asserting that the game of football was a cruel and brutal sport . . . could it be said that this was a charge that each member of the team was cruel and brutal . . . ?" Id. at 440, 107 N.W. at 85. The court answered "no" to this question.

n102 412 P.2d 192 (Okla. 1965).

n103 Id. at 193.

n104 In fact, the plaintiff's own witnesses testified that they understood the defamation to apply to the plaintiff's partnership, not to him personally. 412 P.2d at 195. In Fawcett "there was evidence that readers of the article understood plaintiff to be a prominent member of the football team and one of those referred to in the libelous article." Id.

n105 676 P.2d 833 (Okla. 1984).

n106 Id. at 837.

n107 Id.

n108 The court in Brady v. Ottaway Newspapers, Inc., 84 A.D.2d 226, 445 N.Y.S.2d 786 (1981), suggested a persuasive refinement of the size-oriented test: "Public perception of the size of the group is an important factor in focusing on the degree of suspicion attributed to individual members of the group irrespective of the actual size of the group." Id. at 238, 445 N.Y.S.2d at 794. A newspaper article allegedly defamed a group with about 50 members. Both the trial and appellate courts denied the defendant's motion for summary judgment without prejudice to renewal when discovery was completed. Id. at 242-43, 445 N.Y.S.2d at 796.

n109 Courts should remember the policy expressed in MaCaulay v. Bryan, 75 Nev. 278, 339 P.2d 377 (1959): "Personal humiliation from group slander is not uncommon. When a race, business, profession or nation is publicly slandered, and when a member of the slandered group is present and known to others present to be representative of the group, personal humiliation is inevitable. It is not actionable, however." Id. at 282, 339 P.2d at 378-79; see also Granger v. Time, Inc., 174 Mont. 42, 49-50, 568 P.2d 535, 540 (1977) ("In order that there be actionable libel, under the [relevant statute], a plaintiff must show that people in the community other than the plaintiff perceived the statement to refer to the plaintiff."); W. PROSSER supra note 93, 111, at 737 (4th ed. 1971) (commenting that "defamation is not concerned with the plaintiff's own humiliation, wrath or sorrow"). That the plaintiff's feelings are hurt does not imply that his reputation has been sufficiently damaged to justify a legal remedy.

n110 This rule is rooted in both the common law and American constitutional law. Brewer v. Hearst Publishing Co., 185 F.2d 846, 850 (7th Cir. 1950) (holding that a defamation of vivisectionists was an opinion and thus not actionable); see also PROSSER & KEETON, supra note 1, 113A, at 813 (commenting that "[t]he English-American law of defamation has always distinguished between the publication of defamatory statements of fact and derogatory or defamatory expression of opinions about others"); RESTATEMENT (SECOND) OF TORTS 566 comments a (1977) (stating that at common law an opinion could be defamatory if it was sufficiently derogatory to harm plaintiff's reputation); id. comment c (noting that it "now appears" that such expression of opinion is constitutionally protected). For explanations of the constitutional protection of opinions, see Mr. Chow v. Ste. Jour Azur S.A., 759 F.2d 219, 224 (2d Cir. 1985) (commenting that "it is clear that expressions of opinion are constitutionally protected"); Ollman v. Evans, 750 F.2d 970, 975 (D.C. Cir. 1984) (en banc) (Starr, J.) (commenting that courts must "distinguish facts from opinions in order to provide opinions with the requisite, absolute First Amendment protection").

n111 E.g., Ollman v. Evans, 750 F.2d 970, 993 (D.C. Cir. 1984) (en banc) (plurality opinion) (suggesting four factors to consider in making the distinction); id. at 993 (Bork, J., concurring) (eschewing rigid classifications in favor of a totality of the circumstances test); id. at 1010 (MacKinnon, J., concurring) (suggesting a combination of the previous two approaches); id. at 1022 (Robinson, J., dissenting) (recognizing a third category of "hybrid" statements, that imply the existence of certain facts and convey the author's judgment or interpretation of those facts; these are protected only if accompanied by a full account of the background facts unless failure to do so is nonculpable); see also Keeton, Defamation and Freedom of the Press, 54 TEXAS L. REV. 1221, 1249 (1976) (contrasting evaluative opinions expressing a value judgment and deductive opinions purporting to convey information).

