Defamation

Overview

In US law, defamation is defined as a false statement that harms an individual’s public reputation. US legal standards generally identify two distinct subcategories of defamation: libel and slander. Libel refers to defamatory statements published in writing, while slander covers spoken statements.

Legal experts note that while defamatory statements can cause significant harm to the defamed individual, proving defamation in a court of law can be difficult due to the narrow and often unclear distinction between an “opinion” and a “false statement of fact.” Under US law, opinions cannot be defamatory and plaintiffs in defamation cases must instead prove that the false statements were presented as objective facts. Furthermore, the First Amendment explicitly protects both freedom of speech and press, and to succeed defamation cases must clearly align the harmful statements with established legal precedents regarding First Amendment limits.

Prior to the 1960s, defamation was treated as both a criminal and civil offense. In the British legal tradition inherited by the American colonies during the pre-independence era, criminal defamation mainly took the form of a violation known as seditious libel. The concept of seditious libel evolved during the reign of King Henry VIII (1491–1547) in an English court known as the Star Chamber. Seditious libel was initially used as a legal tool to oppress the monarch’s critics but later evolved to include defamatory acts involving private citizens. Prior to US independence, seditious libel was regularly prosecuted in the American colonies and the resultant legal tradition carried over to the independent United States. For example, the Sedition Act(1798) instituted criminal penalties for individuals found guilty of making defamatory statements about the United States or its public officials. Historians note that the Sedition Act was used as a means of intimidation by US President John Adams to target newspaper publishers who were critical of his leadership. The Sedition Act expired in 1801, after which Adams’ successor Thomas Jefferson pardoned those who were convicted of seditious libel under its terms.

Despite the legal extinction of the Sedition Act, criminal defamation continued to be prosecuted at the state level in the United States throughout the nineteenth century. Several legal challenges targeting the constitutionality of criminal defamation reached the level of the Supreme Court of the United States (SCOTUS) in the 1930s and 1940s, with SCOTUS issuing rulings in cases including Near v. Minnesota(1931), Cantwell v. Connecticut(1940), and Chaplinski v. New Hampsire (1942) that functioned to temporarily uphold the legality of criminal defamation prosecutions. Another notorious SCOTUS case, Beauharnais v. Illinois (1952), upheld the criminal conviction of an individual convicted of distributing libelous statements against Black Americans under Illinois law. However, the constitutionality of criminal defamation was challenged again during the 1960s, with SCOTUS ruling in the case of Ashton v. Kentucky (1966), effectively setting the precedent that marked the end of defamation as an act that carried potential criminal penalties. Since that time, defamation cases have been primarily argued in civil courts in the United States, with a complex set of legal standards forming around such litigation.

In general, US civil law requires plaintiffs to meet four distinct requirements to claim compensation for defamatory damages. First, the plaintiff must demonstrate that the false statement was presented as an objective fact and not a subjective opinion. Second, the defamatory statement must have been circulated or communicated to a party other than the plaintiff and the defendant. Third, the defamatory statement must have been made with what is known in legal circles as “fault,” which covers both negligence and acts of malice. Fourth, the plaintiff must have suffered a tangible and demonstrable form of damage as a direct result of the defamatory statements to have any legitimate claim to financial compensation.

Elevated standards apply if the subject of the defamatory statements is a public figure. These are individuals whose high profile makes them broadly known to the public with controversies or issues that have received coverage in media sources widely available to the public. Defamation cases involving public figures require plaintiffs to show actual malice, a legal standard defined by direct and persuasive evidence that the defamatory statement was known to be false when it was made or made or repeated with careless disregard for its truth or falsity. In contrast, defamation cases involving nonpublic figures (private figures) require the plaintiff to show only that the defendant acted negligently. The actual malice standard that applies to public figures is, by design, significantly more difficult for plaintiffs to reach.

