What Is Defamation? Everything You Should Know
The First Amendment protects freedom of speech, but not all speech is always protected. One category of speech that is not protected by the First Amendment is defamation. But what is defamation, exactly? What's the criteria for something to be defamation? How does defamation relate to libel and slander? We answer those questions, and much more, in this guide.
What is defamation?
Defamation is false statements that harm someone’s reputation. Each state defines defamation in its own way, but they must be sure to be consistent with what courts have ruled is in line with the First Amendment.
Not every false statement about someone is automatically defamation. Even when government may limit speech, the First Amendment requires it do so in the least restrictive, narrowest way possible.
What are the criteria for a false statement about someone to be defamation?
To be defamation, something said about someone must meet several criteria, all of which must be proven by the person filing the lawsuit because they believe their reputation has been harmed:
The statement must tend to harm someone’s reputation, bringing them into disrepute in the community.
A false assertion of fact
Defamation must be a statement that is and can be proven false by the person bringing the lawsuit.
If the speech in question is an opinion, even an opinion expressed as an exaggerated fact, such as parody or satire, it is not defamation. If the speech is stated as a fact, but is true, it isn’t defamation.
A material or substantial falsehood
To be defamation, a statement cannot be an insignificant error, like spelling someone’s name wrong. It must be a significant or important falsehood, such as about someone’s actions.
The person suing for defamation must be able to show that the statement was about them. They can meet this requirement even if they are not identified by name as long as they can show that an average person would understand about whom the statement was made.
To be defamation, a false statement about someone must be published in some way. This includes distribution via mass media like publication in a newspaper, magazine or on the internet or broadcast via radio or television. It can also be something as simple as a single person other than the speaker and the subject of the statement hearing it.
FAQ: How does defamation relate to slander and libel?
Answer: Slander and libel are both types of defamation. Defamation that is spoken, such as in a video, is called slander. Defamation that is written, such as in an article or social media post, is called libel. An easy way to remember the difference is that “slander” and “spoken” both start with the letter S.
To be defamation, a false statement about someone must do more than make someone feel hurt or upset. It must cause injury or damage to their reputation. There are different kinds of damages:
- Actual or compensatory damages reflect the actual money lost or provable economic injury resulting from the defamatory statement. For instance, if your boss fires you because of a defamatory statement, you would be entitled to recover an amount equivalent to your salary.
- Special or general damages compensate for injury to reputation, hurt feelings, shame, humiliation or mental anguish.
- Punitive damages – which often range into the hundreds of thousands or even millions – are intended to punish particularly bad behavior and deter similar statements in the future.
Fault (Negligent or malicious)
To be defamation, a false statement about someone must be more than an innocent mistake. It also has to be something the speaker could or should have known was false but said anyway. There are two different standards courts use here, depending on who may have been defamed: a negligence standard for private people and an actual malice standard for public figures.
Who can sue for defamation?
Anyone who feels their reputation has been damaged by false statements can sue the person who made those statements. But defamation cases are decided slightly differently based on who is suing.
False statements about private people are defamation if they are negligent
To win a defamation lawsuit, a private person must prove the publisher of the false statements acted negligently. Negligence means that the publisher didn’t do their homework. Even if they didn’t know that the information was false when released, they can still be on the hook for defamation if they should have known it was false.
False statements about public figures are defamation if they are made with “actual malice”
It’s harder for a public figure to win a defamation lawsuit than it is for a private person. A public figure can be a government official with policymaking authority, or any other person widely involved in public affairs, like celebrities, business leaders and politicians. If you involve yourself in a public controversy, you may be considered a “limited purpose” public figure for that issue.
To win a defamation suit, a public figure must prove the publisher of the false statements acted with actual malice. Actual malice means that the publisher knew that the statements were false or acted with reckless disregard for whether they were true or false. This is much harder to prove than negligence. The Supreme Court established this higher bar for public figures to prove defamation in 1964.
These different standards exist because public figures are at the center of matters of public concern, and the First Amendment is designed to protect as much public discussion on such matters as possible. If people could be punished for every error they published about a public figure, they might avoid talking about controversial subjects or scrutinizing those in power. The public could lose access to crucial information from journalists, and public debate could be chilled.
Public figures also generally have greater ability to respond to statements about them, and, to a certain extent, seek out public acclaim and assume the risks of fame.
Even if all the elements of defamation are proven, a publisher may still be able to get a lawsuit dismissed if they can prove a specific defense. Like the elements of defamation, these vary from state to state.
Statute of limitations
Most states require a defamation lawsuit to be filed within one to four years of publication. Some states count that period from the date on which the subject first found out about an allegedly defamatory statement.
Fair and accurate report privilege
Most states allow publishing defamation when the statement at issue was fairly and accurately reported from a government document or proceeding. This is to protect robust reporting about matters of public concern.
About half the states allow publishing an allegedly defamatory statement if it was published not because the publisher believes it to be true but because the very fact that it was said is newsworthy. For example, when one celebrity makes an outlandish allegation about another celebrity, it may be repeated as evidence of an argument between these two public figures.