n112 See PROSSER & KEETON, supra note 1, 111, at 784 (stating that the "nature or generality of the charge, and the extravagance of the accusation" should be considered); Developments in the Law -- Defamation, 69 HARV. L. REV. 875, 884 (1956) (asserting that "the court . . . should consider the nature of the statement, the circumstances under which it was made, and the extent to which it has been published") [hereinafter cited as Developments]; Comment, supra note 10, at 1552 (suggesting "the capacity of the defamation to inflict harm" as one factor in determining whether the plaintiff's action should proceed). Of course, the defamation need not charge a criminal act, or anything else that may attract reproach. Statements such as "X has leprosy" or "Y was raped" are defamatory even though they are more likely to elicit sympathy than condemnation. L. ELDREDGE, supra note 1, at 37 (1978).

n113 C. GATLEY, LAW AND PRACTICE OF LIBEL AND SLANDER IN A CIVIL ACTION 1-2 (2d ed. 1929); see supra note 5.

n114 W. PROSSER, supra note 93, 91, at 777 (1st ed. 1941). The Restatement provides that "[a] communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." RESTATEMENT (SECOND) OF TORTS 559 (1977).

n115 See Hansen v. Stoll, 130 Ariz. 454, 459, 636 P.2d 1236, 1241 (Ct. App. 1981) ("It is not necessary to prove that every reader could make the connection . . . But the connection must be reasonable under the circumstances.").

n116 Cf. id. at 458, 636 P.2d at 1240 ("If the . . . statements [are] so indefinite, that the objects of the defamatory statements cannot be readily ascertained, the statements are not actionable.").

n117 1944 A.C. 116.

n118 Id. at 124. Read in context, the "generality of the charge" is synonymous with "the extravagance of the accusation." Thus, although Lord Porter appears to introduce two new factors, there is really only one.

n119 Id.

n120 399 Pa. 102, 159 A.2d 734 (1960).

n121 Id. at 103, 159 A.2d at 736.

n122 Id.

n123 Id. at 109, 159 A.2d at 738.

n124 50 Wash. 2d 473, 313 P.2d 354 (1957).

n125 Id. at 475, 313 P.2d at 355. But see Gregory v. McDonnell Douglass Corp., 17 Cal. 3d 596, 602, 131 Cal. Rptr. 641, 644, 552 P.2d 425, 428 (1976) (noting some "language used . . . in a labor dispute . . . was protected by the First Amendment because it was '. . . part of the conventional give-and-take in our economic and political controversies'") (citations omitted); see also infra subpart V(E) (discussing the "public issue" factor's effect on the willingness of courts to recognize a cause of action in group defamation cases); note 145 and accompanying text (discussing impact of a speaker's motive on the defamation's credibility).

n126 50 Wash. 2d at 379, 313 P.2d at 358; see Riesman, supra note 32, at 770 (arguing that if defendant is exploiting the "anxiety or the sadism of his audience, and can count on built-in prejudice," credibility will increase as his charge becomes more outlandish).

n127 Ginter v. Howard Publications, Inc., 565 F. Supp. 829, 831 (N.D. Ind. 1983).

n128 Schutzman & Schutzman v. News Syndicate Co., 60 Misc. 2d 827, 829, 304 N.Y.S.2d 167, 170 (Sup. Ct. 1969).

