Welcome back to Free Speech Friday here on Lawyers & Liquor, where we discuss the concepts, cases, and limitations behind the system of speech in this wonderful country – namely the United States of America – and learn some neat shit about free speech jurisprudence and concepts together. I’m your constitutionally inept attorney host, the Boozy Barrister, here at the behest of the Free Speech Friday sponsor, Quack Quack Honk Designs!
In case you don’t know who that is, Quack Quack Honk Designs is an awesome independent art studio and artist set up in the wilds of Michigan that provides a large number of original works in adorable and neat styles. I have several of their prints decorating my office for when I go home and wash off the blood of my litigation enemies before settling into my den with a nice plate of cookies to and listening to old sing along story tapes, and you can too if you visit their storefront or drop into one of the many upcoming art show appearances to peruse their works! If you do, though, be sure to tell them that a drunken, angry, profane lawyer sent you their way.
In past editions of Free Speech Friday we’ve discussed the founding of the First Amendment and how it seemed to be the clearest thing in the world until, you know, it fucking wasn’t. We’ve also talked about how John Adams and his administration went out of their way to shit all over the constitutional protection to say what you want free from government interference. But today we’re gonna veer away from the historical to talk about something we need to recognize before we go too far down the rabbithole of what you can say without getting smacked upside your loose-lipped head by the giant dick of justice. That’s right, today we’re going to talk about situations where the right to speak freely is sharply curtailed, not by a desire to silence the speaker but because of the malicious and detrimental effect some types of speech can have on the subjects – especially when the speech is enough to set someone’s pants on fire. Today, we’re going to delve into the defamatory world of slander and libel. But first, a disclaimer.
NOT YOUR LAWYER
I’m an attorney but that doesn’t mean I’m your attorney. What we engage in here on Lawyers & Liquor when discussing the law are interesting generalities that a layman (read: you, you dumb shit) may not be aware of. We talk about these generalities in a fun, educational, and hopefully entertaining manner, but in no goddamn way am I providing legal advice to anyone out there. As always, the law is a fickle creature and these generalities may not hold up when applied to the particulars of your specific case – so if you find yourself in a situation where you have to apply the general rubber to the specific road of facts to determine your legal standing what you need to do is haul ass down to an attorney licensed in your jurisdiction and not point to “that blog written by the dude who cusses a lot” as a reliable source of legal advice. Cool?
Cool. Now, on with the show.
PUD PULLING PAUL: CAN HE WIN?
Alright, let’s set up a hypothetical here so we can go point by point down the elements of a case. Paul the Youtuber is popular. As often happens, pride goes before the fall, and one day Paul finds himself embroiled in a controversy where someone has stated he enjoys a particular type of porn, perhaps the pattern of porn parallel to what a person could possibly perceive on a page such as www.atube.sex, pulling his Paul pud perpetually to it. Paul begins to threaten a defamation or libel suit against the perpetrator of the pud pulling publicity. Can Paul the alleged pud puller successfully prosecute as the plaintiff a defamation case?
The key elements for any defamation case are as follows: (1) false and defamatory statement concerning a person; (2) unprivileged publication to a third party; (3) negligent conduct in publication; and (4) damages/injury to the subject. And this shit isn’t an “either/or” test, it’s a four part “You have to meet all the requirements” test or your case can get thrown right the fuck out of court. That means you can only sue Billy and win if the statement that serves as the basis of the lawsuit meets all four of these elements. Got it? So, what do the factors mean then? Well, first we need a little background on defamation law in general.
FREE SPEECH UNTIL YOU ATTACK SOMEONE.
The basic concept of free speech is that a person has a right to express themselves free from the restrictions or punishment of the government or its agents. However, it’s not an absolute right. As the court in the oft-cited (and even more oft-misinterpreted) case of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) noted:
“Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.”
Chaplinksy at 571-72.
In Chaplinsky SCOTUS was examining an incident where a religious pamphleteer called a cop a “damned Fascist,” among other things. Under a law in effect a the time which specifically made name-calling illegal in New Hampshire (no shit, it really criminalized calling people names), Chaplinsky was convicted and appealed the conviction on the grounds that the Frist Amendment barred his prosecution for merely calling a cop a bad name. Their reasoning was that the type of speech undertaken by Chaplinsky was of a sort that was likely to provoke a physical response, and therefore the statute criminalizing the name-calling was appropriate as a matter of public policy to prevent dangers to the public safety. This would become known as the “fighting words doctrine” and form a whole new exception (sort of) to the concept of freedom of speech – but that’s a post for another month. What’s important to take away from this is, like with obscenity, there are exceptions in the law for free speech protections when the speech attacks or injures another person in a direct and personal manner (although, as we will talk about in the near future, relying on Chaplinsky to justify shit is stupid because the exception has been significantly narrowed down over the almost eight decades since it was rendered. No, you still can’t have someone arrested for calling you a Nazi).
