Defamation
Defamation protects reputation through claims of libel (written) and slander (spoken), requiring a false statement of fact published to a third party that damages the plaintiff's reputation.
Overview
Defamation law protects individuals from false statements that harm their reputation. It encompasses two forms: libel (written or otherwise fixed defamation) and slander (spoken defamation). The common law elements are: (1) a defamatory statement of fact (not opinion); (2) that identifies (is "of and concerning") the plaintiff; (3) publication to at least one third party; (4) fault on the part of the defendant; and (5) damages.
The constitutional overlay from New York Times v. Sullivan transformed defamation law by requiring public officials to prove "actual malice" — that the defendant made the statement knowing it was false or with reckless disregard for its truth. This standard was extended to public figures in subsequent cases. Private plaintiffs need only prove negligence in most jurisdictions, per Gertz v. Robert Welch, Inc.
At common law, libel is generally actionable per se (damages presumed), while slander requires proof of special damages unless it falls into one of four per se categories: statements imputing a crime, a loathsome disease, unfitness for one's profession, or serious sexual misconduct.
Truth is an absolute defense to defamation. Other defenses include absolute privilege (judicial proceedings, legislative debates), qualified privilege (good-faith statements on matters of common interest), and fair comment on matters of public concern.
Key Takeaway
Defamation requires a false statement of fact (not opinion) published to a third party. The fault standard depends on whether the plaintiff is a public or private figure.
Exam Tip
Always classify the plaintiff as public official, public figure, or private individual — this determines the fault standard. Remember the constitutional protections from New York Times v. Sullivan apply only to public plaintiffs.
Landmark Cases (5)
Frequently Asked Questions
What is the actual malice standard?
From New York Times v. Sullivan, actual malice means the defendant made the statement knowing it was false or with reckless disregard for whether it was true or false. It applies when the plaintiff is a public official or public figure.
What is the difference between libel and slander?
Libel is defamation in a fixed or permanent form (writing, broadcast, online). Slander is spoken defamation. Libel is generally actionable per se (damages presumed), while slander typically requires proof of special damages unless it falls into a per se category.
Is opinion protected from defamation claims?
Pure expressions of opinion are generally not actionable as defamation because they cannot be proven true or false. However, statements of opinion that imply undisclosed defamatory facts can be actionable.
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