Defamation protects reputation. A defendant is liable for publishing a false statement of fact about the plaintiff that damages the plaintiff's standing in the community. The common law elements are only half the analysis. Since the 1960s the First Amendment has layered fault requirements on top, and which one applies depends on who the plaintiff is and whether the statement touches a matter of public concern.
Elements
- A defamatory statement. One that would lower the plaintiff in the estimation of the community or deter others from dealing with the plaintiff.
- Of and concerning the plaintiff. A reasonable reader must understand the statement to refer to this plaintiff.
- Publication. Communication to at least one person other than the plaintiff, intentionally or negligently.
- Falsity. Truth is a complete defense, and where the speech is of public concern the plaintiff carries the burden of proving falsity.
- Fault. Public officials and public figures must prove actual malice, meaning knowledge of falsity or reckless disregard for the truth. Private figures must prove at least negligence.
- Damages. Libel and slander per se allow presumed damages at common law, but presumed and punitive damages generally require actual malice where the speech is of public concern.
Leading cases
- New York Times Co. v. Sullivan: a public official suing over criticism of official conduct must prove the statement was made with knowledge of its falsity or reckless disregard for the truth.
- Gertz v. Robert Welch, Inc.: states may set their own fault standard for private figure plaintiffs so long as it is not liability without fault, and presumed or punitive damages require actual malice.
- Milkovich v. Lorain Journal Co.: there is no separate constitutional privilege for anything labeled opinion, and the question is whether the statement implies a provably false assertion of fact.
Where students go wrong
The first mistake is stopping at the common law elements. Identify the plaintiff as a public official, a public figure, a limited purpose public figure or a private figure, because that classification decides the fault standard and often the case.
The second is treating actual malice as ill will. It has nothing to do with spite. It means the defendant knew the statement was false or seriously doubted its truth and published anyway.
The third is assuming an opinion is always safe. A statement framed as opinion is still actionable if it implies undisclosed defamatory facts.
FAQ
What is the difference between libel and slander?
Libel is written or otherwise recorded in a lasting form, slander is spoken. Libel traditionally allowed presumed damages, while slander required proof of special damages unless it fell into a per se category.
Is truth always a defense?
Yes as to the defamation claim. A substantially true statement is not actionable, even if the speaker had bad motives, though related claims such as privacy torts may remain.
Who counts as a public figure?
Someone with pervasive fame or influence, or a person who has voluntarily entered a particular public controversy, in which case the higher standard applies only to statements about that controversy.
Related terms
Working through this in your own casebook takes longer than reading it here. Syllume starts from your syllabus and turns each assigned case into a brief you can study from.