What is Defamation under the 1st Amendment?

Defamation is the publication (open communication) of false statements about others that will knowingly subject that person's character to ridicule or disrepute. 

Types of defamation include libel, slander, and trade disparagement.

Defamation receives only partial protection under the 1st Amendment from infringement by Government law or action.

How do 1st Amendment protections apply to Defamation?

As stated above, Defamation is the publication (open communication) of false statements about others that will knowingly subject that person's character to ridicule or disrepute. 

• Slander is verbally defaming someone. 
• Libel is defaming someone through a writing. 
• Disparagement is defaming someone's business prowess or practice. 

Defamation statutes do not prohibit this type of speech (a prior restraint of the speech); rather, they allow an individual harmed by the speech to recover damages for harm suffered as a result of the speech. 

Potential liability for defamation, however, can have the effect of dissuading free speech. 

As such, a law that makes defamation actionable must be balanced against the protections afforded the individual who is the subject of the defamatory expression. 

In any case, the defamed individual must demonstrate an actual harm suffered as a result of the defamation.

• Example: A state passes a law that allows for a civil cause of action (and damages) against an individual who makes a false statement about another person that results in harm to that person's reputation. While an individual has a 1st Amendment right to make any form of speech or expression, this right must be balanced against the rights of those who may be harmed by such speech or expression. In this case, promoting the well-being of citizens is a compelling interest of the state. Allowing a cause of action for this sort of defamation is likely constitutional.
• Note: To lessen the potential for the suppression of the free and open press, a plaintiff must show intentional defamation or malice by the publisher toward the defamed person. Likewise, a public figure or celebrity must demonstrate this higher standard of intent to hold someone liable for defamatory statements. Disparagement represents the societal interest of allowing individuals to undertake commercial activity free of the damaging effects of defamatory attacks.

Related Concepts

• What is the 1st Amendment?
• What are the Establishment Clause and Free Exercise Clause
• How does freedom of religion affect business practice?
• What is the protection of Freedom of Speech?
• Speech with Limited or No Protection
• What is Obscene Speech?
• What are Fighting Words?
• What is Commercial Speech?
• What is Political Speech?
• Overbreadth and Overly Broad Laws
• Freedom of the Press
• Freedom of Assembly