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Resources for the Historical European Martial Arts (HEMA) student, with a particular focus on the ars gladiatoris of Paulus Hector Mair.

Monday, April 20, 2009

A Note on Libel

This is a bit tangential, but I know that, over the years, people have been afraid to publicly speak out against certain organizations for fear that they could be sued for libel. The Church of Scientology, for instance, is known for using the threat of libel lawsuits to intimidate whistleblowers and critics. In light of recent events, I'd like to briefly discuss the differences between protected free speech and libel.

At the outset, I must stress that, although I am a licensed attorney, what I am about to say is not legal advice. I am simply stating general legal principles that are readily researchable online. The laws concerning libel will vary from state to state, so if you have a specific question, you will need to contact your attorney.

That having been said, libel is an ancient common law crime, meaning that the US inherited it from British legal tradition (its origins go all the way back to Roman law). In the US, the individual States have varying statutory definitions of libel, but a general definition would be thus:

Libel is false, defamatory speech about a person or entity (corporation, etc.) that is presented as fact and published in a fixed medium (print, video, etc.) for a malicious purpose.

There are four key words in this definition: false, defamatory, (presented as) fact and malicious. These words are important because they are all part of valid defenses to an accusation of libel.

First, in order for a statement to be libelous, it must be untrue. You cannot be sued for speaking the truth about a person or organization (though there are many bullies who will try to sue you anyway). In other words, you cannot be sued for whistleblowing, or for offering fair comment and criticism of a policy. And even if you are sued, you do not have to prove that what you said was true (though it of course helps to have evidence and witnesses to back up your accusations). Instead, the person allegedly being libeled has to prove that what you said was untrue.

Second, in order for a statement to be libelous, it must be defamatory. That is, it must cause actual damage to the reputation of a person or organization. Again, the person allegedly being libeled has to prove that what you said has damaged his or her reputation to the tune of a specific amount of money. As you can imagine, this is often very difficult to prove. Note that, in some jurisdictions, there may be three or four specific exceptions where certain libelous speech is automatically assumed to have caused damage (such as falsely publishing that someone has an STD). But again, the plaintiff will only be awarded damages if the statement was untrue.

Third, in order for a statement to be libelous, it must be presented as fact. You cannot be sued for offering your opinion about a person or organization, so long as it is reasonably clear that you are presenting your own personal opinion. For instance, you probably can't say "The Church of Scientology is a cult," but you can say "I think the Church of Scientology is a cult" or "The Church of Scientology appears to be a cult."

Fourth, in order for a statement to be libelous, you usually must have published it for a malicious purpose. An example of "malicious purpose" would be where a widget manufacturer intentionally publishes an article falsely alleging that his competitor's widgets cause cancer, in the hopes that the article will drive his competitor out of business. It is not malicious to make a statement that turns out to be false when you reasonably believed, in good faith, that it was true. Fair comment and criticism of an organization or policy is also not a malicious purpose.

Again, what I have written is a general guide and should not be construed as legal advice. Ultimately, you should consult your attorney to find out what the laws are in your state. But as a general rule of thumb, if you abide by these basic rules, your speech should be protected by the First Amendment. It is not a crime to speak the truth even if the truth hurts. Never, ever let someone bully you into silence.

2 comments:

318-forest said...

"And even if you are sued, you do not have to prove that what you said was true (though it of course helps to have evidence and witnesses to back up your accusations). Instead, the person allegedly being libeled has to prove that what you said was untrue."

Be aware that British law is the reverse of this: And occasionally people who are not British have been sued in British courts by others who are not British for libel. It's one of the nasty parts of British (and consequently international) libel law.

Skiritai said...

An excellent point, thank you!