Running head: DEFAMATION, LIBEL, SLANDER AND THE FIRST AMENDMENT 1

Defamation, Libel and Slander vs. The First Amendment

Emoni J. Lewis

University of Indianapolis
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Abstract

Technology is something that has been around forever but is continually evolving day by

day. It is easier now a day to get connected with people through social media, seeing how it is

used daily by thousands and has even become a source of income for public figures including

models, journalist, athletes, entertainers and more. A problem that frequently occurs on social

media is the ability for individuals to become victims of defamation. Becoming knowledgeable

about defamation, libel, and slander will help eliminate one from defaming someone else and

also recognizing defamatory statements made against them.

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Social media is such a powerful tool and can reach millions of people within seconds. As

of January 2019, the internet has reported having 4.2 billion active users. Facebook let alone has

a whopping 2.3 billion users. Following behind is Instagram, which has 1 billion users. In third

place, Twitter has 326 million users. All of these platforms are continuously growing every

single day.

Many people get their career startups are from social media, as well as many, are using

social media to maintain their careers. Social media is a way that public figures such as athletes,

entertainers, models, and bloggers can connect with their supporters. They can distribute news,

information, and updates to their audience with just the click of the finger. With that being said,

just as they can release information to their core audience, others are of course allowed to release

information as well. As previously mentioned, a post, story or comment on social media, spreads

like wildfire and is reached by millions within seconds. Even if a post is taken down, it will

never completely go away. There are many times where a post has been taken down, and a blog

site has already saved the post. Although the post has been deleted from the original source, it is

now being circulated by others.

Often, public figures have information published about them without their permission.

Some of the time the information is entirely or partially false. When malicious information

begins to affect the person's image, reputation, or brand, they can file a defamation lawsuit. Just

like many lawsuits, a defamation lawsuit takes a substantial amount of time. To file a lawsuit, it

is crucial to understand what defamation is and also what are the elements to determine the

defamation case. Defamation can be very tricky to decide on especially since, under the First

Amendment, everyone has the freedom of speech.

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What is defamation?

According to the Washington University Journal of Law & Policy, the definition of

defamation is "the publication of a false statement concerning an individual that negatively

affects his or her reputation" (Pelletier,2016). Libel and slander are both included in defamation.

Communication and the Law state that, libel is the written, and printed form of defamatory

communication and slander is the oral and spoken form of defamatory communication. Opinions

cannot be labeled as defamation. For a lawsuit to be pursued, the comment/statement must be

one of fact, rather than opinion. If someone tweeted "I don't like *insert name*'s music, it

sucks!" that artist would not be able to file a defamation lawsuit. Yes, the comment did express

something negative about the artist and their music, but it wasn't enough to ruin the artists'

reputation. Communication in the Law also gives a list of "red- flag words" that Attorney and

libel expert Bruce Sanford believes that courts consider as defamatory. Words such as adultery,

alcoholic, buy votes, child abuse, con artist, drug abuser, gangster, seducer, unprofessional and

many more.

Elements of defamation

Five elements determine if a situation can be turned into a defamation lawsuit.

(1) Publication: The "easiest" element to prove when the lawsuit involves the media. The

plaintiff must prove that the statement was posted where at least one other person has

access to see it. If the plaintiff is the only one who can see the message, then it isn't

defamatory because it doesn't have the risk of ruining the plaintiff's reputation.

(2) Identification: The plaintiff must be able to prove that someone other than the defendant

can identify them through the comment/statement. Again, if no one was able to link the

plaintiff to the statement, it is not defamatory.

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(3) Defamation: As previously mentioned, the plaintiff has to be able to show and prove that

the comments made are false. Also, the comments can and will affect their reputation

negatively.

(4) Injury: If actual malice isn't proved then the plaintiff must be able to show that the

statement has impacted their lives somehow, whether it is humiliation, financial

problems, or mental stability. Actual malice is defined as a showing that the publication

was known to be false or that it was published with a reckless disregard for the truth or its

falsity.

(5) Fault: Plaintiff must prove that the defendant acted careless or irresponsible which

resulted in the injury.

Where determining defamation gets challenging is when the defendant claims that they are

practicing their first amendment right.

The First Amendment

The First Amendment is in place to protect our five fundamental freedoms: religion,

speech, press, assembly and the right to petition the government. Some individuals who are

caught in a defamation lawsuit will bring up their power to freedom of speech. The First

Amendment states that all speech isn't practiced under absolute protection. Slander, in no way

shape or form, is protected under the First Amendment. Personal opinion statements are

protected speech because they are indeed opinions and not facts. The easiest way for someone to

get involved in defamation is when they are posting something that they know for a fact is false,

and they post it anyway for some odd reason. The only way to ensure that your speech is

protected and you aren't violating the First Amendment is to always opinion speak. The Media
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Law Resource Center stated it is hard to square modern First Amendment principles with laws

that purport to criminalize statements that allegedly harm reputation (Hopkins,2018).

