Defamation, Slander and Libel | Nolo
"Defamation of character" is a catch-all term for any statement that hurts someone's reputation. Written defamation is called "libel," while spoken defamation is called "slander." Because written statements last longer than spoken statements, most courts, juries, and insurance companies consider
libel more harmful than slander.
Defamation is not a crime in most states, but it is a "
tort" (a civil wrong, rather than a criminal wrong). The person who has been defamed (the "
plaintiff") can sue the person who did the defaming (the "
defendant") for
damages.
Defamation law tries to balance competing interests: On the one hand, someone shouldn't be able to ruin your life by telling lies about you; on the other hand, people should be able to speak freely without fear of litigation over every insult, disagreement, or mistake. Political and social debate is important in a free society, and we obviously don't all share the same opinions or beliefs. For example, political opponents often reach opposite conclusions from the same facts, and editorial cartoonists often exaggerate facts to make their point.
How Do You Prove Defamation?
Defamation happens when a person makes a false statement—verbally or in writing—about someone else that damages that person's reputation. Defamation laws vary from state to state, but the basic principles of defamation law are the same in every state.
A plaintiff suing for defamation typically must show:
- The defendant published a statement about the plaintiff.
- The statement was false.
- The statement was injurious, and
- The statement was unprivileged. .
In the context of defamation law, "published" doesn't necessarily mean the statement was printed in a book or magazine. A defamatory statement is published when the defendant says or shows the statement to anyone other than the plaintiff. Slanderous statements can be published in a speech, at a town hall meeting, or during cocktail party chatter. Libelous statements can be published in a newspaper, book, email, text message, tweet, or
social media post.
2. False
Only false statements of fact can be defamatory. Even terribly mean or disparaging statements aren't defamatory if they are true. Most opinions don't count as defamation because they can't be proved to be objectively false. For example, when a book reviewer writes, "This is the worst book I've read all year," she's not defaming the author, she's stating her opinion about the book.
3. Injurious
The statement must be "injurious." Since the purpose of defamation law is to compensate people for damage to their reputations, defamation plaintiffs must show how their reputations were hurt by the false statements. An defamatory statement is injurious if it, for example, gets you fired, causes you to lose customers, causes you to be shunned by your friends, or leads to you being harassed online.
Some categories of false statements—called libel
per se or slander
per se—are so widely understood to be harmful that they are presumed to be injuries. Examples include statements that falsely claim that someone:
- committed a crime
- has an infectious disease (like a sexually transmitted infection)
- lacks professional integrity or competence, or
- engaged in improper sexual conduct.
4. Unprivileged
Finally, to qualify as a defamatory statement, the offending statement must be "
unprivileged." If someone makes a false statement about you, but the statement is "
privileged," you can't sue that person for defamation. Lawmakers decide which types of speech are privileged so that speakers in certain situations aren't constrained by worries that they will be sued for defamation. Examples of privileged statements include statements made during judicial proceedings, by high government officials, and by legislators during legislative debates.
Defenses to Defamation Lawsuits
Defamation claims are complicated and hard to prove because defamation laws have to strike a balance between allowing people to protect their reputations and allowing the free exchange of information, ideas, and opinions.
You can defend yourself against a defamation lawsuit if the statement you made was:
- true
- an opinion
- privileged (see above), or
- retracted.
Learn more about
privileges and defenses in defamation cases.
Public Figures Have More to Prove
The public has a right to criticize the people who govern and influence them, so public figures have less
protection from defamation than private individuals. Public figures must show that they were defamed with
actual malice. In other words, they must show that the person who defamed them made the false statement knowing it was false, or with
reckless disregard for the truth. Public figures include politicians, movie stars, professional athletes, and celebrities.
Private figures only need to show that the person who defamed them acted
negligently (carelessly) when making the false statement.
History of Defamation and the First Amendment
In 1964, the U.S. Supreme Court ruled in New York Times v. Sullivan (376 U.S. 254) that certain defamatory statements were protected by the First Amendment. The case involved a newspaper article that said unflattering things about a politician. The Court noted "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." The Court acknowledged that in public discussions—especially about public figures like politicians—people can make mistakes. If those mistakes are "honestly made," the Court said, they should be protected from defamation claims. The Court made a rule that public officials could sue for statements made about their public conduct only if the statements were made with "actual malice."
"Actual malice" means that the person who made the statement knew it wasn't true, or didn't care whether it was true or not and was reckless with the truth—for example, when someone has doubts about the truth of a statement but doesn't bother to check further before publishing it.
Later cases have built upon the
New York Times rule, so that now the law balances the rules of defamation law with the interests of the First Amendment. The result is that whether defamation is actionable depends on what was said, who it was about, and whether it was a subject of
public interest and thus protected by the First Amendment.
Private people who are defamed have more protection than public figures—freedom of speech isn't as important when the statements don't involve an issue of public interest. A private person who is defamed only has to show that the defamer acted negligently, not with actual malice.