What Is Libel?


By Freedom Forum

It's a commonly asked, yet often misunderstood, First Amendment question: What is libel?

Libel is the publication of false statements that damage someone’s reputation. You’ll also see it referred to as defamation. An opinion is not libel. Libel refers to specific facts that can be proved untrue.

A true statement that damages someone’s reputation might be an invasion of privacy, but it is not libel.

Libel laws don’t just apply to journalists. Anyone can be sued for libel. Tweeting false statements is considered a form of publishing, too.

In the United States, each state has its own libel laws. However, the basics of libel law are the same in every state.

What is criminal libel?

Some states have criminal penalties for libel, meaning that under certain circumstances, you can get arrested for libel instead of just sued for it. In criminal libel, the state becomes the prosecuting entity against an individual speaker. The theory is that the damage is to the public rather than to a private individual. The libelous statement would have to be deemed serious enough to be a criminal case. The defamation involved in criminal libel could be of another individual, a public official, a government entity, a group or even a deceased person.

Most libel cases are civil. The person who believes they’ve been wronged sues the publisher of the potentially libelous statement.

To win a libel 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 the publisher didn’t know that the information was false when released, they can still be on the hook for libel if they should have known.

Can I sue Facebook for libel if someone posts defamatory things about me and Facebook won’t remove the posts?

Facebook, Twitter, Yelp and most other social media platforms are protected from libel lawsuits by Section 230 of the Communications Decency Act, which means that they are not considered to be publishers of content provided by their users. That means they can’t be sued for any libel people post on their sites. However, sites like Facebook are exercising more editorial control over the content on their sites – just as a publisher would – and some lawmakers are pursuing more limits regulating how such sites moderate content.

Libel and public figures

It’s harder for a public figure to win a libel lawsuit than it is for a private person to win a libel lawsuit. A public figure can be a public official 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 public figure for that issue.

To win a libel 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 libel in 1964.

The different standards exist because public figures are at the center of matters of public concern – matters that the press should report on as part of its “watchdog” role on the government. If journalists could be punished for every error published about a public figure, they might avoid reporting on controversial subjects that concern the public. The public would lose access to crucial information.

Public figures also generally have greater access to the media in order to counter defamatory statements and, to a certain extent, seek out public acclaim and assume the risks of fame.

The law makes it hard for public figures to win libel lawsuits. But if you have plentiful financial resources, it’s not hard to file lawsuits, which can have a chilling effect on the freedom of the press. Reporters who are constantly defending themselves against frivolous lawsuits aren’t focusing their efforts on reporting on controversial stories.

More: Perspective: Supreme Court Shouldn’t Make it Riskier to Scrutinize Prominent People

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