Since I started this series a couple of weeks back, we’ve enjoyed a fascinating journey of learning – in this case, about what “defamation” – libel and slander – really really mean.
Here’s an interesting bit; as we noted yesterday, “false” can mean either “what the defendant said is false”, or “the defendant, with reasonable care, should have known it was false”. Indeed, the case law makes it pretty clear:
D. Negligence Is Standard Of Liability
In Minnesota, the defendant is liable if it “knew or should have known in the exercise of reasonable care” that the defamatory statement was false. Jadwin, supra. This is the standard formulation for liability based on negligence, that is, liability arising from failure to take due care.
This is a low standard of liability.
In other words, if you accuse someone of having committed an infamous crime because you didn’t take the reasonable care to know that it was not factual, you are liable.
But what about free speech?
However, First Amendment considerations substantially limit the application of this standard.
So the courts will err on the side of free speech if there is any way to do so.
Still – if I were to write “Wang Fui Schlabotnik of Eden Prairie has a child porn conviction”, and Mr. Schlabotnik does not, Mr. Schlabotnik’s attorney might well argue that the First Amendment, free speech, and the rights of an open, unfettered press (in all its forms) aren’t served by my lying about his client’s criminal record – and defamation needs to be false, and false claims of infamous crimes are “defamation per se” under Minnesota Law (as we discussed last week).
And I suspect he’d have a point.
OK. I’ll cop to it. This series on the legalities behind defamation is not entirely an academic exercise, and it’s really not completely a flight of blitheful serendipity.
But there’s plenty of time to talk about that.
99 weeks, to be exact.