and the First Amendment
By David Hudson
First Amendment Center
The First Amendment rights of free speech and free
press often clash with the interests served by defamation
law. The press exists in large part to report on issues
of public concern. However, individuals possess a right
not to be subjected to falsehoods that impugn their
character. The clash between the two rights can lead
to expensive litigation, million-dollar jury verdicts
and negative public views of the press.
Paul McMasters, First Amendment ombudsman for The Freedom
Forum, writes about the clash between the First Amendment
and defamation: "There is much unsettled and unsettling
about an area of the law that so profoundly affects
how journalists do their job and how people get their
news. On the one hand, libel suits are a necessary recourse
for those who believe that they have been wronged by
the press. On the other hand, even the threat of a libel
suit can serve as a subtle censor of the press."1
Defamation refers to false statements of fact that
harm another's reputation. It encompasses both libel
and slander. Libel generally refers to written defamation,
while slander refers to oral defamation.2
Defamatory comments might include false comments that
a person committed a particular crime or engaged in
certain sexual activities. The hallmark of a defamation
claim is reputational harm. Former United States Supreme
Court Justice Potter Stewart once wrote that the essence
of a defamation claim is the right to protect one's
good name. According to Stewart, this tort "reflects
no more than our basic concept of the essential dignity
and worth of every human being a concept at the
root of any decent system of ordered liberty."3
However, defamation suits can threaten and test the
vitality of First Amendment rights. Former Supreme Court
Justice Hugo Black wrote passionately that no law meant
no law and that, as such, all libel laws violate the
The majority of the Supreme Court did not go as far
as Justice Black would have liked. Instead, the Court
staked out a middle ground and ruled that there must
be a proper accommodation between protecting reputations
and ensuring "breathing space" for First Amendment
freedoms. If the press could be punished for every error,
a chilling effect would freeze publications on any controversial
Before 1964, defamation weighed more heavily in the
legal balance than the First Amendment. Defamation,
like many other common-law torts, was not subject to
constitutional baselines. In fact, the Supreme Court
compared libel to obscenity and fighting words
categories of expression that receive no First Amendment
American and English law had a storied tradition of
treating libel as wholly without any free-speech protections.
In fact, libel laws in England and the American colonies
imposed criminal, rather than civil, penalties. People
were convicted of seditious libel for speaking or writing
against the King of England or colonial leaders. People
could be prosecuted for blasphemous libel for criticizing
Even truth was no defense to a libel prosecution. In
fact, some commentators have used the phrase "the
greater the truth, the greater the libel" to describe
the state libel law.7
The famous trial of John Peter Zenger in 1735 showed
the perils facing a printer with the audacity to criticize
a government leader.
Zenger published articles critical of New York Governor
William Cosby. Cosby had the publisher charged with
seditious libel. Zenger's defense attorney, Andrew Hamilton,
persuaded the jury to ignore the settled law that truth
was no defense to a libel action. Zenger's acquittal
still stands as a First Amendment triumph in American
jurisprudence. However, the case did not establish truth
as a defense in other cases. The jury's decision was
more an act of jury nullification.
The Zenger case did not create a new era of press freedom.
Rather, English concepts of libel continued to prevail
in the colonies.8
Historian Leonard Levy explains that "the persistent
notion of Colonial America as a society where freedom
of expression was cherished is an hallucination which
The American people simply did
not believe or understand that freedom of thought and
expression means equal freedom for the other person,
especially the one with hated ideas."9
Even though the First Amendment was ratified as part
of the Bill of Rights in 1791, a Federalist-dominated
Congress then passed the Sedition Act of 1798, which
was designed to silence political opposition. The draconian
law prohibited "publishing any false, scandalous
and malicious writing or writings against the government
with intent to defame
or to bring them
into contempt or disrepute." The law was
used to silence political opposition.
Until the latter half of the 20th century, the law
seemed to favor those suing for reputational harm. At
common law for most of the 20th century, a defendant
could be civilly liable for defamation for publishing
a defamatory statement about (or "of and concerning")
the plaintiff. A defamation defendant could be liable
even if he or she expressed her defamatory comment as
opinion. In many states, the statement was presumed
false and the defendant had the burden of proving the
truth of his or her statement. In essence, defamation
was a strict-liability tort.10
The landscape of libel law dramatically changed when
the U.S. Supreme Court issued its decision in New
York Times Co. v. Sullivan.11
York Times Co. v. Sullivan
The case arose out of the backdrop of the civil rights
movement. The New York Times published an editorial
advertisement in 1960 titled "Heed Their Rising
Voices" by the Committee to Defend Martin Luther
King. The full-page ad detailed abuses suffered by Southern
black students at the hands of the police, particularly
the police in Montgomery, Ala.
Two paragraphs in the advertisement contained factual
errors. For example, the third paragraph read:
In Montgomery, Alabama, after students sang
'My Country, Tis of Thee' on the State Capitol steps,
their leaders were expelled from school, and truckloads
of police armed with shotguns and teargas ringed the
Alabama State College Campus. When the entire student
body protested to state authorities by refusing to re-register,
their dining hall was padlocked in an attempt to starve
them into submission.
