Defamation, Libel, Slander, and Cybersmearing

James DiTommaso

The First Amendment provides broad protection to speech but it does not protect false or misleading speech. It also provides less protection to speech such as advertising which is known as “commercial speech.” Courts have found these limitations to the First Amendment necessary to protect individuals and businesses from the harm caused by untrue and misleading speech. Some plaintiffs, however, cry “defamation!” not to stop false speech but in an attempt to silence legitimate critics through expensive litigation or by attempting to by their critics’ silence through a quick settlement. If you are being accused of defamation, you need the assistance of a defamation defense lawyer who can advise you of your rights, privileges, and defenses and assert them on your behalf.

Defamation: Slander and Libel

In Illinois, the legal term “defamation” covers both libel (written defamation) and slander (spoken defamation). Modern courts have eschewed the distinction between libel and slander opting instead for the catchall cause of action of defamation. Defamation is a false statement about a person shared with a third party that injures the person’s reputation. Included under the definition of defamation are recently-coined terms like “cybersmearing” which refers to defamatory statements made on the internet.

The First Amendment

The First Amendment grants broad protection against defamation liability in order to allow individuals to speak their mind without fear of liability. This includes the ability to criticize a business or individual and to share one’s opinion on public issues. Over the years, the Supreme Court has consistently reaffirmed the First Amendment’s protection of critical speech and pure opinion. Thus, any defamation claim must be weighed against a defendant’s First Amendment right of free speech. As stated, though, First Amendment protections have their limit and a good defamation attorney will be able to determine if you have a valid First Amendment defense.

Public vs. Private Figure

The identity of the plaintiff makes a difference in a defamation claim. Courts take the position that public figures require less protection than private figures from defamatory statements. This position is a recognition that there is a strong public interest in discussing public figures and public figures have better access to the press than private figures and can use that access—rather than the courts—to combat false, harmful speech. This could include people who seek out publicity in general, such as politicians and celebrities, who are known as all-purpose public figures. This could also include businesses who advertise in order to make themselves well-known for providing a specific service or product or individuals who have thrust themselves into a specific controversy or newsworthy event. These businesses and individuals are known as limited-purpose public figures.

Matters of Public Concern

Equally important is the subject matter of the statements that are claimed to be defamatory. Just as courts recognize the public interest in discussing public figures, courts recognize the public interest in discussing matters of public concern and thus afford more protection to those who make statements on these topics. This ensures that individuals do will have wide latitude to discuss these topics without having to censor themselves or worry about being held liable for their speech. This protection also ensures that the public will have access to differing viewpoints on matters of public concern and will not be constrained to hearing only the “accepted” or majority viewpoint.

Truth as a Defense

Since defamation is by its very definition limited to false statements, truth is an absolute defense to defamation. The burden is on the plaintiff to prove both the falsity of the statements and any resulting damages. A defendant in a defamation case can summarily defeat a defamation claim by demonstrating the truth of the allegedly defamatory statements. He can also challenge the plaintiff’s case by challenging the alleged damages suffered.

Another defense that is somewhat similar to truth is the defense that the statement was fundamentally one of opinion rather than fact. Statements of opinion are generally not considered defamatory because opinions by their nature cannot be easily proven or disproven. Simply because a person prefaces a false statement of fact with the words “in my opinion” does not make the statement an opinion.

Substantial Truth

A statement need not be 100% true to be protected from defamation liability. The law recognizes that statements that are “substantially true” are also protected from liability. Under the “substantial truth” doctrine, if the “gist” or the “sting” of the statement is true with some minor factual inaccuracies, the entire statement may still be considered true—and therefore immune from liability.

Innocent Construction

In Illinois and a number of states, a court is not bound by the plaintiff’s interpretation of a statement. If the statement at issue can reasonably be interpreted as having an innocent construction then the statement is not defamatory. A defendant will have the opportunity to argue that the phrase has an innocent construction and that the innocent construction is reasonable. If he succeeds, the statement will be considered non-defamatory.

Anti-SLAPP Statutes

A defendant in a defamation suit may also receive protection from a statute known as a “strategic lawsuits against public participation” or anti-SLAPP statute. Anti-SLAPP statutes protect defendants from claims intended only to silence a critic seeking to petition or participate in government. Businesses, politicians, and government agencies have brought these types of lawsuits against journalists, activists, bloggers, and other businesses with the intention of bogging the defendant down in expensive litigation. The plaintiff may then offer to settle for a modest sum, or even no money at all, for the defendant’s agreement to retract the statements and refrain from making additional similar statements. Anti-SLAPP statutes attempt to protect against this abusive tactic. If a defendant succeeds in establishing that the plaintiff’s lawsuit violated the anti-SLAPP statute, the court may dismiss the lawsuit and in some cases award the defendant his costs and attorney’s fees in defending against the lawsuit.

If you are a defendant in a defamation lawsuit or have been threatened with a defamation lawsuit, understanding your rights and defenses is critical. You need a knowledgeable defamation attorney on your side to assert the available defenses and privileges and protect you from liability.

Our DuPage County defamation attorneys have decades of experience in the area of defamation defense and First Amendment law. We know the law, including current changes that might affect your rights, and are dedicated to protecting the rights of our clients. DiTommaso has offices in Oakbrook Terrace and Chicago, Illinois and represents clients in the greater Chicagoland area and throughout Cook and DuPage Counties. To schedule a consultation with a member of our team, contact us via email, or locally at 630-333-0000.

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