Warshow: “An Education On Defamation,” Above the Law


Breaking down the basics of defamation law.

In my most recent column, I skimmed the surface of our First Amendment free speech rights, prompted by comments made by Prince Harry, labeling the First Amendment as “bonkers.” I discussed the fact that here in the United States, the government cannot persecute or prosecute you for what you say or write. It doesn’t matter how unpopular or hateful the speech might be — so long as the communication is not creating an imminent danger or risk of unlawful behavior, the First Amendment protection is generally afforded. In short, the government cannot punish dissent by limiting exercise of free speech.

But what about nongovernmental entities and people? Can you take action when someone says or writes something about you that you may find offensive or false? In certain circumstances and within certain limitations, yes. There exists a private right of action against those who spread negative misinformation. We call that defamation, and it is an area of law to which I have chosen to dedicate much of my career. I can talk all day about defamation, but for this article, I’m going to do my best to simply introduce the two of you.

Before I get into the details, let me take a moment to pump you up for what you’re about to hear. I sometimes refer to defamation law as “gossip law” — it is a chance for someone to fight for their reputation when others have tarnished it with false rumors and outright lies. Did someone spread a terrible rumor about you in middle school? Depending on the content of the rumor and the way it damaged you, you could have sued that bully using our good friend, defamation law. (It should be noted that most states have a very short — blink and you missed it — statute of limitation of just one year from the date of communication, although a few states give you two to three years. Regardless, the window of time to sue your middle school tormentor has likely closed.)

Now onto the facts: Defamation is the umbrella term for both libel (written defamation) and slander (spoken defamation). Defamation laws have been established and litigated for centuries, dating back to the 1700s. From the onset, the courts established that “truth” is an absolute defense to defamation claims. This remains the controlling precedent, and still today anything you say or write — no matter how negative and damaging — is not defamatory so long as it is true.

A conclusive definition of what constitutes defamation in the United States is difficult, since it is defined differently state by state. Each state has established its own set of standards and elements a plaintiff must meet to successfully plead a defamation claim. In general, a statement -– whether spoken or written –- is defamatory if (1) it is a false statement purporting to be fact, rather than an opinion; (2) the statement was published or communicated to a third party; (3) it was communicated with fault amounting to at least negligence; and (4) communication of the statement caused harm to the plaintiff.

But there’s a twist (I told you that defamation law is fun and exciting). There’s a very special part of defamation law that doesn’t require that the plaintiff be damaged in any way — this is when the communicated statement constitutes what we call “defamation per se.” The best way to summarize defamation per se is that the statement is so bad that damage is simply presumed. This once again varies by state, but may include statements accusing someone of a crime, an inability to perform their profession, an immoral act, or a loathsome disease. The thought process behind this exception to damages is that if someone were to publish claims that you robbed a bank, even if you haven’t lost your job due that statement, such claims could follow you and affect your standing in the community or future earnings …

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