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14 Comm. L. & Pol'y 1 (2009)

handle is hein.journals/comulp14 and id is 1 raw text is: 



14 COMM. L. & PoL'Y 1-39 (2009)                    i) Routledge
Copyright c Taylor & Francis Group, LLC                Taylor&Francis Group
ISSN: 1081-1680 print/1532-6926 online                 T
DOI: 10.1080/10811680802577632



DECIPHERING Dun & Bradstreet:
DOES THE FIRST AMENDMENT MATTER
IN PRIVATE FIGURE-PRIVATE CONCERN
DEFAMATION CASES?


RUTH WALDEN*
DERIGAN SILVER**


        In Dun & Bradstreet v. Greenmoss Builders, the Supreme Court of
        the United States reintroduced a subject matter test into libel law,
        holding that private figures defamed in the discussion of matters
        of private concern did not need to prove actual malice to collect
        punitive or presumed damages. The sweeping language of some of
        opinions, coupled with the Supreme Court's references to subject
        matter in subsequent cases, led to confusion over whether and how
        constitutional protections apply in private plaintiff-private issue cases.
        This article explores how lower federal and state appellate courts have
        interpreted Dun & Bradstreet and offers three alternate solutions to
        appropriately balance the First Amendment rights of defendants with
        the reputational interests of private plaintiffs in cases arising from
        the discussion of matters of private concern.



  On March 20, 1990, The Wall Street Journal published an article
focusing on the likelihood of success of the Taj Mahal, an Atlantic City
casino owned by Donald Trump. The article included the following
quotation:

  When [the Taj Mahal] opens, [Trump] will have had so much free publicity
  he will break every record in the books in April, June, and July, says
  Marvin Roffman, a casino analyst with Janney Montgomery Scott. But



  *James Howard & Hallie McLean Parker Distinguished Professor, School of
Journalism and Mass Communication, University of North Carolina at Chapel
Hill.
  **Assistant Professor, Department of Mass Communications and Journalism
Studies, University of Denver.

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