First amendment, libel and defamation

First amendment

When is calling someone out protected by law? What constitutes a public figure? Am I allowed to call my neighbor a thieving ignoramus on the community Facebook page? These are the sorts of questions you’ll find at the intersection of First Amendment and defamation law.

Nikolai Viedge, June 2023

A Balancing Act

Freedom of speech, religion and a free press are fundamental to any functional democracy. Without them, the state is more or less able to operate with impunity, without fear of dissenting voices, and with the ability to ruthlessly crush, incarcerate or kill those who speak up. The First Amendment, along with its nine original sisters, was adopted by the US in 1791 precisely to protect these rights. It is these freedoms that allow us to hold government, presidents, and public figures to account today. It was these kinds of freedoms that stopped Sir Thomas More from being burnt at the stake for refusing to recant his Catholicism in Tudor England (which we’ll visit again shortly).

But there is danger at the other end of the scale. Left unchecked, freedom of speech and press have the power to destroy lives, irrevocably damage reputations, and even undermine national security by spreading lies, rumors and inflammatory rhetoric. In Ken Follett’s novel Code to Zero set in the late 1950s, it’s pointed out that calling someone a communist, irrespective of the veracity of that claim, is enough to ensure that person is unemployable. Defamation laws serve to protect people from spurious and malicious statements, and the impact these can have. It is for reasons such as this that defamation laws exist, and indeed predate the rights enshrined by the First Amendment.

It follows that a tension exists between defamation laws and the First Amendment, both in the courtroom and in general debate. It takes a delicate balancing act to protect us from both the policing of speech and fake news or reputational harm. The former First Amendment ombudsman for the Freedom Forum, Paul McMasters, put it like this: “On the one hand, libel suits are a necessary recourse for those who believe that they have been wronged by the press. On the other hand, even the threat of a libel suit can serve as a subtle censor of the press.” Basically, write a scary letter to a publication threatening to sue them into oblivion unless they retract that comment or take down that article, and all but the most financially secure media outlets are likely to back down. Known fittingly as SLAPP suits (strategic lawsuit against public participation), the threat is an effective censor.

A Bit of History

To understand how we got here, we need to look overseas to England. Up until the 1500s, people looked at offenses through a ‘sticks and stones’ lens. In other words, one could not bring cases of alleged defamation before the King’s courts, which were kept busy with crimes such as murder, assault, and robbery. Defamation, it was felt, was more of a spiritual concern and it fell to the Church to resolve any disputes (penance was typically the punitive measure if the defendant was found guilty).

Telling everyone at the local tavern that your neighbor is an incompetent, pox-ridden chicken thief is slander. Publish it, and it becomes libel.

This changed in 1507, when the King’s courts began to handle defamation cases. A person could defame another by accusing them of one of the following three offenses: committing a crime, having a disease, or being incompetent. Fifty years later, defamation laws were finetuned, with the courts demanding that the allegedly defamed party provide evidence of reputational damage, and also prove that the wounding words were not uttered in jest or in the heat of the moment. In 1660, the law drew an important distinction between slander and libel. Slander refers to spoken falsehoods or insults, while libel refers to them in print. Simply put, telling everyone at the local tavern that your neighbor is an incompetent, pox-ridden chicken thief is slander. Publish it, and it becomes libel.

So by the time cases were being heard on US soil, there was already a long history of defamation law to inform local legal practice. And despite the history of innovation that the States is known for, anyone thinking that the US in these early days was “a society where freedom of expression was cherished,” is suffering from a “hallucination which ignores history.” That’s according to the late historian Leonard Levy, who continued that “the American people simply did not believe or understand that freedom of thought and expression means equal freedom for the other person, especially the one with hated ideas.”

