Defamation and Libel

Here are two important tenets of libel law every writer should know: (1) no matter how scurrilous, if what you say is true, it cannot be libel; and (2) generally speaking, you can’t libel a dead person.

Libel is defined as a false and defamatory statement, in writing, concerning another, which has been negligently published to a third party. In other words, if John sends a letter about Amy to Amy, that isn’t libel. But if John sends a letter about Amy to another person, or publishes the letter in a newspaper or other public forum, his words may be libelous—depending on what he’s saying about Amy.

Defamatory, in legal terms, means tending to harm the reputation of the person who is the subject of the statement. We’re talking about a statement that is more than just embarrassing or annoying; to be libelous, it must be the kind of statement that would deter other people from associating with that person.

Libel law differs from state to state, but every state’s law must conform to the First Amendment prohibition against “abridging the freedom of speech or of the press.” To be specific, the First Amendment protects truthful statements. (Sometimes publishing truthful statements can amount to invasion of privacy, but that’s a different issue.) Therefore, every state’s law will provide that only false statements can be libelous, though there is some variation in libel law from state to state.

In general, though, libel law requires authors to be certain that what they write is true. Even if the author’s intentions are innocent, if his statement can be reasonably interpreted as defamatory, and it is false, he may find himself accused of—and worse, successfully sued for—libel. Similarly, if a statement can be reasonably interpreted to refer to a particular individual, it doesn’t matter if the author actually intended it to refer to a different individual. (Authors beware when writing about someone with a common name. Every individual named William Smith other than the particular William Smith you accused of thievery could, in theory, sue you for libel.) Even if you don’t identify by name the person about whom you are writing, your words can still be deemed libelous. As long as a person can be reasonably identified— or misidentified—by your description of him or her, a jury will be free to decide that the statement was about that person.

Libel is not limited to individuals; legal entities, such as corporations and partnerships, can be also defamed, as can groups of people, although the group in question must be small enough that what is said can be reasonably assumed to be about particular, identifiable individuals. So, for example, a statement that the teachers in a local high school are unqualified for their jobs may be libelous if there are only 10 of them, but may not be libelous if there are 100 of them.

By contrast, you can pretty much say what you want to say about dead people. States, in general, have no interest in protecting anybody’s interest in a deceased person’s good name.

In addition to statements about dead people, you may also be able to get away with false and defamatory statements of opinion, which— no matter how wrongheaded—are protected by the First Amendment. But the line between fact and opinion is often fuzzy. Is saying someone is dishonest a statement of fact or of opinion? How about a statement that someone is a racist or an anti-Semite? (Answer in Pennsylvania: a statement that a public official is racist is fact, but a statement that he is anti-Semitic is opinion. Go figure.) Generally, if a statement cannot be verified as either true or false, it is an opinion. Opinions that seem to suggest the speaker knows facts to support them, however, may be treated as statements of fact—for example, a police officer expressing doubt about a woman’s report of rape.

Some statements are so outlandish that they cannot be reasonably interpreted as statements of fact and therefore cannot be said to harm a person’s reputation. Who would believe them? This reasoning famously led to the dismissal of Jerry Falwell’s libel case against Hustler magazine for the statement, among others, that he had had sex with his mother. Conclusion: If you are going to libel someone, exaggerate!

Public officials, as well as those we consider to be public figures, are required by the First Amendment to grow thick skins. While you may be liable to a private individual simply for making a false and defamatory statement about him, liability to a public official or figure is limited to instances in which the author knows or has reason to believe that his statements are false. The courts describe making a statement with such knowledge as writing with “actual malice,” which has nothing to do with how you feel about the person about whom you are making the statement, but everything to do with your intent to harm the target of your statement with its content.

This type of libel involves a host of legal questions: Who qualifies as a public figure, what kind of statements about them qualify for the heightened protection of the “actual malice” requirement, and what having reason to know something is false means are all topics that have been discussed, but not resolved, in pages and pages of legal opinions. It is enough to know that if you find yourself in this territory, you are in serious need of a lawyer.

And while we’re on the subject of hiring lawyers, keep in mind that being sued for libel can be very expensive, even aside from the cost of a lawyer to represent you. A person who has been defamed is entitled to be compensated for the harm to his reputation, as well as for what amounts to his “pain and suffering.” Because such harm is impossible to measure, juries are free to compensate for these harms in whatever amount they find reasonable. Punitive damages can also be awarded to both private and public figures if the jury concludes the libelous statements were made with “actual malice.”

All this means that it is safest to write about dead people, next safest to write about public officials and public figures, and safest of all to write only the truth.