Several other legal technicalities apply to civil defamation cases. A person cannot simply label a defamatory statement as an opinion, then claim the statement was opinion-based rather than fact-based as a legal defense. Instead, the relevant standards focus on whether a third party would reasonably interpret the statement as an opinion or as a verifiable fact that can be objectively shown to be either true or false. If a verifiable fact is misrepresented as an opinion in bad faith, it may qualify as a defamatory statement. Similarly, truth can be used as an absolute defense by defendants in defamation cases. If the defendant can show that the allegedly defamatory statement is in fact objectively true, the plaintiff loses the legal grounds to seek damages.

States vary in their interpretations and applications of defamation law, sometimes significantly. This can complicate civil defamation cases involving cross-jurisdictional elements. Furthermore, legal experts note that SCOTUS decisions on criminal defamation from the mid-twentieth century do not preclude criminal defamation laws from returning or being enforced in the future. The implications of these SCOTUS decisions theoretically allow criminal defamation to persist if defamation is explicitly prohibited by local statutes deemed to be constitutional at the state or federal level. Additionally, those statutes cannot place any limits on truth as an absolute defense. Previous standards regarding criminal defamation accepted the truth of statements purported to be defamatory as a valid defense only if the argument was used in good faith. Furthermore, state-level court rulings such as the Kansas case of Phelps v. Hamilton (1995) have functioned to maintain existing criminal defamation statutes by imposing actual malice as a standard that must be met to obtain a conviction. A 2015 review by the International Press Institute (IPI) counted fifteen US jurisdictions (states and territories) that maintain criminal defamation laws. At the time of the IPI review, thirty-eight US states and territories had either repealed their criminal defamation laws or had them struck down by federal courts on constitutional grounds.

Applications

In the civil cases that now dominate US defamation law, further technicalities apply to a range of issues including what does and does not constitute a public figure, whether an individual or a group was explicitly named in the defamatory statement, and the statutes of limitation on defamation claims. In addition to individuals widely known to the public, US law recognizes two other broad categories of public figures: limited-purpose public figures and involuntary limited-purpose public figures. Limited-purpose public figures are individuals or groups who choose to participate in public issues or controversies by their own free will and use publicly accessible media sources to present a position on the attendant issue or controversy. An involuntary limited-purpose public figure is an individual or a group that is thrust into a public issue or controversy through circumstance. For example, the case of Dameron v. Washington Magazine (1985) established an air traffic controller as an involuntary limited-purpose public figure because the controller was on active duty when a major plane crash occurred.

An individual or a group does not need to be specifically named in a defamatory statement to seek restitution under US defamation law. Instead, the legal standard of whether the person or group can be reasonably identified by the statement or its context applies. For example, Jackie Robinson can be reasonably identified as “the individual who broke Major League Baseball’s color barrier in 1947.”

In most US states and jurisdictions, courts recognize statutes of limitation on defamation claims that typically range from one to three years, after which a plaintiff cannot sue for damages. Most of these statutes recognize the date on which the defamatory statement was first published or spoken as the origination point.

The ascendance of digital media introduced complications to the previously straightforward act of determining when a defamatory statement originated. Online publishers can edit previously posted statements to change the date and time at which the statement was registered, but the time and date of such a post’s original publication is generally used as the legal standard in considering whether statutes of limitation apply. Some plaintiffs in civil defamation cases have also argued that the permanent nature of Internet publishing constitutes a continuous form of publication and have attempted to persuade courts that established statutes of limitation should therefore not apply. However, in most such cases, courts have failed to recognize the validity of the continuous publication argument and instead revert to the defamatory statement’s original date of publication as the default standard.

US courts also consider defamatory statements in context and exclude cases in which the statement was opinion-based or hyperbolic from qualifying for litigation. For example, courts will not generally recognize statements characterizing elected officials as “liars” or “criminals” as defamatory even if such statements are demonstrated to be untrue. This reflects the hyperbole standard, which recognizes the contextual significance of rhetoric and figurative modes of expression in assessing a statement for defamation.

