Be Careful to Keep the Right Balance Between Libel Law & the First Amendment
In recent years, there has been debate about expanding libel law protections in the United States. Some argue that libel law protections are too expansive, while others argue they simply do not go far enough.
It is important to understand how we define libel, which is typically the publication of false statements of fact that may damage someone’s reputation. It is also commonly referred to as defamation. We also know that First Amendment rights of free speech and free press are often inconsistent with the interests served by defamation law.
Defamation refers to false statements of fact that harm another’s reputation. It can include both libel and slander. Libel generally refers to written defamation, while slander typically refers to oral defamation. Additionally, speech from a media outlet that is part of a script is categorized as libel.
In the United States, each state adheres to its own definition of libel laws, however, the basics of libel law have the same common themes in every state. Individual states differ on how much time you have to file a libel lawsuit, and/or the burden of proof regarding how much your reputation has been damaged. Additionally, some states include criminal penalties for libel, and accordingly, under certain circumstances, a person can get arrested for libel instead of just being sued for it.
Historically, the development of libel law was seen to avoid duels and often resulted in the loss of life for both the plaintiff and defendant. In 1804, a well-known duel occurred between Alexander Hamilton and Aaron Burr. The play Hamilton, which dramatized the duel and the Hamilton-Burr feud, helped educate many theatre goers about the perils of libel and defamation.
Some recent legal cases have forced us to revisit the expansion of libel laws and their current application to modern jurisprudence. Most recently, prominent defamation attorney Rodney Smolla, Professor of Law and Dean of the Widener School of Law, appropriately wrote that "It is unthinkable that any competent plaintiff's lawyer would advise a client to sue the likes of CBS, FOX, or CNN for live transmission of the defamatory remarks uttered…”
Dean Smolla argued that it is the job of the press to cover newsmakers, including presidents, public figures, and other newsmakers. Comments generated by public figures are their responsibility. It would be a novel development to maintain that a defamation case could be brought against a news outlet for their coverage of an election or any other news event — and subsequently that news outlet will be held responsible for the inaccurate or correct information in that coverage.
History has demonstrated that defamation suits can further the interests of those who have been victimized by malicious fabrications. Conversely, defamation suits can also threaten First Amendment values by restricting the free flow of information. Our country was founded on the very principles which allow for this free flow of information.
Defamation suits can also be abused. The threat of libel suits can cause individuals to keep quiet about issues of public concern. Very few individuals have the economic resources to defend themselves after being hauled into court for defamation.
Dominion Voting Systems is represented in their defamation suit against Fox News by Dean Smolla, an accomplished scholar of defamation law. While the involved parties are not individuals and therefore, have deeper pockets than most, First Amendment scholars are watching this case with great interest.
Dean Smolla previously argued there is no need to expand defamation protections for the press, because it is the job of media outlets to cover and report on the news. Let us hope that others agree — because the First Amendment protects everyone. The proper balance between robust libel law and protecting the First Amendment is one that should be upheld, and is a historic precedent that should be maintained.
Cherylyn LeBon is a former Senior Counsel with the U. S. Senate Judiciary Committee.
