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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.