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Defamation vs. Free Speech

This article on negligence is part of Vail Law's open-source litigation and legal risk management checklist. Connect with me on LinkedIn.

What is “defamation.” Defamatory is defined as a statement that “tends to harm the person’s reputation by lowering the person in the estimation of at least a substantial and respectable minority of the community.” CJI-Civ. 22:8. Defamation is traditionally broken down into two broad categories: slander, which is spoken defamation, and libel, which is written defamation.


There is a key difference, however, between defamatory statements, and a valid cause of action at law for defamation. The most critical factor is that truth is an absolute defense to the tort of defamation. That means that to be actionable in court, a defamatory statement must also be false.


There is also a very understandable tension between our freedom of speech, guaranteed by the First Amendment to the U.S. Constitution, and any claim of defamation. The courts have traditionally resolved this dispute by differentiating between “public persons” and matters of “public interest” – politicians, gun control, etc. – and more ordinary matters pertaining to the reputation of private individuals and normal businesses. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Where a person is a “public person” or the matter is of “public interest,” the courts require a showing of “actual malice” in making the false statement – meaning the person publishing the statement must know the statement to be false, and still publish it (speak or print it) with the specific intent of harming the target. Id. Absent the showing that the plaintiff is a “public person” or the matter is of “public interest,” merely publishing a false and defamatory statement to any third person constitutes the tort of defamation.


Further, the tort of defamation is broken down into defamation per se and pro quod. In essence, if the defamatory statement is so clearly defamatory that it qualifies as defamatory per se, then the plaintiff is not required to show that it caused actual economic harm to have a valid cause of action. In contrast, even if a statement does not qualify as defamation per se, if the plaintiff can prove that it caused actual economic (as opposed to emotional or purely abstract damage to reputation) then the plaintiff may proceed with a claim of defamation pro quod.


At Vail Law, we use an open-source, Litigation Checklist approach to develop claims and defenses tailored to each unique situation. Often these include breach of negligent misrepresentation, fraud, breach of contract, and exotic statutory causes of action. Contact Jeff Vail at (303) 600-3730 or jvail@vail-law.com to discuss your specific case.

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