....Collectively known as defamation, libel and slander are civil wrongs that harm a reputation; decrease respect, regard, or confidence; or induce disparaging, hostile, or disagreeable opinions or feelings against an individual or entity. The injury to one's good name or reputation is affected through written or spoken words or visual images. The laws governing these torts are identical.
To recover in a libel or slander suit, the plaintiff must show evidence of four elements: that the defendant conveyed a defamatory message; that the material was published, meaning that it was conveyed to someone other than the plaintiff; that the plaintiff could be identified as the person referred to in the defamatory material; and that the plaintiff suffered some injury to his or her reputation as a result of the communication.
To prove that the material was defamatory, the plaintiff must show that at least one other person who saw or heard it understood it as having defamatory meaning. It is necessary to show not that all who heard or read the statement understood it to be defamatory, but only that one person other than the plaintiff did so. Therefore, even if the defendant contends that the communication was a joke, if one person other than the plaintiff took it seriously, the communication is considered defamatory.
Defamatory matter is published when it is communicated to someone other than the plaintiff. This can be done in several different ways. The defendant might loudly accuse the plaintiff of something in a public place where others are present, or make defamatory statements about the plaintiff in a newsletter or an on-line bulletin board. The defamation need not be printed or distributed. However, if the defendant does not intend it to be conveyed to anyone other than the plaintiff, and conveys it in a manner that ordinarily would prevent others from seeing or hearing it, the requirement of publication has not been satisfied even if a third party inadvertently overhears or witnesses the communication.
Liability for republication of a defamatory statement is the same as for original publication, provided that the defendant had knowledge of the contents of the statement. Thus, newspapers, magazines, and broadcasters are liable for republication of libel or slander because they have editorial control over their communications. On the other hand, bookstores, libraries, and other distributors of material are liable for republication only if they know, or had reason to know, that the statement is defamatory. Common carriers such as telephone companies are not liable for defamatory material that they convey, even if they know that it is defamatory, unless they know, or have reason to know, that the sender does not have a privilege to communicate the material. Suppliers of communications equipment are never liable for defamatory material that is transmitted through the equipment they provide.
In general, there are four defenses to libel or slander: truth, consent, accident, and privilege. The fact that the allegedly defamatory communication is essentially true is usually an absolute defense; the defendant need not verify every detail of the communication, as long as its substance can be established. If the plaintiff consented to publication of the defamatory material, recovery is barred. Accidental publication of a defamatory statement does not constitute publication. Privilege confersImmunity on a small number of defendants who are directly involved in the furtherance of the public's business—for example, attorneys, judges, jurors, and witnesses whose statements are protected on public policy grounds.
Before 1964, defamation law was determined on a state-by-state basis, with courts applying the local Common Law. Questions of Freedom of Speech were generally found to be irrelevant to libel or slander cases, and defendants were held to be strictly liable even if they had no idea that the communication was false or defamatory, or if they had exercised reasonable caution in ascertaining its truthfulness. This deference to state protection of personal reputation was confirmed inChaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942), in which the U.S. Supreme Court stated, "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise constitutional problems." The Court in Chaplinsky held that defamatory speech is not essential to the exposition of ideas and that it can be regulated without raising constitutional concerns. This reasoning was confirmed in Beauharnais v. Illinois, 343 U.S. 250, 72 S. Ct. 725, 96 L. Ed. 919 (1952), where the Court again held that libelous speech is not protected by the Constitution.
In 1964, the Court changed the direction of libel law dramatically with its decision in new york times v. sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). For the first time, the Court placed some libelous speech under the protection of the First Amendment. The plaintiff, a police official, had claimed that false allegations about him were published in the New York Times, and he sued the newspaper for libel. The Court balanced the plaintiff's interest in preserving his reputation against the public's interest in freedom of expression in the area of political debate. The Court wrote that "libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment." Therefore, in order to protect the free flow of ideas in the political arena, the law requires that a public official who alleges libel must prove actual malice in order to recover damages. The First Amendment protects open and robust debate on public issues even when such debate includes "vehement, caustic, unpleasantly sharp attacks on government and public officials."
Since Sullivan, a public official or other person who has voluntarily assumed a position in the public eye must prove that a libelous statement "was made with 'actual malice'—that is, with knowledge that it was false or with reckless disregard to whether it was false or not" (Sullivan). The actual-malice standard does not require any ill will on the part of the defendant. Rather, it merely requires the defendant to be aware that the statement is false or very likely false. Reckless disregard is present if the plaintiff can show that the defendant had "serious doubts as to the truth of [the] publication" (see St. Amant v. Thompson, 390 U.S. 727, 88 S. Ct. 1323, 20 L. Ed. 2d 262 [1968]).
Also since Sullivan, the question of who is a public official has been raised often. In Rosenblatt v. Baer, 383 U.S. 75, 86 S. Ct. 669, 15 L. Ed. 2d 597 (1966), the Court found that a nonelected official "among the hierarchy of government employees who have, or appear to have, substantial responsibility for, or control over, the conduct of public affairs" was a public official within the meaning of Sullivan. Similarly, in Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S. Ct. 621, 28 L. Ed. 2d 35 (1971), the Court found that a candidate for public office fell within the category of public officials who must prove actual malice in order to recover.
Eventually, Sullivan's actual-malice requirement was extended to include defendants who are accused of defaming public figures who are not government officials. In the companion cases of Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967), the Court held that a football coach at the University of Georgia and a retired Army general were similar to public officials in that they enjoyed a high degree of prominence and access to the mass media that allowed them to influence policy and to counter criticisms leveled against them.
These rules make it difficult for a plaintiff to prevail in a libel action. For example, in Levan v. Capitol Cities/ABC, 190 F.3d 1230 (11th Cir. 1999), a federal appeals court dismissed a libel action against a television network because the plaintiff could not prove actual malice. BFC Financial Corporation ("BFC") and its president, chief executive officer, and controlling shareholder, Alan Levan, brought an action for defamation against Capital Cities/ABC, Inc. ("ABC") and one of its producers, Bill Willson. Levan and BFC based their case on a segment that had been aired on ABC's television program "20/20." The segment portrayed BFC and Levan as unfairly taking advantage of investors in real estate-related limited partnerships, by inducing them to participate in transactions known as "rollups." BFC and Levan claimed that ABC had made numerous false or misleading statements with actual malice and that it had misused videotaped statements and congressional testimony.
