Congress And Slzndsr Laws: Who's Exempt?

Slander laws refer to false statements made about another person or people verbally with the intent to defame them. Slander is a legal term used to describe defamation or harming the reputation of a person or business by making untrue and damaging statements. While everyone has the right to freedom of speech, it is not absolute, and there are consequences for making statements known to be untrue. Slander laws apply to US Congress in the sense that Congress members can be sued for slander if they make false statements about another person with the intention of causing harm. However, there are also protections in place for Congress members and other public figures, who have a higher burden of proof when attempting to win a defamation lawsuit.

Libel vs. slander

Libel and slander are both types of defamation, which is defined as a false statement that harms a person's reputation. Libel is a written defamatory statement, while slander is an oral or spoken one.

Libel

Libel is a false statement about someone in writing that harms that person's reputation by exposing them to public hatred, scorn, disgrace, ridicule, or shame. It can be in print or online, for example, on social media, in a review, a performance evaluation, or a letter to the editor. Libel per se refers to written statements that are so widely understood to be harmful that they are presumed to damage the plaintiff's reputation. Examples include falsely claiming that someone has an infectious disease, lacks professional integrity or competence, or has committed adultery.

Slander

Slander is the communication of a false statement about someone by spoken word or gesture that harms their reputation. This can take the form of verbal statements at a town hall meeting or a professional conference, or through broadcast speech and digital communications such as podcasts, text messages, or other online speech. Slander per se refers to false statements that are so obviously harmful that damage to the plaintiff's reputation is presumed, such as false accusations of improper sexual conduct, criminal activity, or bad business dealings.

Differences

Courts typically consider libel to be more harmful than slander because written statements last longer and can be distributed more widely. However, with the rise of technology, the distinction between the two is becoming blurred. Another difference is that plaintiffs alleging slander have to show special damages, unless it is a slander per se claim.

Defamation Law

Defamation law aims to balance protecting people from harm caused by false statements and allowing freedom of speech and the exchange of opinions and ideas. While the First Amendment guarantees freedom of speech, not all speech is protected, and defamation is considered a civil wrong or "tort" in every state. To win a defamation case, plaintiffs 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 some other compensable loss. Plaintiffs must also show that the defendant was "at fault" when the statement was made, with private figures needing to show negligence and public figures needing to show "actual malice", or that the defendant knew the statement was false.

Defamation laws and free speech

The key distinction lies in the nature of the statement. A false statement, especially one made orally, that defames another person, is considered slander. Libel, on the other hand, typically refers to written defamation. It's important to note that damages from slander are not presumed and must be proven by the party suing, whereas some categories of false statements in libel are considered defamatory per se, and plaintiffs don't need to prove actual damages.

The First Amendment provides protection for statements of opinion, but not for false statements of fact. The U.S. Supreme Court has outlined that for a statement to be considered an opinion protected under the First Amendment, it must meet three criteria: it should be about a matter of public concern, expressed in a way that makes it challenging to prove its truth or falsity, and it shouldn't be reasonably interpreted as a factual statement.

The Court has also differentiated between public officials, public figures, and private individuals in defamation cases. Public officials and public figures, due to their voluntary presence in the public eye, face a higher bar to prove defamation. They must demonstrate "actual malice," meaning that the speaker knew the statement was false or acted with reckless disregard for its truth. This distinction underscores the importance of free speech, especially when it comes to politicians and prominent figures who are subject to public scrutiny.

In conclusion, defamation laws and free speech rights coexist in a delicate balance. While the First Amendment shields individuals from certain defamation claims, false and harmful statements that cause real harm to an individual's reputation or well-being can still lead to legal repercussions. This interplay between defamation laws and free speech protections aims to strike a balance between safeguarding free expression and upholding the rights of those affected by defamatory statements.

Historical development of defamation laws

The historical development of defamation laws in the United States has its origins in the pre-American Revolution era, with one notable case involving John Peter Zenger in 1734, which established "The Truth" as an absolute defence against libel charges. This case set a precedent for the role of "The Truth" in defamation cases and shaped the future of defamation laws in the country.

Early American defamation laws were influenced by the English legal system, with the First Amendment of the U.S. Constitution aiming to protect freedom of the press. However, the Supreme Court often neglected to use it in libel cases, resulting in a mix of libel laws across the states. This changed with the 1964 case of New York Times Co. v. Sullivan, which established that public officials must prove the intentional falsity or reckless disregard for the truth by the media to win a libel suit.