The paragraph contained undeniable errors. Nine students
were expelled for demanding service at a lunch counter
in the Montgomery County Courthouse, not for singing
'My Country, 'Tis of Thee' on the state Capitol steps.
The police never padlocked the campus-dining hall. The
police did not "ring" the college campus.
In another paragraph, the ad stated that the police
had arrested Dr. Martin Luther King Jr. seven times.
King had been arrested four times.
Even though he was not mentioned by name in the article,
L.B. Sullivan, the city commissioner in charge of the
police department, sued The New York Times and
four black clergymen who were listed as the officers
of the Committee to Defend Martin Luther King.
Sullivan demanded a retraction from the Times,
which was denied. The paper did print a retraction for
Alabama Gov. John Patterson. After not receiving a retraction,
Sullivan then sued the newspaper and the four clergymen
for defamation in Alabama state court.
The trial judge submitted the case to the jury, charging
them that the comments were "libelous per se"
and not privileged. The judge instructed the jury that
falsity and malice are presumed. He also said that the
newspaper and the individual defendants could be held
liable if the jury determined they had published the
statements and that the statements were "of and
The jury awarded Sullivan $500,000. After this award
was upheld by the Alabama appellate courts, The New
York Times appealed to the U.S. Supreme Court. The
high court reversed, finding that the "law applied
by the Alabama courts is constitutionally deficient
for failure to provide the safeguards for freedom of
speech and of the press that are required by the First
and Fourteenth Amendments in a libel action brought
by a public official against critics of his official
For the first time, the Supreme Court ruled that "libel
can claim no talismanic immunity from constitutional
limitations," but must "be measured by standards
that satisfy the First Amendment."13
In oft-cited language, the high court wrote:
Thus, we consider this case against the background
of a profound national commitment to the principle that
debate on public issues should be uninhibited, robust,
and wide-open, and that it may well include vehement,
caustic, and sometimes unpleasantly sharp attacks on
government and public officials.14
The court reasoned that "erroneous statement is
inevitable in free debate" and that punishing critics
of public officials for any factual errors would chill
speech about matters of public interest. The high court
established a rule for defamation cases that dominates
modern-day American libel law. The court wrote:
The constitutional guarantees require, we
think, a federal rule that prohibits a public official
from recovering damages for a defamatory falsehood relating
to his official conduct unless he proves that the statement
was made with 'actual malice' that is, with knowledge
that it was false or with reckless disregard of whether
it was false or not.15
The court required a public official defamation plaintiff
to show evidence of actual malice or reckless disregard
for the truth by "convincing clarity" or clear
and convincing evidence. This threshold has meant that
many defamation defendants have stopped defamation suits
before they go to a jury.
Times v. Sullivan to public figures
The high court extended the rule for public official
defamation plaintiffs in the consolidated cases of Curtis
Publishing Co. v. Butts and The Associated
Press v. Walker.16
The cases featured plaintiffs Wally Butts, former athletic
director of the University of Georgia, and Edwin Walker,
a former general who had been in command of the federal
troops during the school desegregation event at Little
Rock, Ark., in the 1950s.
Because the Georgia State Athletic Association, a private
corporation, employed Butts, and Walker had retired
from the armed forces at the time of their lawsuits,
they were not considered public officials. The question
before the Supreme Court was whether to extend the rule
in Times v. Sullivan
for public officials to public figures.
Five members of the Court extended the Times
v. Sullivan rule in cases involving "public
figures." Justice Harlan and three other justices
would have applied a different standard and asked whether
the defamation defendant had committed "highly
unreasonable conduct constituting an extreme departure
from the standards investigation and reporting ordinarily
adhered to by responsible publishers."
The Supreme Court clarified the limits of the "actual
malice" standard and the difference between public
and private figures in defamation cases in Gertz
v. Robert Welch, Inc.17
The case involved a well-known Chicago lawyer named
Elmer Gertz who represented the family of a young man
killed by police officer Richard Nuccio. Gertz took
no part in Nuccio's criminal case, in which the officer
was found guilty of second-degree murder.
Robert Welch Inc. published a monthly magazine, American
Opinion, which served as an outlet for the views
of the conservative John Birch society. The magazine
warned of a nationwide conspiracy of communist sympathizers
to frame police officers. The magazine contained an
article saying that Gertz had helped frame Nuccio. The
article said Gertz was a communist.
The article contained several factual misstatements.
Gertz did not participate in any way to frame Nuccio.
Rather, he was not involved in the criminal case. He
also was not a communist.
Gertz sued for defamation. The court had to determine
what standard to apply for private persons and so-called
limited purpose public figures. Then, the court had
to determine whether Elmer Gertz was a private person
or some sort of public figure.
The media defendant argued that the Times
v. Sullivan standard should apply to any defamation
plaintiff as long as the published statements related
to a matter of public importance. Justice Brennan had
taken this position in his plurality opinion in Rosenbloom
The high court disagreed, finding a distinction between
public figures and private persons. The court noted
two differences: (1) Public officials and public figures
have greater access to the media in order to counter
defamatory statements; and (2) public officials and
public figures to a certain extent seek out public acclaim
and assume the risk of greater public scrutiny.