n129 See Provisional Gov't of the Republic of New Afrika v. ABC, 609 F. Supp. 104 (D.D.C. 1985). In this case individual members of the Provisional Government joined a suit by their organization against ABC television. The news story concerned the Brinks robbery; although the telecast did not implicate the Provisional Government, during the report a streamer emblazoned with "Republic of New Africa" flashed across the screen. The court granted defendant's motion to dismiss the individual members' complaints for failure to state a claim, because "the . . . broadcast contain[ed] no explicit references to the officers of the Provisional Government, and the surrounding circumstances [did] not implicate them in any fashion." Id. at 108.

n130 187 F. Supp. 323 (D.D.C. 1960).

n131 Id. at 325.

n132 Id.

n133 Cf. Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers v. Austin, 418 U.S. 264, 285 (1974) (commenting that no reader of a paper that accused "scabs" of being traitors would have understood the paper to be charging them with "committing the criminal offense of treason").

n134 See supra note 5.

n135 See Riesman, supra note 32, at 770 (implying that courts presume a connection between credibility of a speaker and likelihood that the plaintiff has been hurt simply by group membership); Developments, supra note 112, at 895 (arguing that a statement is more credible "if the person defaming the group is thought to have access to special information which would provide a basis for his statements"); cf. RESTATEMENT (SECOND) OF TORTS 568A comment a (1977) (commenting that the "prestige" of the radio and TV media favor treating a defamation broadcast over the airwaves as libel rather than slander).

n136 Cf. Schuster v. U.S. News & World Report, Inc., 459 F. supp. 973, 974 (D. Minn. 1978) (Time magazine and U.S. News & World Report published articles that allegedly defamed distributors of laetrile and mentioned a group of 16 individuals and 3 firms indicted for smuggling laetrile into the country; the court held that none of the 1,000 distributors could sue, but that a member of the mentioned group of 19 could bring suit), aff'd, 602 F.2d 850 (8th Cir. 1979); Michigan United Conservation Clubs v. CBS News, 485 F. Supp. 893, 894-95 (W.D. Mich. 1980) (denying recovery against CBS for allegedly defaming hunters because of group size), aff'd, 665 F.2d 110 (6th Cir. 1981); United Medical Laboratories, Inc. v. Columbia Broadcasting Sys., 258 F. Supp. 735, 737, 742 (D. Or. 1966) (CBS broadcast a series of reports highly critical of mail-order medical labs; court granted defendant's motion to dismiss and commented that "[w]hile the size of the class is not of paramount importance, there is a general rule that no action will lie unless some circumstance makes the statements reasonably susceptible of special application to the plaintiff"), aff'd on other grounds, 404 F.2d 706 (9th Cir. 1968), cert. denied, 394 U.S. 921 (1969).

n137 Cf. Barger v. Playboy Enters., Inc., 564 F. Supp. 1151, 1152 (N.D. Cal. 1983) (denying recovery when Playboy allegedly defamed wives of members of the Hell's Angels motorcycle club), aff'd mem., 732 F.2d 163 (9th Cir.), cert. denied, 105 S.Ct. 175 (1984).

n138 See Fawcett Publications, Inc. v. Morris, 377 P.2d 42, 44 (Okla. 1962) (defamation published in True magazine), cert. denied, 376 U.S. 513 (1964).

n139 563 S.W.2d 8 (Ky. 1978).

n140 Id. at 9. The Kentucky Supreme Court affirmed the trial court's dismissal of plaintiff's complaint for failure to state a claim. Id. The case seems wrongly decided.

n141 See Arber v. Stahlin, 10 Mich. App. 181, 184, 159 N.W.2d 154, 156 (1968) (Michigan governor compared the methods of the John Birch Society to those of communism), rev'd, 382 Mich. 200, 170 N.W.2d 45 (1969), cert. denied, 397 U.S. 924 (1970); Chapman v. Romney, 6 Mich. App. 36, 37, 148 N.W.2d 230, 230 (1967) (same).

n142 Mullins v. Brando, 13 Cal. App. 3d 409, 412, 91 Cal. Rptr. 796, 797 (1970) (Marlon Brando accused the Oakland Police Department of being "out to get" the Black Panthers, and of shooting a 17-year-old Black Panther), cert. denied sub. nom. Brando v. Coffman, 403 U.S. 923 (1971).

