A Quick Guide to Libel Law





by Lata Nott, Executive Director, First Amendment Center

What is libel law? How does it work?

Are newspapers “totally protected” from lawsuits?

Can libel laws be “opened up”?

Is freedom of the press at risk? Scroll down to find out.

What is Libel?

It’s the publication of false statements of fact that damage someone’s reputation. You’ll also see it referred to as defamation.

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

The Basics of Libel Law

An opinion is not libel. Libel refers to specific facts that can be proved untrue.
A true statement that damages someone’s reputation is not libel. (Although it might be invasion of privacy.)
Libel laws are meant to monetarily compensate people for damage to their reputations–not to punish people who make false statements.
It’s harder for a public figure to win a libel lawsuit than it is for a private person to win a libel lawsuit.

What makes someone a public figure?

Public figures can be public officials or any other person pervasively 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 particular set of issues.

Why is it harder for a public figure to win a libel lawsuit than a private figure?

To win a libel lawsuit, a private person has to prove that the publisher of the false statements acted “negligently.” Negligence means that the publisher didn’t do his homework. Even if the publisher didn’t know that his facts were false when he published them, he can still be on the hook for libel if he should have known.

In contrast, to win their libel suit, a public figure has to prove that the publisher of the false statements acted with “actual malice.” Actual malice means that the publisher either knew that the statements were false, or acted with reckless disregard for whether they were true or false. This is a lot harder to prove than negligence.

Why the double standard?

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.

Also, public figures 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.

How do libel laws vary from state to state?

While the basics of libel law are the same in every state, the details, like how much time you have to file a libel lawsuit, or what you have to do to prove your reputation has been damaged, can vary. Some states even have criminal penalties for libel, meaning that under certain circumstances, you can get arrested for libel instead of just sued for it.

Someone posted defamatory things about me on Facebook, and Facebook won’t take the posts down. Can I sue Facebook for libel?

Facebook, Twitter, Yelp and most other social media platforms are protected from libel lawsuits by 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, this might change someday, given that sites like Facebook are exercising more and more editorial control over the content on their sites–just as a publisher would.

Can the President open up libel laws?

Probably not.

First of all, each state makes its own libel laws. Changing all of them would require action from state lawmakers, not the President.

 

Second of all, the elements that all libel laws have in common come from the Supreme Court’s interpretation of the First Amendment. In 1964, the Supreme Court established that public figures would have a higher bar to prove libel than private persons. Either the Supreme Court would have to reverse this decision, which has been the law for more than 50 years, or the Constitution would need to be amended. While either of these outcomes are possible, they are unlikely.

Finally, looser libel laws wouldn’t just apply to newspapers and journalists. Anyone can be sued for libel; tweeting false statements is considered a form of “publishing.” The President would have as much to fear from looser libel laws as the press would.

So everything’s okay?

Not necessarily. Right now, the law makes it hard for public figures to win libel lawsuits. But if you have financial resources, it’s not that hard to file lawsuits, which can in and of itself 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.

Want to learn more?

Check out the First Amendment Center’s other resources on libel:

Libel & defamation

Libel in fiction

Criminal libel

Online Libel

Get up to speed on all of the Supreme Court’s landmark libel and publication decisions:

Near v. Minnesota (1931)

(Court ruled that the government can’t censor or prohibit certain information from being published, although the publisher can still be sued or criminally charged after publication.)

New York Times Co. v. Sullivan (1964)

(Court ruled that freedom of the press protects statements about the conduct of politicians, unless those statements are made with actual malice.)

Garrison v. Louisiana (1964)

(Court ruled that a criminal libel law can only apply to statements that were made knowing they were false or made with reckless disregard as to their falsity.)

Curtis Publishing v. Butts (1966)

(Court found that the “actual malice” standard applies to public figures like business tycoons and celebrities, as well as elected officials.)

New York Times Co. vs. United States (1971)

(Court ruled that the government could not prevent The New York Times from publishing confidential documents known as the “Pentagon Papers,” despite national security concerns.)

Gertz vs. Robert Welch, Inc. (1974)

(Court ruled that a private person doesn’t have to show actual malice in order to prove libel, even if the defamatory comments concern public issues, because, “Private persons are more vulnerable to injury, and the state interest in protecting them is correspondingly greater.”)

Herbert v. Lando (1978)

(The Court ruled that in an accusation of libel, the First Amendment does not protect reporters from inquiries into their thoughts, opinions and conclusions in the editorial process–otherwise actual malice would be almost impossible to prove.)

Wolston v. Reader’s Digest Association, Inc. (1979)

(Court ruled that an individual does not become a public figure simply by attracting public attention, in a case where the plaintiff was not a figure of “persuasive power and influence” and did not thrust himself to the forefront of a popular controversy.)

Hustler Magazine, Inc. v. Falwell (1988)

(Court ruled that free speech protects clearly offensive statements about public figures so long as they can’t be reasonably construed as factual statements.)

Harte-Hanks Communications, Inc. v. Connaughton (1989)

(Court ruled that “actual malice” in a libel case means that a libelous statement was false or made without any regard for its truth.)

Milkovich v. Lorain Journal Company (1990)

(Court ruled that a published statement that everyone “knows in their heart” that the plaintiff lied at a hearing was not an opinion, but a statement sufficiently factual to be proved true or false.)

Masson v. New Yorker Magazine, Inc. (1991)

(Court ruled that a gross distortion of a quotation from a public figure–meaning a distortion that changes the factual meaning of the quotation–can be considered libel.)

 

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