Defamation and Its Constitutionality

In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the United States Supreme Court ruled that the First Amendment limits common-law defamation claims brought by public officials. The Court held that to recover for publication of a defamatory falsehood, a public official must prove that the challenged statement was “of and concerning” the public official plaintiff, that the statement was false, and that the defendant acted with “actual malice.” The Court defined “actual malice” as publication with knowledge that the statement was false or with reckless disregard of whether the statement was false or not.

Later, the Supreme Court extended the standard announced in New York Times Co. v. Sullivan to defamation cases brought by “public figures.” Public figures include individuals who voluntarily inject themselves into public controversy, as well as those who are involuntarily thrust into the limelight, even if only with respect to a particular activity or incident.

A private-figure defamation plaintiff can recover damages based on the defendant’s negligence (or a more speech-protective standard, under the law of some states). In no instance, however, can a private-figure plaintiff recover damages for defamation without a showing of fault amounting to, at least, negligence. Any lesser standard, the Supreme Court concluded, would unduly burden free speech. Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974). And, at least when the speech relates to an issue of public concern, a private-figure plaintiff must bear the burden of proving falsity; the defendant speaker is not obligated to prove the truth of the challenged statements. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 768 (1986).

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. 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.

A libelous statement was traditionally a false and defamatory statement published in writing. A slanderous statement is a false and defamatory statement expressed orally. False and defamatory oral statements broadcast over radio or television are now widely considered libel, rather than slander.

Click here to review Sections 44-48 of the California Civil Code.

To reconcile the tension between libel law, which punishes speech, and the First Amendment guarantee of freedom of speech, the Supreme Court has limited the circumstances under which a publisher may be punished for making false and defamatory statements.

A libel plaintiff must prove that the challenged statement is false; the publisher does not have the burden of proving truth.

A plaintiff that is a public official or a public figure can only recover for libel if he/she/it can prove that the defendant published the defamatory statement either with knowledge that the statement was false or with serious subjective doubt about the truth of the statement.

A private figure plaintiff must prove, at a minimum, that the defendant was negligent in publishing the allegedly defamatory falsehood.

Courts have long distinguished among those who publish or republish a defamatory statement, those who deliver or transmit material published by a third party, and those who merely provide facilities used by a third party to publish defamatory material.

“Publishers,” such as newspapers, magazines, and broadcasters, control the content of their publications and are, accordingly, held legally responsible for any libelous material they publish.

“Distributors,” such as bookstores, libraries, and newsstands, cannot be held liable for a statement contained in the materials they distribute unless they knew or had reason to know of the defamatory statement at issue. Distributors are under no duty to examine the publications that
they offer for sale or distribution to ascertain whether they contain defamatory statements.

Common carriers, such as telephone companies and Internet service providers, which do no more than provide facilities by which third parties may communicate, cannot be held liable for defamatory statements communicated through those facilities unless they have participated in preparing the defamatory material.

Section 230 of the Communications Decency Act immunizes the provider of an “interactive computer service” from being held liable as the publisher or speaker of any information provided by “another information content provider.” With only a few exceptions, courts have interpreted Section 230 broadly, immunizing publishers from liability for freelance content, bulletin-board postings, and other third-party content. Also, click here for more information.

No other country enjoys defamation laws that are as speech-protective as those of the United States. A number of U.S. publishers have been sued for libel in foreign jurisdictions based on statements published on their websites, which are accessible worldwide.

Many states have retraction statutes that protect writers and publishers by requiring that a potential libel plaintiff give notice before filing suit to allow the publisher and/or the writer to issue a clarification, correction, or retraction, if warranted. Depending on the state, publishing a retraction that conforms to the statutory requirements can reduce the damages available to the plaintiff or even bar a libel claim completely.

It is not clear that all categories of online “publication” fit within the definitions of such statutes. However, courts have indicated that the closer an online publication is in form and content to a protected “traditional” printed publication, the more likely the online publisher will be protected under the retraction statute. Similarly, the more broadly the statute is written, the more likely “new” media publishers will be able to argue successfully that the statute applies to them.

Courts have ruled that an electronic version of a print original does not constitute “republication.” Archived copies of original publications are likewise part of the original publication (and not separate “republications”).