Defamation and Free Speech

2012-06-12 03:15:09

To be defamed is to be falsely described. To bear false witness against someone has been prohibited since biblical times. That prohibition can be found in Exodus, the second book of the Bible. Later, Iago in Shakespeare’s Othello said, ‘‘Good name in man and woman, dear my lord, is the immediate jewel of their souls: Who steals my purse steels trash . . . But he that filches from me my good name robs me of that which not enriches him, and makes me poor indeed.’’ In modern times, in the United States, states seek to protect their citizens from harm caused by statements that steal one’s good name by letting their citizens recover damages by means of tort law. A tort is a civil wrong that allows someone who is wronged to bring a lawsuit to recover compensation for harm caused by the wrong. The tort of defamation enables someone whose good name has been stolen—who has been defamed—to bring a lawsuit to seek monetary compensation for damage to reputation and for emotional distress.

Because defamation is a tort, it is developed by states, not the federal government, through their judicial decisions or legislative enactments. Because there are fifty states, as well as the District of Columbia and U.S. territories, each of which formulates its own tort law, defamation law can vary from state to state.

General Principles of Defamation

Despite variations among states as to the scope of defamation law, defamation has some consistent principles. Defamation is speech: libel is written, slander is oral. For a statement to be defamatory, generally it must be about an individual, it must be published, and it must tend to injure that individual’s reputation in the community. Publication does not necessarily mean printed and distributed, although that is a familiar method of publication. A statement can also be published if it is overheard by someone other than the person defamed. The definition of community may also be debated. One can ask whether a statement is defamatory if its injury comes from what a small group of people will think of the person defamed, or whether the opprobrium must come from a larger population. If a plaintiff proves that he or she has been defamed, the next step is to seek compensation.

Tort actions protect citizens from harm by compensating them for that harm. Besides benefiting the plaintiff, compensation for harm can also deter a tortfeaser from committing further harm. The availability of compensatory damages can deter others as well. In addition to awarding compensatory damages, juries may also award punitive damages against a tortfeasor, another deterrent. One purpose of the availability of damages in defamation law, therefore, is to deter harmful speech.

While speech can cause harm, speech is also protected from governmental infringement by the First Amendment to the Constitution. Thus arises a conflict between a state’s use of its judicial system to protect its citizens from harmful speech and society’s goal of encouraging robust debate free from state interference. Beginning in 1964 with New York Times v. Sullivan, 367 U.S., 254 (1964), the Supreme Court of the United States decided a number of cases to balance those competing interests.

New York Times v. Sullivan—Actual Malice Standard for Public Figures

In 1960, the New York Times published an advertisement signed by the ‘‘Committee to Defend Martin Luther King and the Struggle for Freedom in the South.’’ The advertisement said that ‘‘thousands of Southern Negro students are engaged in widespread nonviolent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights.’’ It accused the police in Montgomery, Alabama, of terrorizing those students. L.B. Sullivan was the elected city commissioner who supervised the police. Because some of the statements in the advertisement were incorrect, he sued the New York Times for defamation and recovered $500,000. In reversing that recovery, the Supreme Court said erroneous statement is inevitable in free debate and held that in order to protect debate, the First Amendment required a federal rule that prohibits a public official fromrecovering damages for a defamatory falsehood unless he proves that the statement was made with ‘‘actual malice,’’ that is, with knowledge that it was false or with reckless disregard of whether it was false or not. This statement has become the widely quoted standard for determining when a public officer may recover damages for defamation.

In 1967, the Supreme Court applied this Actual Malice Standard to actions brought against public figures. The result of this standard is that a plaintiff’s claim for defamation will be dismissed, and therefore will not go to trial, unless the plaintiff has evidence that would prove that the defamer acted with malice as defined by the Supreme Court. If a plaintiff does present evidence at trial, he or she can only recover damages if the jury believes the evidence about malice. Proving malice is a high hurdle for a public official or a public figure to overcome. Because of this, if an official or public figure loses a defamation case, the loss does not necessarily mean that the challenged statements are true, only that the publisher did not act with malice.