n143 See AJAY Nutrition Foods, Inc. v. FDA, 378 F. Supp. 210, 218 (D. N.J. 1974) (denying recovery against FDA for defamatory news release because "an entire industry, such as the health food processing industry, cannot sue on grounds of defamation"), aff'd, 513 F.2d 625 (3d Cir. 1975).

n144 See Church of Scientology v. Flynn, 744 F.2d 694, 696 (9th Cir. 1984) (reversing dismissal of complaint when defendant implied that plaintiff added water to the gasoline tank of a plane in which defendant had been a passenger, thus almost causing a crash).

n145 For example, the competitive drive may prompt one newspaper to call its rival's employees "paranoid." See Loeb v. Globe Newspaper Co., 489 F. Supp. 481, 483 (D. Mass. 1981) (Boston Globe published defamatory reports about employees of the Manchester Union Leader; recovery denied because there were 325 employees at the Union Leader). A corporation may have ulterior motives in accusing local union leaders of criminal conduct. See Lynch v. Kirby, 74 Misc. 266, 266, 131 N.Y.S. 680, 680 (Sup. Ct. 1911) (officers of the National Association of Manufacturers accused leaders of the International Typographical Union of North America of murder and vandalism); cf. De Witte v. Kearney & Trecker Corp., 265 Wis. 132, 140, 60 N.W.2d 748, 752 (1953) (reversing the trial court's grant of defendant's demurrer and holding that one of four local leaders had a cause of action). There may be ulterior motives for an advertisement promoting the book How to Avoid Lawyers to suggest that lawyers set traps for and cheat their clients. See Schutzman & Schutzman v. News Syndicate Co., 60 Misc. 2d 827, 829, 304 N.Y.S.2d 167, 169-70 (Sup. Ct. 1969).

n146 See Comment, supra note 10, at 1552 (suggesting that one factor in determining whether plaintiff's action should proceed is "the size and fluidity of the group's membership as well as the ease with which group members may be identified"); Note, Defamation of a Group, supra note 5, at 1326 (commenting that "[d]efiniteness in the number and composition of the group, as well as its degree of organization, are similarly factors favorable to recovery, since they tend to focus the accusation more clearly upon each member").

n147 If modern couets and commentators are correct that criminal group defamation statutes are unconstitutional, see supra note 5, it would be arguably unconstitutional for state tort law to recognize a private remedy for the same defamation. Mere membership in the defamed group is not enough; the circumstances must make it reasonable to connect the defamation to the plaintiff.

n148 Hansen v. Stoll, 130 Ariz. 454, 459, 636 P.2d 1236, 1241 (Ct. App. 1981).

n149 49 N.J. Super. 262, 139 A.2d 570 (1958).

n150 Id. at 272, 139 A.2d at 575; see also AJAY Nutrition Foods, Inc. v. FDA, 378 F. Supp. 210, 218 (D.N.J. 1974) (holding that a member of the health food industry had no cause of action rising out of defendant's description of that industry as "nutrition quacks," "food faddists," and "health quacks"), aff'd, 513 F.2d 625 (3d Cir. 1975).

n151 49 N.J. Super. at 287, 139 A.2d at 584; see also Riesman, supra note 32, at 763 (observing that when a group lacks a name, address, and hierarchy of officials, and thus is not a definite entity, both common- and civil-law courts generally dismiss plaintiff's suit).

