Restat 2d of Conflict of Laws, § 150

• Restatement of the Law, Second, Conflict of Laws
• Chapter 7- Wrongs
• Topic 1- Torts
• Title B- Particular Torts
• § 150 Multistate Defamation

(1) The rights and liabilities that arise from defamatory matter in any one edition of a book or newspaper, or any one broadcast over radio or television, exhibition of a motion picture, or similar aggregate communication are determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.

(2) When a natural person claims that he has been defamed by an aggregate communication, the state of most significant relationship will usually be the state where the person was domiciled at the time, if the matter complained of was published in that state.

(3) When a corporation, or other legal person, claims that it has been defamed by an aggregate communication, the state of most significant relationship will usually be the state where the corporation, or other legal person, had its principal place of business at the time, if the matter complained of was published in that state.

Comment:

a.  Scope of section.  The rule of this Section applies in situations where a defamatory statement in an aggregate communication is published to persons other than the person defamed in two or more states. In other situations involving defamation the rule of § 149 is applicable.

b.  Rationale.  The rule of this Section calls for application of the local law of the state selected pursuant to the provisions of Subsection (2) and (3) unless, with respect to the particular issue, some other state has a more significant relationship to the occurrence and the parties. Whether there is such another state should be determined in the light of the choice-of-law principles stated in § 6. In large part the answer will depend upon whether some state has a greater interest in the determination of the particular issue than the state selected pursuant to the provisions of Subsections (2) and (3). The extent of the interest of each of the potentially interested states should be determined on the basis, among other things, of the purpose sought to be achieved by their relevant local law rules and of the particular issue involved (see § 145, Comments c-d).  Particular issues are discussed in Title C (§§ 156-174).

The rule furthers the choice-of-law values of certainty, predictability and uniformity of result and of ease in the determination and application of the applicable law (see § 6).

Examples of issues in multistate defamation are whether a given communication is defamatory and, if so, whether it constitutes libel or slander, whether proof of special damages is essential to plaintiff's recovery, what persons are protected by the law of defamation, what constitutes the publication of defamatory matter, whether the publisher of defamatory matter is strictly liable or whether he is liable only if he published the defamatory matter intentionally or negligently, the circumstances under which publication of defamatory matter is protected by an absolute or by a qualified privilege, whether truth is a defense and what matters may be considered a partial defense in mitigation of damages.

c.  Single publication rule.  As stated in § 577A of the Restatement of Torts (Second), a "single publication rule" is applied as a matter of tort law in cases where there is a single aggregate communication to a large number of persons at one time. In such instances, the plaintiff has only one cause of action for the publication. In his one action he will recover damages for all the harm that the communication has caused, or may be expected to cause, him. Justification for the rule is to be found in the necessity of protecting defendants and the courts from the enormous number of suits which might be brought if publication to each person reached by such an aggregate communication could serve as the foundation for a new cause of action.

A single publication rule also exists in choice-of-law. When there has been publication in two or more states of an aggregate communication of the sort described in the rule of this Section, the forum, at least in situations that do not fall within the scope of Comment d, will hold that the plaintiff has but one cause of action for choice-of-law purposes and will apply the local law of the state which, with respect to the particular issue, has the most significant relationship to the occurrence and the parties. Otherwise, the forum might be required to consult and apply the local law of every state in which there was publication of the defamatory matter. This would mean in the case of a nation-wide broadcast or of a publication of nationwide circulation that the forum would, at the least, have to consult and apply the local law of fifty States and of the District of Columbia.

The forum will determine the rights and liabilities of the parties in accordance with the local law of the state selected without regard to the question whether the courts of that state follow a single or a multiple publication rule.

A plaintiff, who has a right of action under the local law of the state selected by application of the rule of this Section, will recover for the entire injury the communication has caused, or may be expected to cause, him in all states in which the communication is published. This is true even if the communication is published in one or more states under whose local law the plaintiff has no right of action. A judgment rendered on the merits for either the plaintiff or the defendant will under normal principles of res judicata preclude further action between the parties with respect to the same communication. As between States of the United States, a judgment rendered under such circumstances on the merits will under full faith and credit preclude the maintenance of any further action between the parties in a sister State if the judgment has such a preclusive effect in the State of rendition (see § 95).

Illustration:

1. Suit is brought in state X to recover damages for a statement contained in a broadcast transmitted from state X and heard in states A, B, C, D and X. The statement is defamatory under the local law of A. It is not defamatory under the local law of B, C, D and X. If the X court would be led by its choice-of-law rule to apply the local law of A, the court will award the plaintiff full recovery. This will be done even though A does not follow a single publication rule, and hence, if suit had been brought in A, the A court would not have awarded plaintiff damages for the publications which occurred in B, C, D and X.

