Slander Laws: Us Congress' Freedom Or Restraint?

Slander laws in the United States are a subset of defamation laws, which focus on false and harmful statements made about another person or entity. While the First Amendment protects freedom of speech and freedom of the press, slander is not protected by the First Amendment, and individuals can be sued for monetary damages if they are found guilty of slandering someone. Slander laws vary by state, and while criminal slander laws exist in some states, they are rarely prosecuted. So, do these laws apply to members of the US Congress?

What constitutes slander?

Slander is a false statement that defames another person. It is usually made orally and, unlike libel, damages from slander are not presumed and must be proven by the party suing. In other words, someone other than the speaker and the subject must have heard the defamatory statements.

In the case of slander, the claimant must show that the defendant made defamatory statements to a third party. They must also prove that they sustained damages because of the statements. Typically, these damages are "economic", which means that they represent direct monetary losses.

The tort of defamation can be divided into two types of statements: defamatory per se and defamatory per quod. Statements that are defamatory per se are so obviously and naturally harmful to one's reputation that proof of injury is not required. For example, accusing the plaintiff of criminal actions, stating that the plaintiff has certain infectious diseases, or making harmful statements about the plaintiff's business or occupation.

If a defamatory statement does not fall into one of the defamatory per se categories, then it is considered defamatory per quod. In these cases, the plaintiff must prove special damages, which means they must show specifically how the defamation caused a specific, quantifiable loss of money.

It's important to note that not every negative statement qualifies as defamation. For a statement to be considered defamatory, it must be presented as fact and be harmful to the victim. Stating a negative opinion is not the same as defaming someone's character, as freedom of speech is guaranteed by the First Amendment of the U.S. Constitution.

Slander vs. libel

Slander and libel are both types of defamation, which is the legal term for false statements that harm a person's reputation. Libel is a defamatory statement that is written or presented in picture form, while slander refers to a defamatory statement that is spoken or made through gestures.

Libel

Libel is considered to be more serious than slander because written statements are more permanent and can be distributed more widely. Libel is the publication of a false statement about someone in writing that harms that person's reputation by exposing them to public hatred, scorn, disgrace, ridicule, or shame. Written statements are considered libel per se when they are widely understood to be harmful and are therefore presumed to be damaging to the plaintiff's reputation. Examples of statements that are libel per se include falsely claiming that someone has an infectious disease, lacks professional integrity or competence, or has engaged in adultery.

Slander

Slander is the communication of a false statement about someone through spoken word or gesture that harms that person's reputation. Slander is typically considered less harmful than libel because spoken statements are often more fleeting and are made to a smaller audience. However, with the rise of technology, the line between spoken and written communication has become blurred. For example, courts are divided on whether to characterise podcast episodes as slander or libel. Most courts now focus on the permanence and distribution of the defamatory statement when making this distinction.

Defamation Law

Defamation law aims to balance protecting people from harm caused by false statements and allowing freedom of speech. While the First Amendment to the United States Constitution guarantees freedom of speech, it does not protect all forms of speech. Defamation is considered a civil wrong or "tort", and each state has its own defamation laws. To win a defamation lawsuit, the plaintiff typically must show that the defendant made an "unprivileged" false statement of fact to a third party, and that this statement harmed their reputation or caused another form of compensable loss.

Defamation Defences

There are several defences to defamation claims, including:

• The statement was true
• The statement was made in jest or was not intended to be taken seriously
• The statement was an opinion, rather than a fact
• The statement was retracted
• The statement was privileged, i.e., it was made by a public official performing their duties or by someone making statements in judicial or legislative proceedings

Slander and freedom of speech

The First Amendment's guarantees of freedom of speech and freedom of the press provide some protection from defamation lawsuits in the United States. The First Amendment was designed specifically to protect freedom of the press, and it plays a crucial role in safeguarding individuals' right to speak freely without fear of reprisal. However, defamation laws are also in place to protect people whose careers, reputations, finances, or health have been damaged by untrue and harmful statements.

