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7. CRIMINAL LIBEL, CIVIL DEFAMATION: SLANDER AND LIBEL

Defamation, which includes libel and slander, occurs when a false and malicious statement so harms the reputation of another that it lowers his standing in his community or injures him in his business or profession. Libel is expressed by print, writing, pictures or signs; slander is expressed by oral expressions or transitory gestures.

Each of the 50 states has its own laws governing defamation, subject to limitations imposed by the First Amendment. In general, those laws set forth the essential element of the tort, including that a false or defamatory statement was made and that it caused harm. Consistent with the First Amendment, a plaintiff who is a public figure or public official has a more difficult burden for recovery. Not only must he prove elements of defamation required by state law, he must also prove, by clear and convincing evidence, that the statement was made with malice.

In a landmark 1964 case, Sullivan v. Times, the Supreme Court defined malice as knowing the statement was false or having reckless disregard as to the statement?s truth or falsity. A private individual has more protection against defamation and need not show malice unless the statement involves a matter of public concern. In that instance, the individual must show some fault on the defendant?s behalf, such as negligence. The Supreme Court has not limited defamation actions by private individuals that do not involve a matter of public concern.

Those individuals can therefore recover presumed and punitive damages, even if they do not establish malice.

A defamatory statement is ?of or concerning? the plaintiff where it holds him to public scorn or ridicule in the eyes of a substantial number of respectable people in the community. The court determines what is defamatory and the jury decides if the material was so understood.

One who falsely publishes matter defamatory of another in such a manner as to make the publication a libel is subject to liability to the other although no special harm results from the publication. In such cases, damage to reputation is presumed.

An exception exists to the general rule that libel is actionable without proof of special damages: where extrinsic factors are required to establish defamatory meaning (i.e., libel per quod), special damages are required, unless the libel falls within one of the four categories of slander per se.

One who publishes matter defamatory to another in such manner as to make the publication a slander is subject to liability to the other although no special harm results if the publication imputes to the other

1.  a criminal offense, or

2.  a loathsome disease, or

3.  matter incompatible with his business, trade, profession, or office, or

4.  serious sexual misconduct.

Aside from these four categories of slander per se, proof of special damages is generally required in slander actions.

The elements of the tort of slander are:

?    a defamatory statement that holds plaintiff to scorn, ridicule or contempt

?    it must concern the plaintiff

?    publication must be heard and understood by at least one person other the plaintiff

?    it must prove special damages, e.g. monetary loss, from loss of business, employment, etc.

Libel, on the other hand, is considered the more serious of the two torts. Libel is capable of much more harm because it can be read and re-read by an untold number of people.

Libel on its face and slander per se are generally actionable without proof of special damages. Liable per quod, which requires proof of extrinsic facts, and slander, which does not fall into one of the four categories, is not actionable unless special damages are first established.

Truth is a complete defense to either libel or slander, irrespective of the defendant?s motive for publishing the matter. As a general rule, in defamation cases the defamed plaintiff has the burden of proving the falsity of the statements, Philadelphia Newspapers, Inc. v. Hepps (1986).

There are other defenses available such as absolute and qualified privilege. The absolute privilege affords no liability for the publication even though it was motivated by malice and the speaker knew the statement to be false. Such circumstances would entail a judge, witness or lawyer engaged in judicial proceedings. The only limitation must be that it be relevant to the litigation. Highly placed governmental officials and subordinates acting under instructions and legislators are also privileged when speaking on the floor.

A conditional privilege or qualified one will be destroyed by common law malice (ill will and spite). Lesser officials such as municipal officials, statements made to police officers identifying another as being the person who committed an act constituting a crime, among others, fall within the scope of a qualified privilege.

Another defense is that the defamatory statement was a true and accurate account of events which were observed by the author of the article in question. American courts and state legislatures have also provided protection to the press in the form of a qualified privilege known as the fair report privilege. Although, at common law republishers of libel are just as liable as the original publisher-meaning that if one repeats a defamatory statement made by another, the repeater is as liable as the original source. The fair report privilege creates one exception, that is, the publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported. Sometimes, this privilege proves to be almost absolute as it evens extends to situations where the republisher does not believe the defamatory statements reported or knows them to be false. However, some jurisdictions still continue to treat fair report as they do the other conditional privileges by examining whether the defendant is guilty of malice in the common law sense of spite or ill-will or a purpose to harm.

Under the common law rule the defense that the defamatory statement was true was not open to the defendant in a prosecution for criminal libel. That crime was originated to suppress sedition, and later extended to prevent breaches of peace, and neither was likely to be minimized if the defamation were true. Hence the criminal courts took no account of any freedom to publish the truth.

Some states have criminal libel statutes. The U.S. Supreme Court has held that a criminal libel statute is unconstitutional if it imposes a penalty for making a true statement about a public official, Garrison v. Louisiana (1964). In other words, it implied that to be prosecuted under a criminal libel statute, both malice and falsehood had to be proven by the prosecution. It has yet to be directly decided by the Court. There have been few prosecutions for criminal libel.

The criminal law rule never was applied to civil actions. At common law there has been agreement that an action of defamation will lie only if the statement is both defamatory and false. Statutes in a few states and judicial decisions in some others have indicated that an action may lie even for a true statement if it was not made for good motives and justifiable ends. But a statute of this nature was held unconstitutional as a violation of the First Amendment in Farnsworth v. Tribune Co. (1969).

Defamation is not actionable on matter of opinion provided that the facts support the statement. The tort of defamation requires a defamatory statement, purportedly factual in nature, that holds the person in ridicule, contempt or scorn.

When the meaning that defames the plaintiff is clear upon the face of the words uttered, the cause of action is made out by pleading, and proving, the words themselves and their communication to a third person. Where the meaning is not clear upon the face of the words, the task of the plaintiff is more difficult.

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