Comment:

d.  When special damages suffered in two or more states.  The rule of this Section under which all damages are determined under a single law may not apply in situations where the plaintiff is claimed to have suffered one kind of special damages in one state and another kind of special damages in a second state. It is possible that in such situations the local law of each of these states will be applied to determine the plaintiff's right to recover for the special damage he is alleged to have suffered within its territory.

Illustration:

2. A, who is a practicing lawyer and who is domiciled in state X, is seeking a position with a legislative committee in state Y. The B newspaper, which is published in state Z and is circulated in X, Y and Z, publishes a defamatory story about A. A sues B for defamation alleging that publication of the story caused him (a) a general loss of reputation (b) the loss of a valuable client in X and (c) resulted in his failure to obtain the position in Y. Under the rule of this Section, A's right to recover for his general loss of reputation will be determined by the local law of X unless some other state is that of most significant relationship. On the other hand, it may be that A's right to recover for the loss of his client will be determined in accordance with X local law and that Y local law will be applied to determine whether A can recover for the loss of the position.

Comment:

e.  Multistate communication involving natural person.  Rules of defamation are designed to protect a person's interest in his reputation. When there has been publication in two or more states of an aggregate communication claimed to be defamatory, at least most issues involving the tort should be determined, subject to the possible limitation stated in Comment d, by the local law of the state where the plaintiff has suffered the greatest injury by reason of his loss of reputation. This will usually be the state of the plaintiff's domicil if the matter complained of has there been published.

If the defamer's act or acts of communication are done in the state of the plaintiff's domicil and if the matter claimed to be defamatory is there published, the local law of this state will usually be applied to determine most issues involving the tort (see § 145, Comments d-e).  The local law of the state of the plaintiff's domicil will also usually be so applied, even though some or all of the defamer's acts of communication were done in another state, if there was publication in the state of plaintiff's domicil and if the plaintiff is known only in this state and consequently his reputation only suffered injury there. Determination of the state of the applicable law is more difficult when the defamer's act or acts of communication are done in a state other than that of the plaintiff's domicil and when the matter complained of is published in the state of the plaintiff's domicil and in one or more other states to which the plaintiff has a substantial relationship. In this last situation, the local law of the state of the plaintiff's domicil will be applied unless, with respect to the particular issue, one of the other states has a more significant relationship to the occurrence and the parties.

A state, which is not the state of the plaintiff's domicil, may be that of most significant relationship if it is the state where the defamatory communication caused plaintiff the greatest injury to his reputation. This may be so, for example, in situations where (a) the plaintiff is better known in this state than in the state of his domicil, or (b) the matter claimed to be defamatory related to an activity of the plaintiff that is principally located in this state, or (c) the plaintiff suffered greater special damages in this state than in the state of his domicil, or (d) the place of principal circulation of the matter claimed to be defamatory was in this state.

Other contacts that the forum will consider in determining which is the state of most significant relationship with respect to the particular issue include (a) the state or states where the defendant did his act or acts of communication, such as assembling, printing and distributing a magazine or book and (b) the state or states of the defendant's domicil, incorporation or organization and principal place of business.

f.  Multistate communication involving corporation or other legal person.  What is said in Comment e about multistate communications involving natural persons is in general applicable to corporations and other legal persons. Legal persons, however, have no domicil (see § 11, Comment l).  In their case the principal place of business is the most important contact in the determination of which is the state of most significant relationship and hence that of the applicable law. A legal person's principal place of business is the place where its reputation will usually be most grievously affected. Othercontacts to be considered are the state of incorporation of a corporation or the state of organization of other sorts of legal persons, such as joint stock associations and business trusts. Less weight will be given to these latter contacts in the determination of the state of most significant relationship than to the principal place of business of the legal person involved.

If the defamer's act or acts of communication are done in the state of the plaintiff's principal place of business and if the matter claimed to be defamatory is there published, the local law of this state will usually be applied to determine most issues involving the tort (see § 145, Comments d-e).  The local law of the state of plaintiff's principal place of business will also usually be applied, even though some or all of the defamer's acts of communication were done in another state, if all of the plaintiff's business is carried on in the former state. Determination of which is the state of the applicable law is more difficult when the defamer's act or acts of communication are done in a state other than that of plaintiff's principal place of business and when the matter complained of is published in the state of the plaintiff's principal place of business and in one or more other states to which the plaintiff has a substantial relationship. In this last situation, the local law of the state of the plaintiff's principal place of business will be applied unless, with respect to the particular issue, some other state has a more significant relationship to the occurrence and the parties.

