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Defamation refers to false statements of fact that harm another’s reputation. It encompasses both libel and slander. Libel generally refers to written defamation, while slander refers to oral defamation.

The hallmark of a defamation claim is reputational harm. Former United States Supreme Court Justice Potter Stewart wrote in Rosenblatt v. Baer (1966) that the essence of a defamation claim is the right to protect one’s good name. According to Stewart, this tort “reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty.”

However, defamation suits can threaten and test the vitality of First Amendment rights. The Supreme Court ruled that there must be a proper accommodation between protecting reputations and ensuring “breathing space” for First Amendment freedoms. If the press could be punished for every error, a chilling effect would freeze speech on controversial subjects.

Elements of a defamation case

A defamation plaintiff must establish the following six elements:

1. Identification: The plaintiff must show that the publication was “of and concerning” them.
2. Publication: The plaintiff must show that the defamatory statements were disseminated to a third party.
3. Defamatory meaning: The plaintiff must establish that the statements in question were defamatory.
4. Falsity: The statements must be false; truth is a defense to a defamation claim. Generally, the plaintiff bears the burden of proof of establishing falsity.
5. Statements of fact: The statements in question must be objectively verifiable as false statements of fact. This means the statements must be provable as false.
6. Damages: The false and defamatory statements must cause actual injury or special damages.

Defamation and the limits of free speech

Before 1964, defamation was not subject to First Amendment limitations. Instead, defamation was an unprotected category of speech controlled only by state law. As common law for most of the 20th century, a defendant could be civilly liable for defamation for publishing a defamatory statement about (or “of and concerning”) the plaintiff. A defamed defendant could be liable even if he or she expressed her defamatory comment as opinion. In many states, the statement was presumed false and the defendant had the burden of proving the truth of his or her statement.

Libel law changed substantially when the Court decided New York Times Co. v. Sullivan (1964), arguably the most significant free-press case in American history. The case arose out of the civil rights movement. The New York Times published an editorial advertisement in 1960 titled “Heed Their Rising Voices” by the Committee to Defend Martin Luther King. The full-page ad detailed abuses suffered by Southern black students at the hands of the police in Montgomery, Alabama.

The advertisement contained several errors. Nine students were expelled for demanding service at a lunch counter in the Montgomery County Courthouse, not for singing “My Country, Tis of Thee” on the state Capitol steps. The police never padlocked the campus dining hall. The police did not “ring” the college campus. In another paragraph, the ad stated that the police had arrested Dr. Martin Luther King Jr. seven times. King had been arrested four times.

Even though he was not mentioned by name in the article, L.B. Sullivan, the city commissioner in charge of the police department, sued The New York Times and four black clergymen who were listed as the officers of the Committee to Defend Martin Luther King.

The jury awarded Sullivan $500,000. After losing in Alabama state courts, the Times appealed to the Supreme Court. The high court reversed the ruling, finding that the “law applied by the Alabama courts is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct.”

For the first time, the Supreme Court ruled that the case should be considered “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

The Court reasoned that “erroneous statement is inevitable in free debate” and that punishing critics of public officials for any factual errors would chill speech about matters of public interest. The Court established a rule for defamation cases that dominates modern-day American libel law. Writing for the Court, Justice William Brennan declared:

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct 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.

New York Times reporter and columnist Anthony Lewis explained in his book "Make No Law" that the decision in Times v. Sullivan saved the civil rights movement, because previously “Southern officials, juries and judges distorted libel law for a political end, to suppress criticism of the regime of racial segregation.”

The Court’s decision also imposed significant constitutional hurdles for public officials suing for libel. It required a public official defamation plaintiff to show evidence of actual malice or reckless disregard for the truth by “convincing clarity” or clear and convincing evidence. This threshold has meant that many defamation defendants have stopped defamation suits before they go to a jury.

From public officials to 'public figures'

The high court extended the rule for public official defamation plaintiffs in 1967 in the consolidated cases of Curtis Publishing Co. v. Butts (1967) and The Associated Press v. Walker (1967). The cases featured plaintiffs Wally Butts, former athletic director of the University of Georgia, and Edwin Walker, a former general who had been in command of the federal troops during the school desegregation event at Little Rock, Ark., in the 1950s.

Because the Georgia State Athletic Association, a private corporation, employed Butts, and Walker had retired from the armed forces at the time of their lawsuits, they were not considered public officials. The question before the Supreme Court was whether to extend the rule in Times v. Sullivan for public officials to public figures.

As Justice Brennan explained in Sullivan, “libel can claim no talismanic immunity from constitutional limitations,” but must “be measured by standards that satisfy the First Amendment.”

Five members of the Court extended the Times v. Sullivan rule in cases involving “public figures.” The Court later made this change explicit in Gertz v. Robert Welch, Inc. (1974).

In the meantime, the Court also considered extending the actual malice rule to any statement on issues of “public or general concern” in Rosenbloom v. Metromedia, Inc. (1971). However, Justice Brennan could only manage a three-justice plurality for this view.

