NM Stat § 38-2-9 (2021)
2021 New Mexico Statutes|Chapter 38 - Trials|Article 2 - Pleadings and Motions|Section 38-2-9 - [Truth and mitigating circumstances in action for libel or slander.]

In the actions mentioned in the last preceding section [repealed], the defendant may, in his answer, allege both the truth of the matter charged as defamatory and any mitigating circumstances admissible in evidence, to reduce the amount of damages, and whether he prove the justification or not, he may give mitigating circumstances in evidence. History: Laws 1897, ch. 73, § 75; C.L. 1897, § 2685 (75); Code 1915, § 4155; C.S. 1929, § 105-531; 1941 Comp., § 19-409; 1953 Comp., § 21-4-9. ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law. Compiler's notes. — The phrase "last preceding section" refers to Laws 1897, ch. 73, § 75, which was codified as 32-2-8 NMSA 1978 before its repeal by Laws 1981, ch. 115, § 1. Cross references. — For presentation of defenses and objections generally, see Rule 1-012 NMRA. Absolute-privilege defense applied to statements to the press. — In the context of class action or mass-tort litigation, when the attorney has an actual or identifiable prospective client, as a general rule the absolute-privilege defense should apply to communications with the press, because additional prospective clients constitute a large, diverse class of individuals who will be difficult to identify and educate about the need for and availability of legal services. In the context of class action or mass-tort litigation, the most economical and feasible method of informing potential litigants of prospective litigation affecting their interests may be through the press. The use of the press as a conduit to communicate with additional potential class action or mass-tort litigants may be reasonably related to the object of the completed judicial proceeding. Helena Chem. Co. v. Uribe, 2012-NMSC-021, 281 P.3d 237, rev'g 2011-NMCA-060, 149 N.M. 789, 255 P.3d 367. Absolute-privilege defense applies to pre-litigation statements to the press. — The absolute privilege doctrine applies to pre-litigation statements made by attorneys in the presence of the press, if (1) the speaker is seriously and in good faith contemplating class action or mass-tort litigation at the time the statement is made, (2) the statement is reasonably related to the proposed litigation, (3) the attorney has a client or identifiable prospective client at the time the statement is made, and (4) the statement is made while the attorney is acting in the capacity of counsel or prospective counsel. Helena Chem. Co. v. Uribe, 2012-NMSC-021, 281 P.3d 237, rev'g 2011-NMCA-060, 149 N.M. 789, 255 P.3d 367. Where the residents of a community, who were concerned about environmental and health hazards caused by toxic chemicals emanating from plaintiff's plant, invited attorneys, who were experienced environmental attorneys and who had previously filed a toxic tort action against plaintiff for similar environmental and health hazards, to discuss community concerns and possible litigation against plaintiff; the residents also invited a political blogger to attend the meeting in the capacity of a news reporter to inform the public about the resident's environmental and health concerns and that litigations was contemplated; and at the meeting, one of the attorneys made statements, which the blogger reported on the blogger's website, about children playing outside the meeting and ingesting the toxic chemicals and about plaintiff's egregious actions, the statements made by the attorney were absolutely privileged because the statements were made when a mass-tort lawsuit was seriously and in good faith contemplated, and with the objective of investigating the merits of potential litigation and identifying for the community those members who may have had a good-faith basis for pursuing the litigation and the statements were made when the attorney had identifiable prospective clients and while the attorney was acting in the capacity of prospective counsel. Helena Chem. Co. v. Uribe, 2012-NMSC-021, 281 P.3d 237, rev'g 2011-NMCA-060, 149 N.M. 789, 255 P.3d 367. Statements made by litigants or their attorneys to the press after a lawsuit has been filed are absolutely privileged if the statements are a repetition or an explanation of the allegations in the pleadings. Helena Chem. Co. v. Uribe, 2012-NMSC-021, 281 P.3d 237, rev'g 2011-NMCA-060, 149 N.M. 789, 255 P.3d 367. Where the residents of a community filed a