Bartender/ owner issues

[ecmst12]

I also have a hunch that the business is too small to be subject to federal regulations, but just a hunch.

 

[tranquility]

I agree that it sounds a wee bit weird that the bar owner would report singlemotherof4(almost 5) to the police for theft if he had in fact been planning on paying her for the extra week.



And, as a probably unnecessary note to singlemotherof4: OhioRoadwarrior is just kidding - your unborn child has no cause of action against the bar owner now, and will have no cause of action against the bar owner later, over the comment he made to you.

Actually, I think this would be a good Bar question. To be blunt, why could the now unborn child not sue....if it was false and defamatory information?

That's what Kingsfield meant when he talked about thinking like a lawyer. The law changes. Not because it changes, but because the common law elements adjust to differently argued facts.

Say a child is hurt (who is now unborn) from the claim he is a basterd, black, Muslim, a clone? If false, does the fact the defamation happened before birth make a suit something that is "no cause of action"?

Sure, not before. But now? (Follow the elements, along with tolling the SOL. That is what Kingsfield meant.)

 

[OHRoadwarrior]

Because the child has no standing to sue, based on heresay. Timing may bar an actual suit also.

 

[quincy]

What would the child sue for?

Being called a "colored baby" is not really defamatory, for one thing. Being called black or Muslim or a clone or even a b@stard would not necessarily be defamatory (although I suppose any of those could potentially be defamatory given certain circumstances and facts when applied to a person who has already been born).

You cannot defame the dead (in most states). You, likewise, cannot defame the unborn, because there is no reputation to injure. For the unborn, there is no reputation at all.

Unless you are supposing that defamation laws have changed by the time the child is born?

What happens after the child's birth could lead to a cause of action that the child could potentially pursue on his own eventually (or a parent or guardian could pursue for the child).

But, I am pretty much thinking that this would not make such a great Bar exam question.

 

[ecmst12]

Correct me if I'm wrong, but insulting is not the same as defamatory.

 

[quincy]

Correct me if I'm wrong, but insulting is not the same as defamatory.

Insults are designed to hurt feelings, not reputations.

But it can depend on exactly what insult is hurled, at whom it is hurled, why it was hurled, where it was hurled, and how it was hurled. Being called a "liar" can be an insult or defamation*. Being called a "hypocrite" can be an insult or defamation*. Being called a "bitch" can be an insult or defamation*.

Facts matter.






* Melton v Bow, Overstreet v New Nonpareil Co, Stone v Brooks.

 

[tranquility]

What would the child sue for?

Being called a "colored baby" is not really defamatory, for one thing. Being called black or Muslim or a clone or even a b@stard would not necessarily be defamatory (although I suppose any of those could potentially be defamatory given certain circumstances and facts when applied to a person who has already been born).

You cannot defame the dead (in most states). You, likewise, cannot defame the unborn, because there is no reputation to injure. For the unborn, there is no reputation at all.

Unless you are supposing that defamation laws have changed by the time the child is born?

What happens after the child's birth could lead to a cause of action that the child could potentially pursue on his own eventually (or a parent or guardian could pursue for the child).

But, I am pretty much thinking that this would not make such a great Bar exam question.

Down south, calling a white person a Negr0 can be defamatory. Prosser mentions calling a person a b@stard is defamatory on it's face. While the unborn is not a "person", they are not nothing either and would have a cause of action in negligence if the negligence occurred after viability if the baby was later born alive. Why not defamation? This is a great bar question. They don't like to test on purported answers, but on dealing with each issue.

(I posted, in detail, a response previously. But, the posting got eaten. [When will I learn to copy before hitting the submit button?] So, be sure before you reply.)

 

[justalayman]

.

Prosser mentions calling a person a b@stard is defamatory on it's face.

even if they are bastrds? Whenever I have heard an unborn child as a bastrd, it was based on the fact the mother was not married and as such, the child was a bastrd. Not sure how I see the truth as being defamatory in this situation.

In fact, doesn't at least one state in the south require a child born to an unwed mother to be legitimized lest they remain a bastrd?

