The Volokh Conspiracy
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This is from earlier this year, but I just came across it; it's State in the Interest of G.J.G. (La. Ct. App.), written by Judge Ulysses Gene Thibodeaux, and joined by Judges Van Kyzar and Jonathan Perry:
G.J.G. is a student at Grand Lake High School. In December 2018, G.J.G. sent a message to the SouthernSchemers' Snapchat account stating, "I f***** my ag teacher best p**** I've had." The message was then posted by SouthernSchemers onto their story, which consisted of messages from students describing sexual conduct with teachers…. [When interviewed by the police,] G.J.G. admitted that he sent the message and that it was false….
Louisiana Revised Statutes 14:47 states:
Defamation is the malicious publication or expression in any manner, to anyone other than the party defamed, of anything which tends:
(1) To expose any person to hatred, contempt, or ridicule, or to deprive him of the benefit of public confidence or social intercourse ….
"Malice (or fault), for purposes of the tort of defamation, is a lack of reasonable belief in the truth of the statement giving rise to the defamation." "Malice in this sense is more akin to negligence with respect to the truth than to spite or improper motive." In the context of criminal defamation, "malice involves intent, and such intent may be inferred by circumstances connected with or surrounding the transaction." …
There is no doubt that G.J.G. lacked a reasonable belief in the truth of the statement. He admittedly knew that it was false. Moreover, the act was done intentionally. G
.J.G. argues that he did not intend to refer to Mrs. Montie, and the text did not mention Mrs. Montie by name. However, the message asserted that he had been intimate with his "ag teacher." Mrs. Montie had taught him "ag" the year before and was currently teaching him carpentry, a class in the "ag" department. Mrs. Montie is the only female "ag teacher" at Grand Lake High School. It is evident that his "ag teacher" is Mrs. Montie.
G.J.G. knew that the content of the message was false, and he intentionally sent it to SouthernSchemers for the purpose of having it added to their story about students' sexual conduct with teachers. Thus, in viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact could find that the element of malice was proven….
Additionally, La.R.S. 14:48 provides, "Where a non-privileged defamatory publication or expression is false it is presumed to be malicious unless a justifiable motive for making it is shown." Louisiana Revised Statutes 14:49 provides:
A qualified privilege exists and actual malice must be proved, regardless of whether the publication is true or false, in the following situations:
(1) Where the publication or expression is a fair and true report of any judicial, legislative, or other public or official proceeding, or of any statement, speech, argument, or debate in the course of the same.
(2) Where the publication or expression is a comment made in the reasonable belief of its truth, upon,
(a) The conduct of a person in respect to public affairs; or
(b) A thing which the proprietor thereof offers or explains to the public.
(3) Where the publication or expression is made to a person interested in the communication, by one who is also interested or who stands in such a relation to the former as to afford a reasonable ground for supposing his motive innocent.
(4) Where the publication or expression is made by an attorney or party in a judicial proceeding.
None of the sections of La.R.S. 14:49 apply to the message in question. Therefore, it was an unprivileged expression. There is no question that the message was false. The only motive which G.J.G. gave for sending the message was that it was a joke. As the expression was false and no justifiable motive for making it was shown, the message was presumptively malicious.