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Defamation and 1st Amendment Considerations

Cite this article as: Jason Mance Gordon, "Defamation and 1st Amendment Considerations," in The Business Professor, updated January 9, 2015, last accessed March 29, 2020, https://thebusinessprofessor.com/knowledge-base/defamation-and-1st-amendment-considerations/.
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Defamation and the 1st Amendment
This video explains what is defamation and how it is affected by the 1st Amendment.

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1st Amendment Considerations

Special rules apply to defamation of celebrities and public figures and defamation by the news media. The media is not liable for the defamatory untruths they print  unless the plaintiff can prove the untruths were published with “malice” (evil intent that is the deliberate intent to injure) or with “reckless disregard for the truth.” Likewise, for a celebrity or public figure to recover for defamation, she must demonstrate that the defendant defamed her with malice or with reckless disregard for the truth.

Discussion: Do you believe that defamation laws violate the 1st Amendment? Why or why not? How should the rights of individuals against defamation be balanced against individual freedom of speech? Do the higher standards for defamation against celebrities, public figures, and the media effectively balance those rights? Why or why not?

Practice Question: Donald is running for political office. He routinely says things about his opponents that are not true. Many of the statements are very offensive and attack the opponent’s personal character. Under what conditions could Donald be liable for his statements?

Proposed Answer

  • The 1st Amendment provides everyone the right to freedom of speech. However one cannot exercise this freedom if in so doing they will be hurting the reputation and character of any other person. A person is not protected under the 1st Amendment if the statement they publish is untrue and aimed at maliciously tainting the reputation of the public figure or celebrity. Where the statement is untrue, malicious and intended at ruining the reputation of the victim, then the publisher of the statement is guilty of committing defamation. In the example from the practice question, Donald could be guilty of committing defamation. https://courses.lumenlearning.com/boundless-politicalscience/chapter/the-first-amendment-the-right-to-freedom-of-religion-expression-press-and-assembly/

Academic Research

Lasson, Kenneth, Racial Defamation as Free Speech: Abusing the First Amendment (1986). Columbia Human Rights Law Review, Vol. 17, No. 1, 1986. Available at SSRN: https://ssrn.com/abstract=1166882

Ardia, David S., Freedom of Speech, Defamation, and Injunctions (August 8, 2013). 55 William & Mary Law Review 1 (2013); UNC Legal Studies Research Paper No. 2307744. Available at SSRN: https://ssrn.com/abstract=2307744

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