As I noted in a post about a month ago, I occasionally take off on flights of knowledge-seeking fancy.
Last month, it was over the subject of “Defamation” – the catchall term for what used to be called “Libel” and “Slander”, back when “old media” was the human voice and “new media” was the printing press.
As I explained back then, the various flavors of defamation occur when someone says, writes, or otherwise transmits…:
- …something that is defamatory – in other words, that has a reasonable chance of damaging the subject’s livelihood or reputation (where “reasonable” means “would convince a jury”)…
- …to one or more third parties – meaning that someone besides the target has to hear it. The communication in question must be…
- …untrue, as in “there is no truth to it”.
- And if the target of the statement is a “public figure”, the target needs to prove the person making the statement acted out of malice.
Like most laws, the law as regards Defamation seems pretty straightforward on its surface. But as anyone who’s had to try to read the law and is, as it happens, not a lawyer has noticed, while laws mean what they say, they also mean a lot more, and that “lot more” isn’t kept very clear for any of us lay people.
And so, as I did last month, I flipped through this site, which is an excellent resource on the subject. I figured we’d take a quick jaunt through all four of the factors of Defamation, starting with the first. What is Defamation?
A. A Defamatory Communication
What is a “defamatory” statement?
1. A statement which causes harm to reputation.
A statement is defamatory if it “tends to injure the plaintiff’s reputation and expose the plaintiff to public hatred, contempt, ridicule, or degradation.”
Seems fairly straightforward; if you say something about someone that harms their livelihood and reputation, it’s defamation.
Beyond that? Some things are seriously fighting words; they are defined – sort of, to a certain level – as defamation any way you slice it:
2. Defamation Per se
Some statements are so defamatory that they are considered defamation per se; and the plaintiff does not have to prove that the statements harmed his reputation. The classic examples of defamation per se are allegations of serious sexual misconduct; allegations of serious criminal misbehavior; or allegations that a person is afflicted with a loathsome disease…When a plaintiff is able to prove defamation per se, damages are presumed, but the presumption is rebuttable.
In other words, if someone says you’re a pedophile, that’s pretty much defamatory. If they say you killed someone, and you didn’t? Defamatory!
Of course, it’s not quite that simple:
3. What Constitutes Injury to Reputation?
The plaintiff must establish proof of damage to reputation in order to recover any damages for mental anguish; see Gobin v. Globe Publishing Co., 232 Kan. 1, 649 P.2d 1239, 1244 (1982); Swanson v. American Hardware Mutual Ins. Co., 359 N.W.2d 705, 707 (Minn. App. 1984) (rev. denied) (“To establish a claim in a defamation action [plaintiff] must prove that the [defendant] made false and defamatory statements about them which injured their reputation.”).
If someone claims, for example, that you had been convicted of driving under the influence of alcohol? Well, that’s a pretty infamous crime in this day and age. Just ask Tom Emmer, who wasn’t even convicted of it, and still likely lost the Governor’s race – because of two non-convicted incidents that happened decades ago. The incidents happened, of course – Emmer never hid the fact – so there was no defamation involved, although the context (as I noted at the time) of the DFL’s campaign was very dodgy.
But if there was no conviction, ever?
That’s why lawyers make so much money off of these sorts of cases!
Of course, there are some people that simply can’t be defamed…
The “libel-proof” plaintiff. A plaintiff is “libel-proof” when his reputation has been irreparably stained by prior publications. At the point the challenged statements are published, then, plaintiff’s reputation is already so damaged that a plaintiff cannot recover more than nominal damages for subsequent defamatory statements. Marcone v. Penthouse Int’l Magazine for Men, 754 F.2d 1072, 1079 (3rd Cir. 1985).
Now, we’re talking about people with drastically bad reputations; we’re not as a rule talking parking tickets, here. Indeed, everyone…:
However, a court will not dismiss a defamation action merely because the plaintiff already has a bad reputation. Schiavone Construction Co. v. Time, Inc., 646 F. Supp. 1511, 1516 (D.N.J. 1986), rev’d, 847 F.2d 1069, 1072-73 (3rd Cir. 1988). Finklea, 742 S.W.2d at 516 (“[E]ven the public outcast’s remaining good reputation is entitled to protection.”) Rather the statement upon which the defamation claim is based should relate to the same matters upon which the prior bad reputation was founded, or to substantially similar matters.
…has a right to try to rehabilitate their reputation.
Well, almost everyone:
In extreme cases, a plaintiff’s general reputation may be so bad that a court will hold a plaintiff libel-proof on all matters. For example, Charles Manson or Adolph Hitler could not be damaged by defamatory statements. Langston v. Eagle Publishing Co., 719 S.W.2d 612, 623 (Tex. App. 1986).
So to sum up this first part: “Defamation” is when someone says something about you that harms your reputation and livelihood – but you have to be able to show that it caused damage. A drunk calling you naughty names in a bar – or on their blog – is not the kind of thing that’s going to convince a jury that you’ve been harmed.
Oh, of course there’s more to it than that.
More on Monday.
Again – this is purely a flight of unfettered fancy.