Sticks and Stones and Defamation

In this age of litigation frenzy, writers may feel constrained from writing on serious issues under the threat of being sued for defamation. The Black Letter Law definition of defamation is "The act of harming the reputation of another by making a false statement to a third person." and the statement is "likely to lower that person in the estimation of reasonable people and in particular to cause that person to be regarded with feelings of hatred, contempt, ridicule, fear, or dislike"1. The injured party can a living individual person, an organization or business corporation.

Slander and Libel differ in several ways. Slander is a spoken statement which is not preserved in permanent form. This would include radio interviews, television newscasts, speaking engagements, etc. Libel concerns a defamatory message which is preserved in some permanent form. In addition to paper publications, libelous statements may also be communicated through art, video tape, internet transmissions or on film.

Under the 1st Amendment freedom of speech clause of our Constitution, certain public figures, such as politicians and celebrities are fair game. In New York Times v. Sullivan, 376 U.S. 254 (1964), the United States Supreme court held that a damnatory message published about a public official was constitutionally privileged unless the writer or publisher acted with malice. This rule was extended to include public figures, such as celebrities, sports figures, and others who are in the public spotlight. For these individuals who wish to file a defamation law suit, the burden of proof lies the plaintiff to prove the writer and publisher not only knew the statement was false, but also acted with reckless disregard for its truth or falsity, when they published it. Without this 1st Amendment protection, many tabloid magazines would no longer be in business.

There are three types of damages which may be recovered by a plaintiff for a defamatory cause of action. The first one is, of course, money damages suffered due to the injury to plaintiffís reputation. In this case, the burden of proof is again on the plaintiff to show the defamatory remark was the direct cause of their loss of economic advantage in specific dollars and cents. In addition, the plaintiff may seek to recover an estimated monetary value in general damages such as of loss of friends, humiliation, etc. which would be awarded by a jury. In some circumstances, punitive damages may also be awarded if the plaintiff can prove severe malice in order to deter future wrongful conduct on their, or otherís behalf.

Even with these protections, writers may still face a charge of libel unless they are very diligent about their facts. In most jurisdictions, proof that a defamatory message is true is a complete defense against a defamation claim, unless the writer acted out of ill will or spite. In addition, obtaining a signed release and having proof of the personís consent before publication will also serve as defense to defamation.

Since litigation is very time consuming and costly, it is rare that an individual writer would face a law suit as a sole named defendant. In most instances, plaintiffs will go after the deeper pockets of the publisher who printed the article. Although the individual writer will be named in the case, it is rare that the writer would need their own counsel, but it never hurts to get a second opinion. Most attorneys will offer a one hour free consultation for an individual seeking legal advice, but it is always best to consult with the publisher who usually has their own in-house attorney on retainer.

The best advice for writers and reporters to avoid a potential defamation claim is to fully document every bit of information before writing the article, story or book. There is never any guarantee that you will not be sued, but your odds of having a defamation case dismissed are greatly increased if you do a bit of investigative homework first.



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