U e WAL B I VI DEFAMATION Tom Harris and Jake Carson had been sports and political leaders and rivals ever since high school. They competed on the same sports teams and were of equal physical ability. In track and swimming races, Tom would come in first in one race, Jake would come in first in the next race, and then they would tie each other for first in a third race. Either Tom or Jake had been class president each of four years in high school. Jake had been class president of his freshman and senior classes while Tom had been class president of his sophomore and junior classes. Their friends speculated that the rivalry would continue in college. They both were to attend Collegiate University in nearby University Town. As freshmen they pledged two rival fraternities. Tom pledged Collegiate Alphas and Jake pledged Collegiate Betas. What had been friendly rivalry in high school gradually turned nasty during their years at the University. The Alphas pulled all sorts of pranks on the Betas and tried to discredit the Betas in the university community. The Betas did the same to the Alphas. In the fall of their senior year at the University, Tom and Jake both decided to run for student body president. There was a lot of mudslinging during the campaign. At one point in the campaign, it was rumored that Jake was gay. The rumors were traced back to the Alphas. Although no one seemed to believe the rumor, Jake and his fraternity brothers were very upset about it. The night before the election, the candidates participated in skits in the football sta- dium. Everyone eagerly looked forward to the skits each year, with most of the students and faculty of Collegiate University attending, The skits were usually half serious and half in jest. On skit night, the crowd in the stadium enjoyed the first skits while they specu- lated about Tom and Jake's skits. Jake's skit was the next-to-the-last and Tom's was the last of the evening, In Jake's skit, Jake neatly poked fun at Tom and emphasized how he, Jake, was the better candidate. Then came time for Tom's skit. The scene was Jake's doctor's office. Tom played Jake's doctor and one of the Alphas played Jake. In the skit\"Jake\" walked into the doctor's office and said, \"Well, doctor, now that I've completed my executive physical, I feel ready to complete my duties as Collegiate University student body president and lead the University to great achievements. How did my tests come out?\" The \"doctor\" replied, \"Well, Jake, you better sit down. I have good news and bad news for you. The good news is that most of your tests came back negative and you should make a fine student body president. The bad news is that you and Magic Johnson have something in common. Both of you tested HIV-positive.\" Those words were barely out of Tom's mouth when the stadium crowd gasped. A fight immediately broke out between the Alphas and Betas sitting near each other and the police were called in to clear the stands. Although the student body president race had seemed almost even before the skits, Tom won with two-thirds of the vote. Jake was so outraged by Tom's skit that he hired your law firm to represent him. The senior partner in your firm has asked you to research the law of your state and answer the following questions: Instructions 1. Research Problem # 2 in Appendix E [page 412]. 2. Write an appellate brief using your research. Assume Jake Carson sued Tom Harris for slander and the case was dismissed. Assume that the trial court made the following rulings in dismissing the case that you are appealing for your client Jake Carson. 1. The trial court ruled that announcing that a person has tested HIV positive is not actionable per se as slander. 2. The trial court ruled that Tom Harris' statement was made in jest and therefore not actionable as slander. 3. The trial court ruled that your client, Jake Carson, is a public figure because of his status as a candidate for student body president, and therefore Jake Carson would have to prove that Tom Harris acted with malice (i.e. that Tom Harris either knew that Jake Carson was not HIV positive, or recklessly disregarded the truth with respect to Jake Carson's HIV status)