mass-tort lawsuit against plaintiff for personal injuries and property damage suffered by the residents as a result of their exposure to toxic chemicals emanating from plaintiff's chemical plant; after the complaint was filed, the community's attorney held a press conference; one of the community residents spoke about the medical issues faced by the resident's children and the attorney for the community stated that the underground water had been contaminated; the statement of the resident was an explanation of the damages portion of the complaint as it related to the children; and the statement by the attorney repeated the allegations of the complaint, the absolute privilege doctrine applied to both statements. Helena Chem. Co. v. Uribe, 2012-NMSC-021, 281 P.3d 237, rev'g 2011-NMCA-060, 149 N.M. 789, 255 P.3d 367. Absolute-privilege defense applies to statements to the press during litigation. — Statements made by litigants or their attorneys to the press after a lawsuit has been filed are absolutely privileged if the statements are a repetition or an explanation of the allegations in the pleadings. Helena Chem. Co. v. Uribe, 2012-NMSC-021, 281 P.3d 237, rev'g 2011-NMCA-060, 149 N.M. 789, 255 P.3d 367. Where the residents of a community filed a mass-tort lawsuit against plaintiff for personal injuries and property damage suffered by the residents as a result of their exposure to toxic chemicals emanating from plaintiff's chemical plant; after the complaint was filed, the community's attorney held a press conference; one of the community residents spoke about the medical issues faced by the resident's children and the attorney for the community stated that the underground water had been contaminated; the statement of the resident was an explanation of the damages portion of the complaint as it related to the children; and the statement by the attorney repeated the allegations of the complaint, the absolute privilege doctrine applied to both statements. Helena Chem. Co. v. Uribe, 2012-NMSC-021, 281 P.3d 237, rev'g 2011-NMCA-060, 149 N.M. 789, 255 P.3d 367. Absolute-privilege defense general rule. — The absolute-privilege defense is available when an alleged defamatory statement is made to achieve the objects of litigation and is reasonably related to the subject matter of the judicial proceeding. As part of the absolute-privilege analysis, the court will consider the extent to which the recipient of the statement had an interest in the judicial proceeding. When the statement precedes litigation of the judicial proceeding, the privilege is available only if the proceeding in question is contemplated in good faith and under serious consideration at the time the statement is made. Helena Chem. Co. v. Uribe, 2011-NMCA-060, 149 N.M. 789, 255 P.3d 367, rev'd, 2012-NMSC-021, 281 P.3d 237 Absolute-privilege defense does not apply to statements to news reporters. — Statements made to news media recipients who are wholly unrelated to and have no interest in a judicial proceeding are not protected by absolute privilege. Helena Chem. Co. v. Uribe, 2011-NMCA-060, 149 N.M. 789, 255 P.3d 367, rev'd, 2012-NMSC-021, 281 P.3d 237. Where community residents held a public meeting to discuss litigation against plaintiff for a toxic tort and a press conference was held after the toxic tort action was filed; news reporters were invited and attended both the public meeting and the new conference; and an attorney who represented the plaintiffs in the toxic tort action and a plaintiff to the toxic tort action made defamatory statements about plaintiff at the public meeting and at the new conference, the defamatory statements were not entitled to absolute-privilege protection, because the statements were made to news reporters who had been invited to hear the statements but who had no relation to or interest in the judicial proceeding. Helena Chem. Co. v. Uribe, 2011-NMCA-060, 149 N.M. 789, 255 P.3d 367, rev'd, 2012-NMSC-021, 281 P.3d 237. Law reviews. — For article, "Defamation in New Mexico," see 14 N.M.L. Rev. 321 (1984). Note, "Defamation Law - The Private Figure Plaintiff Must Establish a New Element to Make a Prima Facie Showing: Philadelphia Newspaper, Inc. v. Hepps," see 17 N.M.L. Rev. 363 (1987). Am. Jur. 2d, A.L.R. and C.J.S. references. — 50 Am. Jur. 2d Libel and Slander § 267 et seq. Libel by newspaper headlines, 95 A.L.R.3d 660. False light invasion of privacy - neutral or laudatory depiction of subject, 59 A.L.R.4th 502. 53 C.J.S. Libel and Slander § 152.