Defamation, Public Officials, and the Media

Defamation law has to balance competing interests when it comes to cases involving public officials. On the one hand, the law gives legislators, judges, and certain government officers absolute privilege—which means they have a lot of leeway to make potentially defamatory statements without facing any legal liability. On the other hand, the Supreme Court has ruled that the First Amendment sets a very high bar if a public official (or anyone involved in public life) tries to sue for defamation. In this article we'll:

• explain the basics of defamation
• discuss how absolute privilege protects public officials from defamation lawsuits, and
• go over the history and meaning of the "absolute malice" standard that protects people who report on or criticize public figures.

What Is Defamation?

Defamation is a false statement that injures another person's reputation. When the false statements are in writing it's libel; when they're spoken it's slander.

The elements of a defamation claim include showing that the statement:

• was false
• was something a reasonable person would think was a factual assertion, not just an opinion
• was heard or read by at least one third party (e.g., it's not defamation if someone lies about you to your face, and no one else hears it), and
• made the target of the statement look bad (for example, by falsely calling them a liar or a criminal).

A defamation plaintiff also has to prove facts about the defendant's mindset when they made the statements. There are two standards that can apply for this element of defamation:

• In most defamation cases, the plaintiff has to prove that the defendant made the statements because they were being careless ("negligent," in legal terms).
• A plaintiff has to prove much more if they're a public figure or are involved in newsworthy events. They have to show that the defendant either knew the statements were false, or had serious doubts that they were true. We'll talk more below about how this higher standard works.

How Does Absolute Privilege Protect Public Officials From Defamation Lawsuits?

The term "privilege" comes up a lot in legal conversations, and it can mean different things in different situations. In a defamation case, if someone is protected by a privilege it means that they can't be held legally responsible—even if the plaintiff can prove all of the elements of defamation we discussed above.

Sometimes defamation defendants can assert a conditional privilege, arguing that their statements should be allowed because:

• they were acting in good faith, and
• their statements were appropriate under the circumstances.

Government officials, though, have the much stronger protection of absolute privilege. Like the name implies, absolute privilege means that nothing the person says can make them liable for defamation—even if the facts show that they lied in a malicious attempt to hurt someone's reputation.

So, how does this privilege work for different kinds of government officials?

Executive and administrative officers have absolute privilege to make defamatory statements while performing their official duties. At the federal level this privilege protects not only the president and members of the cabinet, but also lower-ranking officials in the executive branch. At the state level the privilege is often restricted to the governor and top officials like the state treasurer and attorney general.

This privilege only applies to statements that executive officials make while they're performing their official duties, but courts usually interpret this broadly. For example, courts have found that heads of government agencies are protected by absolute immunity when they talk to the media about why they fired or demoted government employees.

The rationale behind this rule is that executive officials won't be able to do their jobs effectively if they're constantly worried about defamation lawsuits or defending themselves in court. Essentially, absolute immunity reflects a judgment that the risk of burdening the government outweighs the risk that government officials will defame people.

Members of Congress have absolute privilege to make defamatory statements when performing legislative functions. The privilege applies even if a statement is unrelated to legislation. Legislative privilege comes from the U.S. Constitution, which provides that "for any speech or debate in either House they shall not be questioned in any other place." Many states have similar laws protecting members of their legislatures.

This privilege is extremely broad, but that doesn't mean legislators can say anything they want at any time. Courts have drawn a distinction between the job of legislating and other things that legislators do—like making campaign speeches or talking to reporters and constituents about their work. So, for example, a Congressman might be protected by absolute privilege if they defame someone in a speech on the floor of the House of Representatives, but be found liable for defamation if they say the same thing in a television interview.

Judges have absolute privilege to make defamatory statements that are related to their cases. Judges often have to talk and write about people in unflattering ways. For example, on a typical day a judge might have to discuss the severity of a criminal defendant's crimes during a sentencing hearing, or explain why they think a witness in a civil case is lying. Absolute privilege allows judges to do these parts of their job without worrying about being sued.

This privilege is also extremely broad. It protects any statement that has even a slight connection to a proceeding the judge is handling. It also means that judges can't be sued for defamation even if they're deliberately lying about someone just to satisfy a personal grudge.

The difficulty of suing a judge for defamation reflects the belief that bad behavior by judges should be dealt with politically (for example, through impeachment or a recall election) instead of through civil lawsuits.

How Does the First Amendment Protect People Who Write About the News or Public Figures?

Absolute privilege gives public officials special protections against being sued for defamation. The flip side, though, is that the First Amendment provides special protections for people who write and speak about public figures.

In the seminal 1964 case of New York Times Co. v. Sullivan, the Supreme Court unanimously held that the First Amendment protects statements about public officials' conduct, unless those statements were made with "actual malice."

In the Sullivan case, the New York Times was sued by Montgomery City Commissioner L.B. Sullivan. The paper had published a full-page advertisement alleging that Alabama police had wrongfully arrested Reverend Martin Luther King, Jr. because they were trying to destroy King's civil rights campaign. Sullivan argued that the newspaper's allegations of police corruption defamed him personally.

The Court decided that the Times wasn't liable for defamation even though the advertisement contained some factual inaccuracies. Instead of applying the negligence standard used in most defamation cases, the Court held that public officials need to prove actual malice. That means a public official has to show that the defendant made defamatory statements and either:

• knew that the statements were false, or
• made the statements with a reckless disregard for the truth.

This higher standard means that people can comment on and criticize public officials without having to worry as much about being sued over good-faith mistakes.

Learn More About Defamation Law and Government Officials' Legal Accountability

The law errs on the side of protecting public officials when they make potentially defamatory statements, reasoning that the work of judges, legislators and executive branch officials is too important to risk bogging it down with lawsuits (or the threat of lawsuits). But the law uses the actual malice standard to protect people who comment on and criticize public officials. As Judge Learned Hand wrote, the First Amendment presupposes that "right conclusions are more likely gathered out of a multitude of tongues, than through any kind of authoritative selection. To many, this is, and always will be, folly; but we have staked upon it our all."

You can read more about defamation law. You can also learn about the challenges of holding the police or other government agencies legally accountable in other kinds of lawsuits.