The concepts of defamation and free speech often collide,
raising questions about where the line should be drawn between the
right to express oneself and the responsibility to prevent harm to
others. While free speech is one of the fundamental rights
protected by the United States Constitution, the common law
claim of defamation has existed for centuries. This article from Buckingham is designed to examine the
difference between these two concepts and to examine the line that
speech can cross over from free speech to defamation.
What Is Freedom of Speech?
Freedom of speech is the right to express one’s opinions and
ideas without government censorship or restraint. This principle is
promoted in most democratic societies and is designed to facilitate
open dialogue, debate, and the exchange of different or dissenting
viewpoints.
However, the right to free speech is not absolute. As is
explained in the Bill of Rights, the concept of freedom of speech
is designed to prevent government censorship of speech, but, as is
obvious in this article, one can still be subject to liability for
their speech if it falls within certain categories.
For instance, hate speech, “true threats,” or speech
inciting imminent lawless action are not forms of speech protected
by the First Amendment. Speech that constitutes an unlawful
intrusion into a third party’s privacy will also not be
protected by the First Amendment. Finally, and most importantly for
purposes of this article, if a speaker makes false statements about
a subject and causes harm to the subject’s reputation, those
false statements may not be protected and can form the basis for a
defamation lawsuit.
What Is Defamation?
Defamation refers to the act of making false
statements about someone that harms their reputation. It
encompasses both libel (written defamation) and slander (spoken
defamation). To constitute defamation, the statement must be false,
published or communicated to a third party, and result in harm to
the subject’s reputation.
The legal implications of publishing defamatory statements can
be significant, with potential consequences ranging from the
assessment of financial damages against the speaker to, in some
instances, criminal charges. Defamation laws – and the
remedies afforded to victims of defamation – vary across
jurisdictions, but they generally aim to strike a balance between
protecting individuals’ reputations and upholding the basic
tenets of freedom of expression.
Differences Between Free Speech and Defamation
Given the interplay between an individual’s First Amendment
rights and the rights of an individual to seek a remedy for
wrongful conduct, the question comes up in nearly every defamation case as to whether the speech in
question is “free speech” – i.e. constitutionally
protected speech that cannot give rise to liability – or
unprotected defamatory speech. There are a number of factors to
consider when evaluating whether someone is exercising their right
to free speech or engaging in defamation and, if the speech is
“defamatory,” whether the plaintiff may face additional
hurdles based upon the content or subject of the speech.
Opinion vs. Fact
One of the primary questions when determining whether a
statement is non-actionable free speech or actionable defamatory
speech is whether the speaker has expressed an “opinion”
or if the speaker has made a false statement of fact. Statements of
pure opinion are always protected as free speech.
Sometimes, it is easy to identify speech as “pure
opinion”. For example, if someone posts a negative online
review of a restaurant, stating “I gave the restaurant two
stars because thought the food tasted bad and the server was
unpleasant,” the speaker’s statement will be considered
pure “opinion,” and they cannot be sued for
defamation.
However, what constitutes an “opinion” is not always
so straightforward. For example, consider an online review stating:
“I gave this restaurant two stars because, in my opinion, the
food tasted bad, they served me expired chicken, and they
overcharged my credit card by $200.” While the reviewer has
used “opinion” language and expressed a “pure
opinion” as to the taste of the food, the other allegations
are statements of fact. If those allegations of fact are, indeed,
false, they will not be protected as “opinion” and can be
actionable as defamation.
The fact vs. opinion analysis can be very nuanced and is,
typically, best undertaken by an experienced defamation attorney.
However, as a general matter, some factors to consider when trying
to evaluate whether a statement is “opinion vs. fact”
include: what was the context in which the statement was made, was
the speaker used hyperbolic or over the top language, and would a
reasonable reader consider the statement to be conveying facts or
opinions.
Public Issues
Another type of speech that is afforded greater protection under
the First Amendment is commentary regarding matters of public
interest. The law typically provides greater protection to these
types of statements – even if false – because such
statements contribute to important discourse about matters
impacting the populace. As stated by the United States Supreme
Court, these types of statements are afforded special protection
because they serve “the principle that debate on public issues
should be uninhibited, robust, and wide-open.” See Snyder v.
Phelps 131 S. Ct. 1207 (2011). Speech purely about public issues
will, at minimum, require a much higher burden of proof to show
that those statements have crossed the line into defamation. As
with the opinion vs. fact analysis, when determining whether speech
concerns a “public issue” or “public concern”
the facts and circumstances concerning the alleged statement will
need to be carefully scrutinized.
Public Figures
Similarly, comments and statements about public figures or public officials are
oftentimes more likely to fall within the realm of protected free
speech – even if the statements at issue are false. Courts
have consistently held that for speech involving a public figure,
or people who have placed themselves in the public eye, should
expect to be placed under increased scrutiny. As such, for speech
involving a public figure to cross the line to defamation, the
statements must be made with a higher level of knowledge that the
statement is false. Public figures and public officials include,
for example, individuals who currently hold a political office
– whether they are a city councilperson or the President of
the United States – or celebrities that have such widespread
notoriety that they are, essentially, a household name.
While defamation and free speech are distinct concepts, they
intersect in complex ways within the legal and ethical landscapes.
While defamation seeks to protect individuals from false and
harmful statements, free speech safeguards the fundamental right to
express oneself without censorship. Navigating the boundaries
between these concepts requires a delicate balance that upholds
both individual rights and societal interests.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
#Defamation #Free #Speech #Libel #Defamation
