Libel, Slander, and Defamation Law: The Basics
By Steven J. Ellison, Esq. | Legally reviewed by Laura Temme, Esq. | Last reviewed July 14, 2022
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Historically, there was much less protection for speech than we enjoy today, including for the press and publishers. Examples of suppression, fines, and more severe punishment for making false or derogatory statements litter the history books. The earliest ancestors of our modern defamation laws come from English courts (common law) beginning in the early 1500s.
At this time, the law governing slander focused on demeaning oral statements. By the 1500s, English courts treated slander actions like other civil tort claims for damages. Libel developed differently, however. During Elizabethan times, English printers were required to be licensed by the government because they believed the printed word to be a significant threat to political stability. Libel included any criticism of the English government, and a person who committed libel committed a crime.
When English colonists arrived in North America, they brought their government's legal traditions. One of the more famous and influential defamation cases in early American history is Zenger's Case (1735).
John Zenger published a weekly newspaper criticizing the royally appointed governor of New York. The governor had Zenger arrested and tried for seditious libel. After a considerable uproar, a jury acquitted Zenger of the charge. Many legal historians cite Zenger's Case as establishing the American legal principle that truth is a defense against a charge of libel and slander. Before Zenger's Case, the truth was considered irrelevant.
Zenger's Case was remembered for years to come. Combined with the colonists' other experiences with British royal governors, freedom of speech and freedom of the press became a major political concern leading up to the American Revolutionary War. Both of these freedoms, of course, were included in the Bill of Rights at the beginning of the republic.
The Sedition Act
The development of defamation law continued after the founding of the United States. During John Adams' presidency, Congress passed the Sedition Act of 1798. This law made it a crime to criticize the government. Several Democratic-Republican politicians were convicted of sedition before the act expired. Congress and the courts eventually abandoned this approach, and the law of libel now focuses on recovering damages through civil lawsuits.
Modern Libel Laws: New York Times Co. v. Sullivan
Beginning with the landmark decision in New York Times Co. v. Sullivan (1964), the U.S. Supreme Court recognized that the law of defamation has a constitutional dimension. Under this case and subsequent cases, the Court has balanced individual interests in reputation with the interests of free speech in society. This approach has altered the rules governing libel and slander, especially where printed speech is about a public official or figure or where the communication is about a matter of public interest.
Elements of a Defamation Lawsuit
State defamation laws vary, but some accepted standards exist no matter where you are or who you are suing. Generally, to win a defamation lawsuit, you must prove that:
- Someone made a statement;
- The statement was published;
- The statement caused you injury;
- The statement was false; and
- The statement did not fall into a privileged category.
These terms and details are further defined below:
The Statement - A "statement" needs to be spoken (slander), written (libel), or otherwise expressed in some manner. Many consider slander less harmful than libel because the spoken word often fades more quickly from memory. These statements are especially damaging (the legal term for which is defamation per se) if they involve a public or private individual and sexual misconduct or the abuse of minors.
Publication - For a statement to be published, a third party (someone other than the person making the statement or the subject of the statement) must have seen, heard, or read the defamatory statement. Unlike the traditional meaning of the word "published," a defamatory statement does not need to be printed. Rather, a statement heard over the television or seen scrawled on someone's door is considered to be published.
Injury - To succeed in a defamation lawsuit, the plaintiff must show the statement to have caused injury to the subject of the statement. This means that the statement must have hurt the reputation of the subject of the statement. For example, a statement has caused injury if the subject of the statement lost work due to the statement.
Falsity - Defamation law will only consider statements defamatory if they are, in fact, false. A true statement is not considered defamation in many states. In some states, truth is a defense (see below).
Unprivileged - You cannot sue for defamation based on statements considered "privileged." For example, when a witness testifies at trial and makes a false and injurious statement, the witness will be immune to a lawsuit for defamation because the act of testifying at trial is privileged. In some states, privilege is a defense to a defamation claim (more on that below).
Defenses to Defamation
Truth – To be defamatory, a statement must be false. Truth is an absolute defense to a defamation claim.
Opinion – Only statements of fact can be defamatory. Statements of opinion are not. For example, saying that Kevin stole money from the collection basket on two occasions is a statement of fact. Saying that Kevin is a "thief" is an opinion. The line between fact and opinion is often blurry and can depend on the circumstances.
AbsolutePrivilege – Statements made in certain contexts are subject to an "absolute privilege, " a complete defense to defamation. In other words, in some situations, you can lie. Examples include statements made by legislators on the floor of the legislature and statements made between spouses.
QualifiedPrivileges – Some statements are subject to a "qualified privilege," which recognizes that you may have some right to make a false statement in some cases. For example, published reviews containing fair criticism of books or films are subject to a qualified privilege, as are statements made to warn others about potential danger.
Retraction – A retraction is a public and formal withdrawal of a previously made false statement. Although you can still sue the speaker for defamation, the retraction lessens the harm done by the false statement and reduces the amount you can recover.
If you prove your cause of action for defamation, you may be entitled to recover your actual damages. The amount typically depends on the harm to a person's reputation. Special damages are the amount you can calculate with precision. Let's say you lost a job because of a false statement of fact. In that case, you may be able to recover lost wages, lost future earning capacity, and other lost economic opportunities.
Depending on the statement, you may be able to recover money for amounts that you cannot calculate with precision. These are called non-economic damages. One common example would be damages for pain and suffering.
In cases where the speaker acted outrageously, you may be able to recover punitive damages, which punish the speaker for particularly bad behavior.
Social Media and Defamation Law
Social media makes it easier than ever to make a defamatory statement because social media services like Twitter and Facebook allow you to instantly "publish" a statement that can reach millions of people. Whether it's a disparaging blog post, Facebook status update, or YouTube video, online defamation is treated the same way as more traditional forms. You can be sued for any defamatory statements you post online.
Higher Burdens for Defamation: Public Officials and Figures
Our government places a high priority on the public being allowed to speak their minds about elected officials and other public figures. People in the public eye get less protection from defamatory statements and face a higher burden when attempting to win a defamation lawsuit.
The Supreme Court ruled that freedom of speech limits a public official's ability to sue someone for defamation. When someone criticizes an official in a false and damaging way for something relating to their behavior in office, the official must prove the statement was made with "actual malice" and all the other defamation elements.
The U.S. Supreme Court defined "actual malice" in Hustler v. Falwell (1988). In that case, the Court held that the First Amendment of the United States Constitution protected certain statements that would otherwise be defamatory.
This meant that public officials could only win a defamation suit when the statement was published with the actual intent to harm the public figure. Actual malice only occurs when the person making the statement knows it is not true or has a reckless disregard for whether it is true.
Other people in the public eye, such as celebrities, must also prove actual malice to succeed in a defamation claim.
Questions About Defamation Law? Get Legal Help Today
If you have been accused of defamation or someone has defamed you, you'll want to know more about the law and your rights. An experienced lawyer or a law firm can give you legal advice about the specifics of your situation and the law in your jurisdiction to determine the strength of your claim.
Contact a local defamation attorney to learn more about how they can help. You have a limited amount of time under state law to bring a defamation claim, depending on the state's statute of limitations, so make sure you do not delay.
Learn more on our state-specific defamation law legal answers page.
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