The tension between freedom of speech and slander laws has resulted in a delicate balance that is often navigated in civil lawsuits for defamation. Matters of public interest, such as political scandals or criticism of school board members, are generally protected speech. Opinions are also generally protected under the First Amendment, but the line between opinion and statement is not always clear. The Supreme Court has provided some guidance, stating that an opinion that merits protection should be about a matter of public concern, expressed in a way that makes it challenging to prove its truth or falsehood, and cannot be reasonably interpreted as a factual statement.

The distinction between libel and slander is also important in the context of free speech. Libel refers to written defamation, while slander refers to oral defamation. However, spoken speech that has a written transcript can fall under the category of libel. Libel laws, which have a long history in English and American law, have been subject to significant changes over time, especially with the New York Times Co. v. Sullivan case in 1964, which established that public officials must prove "actual malice" to win a defamation case.

In conclusion, slander and freedom of speech are complex legal concepts that often come into conflict. While the First Amendment protects free speech, slander laws aim to hold individuals accountable for false and harmful statements. The balance between these two concepts is a delicate one, and it continues to evolve through legal precedents and societal changes.

Slander and the First Amendment

Slander and libel laws in the United States have a long history, dating back to before the American Revolution. The First Amendment, which guarantees freedom of speech and freedom of the press, has significantly influenced the development of these laws. While the First Amendment protects free speech, it also acknowledges the potential harm caused by defamatory statements. As a result, courts must strike a delicate balance between safeguarding free speech and providing redress for reputational harm.

Slander is defined as a false statement, typically made orally, that defames another person. Libel, on the other hand, refers to written defamatory statements. In the context of defamation lawsuits, plaintiffs typically need to demonstrate that the statements in question are objectively false and caused them harm. This requirement protects against unwarranted restrictions on free speech, ensuring that individuals are not held liable for expressing their genuine beliefs or opinions.

The distinction between fact and opinion is crucial in defamation cases. The First Amendment safeguards expressions of opinion, but the legal system also offers remedies for those harmed by false assertions of fact. Proving the falsity of a defamatory statement is often challenging, especially when it involves public figures such as politicians or celebrities. In such cases, plaintiffs must also establish "actual malice," demonstrating that the defamatory statements were made with knowledge of their falsity or with reckless disregard for the truth.

The landmark case of New York Times Co. v. Sullivan in 1964 significantly shaped the landscape of defamation law in the United States. The Supreme Court ruled that public officials could only win a libel suit if they could prove that the media outlet in question knowingly published false information or acted with reckless disregard for the truth. This ruling expanded the protections for free speech, particularly in cases involving public officials or matters of public concern.

In summary, the First Amendment plays a critical role in balancing free speech rights with the need to address defamatory attacks on an individual's character. While the First Amendment provides a measure of protection against defamation lawsuits, it also allows for legal recourse when false statements cause reputational harm. The interpretation and application of the First Amendment continue to evolve through significant court cases, shaping the legal doctrines and societal norms surrounding defamation and free speech.

Proving slander in court

Slander laws are a type of defamation of character claim that does not fall under the protection of the First Amendment. Courts recognise slander as a cause of action (claim) because it can cause reputational damage.

To prove slander in court, the plaintiff must prove the following:

• The defendant made a false statement of fact about the plaintiff.
• The untrue statement does not fall into any privileged category, such as statements made between spouses or during legislative debates.
• The defendant acted negligently or intentionally in making the statement.
• The statement harmed the plaintiff.
• In some states, the plaintiff must prove that the reputational harm resulted in actual damages, such as lost income and expenses like medical bills for emotional distress.

In certain cases, a slanderous statement can amount to slander per se. This occurs when the slanderous statement accuses the plaintiff of:

• Committing a morally objectionable crime, such as sexual misconduct.
• Being infected with a contagious disease that would exclude them from society.
• Being unfit to perform their job, profession, trade, or business.

When a slander per se claim is successful, the plaintiff can recover damages without having to prove their specific losses. Additionally, the plaintiff can ask the court to award punitive damages if they can show that the defendant acted with actual malice, meaning they knew the statement was false or spoke it with reckless disregard for its truth or falsity.

It is important to note that the plaintiff must also prove that the defamatory statement was communicated to a third party and that it harmed their reputation. This can be done by providing evidence such as eyewitness statements, social media posts, videos, or documents showing financial losses.

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