So Sue Me: What Exactly Is Defamation and Could I Be Sued for an Opinion?By Frank Morgan September 28th, 2012
Libel, slander, defamation—people use these words interchangeably. As a freelance writer, you couldn’t be sued for giving your honest opinion, could you? After all, this isn’t North Korea.
Think again! If your piece could hurt someone’s business or reputation, this lawyer says take a deep breath and count to 10 before you hit <SEND>.
What is defamation?
In the United States, “defamation” is generally considered a common-law tort. You thought “common law” meant a roundabout way of getting married, but here in America the Common Law is the nebulous, judge-made canon consisting of broad legal principles plus past court decisions in your state. Generally, you defame a person if you (a) communicate; (b) to a third party; (c) anything about the person which tends to hurt her reputation. “Slander” is defamation in speech. “Libel” is defamation in print or online.
What if it was true?
A lot depends on whether the allegedly defamatory statement involved a matter of “public concern”, or a purely private matter. If it’s a purely private matter, then truth is a complete defense to the charge of defamation. In a public-concern matter, the U.S. Constitution requires the plaintiff to prove both (a) that the statement was false; and (b) that the defendant knew or should have known it was false when she communicated it. Fortunately, courts tend to broadly interpret what qualifies as a matter of public concern (just ask Prince Harry).
The issue is: who has to prove what? In a Constitutional “public concern” case, the plaintiff has to prove both falsity and fault right off the bat, and that’s going to be expensive. In a common-law, private-matter case, by contrast, the defendant can assert the truth of her statement as a defense, but she could end up paying a lawyer a lot of money to do it.
So the truth will make you free, but it’s going to cost you.
Can I get sued for my opinion?
Believe it or not, the short answer is: Yes, f you communicated your opinion to a third party and your opinion seemed to be based upon specific facts which, if published, would be defamatory in and of themselves. But you’re less likely to get sued if you communicated a matter of purely personal taste, i.e., “the mignonette was too coarse” or “the cartoon cat with the celebrity voice wasn’t funny.”
What about the First Amendment?
The old adage is true: the First Amendment doesn’t give you the right to yell “Fire!” in a crowded theater. The U.S. Constitution serves primarily to protect statements made concerning “public figures” (politicians, celebrities) and involving matters of public interest (again, Prince Harry), as well as philosophical, religious, and artistic expressions. Under the rule in New York Times v. Sullivan, if the target of the defamatory statement is a public figure, then the plaintiff must prove that the publisher either knew the statement was a lie when he disseminated it or at least acted with “reckless disregard” as to whether the statement was true or false.
The end result is that it’s likely more dangerous for you to make a statement which tends to damage the reputation – especially the business reputation – of a private person than it is to lampoon a celebrity. Were it otherwise, Perez Hilton would be in serious trouble.
Frank Morgan is a practicing New York attorney specializing in tort litigation, intellectual property, and contract matters.