In the early years of the United States, federal and state governments used defamation laws to suppress dissent. The Sedition Act of 1798, passed just seven years after the First Amendment was ratified, criminalised any speech deemed "false, scandalous, or malicious" towards the government. This act was used to imprison and convict Americans, including a Congressman. Similar laws, such as the Espionage Act of 1917 and the Sedition Act of 1918, further restricted free speech.

The Supreme Court's stance on defamation began to shift in the twentieth century, particularly with the 1964 New York Times Co. v. Sullivan case. The Court recognised the importance of freedom of speech and press, establishing the "actual malice" requirement for defamation cases. This case arose during the civil rights movement and involved an advertisement in the New York Times accusing the Montgomery, Alabama police department of atrocities against African Americans. The Court's decision acknowledged that factual errors are inevitable in free debate and that holding critics of public officials liable for minor errors could stifle speech on matters of public interest.

Subsequent cases, such as Curtis Publishing Co. v. Butts, further clarified the role of the First Amendment in defamation cases and led to the development of slander defences. These defences include the non-actionable opinion, which protects statements of pure opinion, and the substantial truth defence, which considers the overall truth of a statement rather than minor inaccuracies.

The evolution of defamation laws in the United States has been a dynamic process, with the Supreme Court playing a pivotal role in shaping the interpretation of the First Amendment in relation to defamation, libel, and slander.

Defamation lawsuits

Defamation is a statement that injures a third party's reputation. It includes both libel (written statements) and slander (spoken statements). Libel is generally considered more harmful than slander as written statements are longer-lasting.

Proving Defamation

To prove defamation, a plaintiff must show:

• A false statement purporting to be fact: Only false statements of fact can be defamatory. Opinions are generally not considered defamation as they cannot be proven false.
• Publication or communication of the statement to a third person: The statement must be "published", meaning it was seen, heard, or read by someone other than the plaintiff.
• Fault amounting to at least negligence: The plaintiff must show that the defendant acted negligently, or with a guilty state of mind, when making the false statement.
• Damages, or harm caused to the reputation: The plaintiff must demonstrate how their reputation was hurt by the false statement, leading to financial or social harm.

Defenses Against Defamation Claims

There are several defenses that can be used to counter a defamation claim:

• Truth: Truth is an absolute defense against defamation. If the statement is true, it cannot be defamatory.
• Opinion: Statements of opinion, rather than fact, are not considered defamatory.
• Absolute Privilege: Statements made in certain contexts, such as legislative proceedings or between spouses, are subject to absolute privilege and are not considered defamatory.
• Qualified Privilege: Some statements are subject to a qualified privilege, where the speaker may have some right to make a false statement. For example, reviews containing fair criticism or statements made to warn of danger.
• Retraction: A retraction of the false statement can lessen the harm and reduce the amount of damages claimed.

State Variations

It is important to note that defamation laws vary from state to state in the US, with differences in standards for defamation and potential damages. Some states have criminal libel laws, though these are rarely prosecuted.

Defamation and the internet

The rise of social media has resulted in an increased risk of online defamation. Online defamation, also known as "internet defamation" or "cyber-libel", is any false statement shared via the internet and seen by others that results in damage to a person's reputation. This can be written (libel) or verbal (slander).

To be considered online defamation, a statement must meet the following key elements:

• Published: The statement must be communicated to at least one person other than the person being defamed.
• False: The statement must be demonstrably false, not merely an opinion. However, an opinion can be defamatory if it implies a false assertion of fact.
• Harmful: The statement must harm the person's reputation, including causing embarrassment in public or emotional distress.
• Not protected: The statement cannot be shielded by legal privileges, like statements made in government proceedings.
• Fault: The person making the statement must have acted negligently or with actual malice (knowledge of falsity or reckless disregard for the truth).

Defamation is a civil wrong (a "tort") in most states, and can result in a lawsuit. However, it is harder to prove than it may initially seem. Defendants can argue that the statement in question was true, or that it was an opinion and not a fact. They might also argue that the plaintiff's reputation was not harmed.

The First Amendment's guarantees of freedom of speech and freedom of the press provide some protection from defamation lawsuits in the United States. Truth is an absolute defense against defamation in the country, meaning true statements cannot be defamatory.

In the case of Stratton Oakmont, Inc. v. Prodigy Services Co., a court applied the standard publisher/distributor test to find an online bulletin board liable for a post by a third party. In response, Congress enacted Section 230 of the Communications Decency Act, which provides immunity for providers and users of an interactive computer from being treated as the publisher or speaker of information provided by another information content provider.

In the case of New York Times Co. v. Sullivan, the court determined that public officials could only win a suit for libel if they could demonstrate "actual malice" on the part of reporters or publishers. This was later extended to "public figures", who must show that the defendant acted with "actual malice".

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