What is Defamation?

Defamation. It means something different to everyone, usually involving high profile celebrities, but what is defamation? Put simply; defamation is a false statement that harms a person or their reputation. Defamation is a tort, a type of civil injury recognized in American law.  

Defamation law allows someone injured by a false statement to hold the speaker (or writer) accountable for their words by recovering money damages. While the legal elements of defamation vary slightly state by state, in general, a person can recover in defamation if they show by greater weight of the evidence, meaning any amount above a 50% chance, that someone (i) made a false statement about them, (ii) negligently, (iii) to at least one other person, and (iv) caused damages.  

Further, certain false statements can be so damaging, that the law does not require actual proof of damages. This type of defamation is called defamation per se. Generally, defamation per se comes up in the context of lies involving certain crimes, loathsome diseas, and those that harm someone’s professional reputation. For example, falsely accusing someone of embezzlement, particularly if they are in a profession of trust, like attorneys or fiduciaries, would likely be defamatory per se. A false accusation of rape could also be defamatory per se. 

American defamation law, unlike in other countries, makes it very difficult for “public figures” to recover in a defamation lawsuit. In 1964, the U.S. Supreme Court decided New York Times Co. v. Sullivan case, finding that a public figure must prove that the person who made false statements did so with “actual malice.” The case, which the Court decided at the height of the civil rights movement, involved the police commissioner of Birmingham, Alabama, who sued the New York Times for statements it published about his actions against African American protestors. Since this landmark case, public figures must show through clear and convincing evidence that the defamatory statement was false and made with actual malice by the speaker. Therefore, a negligent statement is not enough to meet actual malice. The statement must be made with knowledge that it was false, or with reckless disregard for the truth. 

Public figures generally include celebrities, politicians, athletes, and others who have achieved widespread notoriety. Private people, however, can also become “limited purpose public figures” if they speak publicly about issues of public concern or inject themselves into a public controversy. For example, in one case, a court held that a secretary who was well known on a college campus, but not in the community at large, was a limited purpose public figure because her defamation lawsuit involved statements about her in the college’s student newspaper. In another famous example, a court found that a security guard at the Atlanta Olympics who had discovered a bomb—and was later accused of planting the bomb—was a limited purpose public figure in his defamation lawsuit because he had given multiple TV interviews about discovering the bomb and searching for the perpetrator. 

In the years since New York Times Co. v. Sullivan, courts have imposed other limits on defamation suits. For instance, statements of opinion (as opposed to fact) may be protected, meaning the statement must be made as a factual assertion, not merely opinion. Similarly, many parodies are protected from defamation challenges. Today, nasty untruths can spread like wildfire online. Often there is little recourse against online platform companies, however, because cases applying the Communications Decency Act, better known as Section 230, have granted immunity to many online platforms that publish defamatory material. The justification for this immunity is that websites like Facebook are supposedly content-neutral, exercising no editorial control—unlike a newspaper. Many people question this, though, given recent censorship of conservatives online.  

Overall, states each have their own defamation laws, which may be more or less favorable to certain case facts. A skilled attorney knowledgeable about defamation law can help you to defend your reputation from false statements, by helping guide you through this intricate area of law.