What’s important for today’s discussion is the fact the court in Chaplinsky specifically mentioned “libelous” words as being within the scope of exceptions from the freedom of speech protections.
WHAT IS LIBEL, WHAT IS SLANDER, WHAT IS DEFAMATION?
Alright, let’s start with a real quick primer on what terms mean, what they now mean, and how all of you assholes are probably using them incorrectly. Except for that one prick who’s always “well actually”-ing the fuck out of a conversation. You know this asshole. He’s the same guy that reminds people tomatoes are technically fruits and you really want to punch him for it because anyone who thinks referring to ketchup as “tomato jelly” is the pinnacle of witty humor deserves to be clocked as you scream “Fighting Words, Chaplinsky Junior!”
Libel is “[a] defamatory statement expressed in a fixed medium, especially writing but also a picture, sign or electronic broadcast.” Black’s Law Dictionary, 417 (2d Pocket Ed. 2001).
Slander is “a defamatory statement expressed in a transitory form, especially speech.” Black’s Law Dictionary, 649 (2d Pocket Ed. 2001).
So to summarize the dictionary definition, libel is defamatory speech that meets the other elements that is in a fixed form – not just writings but any fixed form – while slander is the same type of speech that isn’t in a fixed form. Got it? Great. Now go annoy your friends with your new knowledge of legal terminology. However, this whole thing can cause a lot of issues in the modern day, where the definition of a “fixed form” can be pretty fucking varied. I mean, now there are text messages, Snapchats, Twitter messages, Youtube videos, etc. A lot of those things can be deleted or otherwise removed by the speaker…which is a neat distinction because, really, the distinction between libel and slander was one specifically based on the permanence of the speech in question. The more permanent and unable to be destroyed the defamatory speech was, the more serious the charge: written words like news articles could never be completely wiped, but spoken words could stopped being spoken.
Neat huh? Anyhow, as the lines between “fixed” and “transitory” began to merge, it became clear that we needed a better term to encompass the fine art of saying nasty, dirty lies about other people and allowing them to sue the fuck out of you in response, which is where we got “Defamation.”
Defamation is, by the dictionary definition, “the act of harming the reputation of another by making a false statement to a third person.” Black’s Law Dictionary, 183 (2d Pocket Ed. 2001). Under most state laws now, this is the term we use to refer to both slander and libel. While at common law, and in many jurisdictions in statute, we used to separate those two offenses out, we don’t anymore. Now we just cram them into one subject like the cutest ass jewels butt plug in a virgin’s asshole and say “you can fit it all in you, defamation. You’re a dirty boy.”
FALSE AND DEFAMATORY STATEMENT
False Statements of Fact and You
Simply put, a false and defamatory statement is any statement that tends to expose the subject of it to hatred, ridicule, or contempt and causes the same person to be shunned or injures their business or trade.
However, we have to remember a few key points in saying this, and the first key point is that it has to be a false statement and requires that the statement be a statement of fact. Mere statements of opinion are not sufficient to expose a person to liability for defamation because they are not taken as statements of fact. But we can get even more complicated with that shit because there is a standard for when something is a statement of opinion and not a statement of fact – and it isn’t met just by saying shit like “In my opinion.” Rather, the court will look at the circumstances surrounding the making of the statement and the substance of the statement itself to determine whether or not the statement is one of fact or opinion – and the main question the court looks at in making this determination is whether or not the statement can be proven to be true or false to a degree of certainty. So, “Paul the Pud Pulling Youtube is annoying” is likely not a statement of fact, but a statement of opinion, while “Paul is a pedophile, in my opinion” likely is a statement of fact because it can quantifiably be proven to be true or false if all the evidence was known.
Likewise, there is the question of whether or not the statement is known to be false. That’s a big deal, because, and I can’t say this enough, in general there is no liability where the statement is true. Paul couldn’t say “I look at this porn from https://www.sexmature.xxx/ and pull my Paul pud to it perpetually, but I didn’t want it to be known” and still maintain an act for defamation. A true statement, with few exceptions, cannot serve as the basis of an action for defamation. However you should be aware that in a few jurisdictions there are court opinions which indicate a true statement may form the basis of a defamation if the statement is made with actual malice, that is, the intent to cause harm (though, frankly, this is in my opinion a horrible ruling and precedent and there exist other areas of law than defamation to bring such an action).
