{"id":34,"date":"2015-06-01T17:56:50","date_gmt":"2015-06-01T17:56:50","guid":{"rendered":"http:\/\/revolutionsincommunication.com\/law\/?page_id=34"},"modified":"2025-10-21T15:29:29","modified_gmt":"2025-10-21T15:29:29","slug":"libel","status":"publish","type":"page","link":"https:\/\/revolutionsincommunication.com\/law\/libel\/","title":{"rendered":"INTRODUCTION TO LIBEL LAW"},"content":{"rendered":"
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It wasn’t the biggest libel case in history,<\/strong> but it shows\u00a0 the way the law protects people who speak out on public issues.\u00a0 In the spring and summer of 2016, Esther Calhoun and three other Alabama Civil Rights activists were sued for libel by a waste dumping company for speaking out against pollution. Within a year, the company had to withdraw its lawsuit and reach an agreement with the activists. See post on this site. <\/a>\u00a0(ACLU photo)<\/p><\/div>\n

Libel is a false statement\u00a0\u00a0<\/strong> about a living person or existing institution that is made to someone else and seriously\u00a0 injures reputation by exposing them to public hatred, shame, disgrace or ridicule. If a statement is true, or if it doesnt cause damage, it’s not libel.<\/p>\n

Someone who feels injured brings a libel\u00a0 lawsuit in a\u00a0 state or federal court. These plaintiffs are often people who disagree with things said about them in the media.<\/p>\n

As a media professional, the possibility of becoming a defendant in a libel suit is one of the most significant hazards you may face. And so, it’s important to learn how to identify, avoid and mitigate libel.<\/p>\n

Key\u00a0 Concepts in Libel\u00a0\u00a0<\/strong><\/h3>\n

A libel lawsuit is a civil case<\/strong> (not criminal in the US or Europe). Allegations of libel in the mass media or on the Internet usually stem from articles that allege immorality, loathsome disease, crime, dishonesty or misconduct. People often sue to restore their reputations and to correct what they view as a falsehood, regardless of personal expense or the legal merits of their cases.<\/p>\n

Five elements of libel<\/span> must be present for a successful lawsuit:\u00a0<\/strong><\/p>\n

1. Identification <\/span><\/strong>of an individual or very small group of individually identifiable people who were allegedly defamed.\u00a0 Note that there are two kinds of identification \u2014 direct (Per Se ) and indirect (Per Quod). Direct identification in libel names a person specifically. Indirect libel may point to an unnamed person or involve a circumstance or mistake that can be construed as holding that person up to ridicule. Under some circumstances, indirect libel might involve congratulating a woman on her pregnancy when she is not married.
\n2. Publication<\/span><\/strong>, broadcast or wide dissemination of defamatory material (Wide dissemination falls under libel; slander is neighborhood gossip).
\n3. Defamation<\/span><\/strong>, defined as untrue<\/strong> words that tend to harm a person\u2019s reputation or expose them to hatred, contempt or ridicule. Defamation means that a statement actually harms the reputation of another person, rather than being merely insulting or offensive. Some words or ideas are defamatory per se (directly), and others may have to be proven as \u00a0libelous per quod (indirectly).
\n4. Fault <\/span><\/strong>on the part of the publisher or broadcaster, such as negligence or actual malice (defined below).
\n5. Damages<\/span> <\/strong>\u2014 The plaintiff has to prove they were damaged, either directly (loss of income) or indirectly (provable pain and suffering). Damages may include:<\/p>\n

a) special<\/strong> damages, (also called direct damages) that are quantifiable out-of-pocket expenses or losses. And \/ or
\nb) general <\/strong>(indirect) damages \u2014 compensation for non-monetary damages such as pain and suffering.
\nc) punitive <\/strong>which may be imposed by a court or jury to punish the guilty party.
\nd) nominal<\/strong> damages that are very small or symbolic. Example: the award of $1 in\u00a0 Shockley v Witherspoon<\/a>, 1984.<\/p>\n

Defenses against libel:<\/span>
\n<\/strong><\/p>\n

1. Truth<\/span> \u2014 <\/strong>If it\u2019s true, it\u2019s not defamatory, and therefore it\u2019s not libel. But how is the truth proven? Which side has the burden of proof?\u00a0 Who wins if the case is a tie? In the US, the plaintiff\u00a0 must prove that the defamatory material is false. In the UK and much of Europe, the defendant must prove that what was written or broadcast is true. This makes the UK a much better venue for plaintiffs and the US a better venue for defendants.<\/p>\n

2. Privilege <\/span><\/strong>\u2014 Testimony in a courtroom, statements from the floor of a legislative body, and some executive documents have absolute privilege. <\/strong>This means that public officials, witnesses and others in these circumstances are free to give information which may be damaging or false without fearing libel suits.<\/p>\n