Criminal Libel

Criminal libel is a subject that usually sends the public uproar. Many believe that there

shouldn’t be a statue that punishes speech and on the flip side, many are indeed in favor of

having a statue that will suppress the First Amendment. Criminal libel states that it is a crime to

spread knowingly false information about a person and is a “legitimate legal tool to use when the

reputations of private figures have been harmed by defamatory comments that have nothing to do

with public issues (Hopkins, 2018).” Currently, there are twenty- two states who have criminal

defamation laws, which include: Idaho, Montana, South Dakota, North Dakota, Minnesota,

Wisconsin, Illinois, Michigan, Kentucky, Virginia, South Carolina, North Carolina, Florida,

Alabama, Mississippi, Texas, Louisiana, Oklahoma, Kansas, Utah, Nevada, and New Mexico.

The following four states have repealed against the law, Georgia, Washington, Colorado, and

Arkansas ("Criminal-libel statutes, state by state," 2006). The penalties for criminal libel can

range from typical fines to imprisonment. According to ACLU, these laws are violating the First

Amendment and are disproportionately used against people who criticize public officials. The

ACLU has proceeded to file a lawsuit challenging the Criminal Defamation law in New

Hampshire. “Freedom of speech doesn’t give anyone the absolute right to spread malicious lies

about people, but civil lawsuits are fully capable of addressing the harms caused by defamation.

Criminal defamation laws have no place in a democracy. Several states have already repealed

these unconstitutional laws, and the remaining ones that still have them on the books should

follow suit.” (ACLU,2018).

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Libel per se/ Libel per quod

Libel per se means that “even if libel is not clear on the face of the publication, it is still

actionable without proof or special or actual damages” (Steenson,2000). This means that the

defamation is noticeable in the statement. Libel per quod is when the plaintiff must present

additional information to prove that the statement was defamatory. “All courts make a distinction

between written words which are defamatory on their face and those which are ambiguous,

capable of either an innocent or a defamatory meaning, or defamatory only in light of extrinsic

facts or circumstances” (Isham,1954).

An example of libel per quod, there was a defamatory statement made about the plaintiff,

accusing him of marrying his aunt. If the charge is understood by its intended audience as

meaning the plaintiff married his blood-related aunt, then it would be considered a defamatory

meaning. If it were assumed that the plaintiff's wife was his "aunt" from a previous marriage,

then the meaning would be understood as innocent and not defamatory. The words can be

capable of either defamatory or innocent. The plaintiff must allege by innuendo that the words

charged him with marrying his blood-related aunt (Isham,1954).

Inducement, Colloquium, and Innuendo

According to a journal from Kent Law, the following terms: “Inducement, colloquium,

and innuendo are used when the words are not defamatory on their face. They are necessary aids

to the plaintiff in drawing his complaint. Unfortunately, these aids are not always easy to work

with and are sometimes a source of confusion to those who are unfamiliar with them” (Martin,

1966).

Inducement is used to explain the background in which the statement was made. An

article titled Defamation Defined states that “a statement, taken by itself, can be immediately
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harmless. But the character of the statement can be drastically altered when it is shown that the

hearer or reader is aware of facts not in the statement itself. It is as if the outside circumstances

were read into the statement” (Martin, 1966). The Defamation Defined article also gave an

example of when inducement is critical in the following scenario: “The inducement is also used

to fit a defamatory meaning into one of the categories of slander per se. An oral statement that

John Jones is a drunken sot, and that his nerves are all shot is defamatory on its face, but unless it

fits into one of the slanders per se categories, it is not actionable without proof of special

damages. But when it is pleaded by inducement that John Jones is a brain surgeon, sufficient

facts are stated to show slander to a plaintiff's business, trade or occupation” (Martin,1966).

The colloquium is when the plaintiff believes the defamatory statement is written about

him/her due to a nickname or alias being mentioned. There was a case between Voris v. Street

and Smith Publications; the defendant's magazine had published an article that consisted of big-

time gamblers all around the world. One of the articles talked about one of the gamblers, who

was referred to as "Snapper Charlie." The plaintiff automatically suggested the article was about

him seeing how he has the same nickname. The appellate court dismissed the case by saying "A

complaint is insufficient which fails to show that the alleged libelous article was understood by

its readers to refer to the plaintiff. There is no allegation that any person or persons who read the

article knew that it referred to the plaintiff. It is not enough to constitute libel that the plaintiff

knew that he was the subject of the article, or that the defendant knew of whom they were

writing. It should appear upon the face of the complaint that persons other than these must have

reasonably understood that the article was written of and concerning the plaintiff and that the so-

called libelous expression related to him” (Martin,1966).

