First Amendment
Defamation
Speech or writing that is defamatory is generally not protected by the First Amendment and may therefore be subject to criminal libel law or civil laws awarding damages.
Fault and Damages Rules in Constitutional Defamation Actions:
Type of Plaintiff Defamation
Fault Required
Damages Recoverable
Public Official or Public Figure
Actual Malice: knowledge of falsity or reckless disregard as to truth or falsity
Presumed damages under common law rules (and punitive damages where appropriate) if other state law damage requirements are met
Private Person: Matter of Public Concern
At least negligence as to statement’s truth or falsity
Damages only for proved “actual injury” (if plaintiff proves actual malice, presumed & punitive damages may be available) if other state law damage requirements are met
Private Person: Matter of Private Concern
No fault as to truth or falsity need be proved
Presumed damages under common law rules (and punitive damages where appropriate) if other state law damage requirements are met
Defamation of “Public Officials”
Freedom of speech and press bars a civil libel judgment for criticism of “public officials” in respect to their “official conduct,” unless the plaintiff shows malice by clear and convincing evidence
– New York Times v. Sullivan
Rationale: To allow recovery in such cases could lead to self-censorship on matters of public concerns, i.e., persons might well avoid expressing justified criticisms of official conduct for fear of being held liable for “erroneous statements honestly made” or because of the costs of defending legal actions arising from such criticism. Furthermore, public officials may protect their reputations through their opportunity for public rebuttal and thus are not greatly in need of legal remedies
Actual Malice:
Requires a showing that the publication was known to be false or was published with reckless disregard as to its truth or falsity – mere negligence is not enough – even if the publication was made with ill will or the intent to injure. Since there is no public interest in protecting calculated falsehoods, First Amendment protection does not extend to speech made with “malice”
Inaccurate Quotations
Even if an author deliberately misquotes a person, there is no “malice” unless the false quotation results in a material change in the meaning of the actual statement
Reference to Individual required
Even if “malice” is shown, no damages will be awarded to an individual member of a group if only a large group is defamed. To recover, the individual must provide particular reference to himself – or that a relatively small group was defamed and that he is a clearly identifiable member thereof. Thus, a criticism of “the police” does not give the commissioner of police a cause of action
Discovery
In attempting to prove knowing or reckless falsehood, the plaintiff may inquire (1) into the state of mind of those who edited, produced, or published the allegedly defamatory material (about their thoughts, opinions, and conclusions concerning the accuracy of the material gathered), and (2) as to what took place in the editorial
doms of speech and press guaranteed by the First Amendment, the states may define liability standards in defamation actions by private individuals involving matters of public concern only as long as:
o They do not impose liability without fault;
o The factual misstatement warns a reasonably prudent editor or broadcaster of its defamatory potential; and
o Damages are limited to compensation for actual injury – including impairment of reputation, personal humiliation, and mental suffering
The Court state that presumed or punitive damages may not be imposed unless the plaintiff proves that the defendant acted with knowledge of the falsity or with reckless disregard for truth
Matters of Public Concern
In defamation of a private individual does not involve matters of public concern, presumed or punitive damages, as well as actual damages, may be granted. This approach accommodates “the strong and legitimate state interest in compensating private individuals for injury to reputation” with “the danger of media self-censorship”
– Dun & Bradstreet, Inc v. Greenmoss Builders, Inc
Factors considered
Whether a statement is a matter of public concern is determined by the statement’s content, form, and context – – considering all the relevant circumstances
Non-media defendants
A majority of the Justices have stated that the New York Times and Gertz protections for media defendants apply as well to defamation suits against non-media defendants
– Dun & Bradstreet, Inc