Public or private figure?

The Supreme Court clarified the differences between defamation plaintiffs and the contours of defamation law in the Gertz case.

A prominent Chicago-based lawyer named Elmer Gertz represented the family of a young man killed by police officer Richard Nuccio. Gertz took no part in Nuccio’s criminal case, in which the officer was found guilty of second-degree murder.

Robert Welch Inc. published a monthly magazine, American Opinion, which served as an outlet for the views of the conservative John Birch Society. The magazine warned of a nationwide conspiracy of communist sympathizers to frame police officers. The magazine contained an article saying Gertz had helped to frame Nuccio. The article also labeled Gertz “a communist.”

The article contained falsities, as Gertz did not in any way frame Nuccio and was not a communist. Gertz sued for defamation. The key issue before the Court was whether attorney Gertz was a private person or a public figure.

The Court identified two significant differences between public and private figures: (1) Public officials and public figures have greater access to the media in order to counter defamatory statements; and (2) public officials and public figures, to a certain extent, seek out public acclaim and assume the risk of more public scrutiny.

The Court established a lower standard for private persons:

We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.

This standard means that a private person does not have to show that a defendant acted with actual malice in order to prevail in a defamation suit. The private plaintiff usually must show simply that the defendant was negligent, or at fault. However, the Supreme Court also ruled that private defamation plaintiffs could not recover punitive damages unless they showed evidence of actual malice.

The Court also determined that certain persons could be classified as limited-purpose public figures with respect to a certain controversy instead of full-fledged public figures who achieve “pervasive fame or notoriety.” However, the Court noted that sometimes an individual “injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.” These limited-purpose public figures also have to meet the actual-malice standard.

The high court then determined that attorney Gertz was more of a private person, than a limited-purpose public figure. “He took no part in the criminal prosecution of Officer Nuccio,” the Court wrote. “Moreover, he never discussed either the criminal or civil litigation with the press and was never quoted as having done so.”

In their book “”, First Amendment scholars Ronald K.L. Collins and Sam Chaltain explained that after the Gertz decision “the primary First Amendment focus was now on the status of the person rather than the nature of the issue.”

The status of the plaintiff remains a primary issue in defamation cases. Often, the defendant in a libel case first will file a partial motion for summary judgment, arguing that the plaintiff is some type of public figure or public official subject to the Times v. Sullivan actual malice rule.

Defenses and Privileges

There are numerous defenses and privileges to a defamation claim. Many of these vary from state to state. Some of the more common defenses and privileges include:

• Truth or substantial truth: Truth is generally a complete defense. Many jurisdictions have adopted the substantial-truth doctrine, which protects a defamation defendant as long as the “gist” of the story is true.
• Statements in judicial, legislative, and administrative proceedings: Defamatory statements made in these settings by participants are considered absolutely privileged. For example, a lawyer in a divorce case could not be sued for libel for comments he or she made during a court proceeding.
• Fair reporting or fair comment: This privilege varies from jurisdiction to jurisdiction. Generally, it provides a measure of protection to a defendant who reports on the deliberations of a public body, such as a city council meeting.
• Libel-proof plaintiff doctrine: This defense holds that some plaintiffs have such lousy reputations that essentially they are libel-proof. The theory is that one cannot harm someone’s reputation when that person already has a damaged reputation.
• Rhetorical hyperbole: Some courts will hold that language in certain contexts (editorial/opinion column) is understood by readers to be figurative language not to be interpreted literally.
• Retraction statutes: Nearly every state possesses a statute that allows a defamation defendant to retract, or take back, a libelous publication.

Defamation remains a viable tort in American jurisprudence. The advent of social media has amplified the number of libel suits. As Justice Brennan explained in Sullivan, “libel can claim no talismanic immunity from constitutional limitations,” but must “be measured by standards that satisfy the First Amendment.”

Additional Reading

Collins, Ronald K.L., and Sam Chaltain. "We Must Not Be Afraid To Be Free." Oxford University Press (2011).

Gertz, Elmer. "Gertz v. Robert Welch, Inc.: The Story of a Landmark Libel Case." Southern Illinois University Press (1992).

Hall, Kermit, and Melvin Urofsky. "New York Times v. Sullivan: Civil Rights, Libel Laws, and the Free Press." University Press of Kansas (2011).

Hudson, David. "First Amendment: Freedom of Speech." Eagan, MN: West, a Thomson Reuters Business (2012).

Kalven, Harry. “The New York Times Case: A Note on ‘The Central Meaning of the First Amendment’.” Supreme Court Review (1964): 191.

Lewis, Anthony. "Make No Law: The Sullivan Case and the First Amendment." Random House (1971).

Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986).

Sack, Robert D. "Sack on Defamation: Libel, Slander, and Related Problems." 4th ed. New York City: Practising Law Institute (2006).