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Defamation and Degree of Fault

A defamatory statement is one that injures the reputation of another. The common-law torts of libel and slander punish the publication of statements that are both defamatory and false. Generally, a libelous statement is a false and defamatory statement published in writing. A slanderous statement is a false and defamatory statement expressed orally. False and defamatory oral statements broadcasted over the radio or television are now widely considered libel, rather than slander. In some cases, money damages may be awarded to compensate the victim of libel or slander for the reputational injury caused by publication of the false and defamatory statement.

However, in recent years there has been significant tension between the common-law protections of reputation and the mandate of the First Amendment to the Constitution that “Congress shall make no law . . . abridging the freedom of speech, or of the press. . . .”

To ensure that debate on public issues remains “uninhibited, robust and wide-open,” New York Times v. Sullivan, 376 U.S. 254, 270 (1964), the United States Supreme Court has found that the First Amendment limits the circumstances under which a speaker or publisher may be punished for making false and defamatory statements: “Neither lies nor false communications serve the ends of the First Amendment . . . [b]ut to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones.” St. Amant v. Thompson, 390 U.S. 727, 732 (1968).

As such, in order to recover for libel or slander, a plaintiff must establish not only that: (1) defendant published a defamatory statement; (2) statement was made about the plaintiff; and (3) the statement was demonstrably false; but a plaintiff must also prove that the statement was made with “fault.”

The degree of fault plaintiff must establish depends on whether the plaintiff is a public official or public figure, or a private figure. A public official or public figure must establish constitutional “actual malice” (i.e., publication with knowledge of falsity or subjective awareness of probable falsity). A private figure need only demonstrate that the wrongdoer/defendant was “at fault” in publishing the false statement at issue and a showing of negligence is sufficient in most states.

For more information see: New York Times Co. v. Sullivan, 376 U.S. 254 (1964); St. Amant v. Thompson, 390 U.S. 727, 732 (1968); Gertz v. Robert Welch, 418 U.S. 323, 347 (1974); Philadelphia Newspapers v. Hepps, 475 U.S. 767, 768 (1986); and Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).