Notably, the burden rests on the plaintiff (the person bringing the action) to prove the falsity of the statement. That means if Paul the Pud Pulling Popular Youtuber can’t prove that the statement is false they could lose the means to liability – mere denials in many instances, when weighed against evidence presented by the defendant that the statement is true in their own defense, may not be sufficient for the jury or judge which hears the case.
And that’s without getting into what is a “defamatory” statement for the purposes of the law.
Is This A Defamatory Statement?
Likewise, there’s a serious question as to whether or not a specific statement is defamatory in nature. Generally, something is defamatory if it ” tends . . . to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Restatement (Second) of Torts § 559. However, this doesn’t mean any statement that may cause someone to be offended or change their reputation in a community is defamatory – rather only such statements that, if they were true, would cause a negative impact amount a substantial number of people in the community the subject resides in. Id. at Comment (e). Further, the statement must be something which would be considered harmful not by the subject of the statement, but rather by a reasonable person within the community. For instance, if the statement was made only to other purveyors of the same type of porn as Paul is alleged to be pulling his pud to, it would be unlikely to lower Paul’s reputation among the community and thus be harmful enough to rise to defamation. Likewise, if the statement is merely insulting or offensive in some contexts but not all or merely reflects poorly on the person without alleging any actual wrongdoing it is unlikely to rise to the level of a defamatory statement that is actionable. Romaine v. Kallinger, 537 A.2d 284 (N.J. 1988); Matherson v. Marchello, 100 A.D.2d 233, 236 (N.Y. App. Div. 1984). This is referred to as proving it to be “defamation per quod” or, in plain english, defamation from the evidence.
Some statements of fact, however, are considered so blatantly harmful that they escape this analysis, and are considered to be defamation per se, that is, statements that are by their very nature defamatory because they always tend to lower the reputation of a person in the community. Among such statements are statements that a person has committed a criminal offense, has a loathsome disease, has engaged in activities incompatible with their business, trade, or profession, and/or statements that relate to serious sexual misconduct. However, keep in mind that the seriousness of the statement is at issue, and for it to be defamation per se it must actually be a statement of one of these things. For instance, “Paul has a BDSM fetish” is not any of these things, whereas “Paul is a convicted spousal abuser/child molestor” when it isn’t true is a statement of a criminal offense and therefore is defamation per se. In other words, when a statement falls into one of the general categories we assume from the very nature of the statement that it is both upsetting to the individual and causes an injury to that person’s reputation.
CONSIDER THE SPEAKER: THE REQUIREMENT OF PUBLICATION
The second element of defamation is that the statement must be communicated to a third party – that means someone other than the speaker and the subject. In other words, if someone messages you saying you’re a pedophile, that is not defamatory as they’re only communicating this statement to you, the subject of the statement. However, if they communicate it to any third person without some sort of privilege to do so, that amounts to publication. It seems simple, but it isn’t. I mean, let’s assume Paul the Pud Puller is the one who receives a message and then screencaps it to an audience. It that defamation? The answer is “no” because Paul is the one who published the statement to a third party, not the speaker. Likewise, if there is a voice mail or answering machine message left solely for the speaker it likely wouldn’t rise to the level of publication because such things could be considered under the speakers control.
This element requires that the third party who hears the statement actually understands it and believes it to be a statement of fact. So if the message about Paul is written in a secret language that only Paul and the speaker know and is then placed on Twitter, there likely is no defamation because the people seeing the message don’t know what it says. To bring this into the real world, if the speaker said to only a group that didn’t understand English that Paul was a Pud Puller, the statement wouldn’t meet the publication requirement because the group hearing the statement couldn’t understand the english words that are being spoken.
Further, as stated above, we have to consider the source of the statement. You may remember that Stormy Daniels sued President Trump for defamation. However, when the case came in front of the court it was dismissed, not because the statement that Daniels was making up facts wasn’t necessarily defamatory on its own but rather because context and circumstances in which it was made, referring to the “hyperbole” that is common in politics. In other words, you can’t take at face value many things said in the political arena and therefore the statement – even though published by Trump – could not be assumed to have been believed as a statement of fact by the listener. Which means that defamation is only certainly founded by publication in circumstances where (1) it is communicated to a third party (2) who understands the statement itself and (3) would believe it to be true under the circumstances in which it was made.
To take it back to Paul, this means that even a defamatory statement may not be actionable if made under circumstances where a reasonable listener would not accept the statements to be true – such as in the political arena – or where the statements are so fantastical that no reasonable listener would be inclined to believe they are true…like if Paul were to allege that the person who spoke out against them engaged in a years long con job with intricate details long before Paul was even known to most people – or the person in particular here.
