What is libel?

Libel is complicated and often difficult to litigate; however, it is one of the few ways speech is allowed to be restricted under the First Amendment and, in my opinion, has produced some of the most interesting court opinions in American jurisprudence. A few of my favorites include Evel Knievel bringing a defamation suit against ESPN for the statement “Evel Knievel proves that you’re never too old to be a pimp,” (Evel Knievel v. ESPN), an administrator suing a college newspaper for accidentally captioning her photo “Director of Butt Licking,” (Yeagle v. Collegiate Times), and the infamous Jerry Falwell suing for an article that implied his first sexual experience occurred in an outhouse with his mother (Hustler Magazine v. Falwell).

In a sentence, libel is when something is published about someone in a written or permanent form or via a wide broadcast, that harms the reputation of that person. Libel is the partner of slander, which includes spoken words and gestures, and they both fall under the umbrella of defamation. Libel is usually a tort, or a civil action, that can be brought by one private individual against another, but some states still recognize criminal libel for certain situations. Libel claims can be brought by living persons and other non-human entities that have been legally considered “persons” like corporations, unincorporated business, and unions. Libel is also governed by state law, and thus there is no universal federal libel statute. However, speaking generally, a successful claim of libel must have a false and defamatory statement, that was published, is “of and concerning” the plaintiff, and there some element of fault on the part of the defendant.

To be defamatory, the statement must actually cause harm to the reputation of the other person, it is not enough if the statement is offensive or insulting alone. Actual harm is sometimes difficult to show, but an example would be if a paper published a statement about rats in a restaurant (assuming all other elements of libel claim are met) and that restaurant can show a loss in sales. Some jurisdictions recognize a statement as defamatory per se, and actual harm does not have to be shown; these are statements that courts generally expect to cause harm, such as implying criminal conduct or relate to someone’s professional reputation.

To be a false statement, the facts asserted in that statement have to be provably true or false. Thus, statements that are opinions, name-calling, rhetorical hyperbole, and the like cannot be actionable because they are not clearly true or clearly false. Opinions about non-specific descriptions fall under the non-provable, such as calling a store “trashy” (Levinsky’s, Inc. v. Wal-Mart Stores, Inc.) But be warned, simply proffering “I think” before a statement does not magically transform the statement to an opinion. For example, if someone published the statement, “I think Jake stole that car,” that statement is still libelous, as it strongly conveys the author has a reasonable belief it is true, even if the author has no such belief.

In libel land, publication only means that at least one other person, besides the person the statement was about, reads the statement. For the Internet age, this means that if a statement was published on a personal blog, Tweeted, Facebooked, etc. and third-party saw the statement, it can be found to qualify as published. The statement must also be “of and concerning” the plaintiff. That is, the third-party must identify it specifically with the plaintiff when reading the statement.

The final piece of libel is the fault of the defendant. Fault refers to the level of culpability the defendant had while making the statement, or their state of mind and knowledge about the statement. The required level of fault is determined by the subject of the statement and the plaintiff’s status. Statements about private individuals and private matters usually only have to prove that the statement was made negligently, the defendant failed to exercise due care in making the statement. The Supreme Court has determined, in an effort to promote protected political speech and public debate, statements about a public figure or a public issue have to show more culpability, a standard called “actual malice” (New York Times v. Sullivan; Gertz v. Robert Welch, Inc.) The actual malice standard is harder to prove than negligence and requires reckless disregard for the truth.