Negligence Standard for Private Individuals

In 1974, the Supreme Court decided Gertz v. Robert Welch, Inc., 418 U.S., 323 (1974). That defamation case was brought by Elmer Gertz, a lawyer who was neither a public official nor a public figure. He had represented the family of a man who was killed by a policeman. The policeman had been convicted of the man’s murder, and the family was suing him for damages. Robert Welch, Inc. published a magazine that warned of a conspiracy to discredit local police so that they would be replaced by people who would support a communist dictatorship. The magazine published a story that falsely accused Gertz of being a communist and of helping to frame the policeman. The jury awarded Gertz $50,000, but the verdict was overruled by the judge because Gertz had not proved that the magazine editor had acted with malice when he published the author’s story. Gertz, therefore, recovered nothing.

In Gertz, because the plaintiff was a private individual, the Supreme Court rebalanced a state’s interest in protecting reputations with the Constitutional interest in protecting speech. The Court sent the case back to the trial court to apply a standard different from the New York Times malice standard. The new standard articulated in Gertz that is applicable to private individuals differs from the standard of Sullivan in two ways. First, a private plaintiff can bring suit by showing that the defendant acted with some fault, even if the fault does not amount to malice. If the plaintiff cannot prove malice, however, the manner in which a plaintiff can prove damages is limited. Unlike in Sullivan, in which no justice dissented, in Gertz the justices split, five votes to four. Two of the dissenters would have reinstated the jury’s verdict and allowed state law to govern. In contrast, the other two would not have permitted liability on a showing of mere negligence.


The standard that the Court articulated in Gertz was that a private individual did not need to prove malice, but could recover for defamation by proving that the defendant was merely negligent. The Court explained that a different standard is necessary for private plaintiffs because they do not have the same access to the media to deliver their messages as public officials and public figures have. The Court did not give states free rein to determine how to apply defamation law to private individuals, however. The Court held that the First Amendment limited damages for these plaintiffs to recovery of actual damages, but not the usual presumed damages often awarded in defamation cases. The significance of this ruling requires an understanding of the unusual remedial structure of defamation law.

Damages for Defamation

In most tort actions a plaintiff must present evidence of harm before a jury can award damages to compensate the harm. In defamation per se actions, however, traditionally a jury could award presumed damages to the plaintiff. Defamation is per se when the defamatory statement is particularly injurious, such as an accusation of the commission of a crime. For defamation per se, a jury could assess damages, not based on evidence of actual injury to the plaintiff but rather based on the seriousness of the defamatory statement. A jury could presume from the egregiousness of the statement that it must have caused damage. From that presumption the jury could award whatever amount it determines to be appropriate. In that case the plaintiff is not required to produce any evidence that the statement actually harmed his or her reputation or caused emotional distress.

Not all defamatory statements would entitle a plaintiff to presumed damages. If the statement is not defamatory on its face, it will be labeled per quod. Often such statements are defamatory only because those who hear them know the context. In many states that lesser libel or slander may not be actionable unless the plaintiff can prove that the statement caused special damages, which are measurable economic losses such as lost wages. Without proof of economic injury, a plaintiff cannot bring suit, cannot prove that the statement is defamatory, and cannot recover for harm to reputation or emotional distress. In this way defamation law eliminates cases deemed less important, with importance measured by whether or not the plaintiff was injured financially. This approach devalues the impact of mental anguish but is consistent with other traditional areas of tort law, which do not recognize mental anguish as a compensable harm. Consistent with that approach, some states require a plaintiff to prove that his or her reputation was damaged by the defamation before permitting recovery for emotional distress.

In Gertz, the Court held that without proof of malice, a plaintiff could not recover traditional presumed damages because the largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms. Elimination of presumed damages for negligent, but not malicious, defamation means that a private plaintiff must prove actual harm to reputation or prove emotional distress.

