Test for Libel In Delaware Case Law

Delaware law does not make a distinction between libel per se and libel per quod. at common law, the former is a written statement "libelous on its face," while the latter required extrinsic evidence to be considered actionable. However, in Delaware, any written publication that defames a person "is actionable without proof of special damages, whether the defamatory nature is apparent on the face of the statement or only by reference to extrinsic facts. Spence v. Funk, Del.Supr., 396 A.2d 967, 971 (1978). The standard by which the material is analyzed differs depending upon the status of the individuals. When libel is alleged against a public official it must be shown that statements were made either with "actual malice'--that is, with knowledge it was false or with reckless disregard of whether it was true or false." New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964). Under Delaware law, expressions of opinion are protected free speech. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). However, Gertz Court recognized that this First Amendment protection is not absolute and there is a "legitimate state interest in protection of individuals for harm inflicted on them by defamatory falsehood." Id. at 341. In this context, however, with respect to public officials, pure opinions are protected absolutely but mixed expressions of opinion and fact are not. Riley v. Moyed, Del.Supr., 529 A.2d 248, 251 (1987). To determine whether statements are either opinion or mixed opinion and fact, the court will look at: the meaning of the challenged language; whether the statement can be objectively verified as true or false; the full context of the statement; the broader social context which the statement fits. Id. at 251-252.