What we say matters: The limits of free speech include defamation and stupidity

Donald Sterling - LA Clippers File image
Donald Sterling - LA Clippers File image

WASHINGTON, April 27, 2014 – Cliven Bundy and Donald Sterling are both in the media spotlight for making insensitive, racists remarks.  Making remarks in the media, or in your neighborhood, can result in huge penalties for the speaker. What can you do if defamed?

Last year a Roanoke, Virginia jury awarded $250,000.00 to a former homeowners association president (Clatterbuck vs. Burkett).

A disgruntled resident in the community was upset about association repair fees, so he spread multiple false comments about the president and the president’s wife, accusing them of criminal sexual activity.

The right of free speech that we Americans cherish has limits. You cannot stand up in a crowded movie and yell “fire” if there is no fire. Depending upon circumstances and what is said, there can be both criminal and civil repercussions for exercising your vocal chords, or your electronic keys via cellphone, tablet, or computer.

Defamation is any intentional false communication, either spoken or written, that harms someone’s reputation. False written statements are called libel.  Spoken falsities are called slander.

To recover in a defamation claim, the aggrieved individual must show:

  1. That a false statement of fact was made.
  2. That the statement was published, meaning it was conveyed to someone other than the plaintiff, and that at least one person who saw it or heard it understood it as having a defamatory meaning. Publication includes statements posted on the internet, on social media websites, in a blog post, comment, review, or as a video or audio statement.
  3. That the false statement was made negligently, or intentionally, with little or no reason to believe the statement was factually correct. In certain situations, actual malice must be proven in addition to falsity. Actual malice can be proven if the person knowingly publishes the false statement of fact or at least recklessly does so.
  4. That some injury to the plaintiff resulted from the defamation.

Generally, there are four defenses to libel or slander:  truth, consent, accident and privilege. Truth means essentially true. Consent to publication will bar any recovery.  Accidental publication is not publication. Privilege confers immunity on some who are engaged in doing the business of the public such as judges, attorneys, jurors, and witnesses in legal proceedings.

In common law (the law brought over from England) there were four types of communications that were considered so harmful that the plaintiff was not required to prove specific harm, or damages, in order to prevail in a lawsuit.  These communications remain now in all but a few states:

  1. Detrimental statements relating to a person’s business or profession;
  2. False claims alleging someone committed crimes of moral turpitude (conduct that is considered contrary to community standards of justice, honesty or good morals);
  3. Statements that a woman was unchaste; and
  4. Claims that the person suffers from a “loathsome” disease.

Proof of any of these types of defamatory “per se” statements typically meant the plaintiff would win in a lawsuit. Today, Arizona, Arkansas, Mississippi, Missouri, Oregon, and Tennessee do not have “defamation per se” laws.

Damage awards rendered by most juries today ultimately reflect real harm.

When false statements are made about public figures stricter standards apply than in the garden variety of mudslinging between neighbors. The famous must be willing to suffer a few more slings and arrows.

A landmark Supreme Court case decided in 1964, New York Times v. Sullivan, established the “actual malice” standard for public figures claiming defamation. A public official or other person who has voluntarily placed themselves in the public eye must prove that a defamatory statement was made with actual malice—that is, with knowledge that it was false or with reckless disregard about its accuracy.

The Times case also established more protection for the press, to allow for open and robust debate on public issues. Sullivan was a police officer who claimed the Times made false allegations about him.

In 2011, Crystal Cox claimed press status as an investigative blogger, but she found herself on the losing end of a ruling:  not “mainstream media” per the judge.  Next, a verdict of $2.5 million judgment was entered against her in an Oregon federal court.  She criticized financial companies. These “reviews” adversely affected these businesses. A federal judge ruled that although she was a blogger, her work and numerous websites under business names showed she did not qualify to get the protections journalists are afforded in defamation cases.

There are better ways to vent frustrations with those we are angry with or against whom we have business problems than to go public with defamatory comments. Filing a lawsuit in a business situation will hopefully resolve the matter, and writing a private letter to someone who has offended you may allow you to vent. Public speech can be very costly.

Ask Courtney Love. In March, 2011, she settled a defamation lawsuit, agreeing to pay a fashion designer $430,000 for derogatory and untrue comments she made on Twitter and her MySpace blog. A $4,000 dispute over payment for a dress led Love to make numerous disparaging remarks about the designer’s business. Love also felt it was appropriate to call the woman a “whore” and a “convicted prostitute.”

A lesson in not joining the crowd came in Texas, in 2008. A regretful cacophony of malicious people took their misguided outrage viral. The Lesters had not yet been indicted for sexual assault, but the electronic world became a repository for a then anonymous scorching of them, mostly on the web forum Topix.com. Despite the couple’s complete acquittal, the postings continued.  Mr. and Mrs. Lester identified the posters. They sued because the posts accusing them of being sexual deviants, molesters and drug dealers caused them, they say, to be indicted, and then to move out of town. Mrs. Lester lost her day spa business. They filed a defamation lawsuit and in 2012 a jury awarded them  $13.78 million.

In a much reported case concluded this past July, Sarah Jones, a former Cincinnati Bengals’ cheerleader successfully sued a “gossip” website that published comments that she had sex with every Bengals player. A Covington, Kentucky awarded her $338,000 in damages.

Speak the truth or keep it to yourself.


Updated from article originally published from September 15, 2013


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  • flicker66

    Dirty Harry Reid and the liar Obama have has used defamatory words and have made defamatory comments against republicans and their supporters . Where is the out rage?

  • Igor Shafarevich

    The term “rule of law” is used to describe rules, such as those defined in the United States’ Constitution, designed to preserve liberty by placing limits upon centralized government’s power to coerce and control.