The Supreme Court was explicit, however, that after proving loss, whether economic, reputational, or emotional, a plaintiff could recover both special damages: those out-of-pocket economic losses as well as damages for harm to reputation and for humiliation and mental anguish. The Court did not set the constitutional bar for recovery so that damages would be recoverable only if the defamatory statement caused economic injury. While state law cannot permit greater recovery for defamation than allowed under the First Amendment, states may permit less. Thus, some states may retain the traditional rule that to recover anything for certain types of defamatory statements, a plaintiff must prove economic injury (special damages).


Another legal presumption that the Supreme Court invalidated as interfering with vigorous debate was the traditional presumption that a defamatory statement is false; truth is a defense that, if proved, would enable a defendant to avoid liability. In Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986), the Supreme Court held that when a plaintiff sues a media defendant for defamation, if the statement involves a matter of public concern the plaintiff must bear the burden of proving that the statement is false. Allocation of Burden of Proof is a procedural matter that becomes important when evidence is inconclusive— when neither party can prove the truth or falsity of a statement. When that evidence is inconclusive, the party who needs to prove something (who has the Burden of Proof ) will lose. The Supreme Court said that requiring a media defendant to prove the truth of a matter of public concern deters such speech because of the fear that liability will unjustifiably result. As in Gertz, the justices in Hepps split five votes to four. The four dissenters stated that requiring a private person to prove that a defamatory statement is false gives a character assassin an absolute license to defame by means of statements that can be neither verified nor disproved.

Private Plaintiffs and Matters of Private Concern

In 1985, a little over twenty years after having decided Sullivan, the Supreme Court ruled that state defamation law may apply without constitutional restrictions in suits that do not involve matters of public concern. The case, Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749 (1985), involved an incorrect statement in a credit report about a private company. The report was sent to five subscribers, with the caveat that the subscribers were not to reveal the information. Greenmoss Builders brought suit in defamation, and the jury awarded it $50,000 in presumed or compensatory damages and $300,000 in punitive damages. The jury did not find malice as defined by Sullivan. This raised the question of whether the standard of Gertz for recovery of damages should apply, which would allow recovery only for proven damages.

In Greenmoss, none of the opinions written by the justices had more than four votes. A majority of justices agreed on the result of the case, but not the reasoning. Four of the justices distinguished Greenmoss from Gertz on the ground that the statements in Greenmoss were not matters of public concern. Those justices reasoned that speech that is not of public concern has reduced constitutional value and its protection is outweighed by the state’s interest in protecting a person’s good name—a basic concept of the essential dignity and worth of every human that is at the root of any decent system of ordered liberty. Two justices who concurred in the result would overrule Gertz to allow the states more freedom to apply their defamation laws to protect private individuals.

One of those justices, Justice White, questioned the wisdom of the Sullivan case, with which he joined in 1964. In retrospect, he would recommend limiting damages in cases involving public matters in a Gertzlike manner rather than require a showing of malice before an action may be brought. According to Justice White, the malice standard has created two evils: first that the stream of information about public officials and public affairs is polluted by false information, and second that the defeated plaintiff may be destroyed by falsehoods that might have been avoided with a reasonable effort to investigate the facts. Four justices in Greenmoss dissented on the ground that even speech about economic matters such as credit reports implicates matters of public concern. Those four would have retained the rules articulated in Gertz for Greenmoss, limiting recovery to proven damages and not permitting recovery of presumed or punitive damages.


References and Further Reading

  • Bollinger, Lee C., and Geoffrey R. Stone, eds. Eternally Vigilant: Free Speech in the Modern Era. Chicago: Chicago University Press, 2002.
  • Smolla, Rodney A. Law of Defamation, 2nd ed., Eagen, Minn.: Thomson West, last update 2005.
  • Sullivan, Kathleen M., and Gerald Gunther. Sullivan and Gunther’s First Amendment Law, 2nd ed. University Casebook Series, St. Paul, Minn.: Thomson West Press, 2003.