10 Unprotected Categories: Defamation and other Torts

Defining Defamation

A second unprotected category of speech, often associated with freedom of the press as well as freedom of speech, is defamation, defined as either written (libel) or spoken (slander) false statements that damage another person or entity’s (corporation, organization, government, etc.) reputation. Note that libel and slander are more or less treated identically in constitutional law, and hereafter they will be referred to together or as interchangeable terms.

Libel is most often a civil action or tort, a lawsuit that seeks damages for reputational harm. Libel can also be a criminal offense in jurisdictions where the state prosecutes offenders with the goal of maintaining civil order, particularly if those defamed are a religious or racial group for whom verbal attacks can lead to backlash or unrest. Such criminal prosecutions are often tied together with prosecutions for blasphemy or used to stifle otherwise legitimate criticism of the government.

While the United States carried forward the British crime of seditious libel for much of its history (see the prior chapter on illegal incitement), seditious libel laws have been unconstitutional in this country since 1964 and had fallen out of favor well before that. In the United States, then, contemporary libel disputes usually begin in state civil courts, with the plaintiff suing the defendant for damaging their reputation.

What’s an example of defamation? Imagine someone who lies on an internet review that a particular restaurant gave them food poisoning or denied them service based on their race or gender. If read by others, this false review could cost the restaurant customers and therefore potential revenue. If the restaurant’s owner could prove the reviewer was lying, they could sue the reviewer for defamation and seek damages for their lost revenue.

As we shall see, while defamation claims are private lawsuits heard in states’ civil courts, they sometimes have a strong political component. After the 2020 election, for example, the voting machine maker Dominion Voting Systems, at the center of many conspiracy theories about the election, sued Fox News, President Trump’s personal lawyer Rudy Giuliani, and Trump supporter and MyPillow CEO Mike Lindell for making false statements about their company, arguing that these entities made false claims that cost the company hundreds of millions of dollars in lost contracts. By contrast, while president, Trump often complained that it was too easy to defame public figures, grousing that it should be easier for potential libel plaintiffs (such as himself) to recover damages.

Chaplinsky described unprotected categories as speech that has little or no value and causes harm the government should have the power to address. Libel and slander fit this definition fairly easily.

First, factually untrue statements (as opposed to exaggerations or opinions) have minimal value in either the democratic process or in the marketplace of ideas. Indeed, they may be actively harmful to both.

Second, reputation has long been treated as a real and substantial resource in politics, business, and society in general. In common-law systems such as the United States, harms to reputation can be remedied through the civil tort system. Given this history, it’s unsurprising that libel and slander were mentioned as paradigmatic unprotected categories in Chaplinsky.

Beyond the assumption that defamation doesn’t merit free speech protections, it’s also the case that such lawsuits involve no obvious state action. Under standard state action doctrine, the First Amendment protects individuals against government action and doesn’t have an obvious application when one private entity sues another in a civil suit.

Nevertheless, despite these factors, the Supreme Court held in 1964—and continues to hold—that libel and slander lawsuits must be constitutionally circumscribed in order to protect the freedom of speech. Why?

In order to better understand the threat to free speech that defamation torts can create, let’s dig a bit deeper into tort law. As libel and slander law is mainly state law, these torts differ from state to state in terms of what standard of liability states require plaintiffs to meet in order to recover damages. These standards, somewhat analogous to the burdens of proof the state must meet in criminal cases, can make it easier or more difficult for plaintiffs to win their cases.

What follows are some general points about defamation law that will help the reader better understand the Court’s libel and slander opinions. Note that the following items greatly generalize differences in state law for the purpose of preparing the reader for the libel cases that follow, and should not be taken as accurate depictions of the wide variation that actually exists in state law:

1. Libel plaintiffs can only recover damages for harms caused by factually untrue statements, as opposed to exaggerations or name-calling. Calling someone “the greatest asshole of all time” might damage someone’s reputation, but cannot be categorized as a factual statement. Nor would calling someone a “fascist” or “communist” be viewed as sufficiently factual. By contrast, falsely printing that someone was an “active member of the US Communist Party in 1995” is a factual statement that could serve as the basis for a lawsuit.

Note that courts do not always accept labels of “fact” and “opinion” at face value. For example, a daily newspaper defended its claim that a wrestling coach lied under oath as an “opinion,” making it immune from defamation lawsuits. The Supreme Court disagreed in Milkovich v. Lorain Journal Co. (1990), arguing that the average reader would assume this statement was based on knowledge of relevant facts.

A better way to frame the fact-opinion distinction is whether the damaging claim is falsifiable. Under this framing, a defendant could not escape liability by stating, “in my opinion, Jones was a member of the US Communist Party in 1995.” This claim can be falsified, meaning it would be fair game for a libel tort.

2. Truth is always a perfect or complete defense in libel and slander torts. In contrast to the older crime of seditious libel, where truth was irrelevant to the harm done to social order, civil defamation lawsuits cannot proceed on the basis of a true statement, no matter how damaging to someone’s reputation.

3. Plaintiffs must meet specific standards of liability in their given jurisdiction to recover damages.

• Prior to 1964, some states used a standard of strict liability for defamation lawsuits. Strict liability was the easiest standard for plaintiffs to meet: they needed only prove that a false statement was made to recover damages. Intent, care, motive, etc. were all irrelevant.
• The second set of standards is labeled negligence, where the defendant is at fault for failing to meet a standard of care that a reasonable person would undertake when speaking. In this context, negligence usually refers to operating below a reasonable media member’s standard of care when making statements about an individual—for example, failing to abide by your employer’s fact-checking procedures. This standard is harder for plaintiffs to meet, as they must not only demonstrate the false statement and the harm it caused but the defendant’s failure to meet an appropriate standard of care.
• The third and hardest standard for plaintiffs to meet is actual malice, a legal term of art that does not necessarily require “malice” or evil intent. Instead, actual malice means that the defendant either 1) knowingly lied or 2) acted with “reckless disregard” towards the truth when speaking. As this standard generally requires the plaintiff to prove the defendant’s state of mind, it’s often difficult to find the necessary evidence to succeed in court.

4. Libel and slander plaintiffs can ask for both actual (or compensatory) damages and punitive damages.

Actual damages refer to the actual loss of money caused by defamatory statements. In our restaurant review scenario, for example, actual damages would refer to an estimate of how much money the restaurant lost (or might continue to lose) because of the false review. Actual injuries can also include whatever value a judge or jury assigns to damage to reputation or standing in the community, separate from whatever loss in revenue the defamation caused.

Punitive damages, by contrast, are a public policy tool in which financial penalties are applied to shape the future behavior of other actors. In the restaurant example, a court might impose punitive damages on the reviewer to discourage other potential reviewers from making false reviews. Punitive damages are not tethered to the actual costs of lost reputation and can be as big as the legal decisionmaker thinks necessary to discourage future bad behavior (though courts often lower such awards on appeal). As such, they are often much greater than actual damages.