For examples of denials of recovery to amorphous groups, see Robinson v. Guy Gannett Publishing Co., 297 F. Supp. 722, 724 (D. Me. 1969) (defendant defamed as "racketeers" all those who manufactured items for the deaf); Watts-Wagner Co. v. General Motors Corp., 64 F. Supp. 506, 508 (S.D.N.Y. 1945) (defendant described as "racketeers" those who sold auto battery life-extender); Mikolinski v. Burt Reynolds Prod. Co., 10 Mass. App. Ct. 895, 895, 409 N.E.2d 1324, 1324 (1980) (alleged defamation of those of Polish descent); Granger v. Time, Inc., 174 Mont. 42, 48, 568 P.2d 535, 539 (1977) (group consisting of residents of Butte).

n152 Brady v. Ottaway Newspapers, Inc., 84 A.D. 226, 236, 445 N.Y.S.2d 786, 793 (1981).

n153 In Knupffer v. Lond Express Newspaper, Ltd., 1944 A.C. 116, Lord Atkins noted that because "ill-educated or vulgar minds" fall into the habit of "making unfounded generalizations" or "facetious exaggeration" plaintiffs find it difficult to show they were defamed by facially general statements. Id. at 122. Most people, aware of this unfortunate habit, tend not to take silly exaggerations seriously.

n154 Golden N. Airways, Inc. v. Tanana Publishing Co., 218 F.2d 612, 618 (9th Cir. 1954).

n155 Fawcett Publications, Inc. v. Morris, 377 P.2d 42 (Okla. 1962), cert. denied, 376 U.S. 513 (1964).

n156 Gross v. Cantor, 270 N.Y. 93, 95, 200 N.E. 592, 593 (1936) (group was characterized by lack of easy access and high visibility); Brady v. Ottaway Newspapers, Inc., 84 A.D.2d 226, 239, 445 N.Y.S.2d 786, 794 (1981) (commenting that entry into the group was restricted and membership was visible by virtue of badges and uniforms).

n157 Cf. Rex v. Antonelli & Barberi, 70 J.P. 4, 5 (1905) (group consisting of the rulers and sovereigns of Europe); Queen v. Most, 7 Q.B. 244, 251 (1881) (group consisting of public officials). Both cases are discussed supra note 50.

n158 Fawcett Publications, Inc. v. Morris, 377 P.2d 42 (Okla. 1962), cert. denied, 376 U.S. 513 (1964).

n159 377 P.2d at 51; see also Brady v. Ottaway Newspapers, Inc., 84 A.D.2d 226, 239, 445 N.Y.S.2d 786, 794-95 (1981) (commenting that one factor should be the prominence of the individual within the group).

n160 Cf. Developments, supra note 112, at 882 ("Whether an idea injures a person's reputation depends upon the opinions of those to whom it is published. The possibility of this injury will therefore vary as the climate of opinion changes according to the time and place of publication.")

It is settled that more than one person's opinion of the defamed person must decline before a defamation is actionable, although no precise number has been set. Courts also differ on whether the decline must occur in the mind of some person important to the plaintiff, of an average person, of a reasonable person, of the audience to whom the publication is directed, of those who know the publisher knows the defamation will reach, or of a respectable minority of the general public. See generally L. ELDREDGE, supra note 1, 7, at 33-41 (discussing the various formulations of the requirement that more than one person's opinion of the defamed person must decline). Justice Holmes, for example, said that a statement is libelous if it hurts the plaintiff's standing "with a considerable and respectable class in the community." Peck v. Tribune Co., 214 U.S. 185, 190 (1909).

n161 184 N.Y. 479, 77 N.E. 660 (1906).

n162 Id. at 484, 77 N.E. at 661.

n163 Lins v. Evening News Ass'n, 129 Mich. App. 419, 422, 342 N.W.2d 573, 575 (1983) (local union leaders described as "thieves," "thugs," and "stupid men").