A state, which is not the state of the plaintiff's principal place of business, may be that of most significant relationship with respect to the particular issue if it is the state where the defamatory communication caused plaintiff the greatest injury to its reputation. This may be so, for example, in situations where (a) the plaintiff is better known in this state than in the state of its principal place of business, as might be the case if the plaintiff does approximately the same amount of business in this state as it does in the state of its principal business and this state is the state of the plaintiff's incorporation or organization, or (b) the matter claimed to be defamatory related to an activity of the plaintiff that is principally located in this state, or (c) the plaintiff suffered greater special damages in this state than in the state of its principal place of business, or (d) the place of principal circulation of the matter claimed to be defamatory was in this state.

Other contacts that the forum will consider in determining which is the state of most significant relationship with respect to the particular issue include (a) the state or states where the defendant did his act or acts of communication, such as assembling, printing and distributing a magazine or book and (b) the state or states of the defendant's domicil, incorporation or organization and principal place of business.

g.  As to recovery on some theory other than tort, see § 145, Comment g.

h.  For reasons stated in § 145, Comment h, the reference is to the "local law" of the state of the applicable law and not to that state's "law," which means the totality of its law including its choice-of-law rules.

i.  As to the situation where the local law rule of two or more states is the same, see § 145, Comment i.

Section 577A of the Restatement of Torts (Second) provides in relevant part:

"(3) Any one edition of a book or newspaper, or any one broadcast over radio or television, exhibition of a motion picture, or similar aggregate communication, is a single publication.

(4) As to any single publication,

(a) Only one action in damages can be maintained;

(b) All damages suffered in all jurisdictions can be recovered in the one action; and

(c) A judgment for or against the plaintiff upon the substantive merits of an action for damages bars any other action for damages between the same parties in all jurisdictions."

Subsection (1): See Caldwell v. Crowell-Collier Pub. Co., 161 F.2d 333 (5th Cir. 1947); Phillips v. Murchison, 252 F.Supp. 513 (S.D.N.Y.1966); Tocco v. Time, Inc., 195 F.Supp. 410 (E.D.Mich.1961); Ostrow & Jacobs, Inc. v. Morgan-Jones, Inc., 180 F.Supp. 38 (S.D.N.Y.1959); Insull v. New York World-Telegram Corporation, 172 F.Supp. 615 (N.D.Ill.1959); aff'd, 273 F.2d 166 (7th Cir. 1959), cert. den. 362 U.S. 942 (1960); Palmisano v. News Syndicate Co., Inc., 130 F.Supp. 17 (S.D.N.Y.1955); Dale System, Inc. v. Time, Inc., 116 F.Supp. 527 (D.Conn.1953); Dale System, Inc. v. General Teleradio, Inc., 105 F.Supp. 745 (S.D.N.Y.1952); see Buckley v. New York Post Corp., 373 F.2d 175 (2d Cir. 1967); cf. Willenbucher v. McCormick, 229 F.Supp. 659 (D.Colo.1964).

Comment d:  See Brewster v. Boston Herald-Traveler Corp., 188 F.Supp. 565 (D.Mass.1960), on which Illustration 2 is based.

Subsection (2): See Estill v. Hearst Publishing Co., 186 F.2d 1017 (7th Cir. 1951); Mattox v. News Syndicate Co., 176 F.2d 897 (2d Cir. 1949), cert. den. 338 U.S. 858 (1949); Caldwell v. Crowell-Collier Pub. Co., supra; Palmisano v. News Syndicate Co., supra; cf. Beauharnais v. Pittsburgh Courier Publishing Co., 243 F.2d 705 (7th Cir. 1957) (applying local law of the state of plaintiff's domicil, which was also the state of the forum, without stating which of these two contacts was the decisive one); Dale System, Inc. v. Time, Inc., supra (dictum); Fouts v. Fawcett Publications, Inc., 116 F.Supp. 535 (D.Conn.1953) (dictum); Hazlitt v. Fawcett Publications, Inc., 116 F.Supp. 538 (D.Conn.1953) (dictum); cf. Zuck v. Interstate Publishing Corp., 317 F.2d 727 (2d Cir. 1963) (supporting application of single publication rule for choice-of-law purposes).

Subsection (3): In Dale System, Inc. v. Time, Inc., supra, the court stated that there was reason, in the case of a corporate plaintiff, to make the most important contact the state of the corporation's "principal office." The court expressed a preference, however, for the state of incorporation on the ground that this contact is easily identified and its use would lead to certainty of application.

See generally Prosser, Interstate Publication, 51 Mich.L.Rev. 959 (1953); Warner, Multistate Publication in Radio and Television, 23 Law & Contemp.Prob. 14 (1958); Notes, 77 Harv.L.Rev. 1463 (1964); 60 Harv.L.Rev. 941 (1947); 28 N.Y.U.L.Rev. 1006, (1953); 35 Va.L.Rev. 627 (1949).

Digest System Key Numbers:

Libel and Slander 1