At the time, defamation laws massively favored the plaintiff. First Amendment expert David L Hudson Jr. notes the trial of newspaper printer John Zenger in 1735, more than fifty years before the First Amendment was enshrined, asserting that “even truth was no defense to a libel prosecution.” Zenger’s publication, the New York Weekly Journal, had printed several damning articles about the governor William Crosby. According to U.S. History, libel at the time included “published information that was opposed to the government. Truth or falsity were irrelevant.” The outcome was looking bleak for Zenger. But then, against everyone’s expectations, Zenger was acquitted “on the ground that his charges were based on fact – a key consideration in libel cases since that time,” according to Encyclopedia Britannica.

The Case That Changed the Game

Despite Zenger’s victory, it continued to be tough going for the press. According to Hudson, “the Supreme Court compared libel to obscenity and fighting words – categories of expression that receive no First Amendment protection.” This put the press in a difficult position: print and potentially suffer a libel suit. This risk still exists today of course, but a landmark case in 1964 helped to establish a better equilibrium.

In 1960, The New York Times printed an editorial advert claiming that several racially motivated civil rights violations had been committed by the Alabama police department in Montgomery. Hudson notes that the then city commissioner LB Sullivan sued the publication for defamation, despite the fact that “he was not mentioned by name in the article.” Sullivan did correctly point out that the ad had some inaccuracies. “Under Alabama common law, falsity and injury to reputation were presumed,” according to The First Amendment Encyclopedia. Sullivan banked a $500,000 award from the jury.

“Erroneous statement is inevitable in free debate.”

The US Supreme Court, however, ultimately disagreed with this verdict, ruling that the common law was “constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press.” These safeguards, the Court said, served to protect the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The ruling signaled that if the press reported on a public figure whose actions were in the national interest, then that reporting had to be at least partially protected by the First Amendment – even if it contained errors (“erroneous statement is inevitable in free debate”). Without that leeway for error, one can only imagine the headache Twitter would cause First Amendment lawyers today.

The First Amendment and You

While the Sullivan case undoubtedly provided far greater scope for press freedom, the battle rages on. In the 2022 World Press Freedom Index (a ranking of countries compiled by Reporters Without Borders), the US doesn’t even make the top 40. Most nations are used to coming after the Scandinavian set on lists of excellence – Norway, Denmark, Sweden and Finland, are part of the top five here (with a surprise entry of Estonia at four). But being outperformed by countries with checkered histories of quasi-democracy (the likes of Argentina, Namibia, South Africa, and the Ivory Coast) suggests that First Amendment lawyers still have a lot to fight for here.

For those looking to fight the good fight, the ability to be able to draw fine-grained distinctions and present clear arguments is key. As an example, consider the 1974 case Gertz v. Robert Welch, Inc. Elmer Gertz, a renowned civil rights lawyer, was accused of being a communist in the magazine American Opinion, published by Robert Welch, co-founder of the anti-communist John Birch Society. The article had several inaccuracies, one even claiming that Gertz had framed a Chicago police officer for second-degree murder.

With questions like ‘what constitutes a public figure?’ at the complicated intersection of First Amendment and defamation law, those with a penchant for quiddity could thrive.

The Supreme Court in making its ruling considered the distinction between public figures and ‘limited purpose’ public figures, defining the latter as someone who “injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues” – a modern day example might be someone like Amanda Knox, who found herself at the center of one of the world’s most high-profile murder investigations when her roommate was killed in Perugia, Italy. Elmer Gertz, the court ruled, was not a public figure – limited purpose or otherwise. In drawing the distinction, the Supreme Court ruled that private individuals like Gertz do not need to prove malice to meet the conditions of defamation.

With questions like ‘what constitutes a public figure?’ at the complicated intersection of First Amendment and defamation law, those with a penchant for quiddity could thrive. Floyd Abrams, First Amendment litigator and senior counsel at Cahill Gordon, recalls having to choose “whether to obtain a PhD in American History and then teach or to go to law school.” The indication is that keen, analytic minds are likely to thrive in this practice area. “Fortunately for me, I chose the latter path.”