Fun, huh?
NEGLIGENT OR MALICE? LOOK TO THE SUBJECT.
The third element of defamation is one of whether or not the speaker was at the very least negligent in making the statement. Now, in general, the standard for negligence is simply that the speaker of the statement did not undertake some reasonable level of care in making the statements. It’s proven many times by showing some lack of research, lack of attempts to verify information before submitting it, and the trustworthiness of the sources…as well as the apparent severity of the statement in determining how much reasonable care should have been made prior to discussion. Seems pretty easy, right?
Wrong. Because actually the level of intent required to form liability in defamation is based on the subject of the speech and what type of person they are. And no, this isn’t a reference to whether they’re a good or bad person in your opinion but rather what type of public figure they are. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1975), SCOTUS basically created three types of plaintiffs in defamation cases: the private person, the limited purpose public person, and the all purpose public figure, and established the requisite level of intent for each.
A private person under this standard is, basically, your everyday Joe Schmoe – the typical person. And for that person mere negligence in the making of a defamatory statement is sufficient to give rise to a cause of action. The “all purpose public figure,” on the other end, is the type of person who is so visible as a result of their lifestyle that they invite attention and comment. This is movie stars, sports celebrities, politicians, etc. And for them, the standard is that “actual malice” statement we saw earlier, which requires the person have actual knowledge the statement is false or that they act with reckless disregard as to whether or not the statement is true and, importantly, is a subjective standard that only gives a shit about the state of mind of the speaker at the time of speaking.
In essence, if Paul the Pud Puller were a public figure, to win on defamation he would have to show the person spreading the rumors either: (a) knew they were false at the time the statements were made or (b) did not care about the truth and actually had doubts about the truth of them but engaged in the speech specifically to harm Pud Pulling Paul. This is a really fucking high standard, and is really goddamn hard to meet in the world of public figures.
But what if a person is public sometimes and private other times? That’s the “limited purpose public figure” – someone who is at the forefront of a particular controversy or discussion, but otherwise is unknown to the public. In that situation the standards become mixed: to the extent they have actively sought to participate in the controversy willingly, they are considered a limited purpose public figure in issues related to that controversy and therefore statements that involve those matters are subject to actual malice. However, in all other subjects they are not public figures, and the negligence standard applies. It’s the difference between a defamatory statement about Paul Pud Pulling if Paul had started a public controversy regarding that specific type of pornography Paul was alleged to have looked at in an effort to increase his viewership and making such a statement if Paul’s controversy was about banking practices or something. And the degree to which the controversy is related to the statement is a court determination for the finder of fact – so there’s no hard and fast “this is within or outside of the scope of the controversy they started themselves” determination to be made here.So, you know, to determine whether the element is met, we’d have to know whether or not Paul is a private or public figure, and if he is the latter whether he is an all purpose or limited purpose public figure based on the facts and circumstances surrounding the matter and Paul himself.
THERE MUST BE BLOOD: INJURY AND DAMAGES ARE REQUIRED.
In many cases like this, the end result is nothing. This is because in many situations a person can’t show some actual pecuniary loss and must be able to prove up some special damages such as distress. Otherwise, even in the worst scenarios, what will happen is a nominal damages award and some sort of injunctive relief requiring retraction.
So. Yeah. That’s that on that.
CAN PAUL WIN?
The answer, as always, is “it depends.” It depends on if the statement is defamatory and false – keeping in mind that proof of falsity will need to be offered and generally the truth will serve as a defense to such. It depends on the publication, and whether the environment is such that a person hearing it would both understand it and believe that it is true. It depends on whether Paul is a public or private figure and whether there was actual malice or mere negligence on behalf of the speaker. And, finally, it depends on what Paul has actually lost.
And, of course, it depends on whether Paul actually has a reputation that can be tarnished. In more than one case, even with all of the elements being met, a court has found that damages cannot be granted because the reputation of the subject was so goddamn bad that the statements couldn’t actually lower it any lower. Which is a neat way for a court to say “You’re right, but you’re such an asshole that you can go fuck yourself.
But one thing’s sure: If Paul can prove every element the First Amendment won’t stop him from asserting the claim. Because defamatory statements aren’t protected by the First Amendment if they meet all of these requirements.
That’s all for this month – Go check out our Sponsor, Quack Quack Honk Designs, and we’ll be back with the next Free Speech Friday to go over a new interesting tidbit of speech related law.
-BB