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Wednesday, October 05, 2011

Defamation, Slander, Libel: A Primer

As we await the minutest details being made public as to the affairs of the City of Marco Island, its current and former employees, current and former city councilors, and power brokers … due to the lawsuit filed by the former public works director, we thought it best to provide one didactic posting on defamation.

And how better to do it than to quote legal scholars and the state and federal cases they base their teachings on. Enjoy:

  • In Florida, a statement amounts to defamation per se if it accuses the plaintiff of committing a crime or imputes to the plaintiff conduct, characteristics, or a condition incompatible with the proper exercise of his or her lawful business, trade, profession, or office.
  • Florida has a broad conception of public officials, a category of government actors who must prove actual malice in order to prevail on a defamation claim.
  • Florida courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, the fair report privilege.
  • The fair report privilege may protects from liability – even publishing something that is defamatory – if relying upon an official public document or statement by a public official for the false information, made clear that the document or statement was the source, and fairly and accurately used the source. This privilege enables one to freely report, for example, about what people say during a council meeting or from the witness stand during a trial or to quote from public records. This defense allows one to report on government activity without bearing the overwhelming burden of first proving the truth of everything said in government documents and proceedings.
  • Whether the statement is true or not does not matter for purposes of the fair report privilege. The purpose of the privilege is to protect statements or facts from public sources that are newsworthy in and of themselves, regardless of their veracity.
  • The right to speak guaranteed by the First Amendment to the U.S. Constitution includes the right to voice opinions, criticize others, and comment on matters of public interest. It also protects the use of hyperbole and extreme statements when it is clear these are rhetorical ploys. Accordingly, one can safely state opinions that others are inept, stupid, jerks, failures, etc. even though these statements might hurt the subject's feelings or diminish their reputations. Such terms represent what is called "pure opinions" because they can't be proven true or false. As a result, they cannot form the basis for a defamation claim.
  • Stating the truth is never defamation, even if remotely possibly true.
  • If you state the facts on which you are basing your opinion, and the opinion you state could be reasonably drawn from those truthful facts, you will be protected even if your opinion turns out to be incorrect.
  • One may call someone a liar if it's true and even if it isn't, it's not libel unless one knows it's provably false when they say it.

Harvard Law School
Citizen Media Law Project


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