The Tort of Disparagement and the Developing First Amendment

In short, there are six elements to the tort of disparagement: (1) intentional and (2) unprivileged (3) publication of (4) a false statement that (5) disparages the property of another (6) in a manner that can be measured.This tort takes a variety of forms, as shown by the following examples.In Phillips v. Glazer, 7 the defendant, upon learning that the plaintiff was trying to sell his home, placed a large sign on adjoining land which read in part: "Notice.Anyone buying No. 20 Malibu is buying [a] law suit.Anyone renting or using main house or garage will be sued for rent.Title clouded rt.sides wall, foundation mine." 8 As a result, the plaintiff was unable to sell the house. 9 In Bose Corp. v. Consumers Union of United States, Inc., 10 the respondent published an article which stated that "individual instruments heard through the Bose [speaker] seemed to grow to gigantic proportions and tended to wander about the room." 11 The Bose Corporation claimed resulting lost profits in excess of $100,000.12How these disparate actions evolved from one legal theory is best understood by examining the roots of the tort of disparagement.Such an examination also serves as the first step in distinguishing the torts of disparagement and defamation. A. The Roots of the Tort of Disparagement.Although the tort of disparagement has frequently been associated with defamation, 13 it actually grew out of the action on the case.' 4 Dis-7.94 Cal.App.2d 673, 211 P.2d 37 (1949).8. Id. at 674, 211 P.2d at 38. 9. Id.10.