Issues

One of the most contentious and salient issues impacting US defamation law relates to Section 230 of the Communication Decency Act (1996). Section 230 contains two clauses that cover user-generated content hosted on third-party websites and communication platforms. First, Section 230(c)(1) states that third-party websites and platforms have no legal liability for harmful or defamatory content posted by other users. Second, Section 230(c)(2) establishes that such websites and platforms have no legal responsibility to remove such content and are protected from legal liability if they choose not to act against such content. Regarding defamation, Section 230 functions to allow anonymous users to post statements that meet the legal threshold of libel while excusing the platforms hosting the statements from any legal liability and neglecting to require the platform to remove the defamatory content. Critics have argued that the controversial statute creates a loophole through which injurious defamatory statements can be made anonymously and with impunity.

Observers generally allow that Section 230 was formulated in good faith considering the context of the time in which the act Communication Decency Act passed. However, critics of Section 230 frequently note that its passage came at a time when the Internet was in its infancy, well before popular social media platforms and other widely used websites with large user bases existed. Thus, they argue, Section 230 has become outdated and no longer functions to set a reasonable standard of public protection from online harms. Other opponents of its continued application argue that many websites and platforms have a direct financial incentive to host such defamatory or harmful content, given its capability to generate controversy and draw in users in larger numbers. A 2021 Harvard Business Review editorial also observed that websites and platforms hosting such content tend not to suffer lasting damage to their brands or images even in the presence of public controversy.

Experts in the field of communications law have proposed multiple remedies to the shortcomings and legal loopholes created by Section 230. Conservative approaches seeking to preserve the original character of Section 230 while also updating it to reflect changing realities suggest adding language that compels third-party service providers to take “reasonable steps” to prevent their platforms from being abused and protect the public from the damages that can result from defamation and other online harms. Harvard Business Review noted that in the early 2020s, US courts have made a tangible move toward interpreting Section 230 differently and applying the well-established legal principle of duty of care to Internet platforms and content hosting services. The duty of care standard refers to the omnipresent social obligation of all people and organizations to take reasonable preventative action to avoid causing harm to others.

The Yale Law Review examined another evolving issue in defamation law in its 2021–2022 issue, published in September 2021, related to US President Donald Trump and his repeated public statements voicing a desire to establish punitive federal laws against libel. Though most legal experts during Trump’s presidency disregarded the idea as unconstitutional, the Yale Law Review article proposed a framework theoretically capable of overcoming objections based in First Amendment standards and the inability of the US Congress to pass laws impeding freedom of speech and freedom of the press rights. The framework suggests that plaintiffs could be granted guaranteed access to federal civil courts when submitting defamation claims, which would have the effect of preventing claimants from seeking trial in state-based venues deemed most likely to be sympathetic to their cases. Such a standard could prove beneficial to both the press and the public by establishing a uniform set of rules capable of safeguarding the integrity of political discourse in the “fake news” age.

About the Author

Jim Greene is a Canadian freelance writer, researcher, and editor currently based in the European Union. He specializes in creating, editing, and updating academic reference materials on humanities and social science topics. Jim holds a Bachelor of Arts in English and a Master of Fine Arts in creative writing and has been working as an editorial services professional since 2001.

Bibliography

Defamation. (2022, Mar.). Legal Information Institute, Cornell Law School, Mar. 2022. www.law.cornell.edu/wex/defamation.

Gutierrez, A. (2021, Sept. 15). The case for a federal defamation regime. Yale Law Review. www.yalelawjournal.org/forum/the-case-for-a-federal-defamation-regime.

Online defamation law. Electronic Frontier Foundation. www.eff.org/issues/bloggers/legal/liability/defamation.

Robinson, E. (2021). Criminal libel. The First Amendment Encyclopedia. www.mtsu.edu/first-amendment/article/941/criminal-libel. Accessed 8 Sep. 2022.

Smith, M.D., & Van Alstyne. (2021, Aug.) It’s time to update Section 230. Harvard Business Review. hbr.org/2021/08/its-time-to-update-section-230.