n164 Some other groups are almost universally viewed with suspicion. For example, although the cases cited do not discuss this it, this factor should favor a member of the Hell's Angels trying to get her case to the jury, cf. Barger v. Playboy Enters., Inc., 564 F. Supp. 1151, 1152 (N.D. Cal. 1983) (dismissing complaint when defendant published article allegedly defamatory of Hell's Angels' "mommas"), aff'd mem., 732 F.2d 163 (9th Cir.), cert. denied, 105 S. Ct. 175 (1984), or a member of the Church of Scientology, cf. Church of Scientology v. Siegelman, 481 F. Supp. 866, 867 (S.D.N.Y. 1979) (rejecting without prejudice defendant's motion for summary judgment when defendant said his defamation concerned the worldwide church with five million members, while plaintiff said it referred to a group of 22 specific churches); Church of Scientology v. Flynn, 744 F.2d 694, 697 (9th Cir. 1984) (permitting claim when defendant claimed defamation was about the 300 Churches of Scientology, but plaintiff said it concerned only the California branch), or a member of the John Birch Society, cf. Chapman v. Romney, 6 Mich. App. 36, 37, 148 N.W.2d 230, 230 (1967) (Michigan governor compared the methods of the John Birch Society with those of communism); Arber v. Stahlin, 382 Mich. 300, 303, 170 N.W.2d 45, 46 (1968) (defendant allegedly defamed the John Birch Society and the Young Americans for Freedom), rev'd, 382 Mich. 300, 170 N.W.2d 45 (1969), cert. denied, 397 U.S. 924 (1970).

n165 Lins v. Evening News Ass'n, 129 Mich. App. 419, 342 N.W.2d 573 (1983).

n166 Id. at 428, 342 N.W.2d at 578.

n167 Ryckman v. Delavan, 25 Wend. 186 (N.Y. 1840); see also Noral v. Hearst Publications, Inc., 40 Cal. App. 2d 348, 353, 104 P.2d 860, 863 (1940) (asserting that "charges of libel . . . upon matters of public policy should be viewed with caution").

n168 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 105 S. Ct. 2939 (1985); Michigan United Conservation Clubs v. CBS News, 485 F. Supp. 893, 896 (W.D. Mich. 1980), aff'd, 665 F.2d 110 (6th Cir. 1981); Khalid Abdullah Tariq Al Mansour Faissal Fahd Al Talal v. Fanning, 506 F. Supp. 186, 187 (N.D. Cal. 1980); Brady v. Ottaway Newspapers, Inc., 84 A.D.2d 226, 242, 445 N.Y.S.2d 786, 796 (1981).

n169 485 F. Supp. 893 (W.D. Mich. 1980), aff'd, 665 F.2d 110 (6th Cir. 1981).

n170 Id. at 900.

n171 506 F. Supp. 186 (N.D. Cal. 1980).

n172 Id. at 186.

n173 Id. at 187.

n174 84 A.D.2d 226, 445 N.Y.S.2d 786 (1981).

n175 Id. at 229, 445 N.Y.S.2d at 789.

n176 As the court said in Ryckman v. Delavan, 25 Wend. 186 (N.Y. 1840):

It is far better for the public welfare that some occasional consequential injury to an individual, arising from general censure of his profession, his party, or his sect, should go without remedy, than that free discussion on the great questions of politics, or morals, or faith, should be checked by the dread of embittered and boundless litigation.
Id. at 199; see also Brady v. Ottaway Newspapers, Inc., 84 A.D.2d 226, 229, 445 N.Y.S.2d 786, 789 (1981) (commenting that "the incidental and occasional injury to the individual resulting from the defamation of large groups is balanced against the public's right to know"); McCullough v. Cities Serv. Co., 676 P.2d 833, 836-37 (Okla. 1984) (gleaning the balancing approach from the Brady decision).

n177 138 Va. 402, 121 S.E. 912 (1924).

n178 Id. at 406, 121 S.E. at 913.

n179 Id.

n180 Id. at 412, 121 S.E. at 915. Other courts have echoed this concern. Michigan United Conservation Clubs v. CBS News, 485 F. Supp. 893, 900 (W.D. Mich. 1980), aff'd, 665 F.2d 110 (6th Cir. 1981).

n181 See supra text accompanying notes 171-73.

