By David L. Hudson Jr., First Amendment Scholar
September 13, 2002
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, the First Amendment Center ombudsman, wrote 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.”
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. Generally, speech from the broadcast medium that is part of a script is termed libel.
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 wrote in Rosenblatt v. Baer (1966) 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.”
However, defamation suits can threaten and test the vitality of First Amendment rights. Former Supreme Court Justice Hugo Black wrote passionately, also in Rosenblatt v. Baer, that no law meant no law and that, as such, all libel laws violate the First Amendment:
“The only sure way to protect speech and press against these threats is to recognize that libel 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.’ “
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 subject.
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 protection, as the Court held in Chaplinsky v. New Hampshire (1942):
“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”
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 the church, as Robert Wagman has noted.
Even truth was no defense to a libel prosecution. In fact, some commentators, including John Nowak and Ronald Rotunda, have used the phrase “the greater the truth, the greater the libel” to describe the state libel law. 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, as shown by Al Knight, English concepts of libel continued to prevail in the Colonies. Historian Leonard Levy explains that “the persistent notion of Colonial America as a society where freedom of expression was cherished is an hallucination which ignores history. … 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.”
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, as observed by legal scholar Rex Heinke.
The landscape of libel law dramatically changed when the U.S. Supreme Court issued its decision in New 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 it refused. 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 concerning” Sullivan.
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 conduct.”
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.” 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.”
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.”
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.
The high court extended the rule for public official defamation plaintiffs in 1967 in the consolidated cases of Curtis Publishing Co. v. Butts and The Associated Press v. Walker. 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 John Paul 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. (1974). 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 news-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 the 1971 case Rosenbloom v. Metromedia.
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 Gertz 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.”
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 Supreme 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 of issues.” 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.”
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.
Basic requirements of a defamation case
A defamation plaintiff must usually establish the following elements to recover:
•Identification: The plaintiff must show that the publication was “of and concerning” himself or herself.
•Publication: 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 person’s feelings.
•Falsity: 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. (Caveat: Expressions of opinion can imply an assertion of objective facts. See Milkovich v. Lorain Journal.)
•Damages: 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.
•Neutral-reporting privilege: Protects news organizations when they publish statements, even reckless statements, made by others about a public figure even if the press suspects the statements are not true. As one federal appeals court wrote in 1977 when describing the privilege: “We do not believe that the press may be required under the First Amendment to suppress newsworthy statements merely because it has serious doubts regarding their truth.” The neutral-reporting privilege differs from the similar fair-report privilege in that fair report generally applies only when the allegedly defamatory statements are made directly from a public record, public meeting or government press release. Neutral reporting applies to statements outside the context of official government proceedings or records. Not all jurisdictions recognize the neutral-reporting privilege. The U.S. Supreme Court has never directly ruled on it.
•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 contents (editorial/opinion column) is understood by the readers to be figurative language not to be interpreted literally.
•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.
Questions about libel online have also come increasingly into view. For more information, see our article on Online Libel.
The threat of libel suits can cause individuals to keep quiet about issues of public concern. Very few people have the economic resources to defend themselves after being hauled into court for defamation.
But the First Amendment protects everyone, and it is important to maintain a proper balance between libel law and the First Amendment.