Section 230 of the Communications Decency Act
Websites that allow user-generated content, like Facebook, YouTube, Yelp and other social media platforms, are protected from defamation lawsuits by Section 230 of the Communications Decency Act. They are not considered to be publishers of content provided by their users because they are open platforms for any users to post what they like.
That means they are not liable for any content people post on their sites. This immunity applies whether the website or social media platform leaves the post up or takes it down as long as it doesn’t edit the content in any way. Some lawmakers who say that this law protects unsavory content or is applied in a way that discriminates are pursuing more limits regulating how such sites moderate content.
What are examples of defamation from throughout history?
Colonist John Zenger publishes critical articles
In the 1730s, when colonies like New York were under British rule, newspaper publisher John Peter Zenger printed articles critical of New York’s governor. At that time, under British law, even true statements that were critical of someone could be considered defamation. Zenger was acquitted anyway because the jury thought he shouldn’t be punished for publishing the criticism. This is an early example of the importance of being able to criticize government officials. Today, standards for winning defamation lawsuits are higher in the U.S. than in many other countries.
Congress criminalizes criticism of the government
In 1798, Congress passed the Alien and Sedition Acts, which made “false, scandalous, and malicious” speech about Congress or the president a crime. Dozens of newspaper publishers were arrested under the unpopular law, which was never tested in court, but expired in 1801. President Thomas Jefferson pardoned those convicted under it.
New York Times Co. v. Sullivan establishes the “actual malice” standard
In 1964, the Supreme Court established in Times v. Sullivan the “actual malice” standard by which defamation cases affecting public figures are measured. The New York Times had published a paid advertisement by a civil rights advocacy group. The ad criticized police in Montgomery, Ala. It included a few factual errors, such as the number of times police had arrested the Rev. Martin Luther King Jr. The police commissioner, who wasn’t mentioned by name in the ad, sued the Times and the advocacy group leaders.
The Supreme Court ruled that the First Amendment is designed to protect open debate on issues of public concern, like civil rights advocacy, and that punishing any errors would dampen this debate. It set today’s high standard – actual malice – saying that to be defamation against a public official (later extended to public figures more broadly), a false statement must be made “with knowledge that it was false or with reckless disregard of whether it was false or not.”
Justices disagree over defamation and free speech
In 1966, two Supreme Court justices disagreed about defamation as an exception to free speech under the First Amendment. Justice Potter Stewart said defamation “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.” Justice Hugo Black said, “The only sure way to protect speech and press against these threats is to recognize that defamation laws are abridgments of speech and press and therefore are barred in both federal and state courts by the First and Fourteenth Amendments. I repeat what I said in the New York Times case that ‘An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment.’”
Hustler magazine parody ad ruled not defamation
Hustler magazine published an advertisement that parodied the Rev. Jerry Falwell, a famous minister. Falwell sued for defamation and other crimes. The case went all the way to the Supreme Court, which ruled in 1988 that defamation had not occurred because the ad’s claims were parodies, not statements of fact.
Protests of military funerals ruled not defamation
Albert Snyder sued the Westboro Baptist Church after the group picketed outside his son Matthew’s funeral. The Westboro group protested outside the funerals of military members like U.S. Marine Matthew Snyder with signs that military families like the Snyders found hateful. The case went all the way to the Supreme Court, which said in 2011 that Westboro’s messages were not defamation.
Blogger’s videos about Cardi B ruled defamation
Musician Cardi B won a nearly $4 million defamation lawsuit in January 2022 against Tasha K, a gossip vlogger who had posted sensational claims about the artist on YouTube. A judge also ordered the vlogger to take down the videos.
Sandy Hook parents defamed by Infowars
Alex Jones, founder of website Infowars, was ordered in November 2022 to pay more than $1 billion after Jones’s claims about the 2012 shooting at Sandy Hook Elementary School were ruled defamatory in two lawsuits. Jones had claimed the shooting was staged, and relatives of those killed sued Jones and his company.
Fox News settles defamation lawsuit over election claims
In April 2023, Fox News settled out of court a defamation lawsuit brought by Dominion Voting Systems over the cable network’s claims about voting machines used in the 2020 election. Fox paid Dominion nearly $800 million to avoid a trial.
So, what is defamation and how does it fit into the First Amendment?
There’s not one easy solution to protect reputations from damage and protect as much free speech as possible. This balance is controversial: should it be easier for public figures to protect their reputations? Or should it be easy for people to criticize and hold officials accountable?
Today’s Supreme Court justices have differing views, just as people have since colonial times, with some calling for reconsideration of the high standards established in 1964.
Many defamation lawsuits are settled out of court because of the low rate of success and high cost for such lawsuits. Defamation is not protected as free speech, but there are high bars for speech to be ruled defamation.
Kevin Goldberg, First Amendment specialist for the Freedom Forum, contributed to this article. He can be reached at [email protected].
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