 

[TheGeekess]

.even if they are bastrds? Whenever I have heard an unborn child as a bastrd, it was based on the fact the mother was not married and as such, the child was a bastrd. Not sure how I see the truth as being defamatory in this situation.

In fact, doesn't at least one state in the south require a child born to an unwed mother to be legitimized lest they remain a bastrd?

Georgia requires legitimization in an unwed situation before the (putative) father can request custody/visitation. It's a separate step from being declared the legal father.

 

[tranquility]

.even if they are bastrds? Whenever I have heard an unborn child as a bastrd, it was based on the fact the mother was not married and as such, the child was a bastrd. Not sure how I see the truth as being defamatory in this situation.

Defamatory on its face. Of course, truth is a defense.

(One of his cites is a Tennessee case too. Cited a lot still as well. [Not for the term, but for many of the case's issues.])

Harris v. Nashville Trust Co., (1914), 128 Tenn. 573, 162 S.W. 584

 

[quincy]

Defamatory on its face. Of course, truth is a defense.

(One of his cites is a Tennessee case too. Cited a lot still as well. [Not for the term, but for many of the case's issues.])

Harris v. Nashville Trust Co., (1914), 128 Tenn. 573, 162 S.W. 584

What is considered defamatory changes over time, as society changes and the laws change to reflect society.

Certainly when looking at the history of defamation law in the U.S., you will find a heavy focus on race. The law of defamation has a racist past. In 1791 up through about 1954, there were many defamation cases charging defamation whenever a white person was falsely labeled a Negr* or black or a variation thereof. There have been only a few similar cases here and there since. Society has changed.

False claims that a woman was unchaste could spawn a defamation action, and many states still indicate that unchastity is defamatory per se - as the laws were enacted years ago and never amended or repealed. But today, a claim based on this alone would not easily support a defamation lawsuit. Women can have sex and women can have children without marriage today. Society has changed.

Falsely labeling someone a homosexual used to be considered defamatory per se in all states, as well, but when homosexuality was no longer illegal and state laws changed throughout the country (it used to be a felony in some states to be homosexual), court decisions changed as well. Most states no longer consider being called "gay" defamatory because being gay is no longer a crime (New York courts have only recently - 2012 - reflected this in their decisions). Society has changed.

So, while I could pull up all sorts of early defamation cases (filed over false claims of being homosexual, unchaste, a Communist or a Negr*), many of the defamatory words which led to these cases are no longer considered defamatory - insulting, perhaps, but (generally) not defamatory - and these words would no longer support a legal action.

Of course, as with pretty much everything in law, when you are considering a defamation claim, ALL facts must be considered. As I said earlier, being called a bitch has led to a lawsuit in the past. But being called a bitch today will generally not be taken seriously. The comment will be looked at as rhetorical hyperbole, will be considered a run-of-the-mill insult, will not ruin a woman's reputation.

I am still of the opinion that a question on defaming an unborn child is not a terrifically good one for a bar exam (but you are welcome to suggest it to the California Bar, tranq ).

Defamation centers on reputational injury and, until there is a reputation to injure, there can be no defamation.



(as a note: what is said about an unborn child could potentially imply something defamatory about the pregnant woman/mother - and THAT could potentially lead to a defamation action for the woman to consider)

 

[tranquility]

What is considered defamatory changes over time, as society changes and the laws change to reflect society.

Certainly when looking at the history of defamation law in the U.S., you will find a heavy focus on race. The law of defamation has a racist past. In 1791 up through about 1954, there were many defamation cases charging defamation whenever a white person was falsely labeled a Negr* or black or a variation thereof. There have been only a few similar cases here and there since. Society has changed.

You let me know when you pull up the case that overturns the many still cited cases from the South regarding our issue. It is one thing to opine society changes. It is another thing to overturn precedent. (By the way, arguing the holdings should change while using the same elements because of societal change is a great one for the Bar. They love that stuff.)