For these reasons, the court set up a different standard
for private persons:
We hold that, so long as they do not impose
liability without fault, the States may define for themselves
the appropriate standard of liability for a publisher
or broadcaster of defamatory falsehood injurious to
a private individual.19
This standard means that a private person does not
have to show that a defendant acted with actual malice
in order to prevail in a defamation suit. The private
plaintiff usually must show simply that the defendant
was negligent, or at fault. However, the high court
also ruled that private defamation plaintiffs could
not recover punitive damages unless they showed evidence
of actual malice.
In its opinion, the high court also determined that
certain persons could be classified as limited-purpose
public figures with respect to a certain controversy.
The court noted that full-fledged public figures achieve
"pervasive fame or notoriety." However, the
court noted that sometimes an individual "injects
himself or is drawn into a particular public controversy
and thereby becomes a public figure for a limited range
These limited-purpose public figures also have to meet
the actual-malice standard.
The high court then addressed the status of Gertz.
The high court determined that he was a private person,
not a limited-purpose public figure. "He took no
part in the criminal prosecution of Officer Nuccio,"
the court wrote. "Moreover, he never discussed
either the criminal or civil litigation with the press
and was never quoted as having done so."
of the plaintiff
These cases show that perhaps the most important legal
issue in a defamation case is determining the status
of the plaintiff. If the plaintiff is a public official,
public figure or limited-purpose public figure, the
plaintiff must establish that the defendant acted with
actual malice with clear and convincing evidence.
If the plaintiff is merely a private person, the plaintiff
must usually only show that the defendant acted negligently.
If the private person wants to recover punitive damages,
he or she must show evidence of actual malice.
of a defamation case
A defamation plaintiff must usually establish the following
elements to recover:
The plaintiff must show that the publication was "of
and concerning" himself or herself.
The plaintiff must show that the defamatory statements
were disseminated to a third party.
· Defamatory meaning:
The plaintiff must establish that the statements in
question were defamatory. For example, the language
must do more than simply annoy a person or hurt a
The statements must be false; truth is a defense to
a defamation claim. Generally, the plaintiff bears
the burden of proof of establishing falsity.
· Statements of fact:
The statements in question must be objectively verifiable
as false statements of fact. In other words, the statements
must be provable as false.21
The false and defamatory statements must cause actual
injury or special damages.
There are numerous defenses and privileges to a defamation
claim. Many of these vary from state to state. Sometimes,
a particular party has carte blanche to make certain
statements even if they are false. This is called an
absolute privilege. Other privileges can be established
as long as certain conditions are met. Some of the more
common defenses and privileges include:
· Truth or substantial
truth: Truth is generally a complete defense.
Many jurisdictions have adopted the substantial-truth
doctrine, which protects a defamation defendant as
long as the "gist" of the story is true.
· Statements in judicial,
legislative, and administrative proceedings:
Defamatory statements made in these settings by participants
are considered absolutely privileged. For example,
a lawyer in a divorce case could not be sued for libel
for comments he or she made during a court proceeding.
· Fair report or fair
comment: This privilege varies from jurisdiction
to jurisdiction. Generally, it provides a measure
of protection to a defendant who reports on the deliberations
of a public body, such as a city council meeting.
· Libel-proof plaintiffs:
This defense holds that some plaintiffs have such
lousy reputations that essentially they are libel-proof.
The theory is that one cannot harm someone's reputation
when that person already has a damaged reputation.
· Rhetorical hyperbole:
Some courts will hold that certain language in certain
contexts (editorial/opinion column) is understood
by the readers to be figurative language not to be
· Retraction statutes:
Nearly every state possesses a statute that allows
a defamation defendant to retract, or take back, a
libelous publication. Some of these statutes bar recovery,
while others prevent the defendant from recovering
so-called punitive damages.
Defamation, like many other torts, varies from state
to state. For example, states recognize different privileges
and apply different standards with respect to private-person
plaintiffs. Interested parties or practitioners must
carefully check the case law of their respective state.
Defamation suits can further important interests of
those who have been victimized by malicious falsehoods.
However, defamation suits can also threaten First Amendment
values by chilling the free flow of information. At
the time of Times
v. Sullivan, state libel suits threatened to
wipe out press coverage of one of the most important
issues of the 20th century the civil rights movement.
Furthermore, defamation suits can be abused. Sometimes,
individuals who speak out against abuses are tagged
with large defamation suits that are often meritless.
During the past decade, commentators coined the term
Strategic Lawsuits Against Public Participation, or
SLAPP suits, to describe these suits.
The threat of libel suits can cause individuals to
keep quiet about issues of public concern. Very few
people have the economic resources of Oprah Winfrey
to defend themselves after being hauled into court for
But the First Amendment protects everyone, not just
Oprah, and we must remain vigilant to ensure that there
remains a proper balance between libel law and the First