n182 The facts of the following group defamation cases provide illustrations of defamations that arguably involved a public issue, although the courts discussed neither the public issue concept nor the first amendment: Los Angeles Fire & Police Protective League v. Rodgers, 7 Cal. App. 3d 419, 422, 86 Cal. Rptr. 623, 625 (1970) (accusation that a police department was noted for its brutality); Weston v. Commercial Advertiser Ass'n, 184 N.Y. 479, 483, 77 N.E. 660, 661 (1906) (defamation accusing members of the coroner's office of extracting bribes from hotels and relatives to prevent autopsies); Webb v. Sessions, 531 S.W.2d 211, 213 (Tex. Civ. App. -- Eastland 1975, no writ) (statement that petty thievery and acceptance of bribes was a way of life in the sheriff's department); cf. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 105 S. Ct. 2939, 2947 (1985) (opinion of Powell, J., joined by Rehnquist & O'Connor, JJ.) (suggesting that the size of the audience, the motivation of the speaker, and the objective verifiability of the speech, are all elements of the "content, form and context"); Connick v. Myers, 461 U.S. 138, 147-48 (1982) (for constitutional purposes, whether speech "addresses a matter of public concern must be determined by the content, form, and context of a given statement"). Dun & Bradstreet and Connick are not group defamation cases.

The facts of other group defamation cases provide examples of defamations that this Note asserts do not implicate public issues: "Barger v. Playboy Enters., Inc., 564 F. Supp. 1151, 1152 (N.D. Cal. 1983) (description of promiscuous conduct at post-wedding celebrations for Hell's Angels members), aff'd mem., 732 F.2d 163 (9th Cir.), cert. denied, 105 S. Ct. 175 (1984); Loeb v. Globe Newspaper Co., 489 F. Supp. 481, 483 (D. Mass. 1980) (one nespaper described a competitor's employees as paranoid); Kentucky Fried Chicken, Inc. v. Sanders, 563 S.W.2d 8, 9 (Ky. 1978) (Colonel Sanders disparaged the new Kentucky Fried Chicken crispy recipe).

n183 92 F.2d 502 (D.C. Cir. 1937).

n184 Id. at 503.

n185 Id.

n186 Id.

n187 270 N.Y. 93, 200 N.E. 592 (1936).

n188 Id. at 95, 200 N.E. at 592-93.

n189 Id., 200 N.E. at 593.

n190 Id., 200 N.E. at 592.

n191 Id. at 94, 200 N.E. at 592.

n192 Id. at 96, 200 N.E. at 593.

n193 Id.

n194 13 F.R.D. 311 (S.D.N.Y. 1952).

n195 Id. at 313.

n196 Id.

n197 Id.

n198 Id. at 316.

n199 Id. at 313.

n200 Id. at 317.

n201 Id. at 316; see also supra note 160 (comparing reasonable man" and other audience standards).

n202 See supra notes 146-59 and accompanying text.

n203 Of course, group size is not alone determinative of plausibility. Suppose the defamation were this: "Neiman-Marcus, as part of its training program, teaches its saleswomen how to increase the customer's bill by cleverly transposing numbers on the sales tag. Almost all of them are masters of this subtle art." These facts would support recovery by a plaintiff saleswoman. The group size is no different, but the nature of the accusation has changed. Instead of the wild charge of prostitution, this is a charge of business dishonesty: a frequent enough occurrence that the audience is not likely to discount the charge. What has changed? Group size is the same, but the nature of the defamation measured against group size has changed.

n204 Cf. Comment, supra note 10, at 1552 (suggesting that the jury be instructed to consider the same factors that the judge considered when deciding whether to let the case go to the jury).

n205 Cf. Ollman v. Evans, 750 F.2d 970, 978 (D.C. Cir. 1984) (Starr, J., opinion of the court) (commenting that "the predictability of decisions, which is of crucial importance[,] . . . is enhanced when the determination is made according to announced legal standards and when a body of public case law furnishes published examples of the manner in which these standards are to be applied").




Prepared: April 2, 2003 - 5:02:29 PM
Edited and Updated, April 2, 2003


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