Libel Law, Defamation and What it Entails.

First Amendment rights of free speech and free press often clash with the interests served by defamation law. While the press exists in a large part in reporting on issues of public concern, individuals possess a right not to be subjected to falsehoods that impugn their character. This apparent clash between the two rights have been proven to lead to expensive litigation, million-dollar jury verdicts and negative public views of the press.

Let's go back to the basics and define what Libel and Defamation really entail. What is Defamation? Defamatory comments often include false comments that a person committed a particular crime or engaged in certain sexual activities. Basically, the bigger picture of a defamation claim is that there was apparent reputational harm.

A Former United States Supreme Court Justice, Potter Stewart wrote in the case Rosenblatt v. Baer (1966) that "the essence of a defamation claim is the right to protect one’s good name." According to Stewart, this tort “reflects no more than our basic concept of the essential dignity and worth of every human being, which is a concept at the root of any decent system of ordered liberty.” Speech from the broadcast medium that is part of this script is termed "libel."

The Court looked for a middle ground between this “grey area” and ruled that there must be a proper accommodation between protecting reputations and ensuring “breathing space” for First Amendment freedoms. The thought that was driving this mindset was “If the press could be punished for every error, a chilling effect would freeze publications on any controversial subject.”

One interesting part of Libel and Defamation’s rough past was in 1964, when defamation weighed more heavily in the legal balance than the First Amendment. According to David L. Hudson Jr., a First Amendment Scholar, like many other common-law torts, was not subject to constitutional baselines.

Taking it one step further. the Supreme Court compared libel to those of “obscenity and fighting words” which are included in categories of expression that receive no First Amendment protection, as the Court held in Chaplinsky v. New Hampshire of 1942.

While I may have initially been shocked to hear this comparison and grouping- if you look at Libel and Defamation guidelines, it does make sense. Looking into Libel Law, it is one of the hardest types of lawsuits to win- you will need to prove six essential pieces of information.

The six elements include, Defamatory content which can be placed into one of the four categories of: illegal activity, professional incompetence, moral failing, or communicable disease. The second element is identification, or third party recognition, meaning if a third party cannot identify you- you cannot make a valid defamatory claim. Thirdly, was it publicly stated or put before the public for a broad audience, if not- no claim. Fourth, fault. There is no liability without fault, and a standard of actual malice would have to be proved. Next, there will be proof needed of an injury to ones reputation. Lastly, proof of falsehood, you must prove that this claim is not true.

In recap, Libel law is a subset of torte, which is claiming a reputation was harmed and money must be given to rectify the harm caused. These suits often happen in civil cases which does not have governments involved and usually resolves in fines, and contains two private parties. Libel lawsuits are often the hardest to win due to needing to prove all six elements.It is important to note that libel cases do not always include suing the press/journalist.