Defamation and the First Amendment - Term Paper Example

 Defamation and the First Amendment ABSTRACT This research explains the different types of defamation, as well as what defamation actually is. Additionally, a description of what peoples’ free speech rights afforded by the First Amendment, as well as the bounds of this free speech, will be discussed. Finally, an explanation will be given as to what happens in defamation suits, including specific cases as sub-topics, as well as suggested areas of further research. Defamation is a serious offense, punishable by having to either issue an apology, pay a fine, or both.1 Speaking negatively about someone can undoubtedly cause harm to that person’s character. However, what is to be said of the extents of free speech guaranteed Americans in the First Amendment? To what point does the First Amendment guarantee that someone may speak freely about someone else, albeit in a negative light? Here, it will be examined: what constitutes defamation; what constitutes free speech as guaranteed by the First Amendment; and what happens in defamation cases. Defamation is defined as “[h]olding up of a person to ridicule, scorn or contempt in a respectable and considerable part of the community; may be criminal as well as civil.”2 Defamation can be oral (slander) or written (libel).3 As it has been described, “Typically, the elements of a cause of action for defamation include: 1. A false and defamatory statement concerning 0 another; 2. The unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement); 3. If the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and 4. Damage to the plaintiff.”4 In other words, defamation of a person can range from someone making a comment or critique in presence of a third party, or can include written communications that a third party sees. (This does not include personal letters to one person that are not seen by a third party.)5 Anything defamatory is considered “that which tends to injure reputation…diminish[es] the esteem, respect, goodwill or confidence in which the plaintiff is held, or…excite[s] adverse, derogatory or unpleasant feelings or opinions against him.”6 A communication is considered defamatory “if it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”7 In this instance, the “meaning of a communication is that which the recipient correctly, or mistakenly but reasonably, understands that it was intended to express.”8 First Amendment guarantees the freedom of speech, along with the freedom of religion, the press, and peaceful assembly. Specifically, the First Amendment reads as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”9 Madison’s original draft of the First Amendment read, 'The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.''10 If it had been approved, this would have probably been a much more liberal version of the amendment than we have now. To speak, write, and publish one’s sentiments without being deprived or abridged of those rights would be more of a progressive stance than what was later accepted as the final draft. Indeed, though, it must naturally follow from that precept that one must ask the question, “Where is free speech limited?”, however. Obviously, there are some types of speech that are not tolerated in U.S. society. What constitutes unlawful speech? Well, the fact is, “Like it or not, the First Amendment was designed precisely to prevent government censorship, not only of popular speech but of unpopular speech – even so-called ‘hate speech.’  

There are some narrow exceptions, like speech that incites immediate violence.”11 So there is a tension. Apparently, one can use language however one wants as long as it does not incite violence, such as a riot—nor, in the case of defamation, making incriminating comments verbally or in print. One piece of advice for writers and other critics to take when considering what they write or say in print is to have lawyers read through their communications to make sure that any comments they make are not fodder for defamation suits.12 However, for the person not having the funds in order to hire lawyers every time they must make a printed communication, it is recommended that people think about what they are saying. Is what they are saying something that could harm the character of another person? Could it cause harm to that person’s reputation? Although the freedom of speech is explicitly guaranteed by the Constitution, this freedom will not necessarily protect people who are seeking shelter from making incendiary or negative comments about people, corporations, or other entities that must preserve their image. Additionally, it is usually the people who have money who will sue for defamation, since defamation suits can take years. And even then, the plaintiffs may not win. People who are accused of defamation, if they lose defamation lawsuits, will be accused of having been liars anyway. While truth may be an absolute defense for defamation, a statement being proved truthful may not be enough to necessarily prevent someone from being prosecuted in certain states. Depending on where one lives, the law regarding what constitutes defamation may change. Defamation lawsuits can be devastating for someone who does not have the capital to defend themselves. There are plenty of defenses against defamation, however, which the defendants can use to their advantage. As stated before, one can defend oneself “on the grounds that what [one] said is true.”13 However, this may not prove to be reliable if you happen to live in a state where truth alone isn’t “an adequate defen[s]e.”14 A second method of defense is that “If you have a duty to make a statement, you may be protected under the defen[s]e of ‘qualified privilege.’ For example, if you are a teacher and make a comment about a student to the student's parents -- for example, that the student has been naughty -- a defamation action can only succeed if they can prove you were malicious. You are not protected if you comment about the student in the media.”15 A third method of defense is plausible. If one says that one was just making a commentary, in this instance one may be in the clear. It depends on the situation. “If you are expressing an opinion, for example on a film or restaurant, then you may be protected by the defen[s]e of ‘comment’ or ‘fair comment,’ if the facts in your statement were reasonably accurate.” Additionally, if you one is a lawyer or a judge, or someone making a commentary in a legal setting (specifically, a courtroom), speech is given a special status which may make one immune to a charge of slander, for example. This fourth defense is “if you are a parliamentarian and speak under parliamentary privilege, in which case your speech is protected by "absolute privilege," which is a complete defense in law. The same defen[s]e applies to anything you say in court.”16 There are actually several other defenses that can be used if one is accused of defamation. However, for the sake of conciseness, they will not all be listed here. Rather, now the sub-topics of specific cases will be discussed. In one case in 1980, a physicist wrote a review of a book and, later, the plaintiff was awarded damages: “Bickel [the plaintiff] sued the publishers. He was particularly upset by Roberts' statement that ‘I object to the author's lack of moral concern.’ There was a trial, an appeal, a second trial, a second appeal and a settlement. Bickel won $180,000 in the second trial but received a somewhat smaller amount in the settlement.”17 In another case, students complained about a lecturer’s use of examples in the classroom, and they were sued for defamation: “In 1992…[the lecturer Peter] Weight threatened to sue 24 students for defamation. Six of them apologized. Weight then sued the remaining 18 for $50,000 for sending their letter to three authorized officials of the university. He later withdrew his suit…”18 Suggestions for further research include finding out what the balance is between free speech and defamation. While it is not recommended that writers and critics completely censor themselves, they should keep in mind the problems that ensue with defamation cases—which are costs, unpredictability, complexity, and slowness.19 It would be interesting to investigate whether there have been many cases of infringements on free speech and whether any of those cases were defamation lawsuits. Further energies could investigate more in-depth about the fine line between free speech and privileged speech which is allowed, and defamatory speech which is illegal. Also, it would prove a salient point to delve into the media’s ability to defame without suffering repercussions for outlandish coverage—which would include FCC regulations and how speech on TV and radio is monitored. Here, there has been a discussion about how speech is used. Speech can be used in a defamatory manner, and defamation has been defined. However, as it has been seen, free speech is also a right afforded Americans by the First Amendment of the Constitution. In some court cases which were cited, damages were awarded to the plaintiffs accusing people of defamation. In defamation cases, the outcomes are not certain. Topics for further research were suggested. Free speech, as we can see, is limited by its ability to apply to all speech—as it should be. Thus, one must walk a fine line when speaking or writing, so as not to invite problems. It is this caution that comes with the responsibility of living in a relatively unfettered existence in a Democratic society. Our liberty comes at a high price, and one should preserve the right to free speech by using it with diligence and alacrity. REFERENCES Black, Henry Campbell. Black’s Law Dictionary: Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern. 5th Ed. St. Paul, Minn.: West Publishing Co., 1979. FindLaw. Freedom of Expression: Speech and Press. http://caselaw.lp.findlaw.com/data/constitution/amendment01/06.html#1. Retrieved 8 May 2009. FindLaw. U.S. Constitution: First Amendment. http://caselaw.lp.findlaw.com/data/constitution/amendment01/. Retrieved 8 May 2009. Kaplar, Richard T. Hate Speech and the First Amendment. http://www.mediacompolicy.org/2009/02/articles/broadcasting/hate-speech-and-the-first- amendment/. Retrieved 8 May 2009. Larson, Aaron. Defamation, Libel, and Slander Law. http://www.expertlaw.com/library/personal_injury/defamation.html. Published August 2003. Retrieved 8 May 2009. Martin, Brian. Defamation Law and Free Speech. http://www.uow.edu.au/arts/sts/bmartin/dissent/documents/defamation.html. Retrieved 7 May 2009. Read More