False claims that a woman was unchaste could spawn a defamation action, and many states still indicate that unchastity is defamatory per se - as the laws were enacted years ago and never amended or repealed. But today, a claim based on this alone would not easily support a defamation lawsuit. Women can have sex and women can have children without marriage today. Society has changed.

True, but we're talking about the Tennessee where the word was not black but colored. I wonder if that would be a relevant fact to talk about? Such a word would be quite unusual in New York in this context and shows the group that may have said and heard it here might have different ideas about what would hold up a person to hatred, contempt, or ridicule, or would have the person be shunned or avoided.

Falsely labeling someone a homosexual used to be considered defamatory per se in all states, as well, but when homosexuality was no longer illegal and state laws changed throughout the country (it used to be a felony in some states to be homosexual), court decisions changed as well. Most states no longer consider being called "gay" defamatory because being gay is no longer a crime (New York courts have only recently - 2012 - reflected this in their decisions). Society has changed.

Certainly true. We will see even more after a couple of Supreme Court cases coming due. For the gay issue the holding on Proposition 8 may guide. For the black issue (because of discrimination), see the results for Shelby County v. Holder where the Attorney General argues that 15 southern states are still so racist they need his permission before they can change their voting rules. While not the whole state, Chattanooga Tennessee is a "bail in" township because it is a pocket of discrimination. (Although I suspect that, if there is still racial discrimination in the U.S., it might just be in all the states that are touching the southern border of Tennessee.) Does the Bar like asking questions revolving around Supreme Court recent or soon to be decisions?

So, while I could pull up all sorts of early defamation cases (filed over false claims of being homosexual, unchaste, a Communist or a Negr*), many of the defamatory words which led to these cases are no longer considered defamatory - insulting, perhaps, but (generally) not defamatory - and these words would no longer support a legal action.

This is a conclusion that it generalized and not specific to our facts.

Of course, as with pretty much everything in law, when you are considering a defamation claim, ALL facts must be considered. As I said earlier, being called a bitch has led to a lawsuit in the past. But being called a bitch today will generally not be taken seriously. The comment will be looked at as rhetorical hyperbole, will be considered a run-of-the-mill insult, will not ruin a woman's reputation.

When those are our facts, let me know.

I am still of the opinion that a question on defaming an unborn child is not a terrifically good one for a bar exam (but you are welcome to suggest it to the California Bar, tranq ).

And miss all the discussion regarding a person and an unborn child? Goodness, not all questions are racehorse issue spotting ones. Some are thinkums.

Defamation centers on reputational injury and, until there is a reputation to injure, there can be no defamation.

And yet, such a false claim in certain circles WOULD harm the child once born. Even if the defamation was before birth. I am uncertain as to the source of your claim an unborn child does not have a reputation. If a person is said to be the child of a murderer, how is the hurt (in damages) different if said a moment before birth than a moment after? The hurt continues.

For the fun thought, wait until we start placing, controlling, drugging or whatevering based on DNA taken before birth. "Oh yeah, I've heard he's got the Gacy4 gene. When he comes out, he'll be a murderer for sure. At least unless we deal with it properly." To bring it around to your desire to focus on gay, as the man said, http://www.youtube.com/watch?v=XKGBgb0XKVs




(as a note: What is said about an unborn child could potentially imply something defamatory about the mother - and THAT could potentially lead to a defamation action for the pregnant woman to consider.)

 

[ecmst12]

Man, this site would be so much less interesting without you two!

 

[quincy]

It is sure nice to know that none of us answer hypotheticals on this forum.

Now, to avoid having to do any (unpaid) research tonight, I think I will instead simply agree with tranquility that this would make an excellent bar exam question. . . . . and I will wait for the first unborn baby to file a defamation claim.

 

[tranquility]

It is sure nice to know that none of us answer hypotheticals on this forum.

Now, to avoid having to do any (unpaid) research tonight, I think I will instead simply agree with tranquility that this would make an excellent bar exam question. . . . . and I will wait for the first unborn baby to file a defamation claim.

According to Tennessee Supreme Court decision, he would have to wait until after he is born. (Just as in malpractice or other negligence actions.)