I’ve had it explained to me by a couple of lawyer friends, but I still don’t get how you can sue someone for slander in a country with free speech. Doesn’t free speech mean I can say whatever I want without fear of legal consequences?
Lovely troll. Now I’ll feed you, 'cause I’m a dope.
The freedom of speech means you can tell the truth to anyone you want whenever you want.
If you’re lying, and it causes them harm, then they have the right to kick your ass, preferably through the courts. It’s part of the mostly neglected and pretty much completely unwritten ‘freedom to be left alone’.
“Free Speech” does NOT mean that you can say whatever you want without fear of consequences. The First Ammendment says that THE GOVERNMENT cannot limit or control your speech (and even that has exceptions . . . ). The First Ammendment only applies to limit how THE GOVERNMENT can restrict speech. It does not apply to private persons or entities.
For example, if I were a private employer and you were my employee, I might put in your contract that you could not use the word “purple” and that if you did, I could fire you. If you used it, I could fire you because you had breached the contract. The First Ammendment would not protect you, because it only prevents THE GOVERNMENT from restricting your speech, and I am not the government.
For your enlightenment, here is the First Ammendment, in its entirety:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
The key words here are: “CONGRESS SHALL MAKE NO LAW . . . abridging the freedom of speech, or of the press . . . . .”
If you slander Joe Blow, it has nothing to do with Congress making laws, and thus does not implicate the First Ammendment.
How’s that a troll? I did a search and couldn’t find anything along those lines in GQ.
And if I was trolling do you think I’d have bothered to make 100 odd posts before I got around to it?
Even then, there are exceptions to that rule. For example, seditious statements are prosecutable. So is fraud. So is perjury.
Silentgoldfish - Who were you planning to slander???
Here’s a nice little slander rule-of-thumb that I learned whilst working for the News Department of my college radio station*:
“You can call anyone an asshole, but you can’t call anyone an alcoholic.”
In other words, you can freely express your opinions about anyone or anything to your heart’s content, but you can’t out-and-out lie and/or misrepresent. Calling someone an asshole is mostly protected by the 1st Amendment (although that might fall under the “fighting words” exception), but you can only call someone an alcoholic if you reasonably believe that they are an alcoholic. If you know darned well that someone is not an alcoholic but you call her/him one anyway, you’ve slandered her/him.
*Props to WBRS, Brandeis University radio, 100.1 FM, Waltham, Mass.
On the other hand, say you work for a national newspaper, and you call someone an alcoholic. They then sue you. They might win, but they spend thousands of dollars on legal bills. And they are equally as likely to lose, especially against a newspaper. This is the problem with suing for slander.
Under English law slander is defamation in speech and libel is defamation in print. Interestingly, in England (and I believe in the US too) a statement can only be considered defamatory if communicated to a third party. Under Scottish law a statement be defamatory even if only the subject receives it.
Defamation must involve harm to the subject’s reputation. As such, calling someone an asshole is not really slanderous. Insulting, yes, but probably not slanderous.
This link also claims that defamation is sometimes not possible where you’re expressing an opinion [“I think that so-and-so is taking bribes” vs. “so-and-so is taking bribes”]. In practice, though, courts have sometimes denied the validity of “I think” as a disclaimer.
Can’t remember much of my media law, but in the UK you can’t get legal aid for defamation cases. You can however get legal aid for “malicious falsehood” (which may be a criminal offence) but IIRC you have to prove pecuniary loss, or certainly “damage” sustained as a result.
The UK overhauled the defamation act in 1996, making it much better for broadcasters in particular IMHO. Particuarly with features such as “offer of amends.” It also gives limited protection for live broadcasts with no seven-second cut-off delay etc.
http://www.media-solicitors.co.uk/ is an extremely useful site.
But in terms of free speech, there are various forms of qualified and absolute privilege. However some things that are true are still not allowed to be reported: ie in the context of court reporting (where proceedings are active), imputation of a contagious disease, and previous convictions where rehabiliation of offenders legislation is relevant.
All in all it’s an absolute minefield.
IANAL, but I recall that in English law, you can sue for libel if somebody writes something defamatory about you, but you only have a case for slander if they’ve said something defamatory, and it’s caused you “special damage” - lost you money, or caused some other problem (the classical example is being turned out of your clubs). IIRC, Scottish law doesn’t make this distinction.
There is something called “criminal slander”, but I’m not 100% sure what that is…
I’m inclined to agree with istara here; English defamation law is notoriously overcomplicated and open to abuse. But we still need it - freedom of speech, like any other freedom, does not include freedom to ignore the consequences of your actions; if your free speech damages someone, they’re entitled to a remedy in law.
And of course in the UK if you win you (generally speaking) do get your costs back, so one barrier at least is partially lowered.
Of course, there is still the risk that you might lose…
pan
I also believe that you can say whatever you want about a dead person. The descendents can’t sue because they weren’t talking about you but about your great great grandfather.
That’s what I remember from Mass Comm Law back in college…maybe the law has changed since then??
Keep in mind that also, your rights end where my rights begin. MY right to be able be free from having malicious lies ruin my career is more important than your right to say I beat my kids when I don’t. You see?
I don’t know if it is important to make a disticntion here but for my purposes I am referring to US slander/libel laws.
I thought in the US it was pretty hard to successfully sue someone for slander and/or libel. I don’t know if this applies to individuals or only the media but I thought the US had something called “Absence of Malice” which protected people from slander/libel suits. Not only does the plaintiff have to show that what you said was false but that you said (or wrote) it with malicious intent to cause harm. In the final analysis I thought that was difficult to do in court.
