Defamation, Libel and Slander

Legal actions sounding in defamation, libel or slander are generally covered under state law for civil suits seeking damages from harm to reputation caused by false representation of facts. The contours of these areas of law vary from state to state, except when constitutional questions arise on speech pertaining to public issues.

Once speech freedoms protected by the U.S. Constitution arise, the legal issues are federal and governed by federal law with respect to whether there exists a constitutional privilege for the speech in question. The privilege, if it is established, insulates the speaker from liability in defamation, libel or slander even if the speech in question contains false representations or facts.

The lead U.S. Supreme Court case is The New York Times Company v. L.B. Sullivan, et al., 376 U.S. 254 (1964). In this case, The New York Times published an “editorial” advertisement on behalf of the African-American right-to vote movement and a related student movement. The “editorial” advertisement communicated variously information, opinion, and grievances. The publication protested claimed grievances and sought financial support. A commissioner of the City of Montgomery, Alabama filed a civil libel suit and eventually got a verdict awarding $500,000. On petition to the U.S. Supreme Court by the newspaper, the high court ruled that the state law applied by the Alabama court was 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….”^[1]New York Times v. Sullivan, 376 U.S. 254 (1964)(quote from the opinion’s synopsis).

After New York Times v. Sullivan was decided, the Supreme Court has fashioned a number of doctrines affecting protection of speech on public issues. Importantly, among those doctrines is the distinction of public figures from private figures and the requirement of “actual malice” for the speech in question to be subject of a lawsuit.^[2]See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)(court establishes the status of public figure, limited public figure and actual malice requirement).

There is a two-step analysis to determine whether one is a public figure. The first step is to determine whether a public controversy exists. The second step is to determine the nature and extent of an individual’s participation in the public controversy.^[3]Street v. National Broadcasting Co., 645 F.2d 1227, 1243 (6th Cir. 1981)(citing Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

Additionally, the requirement of “actual malice” for a public figure to recover in libel is a difficult requirement to satisfy. On this, the Supreme Court has offered clarification: “[T]he actual malice standard is not satisfied merely through a showing of ill will or “malice” in the ordinary sense of the term. [This Court] unanimously held that a public figure ‘may not recover for the tort of intentional infliction of emotional distress…without showing…that the publication contains a false statement of fact which was made…with knowledge that the statement was false or with reckless disregard as to whether or not it was true.”^[4]Harte-Hanks Communication, Inc. v. Connaughton, 491 U.S. 657. 666-7 (1989)(citations omitted).

Legal talking heads lathered at the mouth when former President Trump suggested that the nation’s libel and slander laws need to be changed. Among the ignorant talking heads, there was not a single mention that either the tort laws of all 50 states be changed or that the related constitutional privilege against liability for speech on a public issue somehow be changed. All blather.

© 2022 Ralph D. Davis