Defamation and the 1st Amendment

Cite this article as:"Defamation and the 1st Amendment," in The Business Professor, updated January 2, 2015, last accessed June 1, 2020,
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Defamation and the 1st Amendment
Is defamation protected? The 1st Amendment Freedom of Speech offers limited protection to Defamatory communications.

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Defamation and 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. “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. This fact 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 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.

Discussion: How do you feel about the balancing of an individual’s freedom of speech rights against the rights of individuals to not be harmed by false speech? Remember, the freedom of speech is expressly stated in the Constitution, while an individual’s protection against harm from false statements is not.

Discussion Input

  • Individuals will vary in the extent to which they value individual freedoms against the role of government to protect those who are subject to harm. Someone who highly values freedom of expression might argue that preserving individual freedom is more important that preempting a harm that, if it occurs, could be remedied through other means or methods. Others might argue that the role of government in managing an orderly society, which includes protecting those in need of protection, must come before abstract rights of those potentially causing the harm.

Practice Question: Martin is under investigation for alleged acts of terrorism. When the news media learns of this, they report on national television that Martin is a suspect. This leads to all sorts of hate mail and threats against Martin. Martin is ultimately ruled out as a suspect for the terrorist activity. Nonetheless, the investigation and television coverage has caused serious harm to Martin’s career and lifestyle. What would Martin have to show to hold the new media liable for its reporting?

Proposed Answer

  • Martin would need to demonstrate that the media intentionally subjected him to the defamatory coverage with the knowledge that the coverage or information was false or was a reckless disregard of the truth of the matter.

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