by Wilton H. Strickland

“Sticks and stones may break my bones, but words will never hurt me.” We used to throw that playground taunt at each other when I was in kindergarten, but the world has become a lot more sensitive since then. Nowadays words are often regarded as acts of violence, provoking reactions that can be physical or, as discussed in this post, litigious. When combined with the fact that many words are now posted online and will linger there indefinitely for anyone to see, people need to exercise greater caution than ever.

“Defamation” is a term that broadly describes words that tend to harm a person’s reputation. A legal cause of action for defamation may arise when the harm is inflicted by spoken words (slander) or printed words (libel), but the elements are largely the same:

• Defamatory language;
• That concerns the plaintiff;
• Publication of the defamatory language to a third person; and
• Harm to the plaintiff’s reputation.

Regarding the first element, defamatory language must consist of a statement of fact regarding a living person or a business entity. Statements of mere opinion do not qualify as defamation, nor do statements regarding deceased persons (the command not to speak ill of the dead is of moral rather than legal provenance). Of course, the defamatory statement must also be one that tends to cause reputational harm, which is discussed with regard to the fourth element below. Even if the statement is one of fact and causes reputational harm, it will not support a claim if the fact is confirmed as true — truth is an absolute defense to a claim of defamation (though not a defense to other claims such as infliction of emotional distress, invasion of privacy, tortious interference, and others not discussed here).

The second element appears obvious at first blush, but there are subtle ways of defaming people without specifically naming them. Where it can be inferred that the speaker is defaming a particular person, this amounts to “colloquium” entitling the person to bring suit. For example, if I say that John Smith is a crook, it’s obvious that John Smith is the target of my defamation. If I say that the man wearing the tweed coat is a crook — and John Smith is the only man in the vicinity wearing a tweed coat — then John Smith once again has a claim. The same conclusion arises with regard to defamation of groups, such as by saying that all members of the local pipefitters union are crooks; I might not have named any of them, but they now have a claim against me.

The third element is satisfied upon communicating the statement to a third party who understands it. This means that if I defame you to your face but no one else hears it, there is no defamation. If I defame you in Spanish to a third party who speaks only English, there is still no defamation (unless perhaps the third party is quick with a computer app). Notice that it makes no difference whether you specifically intend for a third party to hear what you’re saying. For example, if in a fit of anger I yell (while thinking I’m alone) that John Smith is a crook, I might still be liable if a third party overhears me. Also be careful not to repeat a defamatory statement that was uttered by someone else; even though the statement is not your own, you might still be liable for spreading it (i.e., “republishing”).

Regarding the fourth element, most jurisdictions automatically treat written defamation (libel) as causing harm without need for further proof, which is important to remember given the prevalence of written communications today. Spoken defamation (slander) is slightly different because only certain types are automatically treated as causing harm. Examples include attacking a person’s competence in a business or trade; stating that a person has a “loathsome” disease (such as venereal disease or leprosy, but not the flu); or stating that a person has committed a crime of “moral turpitude” (such as murder or rape, but not breaking the speed limit). For all other forms of slander, the plaintiff will have to prove that damages indeed have occurred.

Special Rules For Public Officials, Public Figures, and Issues Of Public Concern

In recent history the U.S. Supreme Court has weighed in on the law of defamation and curtailed it by invoking the First Amendment, which (like the entire Bill of Rights) did not originally apply to the States or prevent them from regulating virtually any manner of speech or conduct. Several decades after passage of the Fourteenth Amendment, the Court changed its mind and decided that the First Amendment now does apply to the States, though in a way not apparent in the language of the Amendment itself.

According to the Supreme Court, speech that harms the reputation of public officials or public figures will not support a defamation lawsuit unless there is “clear and convincing evidence” that the speech was made with “actual malice,” which means that the speaker knew the statement was false or acted with reckless disregard for its truth or falsity. This heightened test has served to dismiss or otherwise defeat a large number of lawsuits that would likely have succeeded if the plaintiff had been an ordinary, private citizen.

Additionally, the Supreme Court has bestowed heightened protection on speech that concerns an issue of public concern even if it defames a private individual, requiring quantifiable harm along with some measure of negligence or intent on the part of the speaker.

Special Privileges That Protect Speaker From Liability

In some situations a person carries a “privilege” and cannot be held liable for defamation even if all of the elements are satisfied. The most prominent privilege is for statements made within judicial, legislative, or executive proceedings. For example, if a party in a lawsuit files a motion or gives testimony falsely characterizing someone as a crook, this will not support a claim for defamation. If a legislator impugns the integrity of a business entity when arguing in open session for more regulations, this will not support a claim for defamation. And if a governor or president labels someone a liar while discussing policy with his or her aides, this will not support a claim for defamation.

Regardless of any defenses or privileges that might be available, it is wise to exercise caution when speaking (or writing) about others. It is far better to avoid a lawsuit than to defend one, even if successfully.