Gertz and the Common Law of Defamation: Of Fault, Nonmedia Defendants, and Conditional Privileges
Watkins, John J.
Schwartz, Charles W.
MetadataShow full item record
While Gertz "touched nearly every facet of a defamation case," it left open a variety of important questions, two of which are the focus of this article: (1) the applicability of the "no liability without fault" requirement in a defamation action against a nonmedia defendant, and (2) the appropriate definition of "malice" necessary to defeat a common-law conditional privilege asserted by a nonmedia defendant. The common thread, of course, is the extent to which New York Times and Gertz affected the common law of defamation. Divergent lines of cases, primarily at the state level, have emerged with respect to each issue, and the Supreme Court has agreed to review a case that may well settle at least the first question. 6 This article will examine that developing body of authority in an effort to develop a useful analytical framework.