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Defamation
Learning Objectives
Guidelines
Note: See grading rubrics for weekly discussions
Overview on the Law
Laws can be classified in several different categories. One of the most common ways to classify laws is: Civil (disputes between members in society, including individuals, corporations and government agencies), Criminal (crimes against the state) and Regulatory. (government agencies regulating certain activities, such as the flow of goods and services in a society).
A “cause of action” is the legal theory under which one party (the “plaintiff“) is using to sue another (the “defendant“).
A “tort”is a civil wrong that is not a breach of contract. Therefore, if a “civil lawsuit” is not about a breach of contract, then it involves some sort of tort. Torts can be divided into different categories: intentional torts(where the focus is on the “intent” of the defendant when s/he was committing the wrongful act), negligence(where the focus is on the “duty of care” owed by defendant to plaintiff), and strict liability (where the focus is on the activity of the defendant that gives rise to the legally imposed duty).
Defamation
Defamation is the communication of a false statement that harms the reputation of a person, business, product, group, government, or some other entity. Defamation is one of the many torts in the subcategory of intentional torts. If you recall, a tort is a civil wrong that is NOT a breach of contract.
Under common law, to constitute defamation, a claim must be false and it must have been made to someone other that the person being defamed. When the defamation is spoken (i.e., oral) it is called slander; and when the defamation is in a written form, it is called libel.
Defamation, as a tort, has come into the national interest recently involving the case of Stormy Daniels, Donald Trump, and Trump’s personal lawyer, Michael Cohen.
Non-Disclosure Agreements (NDA)
A non-disclosure agreement (“NDA”) is a legally binding contract that establishes a confidential relationship. Information is power and that is why people will often go to great lengths to keep certain information private. Certain types of information may give a company a competitive advantage (e.g., trade secrets) while others can ruin reputations, sink political careers or result in expensive divorces.
NDAs are commonly used in the business world, particularly with respect to employees, partners, and intellectual property. The party or parties signing the NDA agrees that certain information, whether it is a company’s trade secret(s) or a politician sordid extramarital affair(s), are to be kept private. There are generally financial consequences when the offending party breaches an NDA.
Breach and enforcement of NDAs are generally via private arbitration to keep the confidential information private. NDAs are seldom enforced in the court because of the public nature of the court system where the documents can become public records.
Assignment Background
Ms. Daniels and Mr. Cohen entered into a confidential non-disclosure agreement (NDA), where Mr. Trump was the beneficiary. Mr. Trump did not sign the NDA. In exchange for $130,000, Ms. Daniels promised not to disclose a sexual affair with Mr. Trump that he publicly claims “he never had” with Ms. Daniels. Ms. Zervos’s NDA situation is similar to Ms. Daniels.
As you may recall in the news, Mr. Trump vehemently denied having sexual liaisons with other women during his marriage to Melina Trump. Mr. Trump claimed the affairs never happened, it was all “fake news” and all the women who were named were all liars. In a situation like this, Mr. Trump should have just kept quiet. To quote what Abraham Lincoln, the 16th president of the United States, once said: “It is better to keep quiet and be called a fool, that to open your mouth and be proven one.”
Instead, Mr. Trump when on the offensive and publicly accused the women of being liars. His comments opened him up to legal attacks. Ms. Daniels filed a lawsuit against Mr. Trump to be let out of her NDA so she can defend herself against his strident accusations. Other plaintiffs, including Ms. Zervos, also filed suit.
Ms. Daniel’s case is interesting in many ways, including its novel approach to using the intentional tort of defamation to attack the validity of the NDA contract. Using one body of law to attack enforcement in another body of law.
Reading Assignment
Read the following articles:
Judge orders Donald Trump to pay Stormy Daniels $44,000 in legal fees.
Discussion Assignment
What do you think about the defamation claims by these women to invalidate their NDAs with Mr. Trump. Explain. Can you think of other examples of how tort claims can be used as either a sword or shield as part of a litigation or negotiation strategy. Explain.
Search and Seizure, and Your 4th Amendment Rights
Civil Forfeiture of Private Property
Learning Objectives
Guidelines
Write at least 150 words.The majority of your post must be original words, thoughts and ideas.Identify the source of all information that you use.All posts must be typed in the discussion Canvas message box, not attached as a document.Do not use one paragraph, separate into short paragraphs.
Note: See grading rubrics for weekly discussions
Overview on the Law
The Fourth Amendment
“Search and Seizure” is a legal term used to describe a law enforcement agent’s search or examination of a person’s home, vehicle, vehicle or place of business to find evidence that a crime has been committed, and to seize any evidence of the crime found.
The Fourth Amendment of the U.S. Constitution provides that “the right of the people are to secure in their persons, house, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The ultimate goal of this provision is to protect people’s right to privacy and freedom from unreasonable intrusions by the government. The law does not prohibit all searches and seizures, only those by the government that is deemed to be unreasonableunder the law. What this means is that law enforcement agents need “probable cause” and a “warrant”, in most cases, to search your person or belongings. If there is no probable cause and you are searched illegally, then any evidence collected from the search will be excluded from evidence at trial under the Exclusionary Rule and the fruit of the poisonous tree doctrine. The purpose is to protect the people from being abused by a powerful government or by powerful people in government who abuse their powers.
There are strict rules that government agents (e.g., the police) must follow to search you and to seize evidence of a crime. The right to privacy is not specifically mentioned in the U.S. Constitution, but over the years the courts have interpreted the 4th Amendment to protect privacy in many situations. Application of the 4th Amendment is balancing the rights of the individual against the needs of the society.
One of the challenges for poor people is that they often cannot afford to bank accounts or other financial services. Either the requirements for a bank account are too high (e.g., minimum balances), there is no bank branch in their neighborhood, or some other restrictions that make opening a bank account impractical for them.
Assignment
Please read the following:
Discussion Assignment
After reading the articles, discuss what do you think about government agencies using its powers under the law to search and seize properties of private citizens. Is this a good thing or a bad thing. Where should we draw the line? What about the rights of the poor who are unable to hire lawyers to get their property back. Explain.