I think this is there to protect people who say something that is provably false but which they had reason to believe was true when they said it. That is enough to protect the speaker/writer and I think what rags like the National Enquirer hide behind. Of course, the flip side is you can still get the speaker/writer if they show a blatant disregard fro the truth (e.g. a bum on the streets tells you Joe Blow is going to assassinate the President isn’t enough for you to go ahead and blow the whistle on Joe Blow).
I apologize if I am unfairly mixing libel and slander laws here. IANAL either so feel free to set me straight (as if you needed my permission).
When this thread originally surfaced I spent several minutes constructing a long and elaborate description of U.S. defamation law. It almost seems as if I’m titleing at windmills. But what the hell – it’s either that or go back to work.
Slander is spoken defamation; libel is written or printed. For most purposes that’s the only definition and the law for both is the same.
In the U.S., you cannot actually say whatever you want. Or rather, you can, but if your speech is injurious to someone, you have to pay the consequences. (Just the same as you’d have to pay if you injured them by bashing them in the head with a cricket bat. Or whatever.)
Defamation is when you make an untrue statement about another which injures them. To prove defamation, the victim (V.) must typically prove that the statement was made, it was told to a third party (this is called “publication,” but it can be satisfied by a single person-to-person comment), and that he was injured by it. (The injury test is weird; in some states libel is always injurious; most states also presume injury for slander (spoken) if it falls within one of four categories – it imputes that a woman is unchaste, it imputes that V. suffers from an STD, it imputes that V. is guilty of a crime involving moral turpitude (different states define that phrase differently), or it casts aspersions on V.'s business or his professional ability.) Typically V. does not have to prove the falsity of the statement, but if the defendant can prove that the statement was true, he’s not liable. (That is, truth is a defense.)
The rubric changes a bit if the victim is a public figure. If so, then defamation becomes much, much harder to prove (almost impossible). Not only must V. prove the three elements above (statement, publication, and damages), he must also prove two other things. First, falsity. (In this context, V. must affirmatively prove falsity.) Second, V. must prove “malice.” In the defamation context, malice means that when D. made the statement he either knew it was untrue or it was made with reckless disregard for its truth or falsity. It’s very easy for a defendant to defeat this element – practically any investigation or reasonable information that suggests the statement might have been true defeats malice, so there can be no finding of defamation.
Some examples:
I might post:
You could sue me for libel. If I could prove that you do, actually, fuck sheep, I’d win, but if I couldn’t prove it (even if it happened to be true) then you’d win. Note that this was written in semi-permanent form and everybody else on the web could see it. If I had said it instead, it’s still defamation because it accuses you of a crime of moral turpitude.
However, if I were to post:
I’d be OK. He’s in the public eye, so first he would have to prove that he didn’t actually engage in this behavior. Second, he’d have to show that I either knew this wasn’t true (which I don’t) or that I was reckless. There are enough rumours about Jackson’s weird sexual proclivities floating around, that the statement above probably isn’t legally reckless, even if it is an abhorrent thing to say.
The reason for the distinction is based in the same concern for vigorous public discourse that animates the First Amendment. We don’t want a society where you can get away with causing severe injury to people’s reputation by spreading lies. But we also don’t want a society where everyone constantly self-censors statements for which they don’t have ironclad proof, because then you could never mount an investigation as to whether the rumors you’ve heard about the President’s cover-up of a burglary or his illegal sale of weapons to an enemy state were valid. In fact, you’d never even hear the rumors at all.
–Cliffy, Esq.
P.S. This is a very abbreviated discussion of defamation, and I’ve left a lot out. Also, I do not practice in this area. If you are concerned about any potentially defamatory statements you may have made or received, please consult an attorney licensed in your jurisdiction and versed in this area of the law – I am neither, nor do I have many necessary facts. I am not your lawyer, you are not my client, and I am not capable of rendering competent legal advice on this subject in this forum.
I don’t understand this bit. That’s to say, I don’t see how the courts could find such a burden of proof reasonable. You are asking the plaintiff to prove a negative (i.e. He/she does not fuck sheep). Such a proof is near impossible unless the plaintiff happens to live on the moon and can prove that no sheep in the history of the world has ever been on the moon.
BTW: Any other attorney’s on this board willing to sue Cliffy for me for libel? (Just kidding although you might consider using a more innocuous name in your examples next time such as ‘Joe Citizen’…for a second I was trying to figure what I had done to offend you so 
).
Yes, we are asking the plaintiff to prove a negative and it is near impossible – that’s part of the deal. We (that is, society) don’t want public figures to be able to prove defamation very easily. Although note that we’re not asking for metaphysical proof; in the legal context (at least in non-criminal trials) to prove something is merely to convince the jury it is more likely true than not.
–Cliffy
In general I think this is a good policy else the media would be hounded into sumbmission such that they never dare to talk about public figures again. Still, it seems as though defamation laws go too far in the other direction such that one can say nearly anaything about a public figure without fear of retribution. Public figures bring greater scrutiny on themselves by virtue of placing themselves in the public eye but they also stand to lose more than your average nobody from defamatory language. They should have at least some small chance of protecting themselves but that’s just my opinion.
Has a public figure ever successfully sued a media organization for defamation? I seem to recall that Carol Burnett successfully nailed the National Enquirer ages ago but I forget the specifics or if she indeed got them at all. (I am not counting public figures who are able to get retractions printed…as if those retractions buried deep in the paper happen to do any good anyway.)