Defamation vs. Free Speech

The concepts of defamation and free speech often collide, raising questions about where the line should be drawn between the right to express oneself and the responsibility...
United States Litigation, Mediation & Arbitration
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The concepts of defamation and free speech often collide, raising questions about where the line should be drawn between the right to express oneself and the responsibility to prevent harm to others. While free speech is one of the fundamental rights protected by the United States Constitution, the common law claim of defamation has existed for centuries. This article from Buckingham is designed to examine the difference between these two concepts and to examine the line that speech can cross over from free speech to defamation.

What Is Freedom of Speech?

Freedom of speech is the right to express one's opinions and ideas without government censorship or restraint. This principle is promoted in most democratic societies and is designed to facilitate open dialogue, debate, and the exchange of different or dissenting viewpoints.

However, the right to free speech is not absolute. As is explained in the Bill of Rights, the concept of freedom of speech is designed to prevent government censorship of speech, but, as is obvious in this article, one can still be subject to liability for their speech if it falls within certain categories.

For instance, hate speech, "true threats," or speech inciting imminent lawless action are not forms of speech protected by the First Amendment. Speech that constitutes an unlawful intrusion into a third party's privacy will also not be protected by the First Amendment. Finally, and most importantly for purposes of this article, if a speaker makes false statements about a subject and causes harm to the subject's reputation, those false statements may not be protected and can form the basis for a defamation lawsuit.

What Is Defamation?

Defamation refers to the act of making false statements about someone that harms their reputation. It encompasses both libel (written defamation) and slander (spoken defamation). To constitute defamation, the statement must be false, published or communicated to a third party, and result in harm to the subject's reputation.

The legal implications of publishing defamatory statements can be significant, with potential consequences ranging from the assessment of financial damages against the speaker to, in some instances, criminal charges. Defamation laws – and the remedies afforded to victims of defamation – vary across jurisdictions, but they generally aim to strike a balance between protecting individuals' reputations and upholding the basic tenets of freedom of expression.

Differences Between Free Speech and Defamation

Given the interplay between an individual's First Amendment rights and the rights of an individual to seek a remedy for wrongful conduct, the question comes up in nearly every defamation case as to whether the speech in question is "free speech" – i.e. constitutionally protected speech that cannot give rise to liability – or unprotected defamatory speech. There are a number of factors to consider when evaluating whether someone is exercising their right to free speech or engaging in defamation and, if the speech is "defamatory," whether the plaintiff may face additional hurdles based upon the content or subject of the speech.

Opinion vs. Fact

One of the primary questions when determining whether a statement is non-actionable free speech or actionable defamatory speech is whether the speaker has expressed an "opinion" or if the speaker has made a false statement of fact. Statements of pure opinion are always protected as free speech.

Sometimes, it is easy to identify speech as "pure opinion". For example, if someone posts a negative online review of a restaurant, stating "I gave the restaurant two stars because thought the food tasted bad and the server was unpleasant," the speaker's statement will be considered pure "opinion," and they cannot be sued for defamation.

However, what constitutes an "opinion" is not always so straightforward. For example, consider an online review stating: "I gave this restaurant two stars because, in my opinion, the food tasted bad, they served me expired chicken, and they overcharged my credit card by $200." While the reviewer has used "opinion" language and expressed a "pure opinion" as to the taste of the food, the other allegations are statements of fact. If those allegations of fact are, indeed, false, they will not be protected as "opinion" and can be actionable as defamation.

The fact vs. opinion analysis can be very nuanced and is, typically, best undertaken by an experienced defamation attorney. However, as a general matter, some factors to consider when trying to evaluate whether a statement is "opinion vs. fact" include: what was the context in which the statement was made, was the speaker used hyperbolic or over the top language, and would a reasonable reader consider the statement to be conveying facts or opinions.

Public Issues

Another type of speech that is afforded greater protection under the First Amendment is commentary regarding matters of public interest. The law typically provides greater protection to these types of statements – even if false – because such statements contribute to important discourse about matters impacting the populace. As stated by the United States Supreme Court, these types of statements are afforded special protection because they serve "the principle that debate on public issues should be uninhibited, robust, and wide-open." See Snyder v. Phelps 131 S. Ct. 1207 (2011). Speech purely about public issues will, at minimum, require a much higher burden of proof to show that those statements have crossed the line into defamation. As with the opinion vs. fact analysis, when determining whether speech concerns a "public issue" or "public concern" the facts and circumstances concerning the alleged statement will need to be carefully scrutinized.

Public Figures

Similarly, comments and statements about public figures or public officials are oftentimes more likely to fall within the realm of protected free speech – even if the statements at issue are false. Courts have consistently held that for speech involving a public figure, or people who have placed themselves in the public eye, should expect to be placed under increased scrutiny. As such, for speech involving a public figure to cross the line to defamation, the statements must be made with a higher level of knowledge that the statement is false. Public figures and public officials include, for example, individuals who currently hold a political office – whether they are a city councilperson or the President of the United States – or celebrities that have such widespread notoriety that they are, essentially, a household name.

While defamation and free speech are distinct concepts, they intersect in complex ways within the legal and ethical landscapes. While defamation seeks to protect individuals from false and harmful statements, free speech safeguards the fundamental right to express oneself without censorship. Navigating the boundaries between these concepts requires a delicate balance that upholds both individual rights and societal interests.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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