Defamation, Public Officials, and the Media

It's a free country, but did he really just say that? And what does the media risk when they cry out, "But the emperor has no clothes!"?

When it comes to defamation law in general (and libel and slander lawsuits in particular), the law considers a number of competing interests when government officials and the media are involved in the statement at issue: the public's access to information, individuals' reputations, and public officials' ability to efficiently perform their duties. Unsurprisingly, the interplay between these interests can quickly become contentious. Courts treat the overlap between the First Amendment and defamation laws delicately, by looking at the facts of each particular case. Read on for the details.

Defamation Defined

Defamation is a false statement that injures another person’s reputation. Libel (written falsehoods) and slander (spoken falsehoods) are both types of defamation. The elements of a defamation claim vary depending on the parties’ identities.

Generally, the plaintiff in a defamation lawsuit must show that the defendant’s false statement made the plaintiff look bad: for example, falsely calling the plaintiff a liar or criminal can be defamatory. But the plaintiff usually needs to show the defendant either knew or should have known the damaging statement was false at the time it was spoken. Because defamation claims necessarily involve speech, liability is measured by First Amendment standards.

The Privilege Defense

Sometimes a defendant can overcome a defamation claim by asserting a privilege defense. Privilege exempts the speaker from liability for defaming another person. There are two types of defamation privilege:

  • absolute privilege, and
  • conditional (or “qualified”) privilege.

Absolute Privilege: Public Officials Can Get Away With Saying Almost Anything

The broad privileges given to members of the executive, legislative, and judicial branches of government usually insulate those officials from legal repercussions for making false and injurious statements while on the job.

For example, the President of the United States has the absolute privilege to speak without defamation liability. Absolute privilege is distinguishable from governmental immunity. When the government is immune, no lawsuit can be brought against it. Absolute privilege, on the other hand, is a defense to a valid lawsuit. Governmental immunity from lawsuits is premised, at least in part, on the fear that lawsuits would drain the public treasury. Immunity is also a carry-over from English common law, where the refrain, “The King can do no wrong,” meant aggrieved citizens could not sue the government. Contrary to what we might expect, considering the historical context of America’s Declaration of Independence, Americans wholeheartedly adopted this notion of governmental immunity.

Executive privilege was a logical off-shoot of governmental immunity. Absolute executive privilege means that even if the President of the United States knows he or she is telling a lie, the President cannot be sued for defaming someone with that lie. Absolute privilege applies even when the President speaks with the specific intent to injure the target of his words. The rationale behind the rule is that it would cripple effective administration to bother the President with defamation lawsuits based on speech related to performance of executive duties. Essentially, the burden of liability exposure to the executive outweighs the potential damage to a defamation victim.

Similarly, members of Congress have absolute privilege for defamation when performing legislative functions, 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."

Judges usually have an analogous privilege to defame others -- even when the statements are irrelevant and malicious.

Conditional Privilege Does Not Guarantee Immunity for Reporters

The First Amendment emerged from the fundamental principle that public discussion is a political duty. In a defamation case brought by a public official against her critics, conditional privilege protects most speech made in good faith and in the public interest.

"Good faith" means the speaker must believe his or her comment is true, without recklessly failing to discern its falsity. Journalists are protected from defamation claims when their publication fairly comments on matters of public concern. But if the media knowingly or recklessly publishes false information, the privilege is lost.

The seminal case of New York Times Co. v. Sullivan centered on a full-page advertisement in that newspaper. The ad, called "Heed Their Rising Voices," alleged that Alabama police arrested Reverend Martin Luther King, Jr. for perjury because the government was colluding to destroy King's civil rights campaign. (The advertisement contained some factual inaccuracies.)

Montgomery, Alabama City Commissioner L.B. Sullivan sued the Times, claiming the ad’s allegations about police corruption defamed him personally. The U.S. Supreme Court noted that First Amendment protections do not recede simply because true statements about public officials injure their reputations. Indeed, Thomas Jefferson said in 1804 that a law punishing people for speaking out against the government was as inappropriate as if "Congress had ordered us to fall down and worship a golden image."

The newspaper prevailed. The Court unanimously held that the First Amendment protected the paper's statements about public officials' conduct, unless "actual malice" was involved. To prove actual malice, the public official would need to show the newspaper knowingly published a false statement or recklessly failed to investigate the truth of the statement. The Court reasoned that public officials are privileged in the performance of their official duties, and that citizens have a corresponding First Amendment privilege to criticize public officials.

Taking It Case-by-Case

How a court will decide a defamation case always depends on the underlying facts. The profession of the speaker and plaintiff, the subject matter of the statement, and the surrounding circumstances are all relevant to the court's reasoning. When the plaintiff is a public figure, judges will usually err on the side of allowing more speech rather than restricting it. As one famous judge 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 ... folly; but we have staked upon it our all."

Learn more about priveleges and defenses in defamation cases.

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