For example, a federal court on Aug. 20, 2025, dismissed a defamation lawsuit<\/a> against Nancy Mace, a South Carolina congresswoman, because remarks she made on the floor of the US House of Representatives were fully privileged.\u00a0 Mace accused four men of sexual misconduct, saying they “incapacitated women” (including her) and secretly videotaped them engaging in sexual acts.\u00a0 In dismissing the lawsuit, the court said Mace’s remarks were connected to a legitimate discharge of her duties in Congress, whether or not the remarks were true or personally motivated.<\/p>\n

Reporters who accurately quote such testimony or statements are usually covered by a doctrine of qualified privilege<\/strong>, which depends on accurate and professionally competent reporting. One important exception to qualified privilege: In broadcast law, the Equal Time Rule<\/strong> extends absolute privilege to stations carrying federal candidates’ comments about public issues.<\/p>\n

3. Fair Comment & Criticism<\/span> <\/strong>\u2014 Opinions about the public performance of people who voluntarily place themselves before the public (musicians, comedians, politicians running for office, etc) are protected by the fair comment defense. But what is opinion and what is fact? In Janklow v. Newsweek, 1986, (described below) a federal appeals court said there were four criteria for determining if a statement is a fact:<\/p>\n

a) The precision and specificity<\/strong> of the statement.
\nb) The verifiability<\/strong> of the statement is important in proving a fact. (Calling someone a \u201cfascist\u201d is indefinite, and therefore an opinion; but falsely saying someone had AIDs is an allegation that can be verified or disproven).
\nc) The literary context<\/strong> in which the statement is made. For example, something said on Saturday Night Live might be treated differently from an article in the Wall Street Journal.
\nd) The public context <\/strong>of the statement, for example, as part of the political arena, would tend more to be protected opinion.\u00a0 (For example, President Trump routinely calls his political rivals names, and they often return the favor. In most cases these would not be libelous).<\/p>\n

4. Minor defenses, technical issues & other circumstances<\/strong><\/p>\n

Neutral reportage \u2013<\/strong>\u2013 A fair attempt to be neutral in reporting both sides of a controversial issue. See, for instance, the Edwards v. National Audubon Society, 1977 case below. This defense varies considerably among states and federal jurisdictions and does not always apply.<\/p>\n

Right of reply \u2014 <\/strong>When two parties (sometimes publishers) have already been exchanging libelous charges, and one finally sues the other, the defendant can claim to merely be responding and have a \u201cright of reply.\u201d This is an old and no longer well accepted defense which varies from state to state.<\/p>\n

Libel-proof plaintiff<\/strong> \u2014 Someone with an already ruined reputation, for example a convicted murderer, is libel proof. Also, someone who is so public that almost anything can be said about them is considered more or less libel-proof. For example, the courts refused to hear a case brought by former President Bill Clinton against slime-blogger Matt Drudge related to allegations that he abused women. Clinton\u2019s suit was settled out of court.<\/p>\n

Rhetorical hyperbole<\/strong> \u2014 In some states, courts will hold that language in the context of an editorial or opinion is understood by readers to be figurative and not literal.<\/p>\n

Retraction<\/strong> \u2014 Nearly every state allows a libel defendant to retract or apologize for defamatory material. In some states, retraction made within a certain time frame in the same editorial context may bar any recovery, while in others it may limit punitive damages. In any event, if an editor finds something wrong or grossly unfair, a correction or retraction is at the very least the ethical thing to do.
\n<\/strong><\/p>\n

Consent \u2013<\/strong>\u2013 If a plaintiff can be proved to have given consent to a libellous publication, he or she can\u2019t sue for libel.<\/p>\n

Statute of limitations \u2014<\/strong> States have various time limits for filing libel actions. In Virginia, like most states, it is one year.<\/p>\n

Death<\/strong> \u2014 Contrary to ancient tradition, it is not a legal problem to speak ill of the dead. For example, in James Bamford\u2019s The Puzzle Palace, a book about the National Security Agency, a former government employee is called a Russian spy even though he was never convicted of anything other than contempt of court. The family considered a defamation lawsuit, but learned that it was impossible because the subject was dead. A court may continue a libel suit already filed by a person who dies before it is resolved, but relatives of a dead person cannot bring a libel suit.<\/p>\n

Slander:\u00a0 <\/strong>Slander is spoken defamation or malicious neighborhood gossip. Even in broadcasting, where defamation is spoken, the lawsuit is usually based on libel law.\u00a0 Slander is usually treated as a misdemeanor.<\/p>\n

The following are NOT DEFENSES against libel:<\/strong><\/p>\n