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Innuendo is used to explain the meaning of the statement, “the language must reasonably

be subject to a defamatory interpretation” (Martin, 1996). "The office of the innuendo is to

deduce inferences from premises already stated, not to state the premises themselves”

(Martin,1996). There was a case between a secretary of Nash Motors and a Nash dealer in

Chicago, Fulrath vs. Wolfe. The defendant which was the secretary, wrote the plaintiff, the Nash

Dealer a letter, stating that "because of the facts disclosed by our investigation into your methods

of merchandising Nash cars, we must discontinue our business relationship with you”

(Martin,1996). By innuendo, the plaintiff contended it was very reasonable to include the letter

because of a recent conversation between the plaintiff and defendant, wherein the latter allegedly

accused the plaintiff of being a “gypper” (Martin,1966). The court dismissed the case and stated

“Such innuendoes are not available to impute a libel to the letter which in itself is otherwise

innocent of any libelous meaning. The innuendoes, in order to be available as a pleading in libel,

must be of the very words and phrases used in the letter upon which the libel charge is

grounded... If the word "gypper" were anywhere found in the letter, these observations would

have no application” (Martin,1996).

Defamation Cases

In 2013, there was a case between a British politician Lord McAlpine and a well-known

political figure Sally Bercow. The case began in 2012 but was solved in 2013. The British

Broadcasting Corporation (BBC) released that one of the child abusers from a recently

publicized sex abuse case was a "conservative politician from the Thatcher years." The broadcast

corporation never leaked Lord McAlpine as the abuser, but people who started to hear the story

began to link the case to Lord McAlpine. Just like when any situation arises, the topic goes viral

on social media. That was the same for this case, thousands of people started to tweet about the
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case, and Lord McAlpine's name started trending on Twitter. Sally Bercow was unaware as to

why Lord McAlpine's name was all over her Twitter timeline. Sally put out a tweet that read,

"Why is Lord McAlpine trending? *innocent face emoji*". At the time that Sally had posted that

tweet she had around fifty thousand followers, they began to retweet the statement which led to

more people becoming aware of what Sally wrote.

Later down the line, the media released a statement that Lord McAlpine was utterly

innocent. McAlpine became aware that his reputation had been damaged due to the British

Broadcasting Corporation releasing a statement that could have been directed toward him. He

also threated any Twitter uses who mentioned that he was a pedophile in their tweets, even

including Sally Bercow. Lord McAlpine had received several settlements, but Sally refused to

settle as she denied any wrongdoing. Sally Bercow stated that her tweet didn't have defamatory

intend at all. Sally did, in turn, mock Lord McAlpine, by posting follow-up tweets that prove her

innocence.

Lord McAlpine ended up filing a defamation lawsuit against Sally claiming that the tweet

was intended to mean that he was a pedophile. The court found that by Sally putting the innocent

face emoji, was very ironic. The court stated that the emoji was interpreted as a "stage direction,"

which was supposed to lead the audience to picture Sally's face as innocent while posing the

question. The courts ruled that emoji was indeed ironic and the question was completely

insincere. Since the allegations of Lord McAlpine being a child abuser were untrue, Sally's tweet

was found defamatory. Sally admitted fault, and the case was settled, she had to pay Lord

McAlpine twenty thousand dollars.

Examining the elements of defamation using this,

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(1) Publication- Lord McAlpine could easily prove that the tweet was seen by more than just

him. As stated before, Sally Bercow had over fifty thousand followers, and many of them

started to retweet her tweet after she posted it.

(2) Identification- Lord McAlpine can prove that the tweet was about him because Sally

mentioned his name and she mentioned his name right after BCC released a statement

that alluded he was the child abuser in the case.

(3) Defamation- His reputation was tarnished after thousands of people were calling him a

pedophile.

(4) Injury- By Lord McAlpine going to jail, he was already going to have to deal with

humiliation. But, now that he is out of jail and have been cleared from all charges and he

is still being called a pedophile or alluding that he is a pedophile is very humiliating.

(5) Fault- Sally admitted wrongdoing at the end of the case. Lord McAlpine didn't have to

admit fault that she was at fault because she had already proved it herself.

After reviewing all of the following elements, the court had the right to grant Lord McAlpine

with a win for this defamation lawsuit.

There has been a recent defamation case that has surrounded the media for a couple of

weeks. Television star, Jussie Smollett was allegedly attacked near his Chicago apartment around

2 a.m. It was documented that two masked men had poured an "unknown substance" over

Smollett, which he believed to be bleach. The men had also tied a rope around his neck and

began to shout this is a "MAGA country" referring to President Donald Trump's slogan "Make

America Great Again." Jussie's story touched so many peoples' hearts in the world, and many

people began to feel sorry for him. Ten days after the brutal attack, the police were still looking

for the two suspects. They were unable to find any leads, and it made the public become very
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skeptical. The Chicago Police Department put out a statement that suggested they had found the

two men who were involved in the attack. The statement that was put out stated “Unbeknownst

to the public, Chicago police investigators had been tracking the two "persons of interest" and

were aware of who they were "for a while," a law enforcement source subsequently told ABC

News. Investigators learned that these two men were returning to Chicago on Feb. 13 from

Nigeria and moved in. The pair were detained at the airport, placed under arrest and taken in for

questioning (ABC, 2019)” A Chicago Police representative, tells ABC News that “the two

'persons of interest' are, in fact, under arrest, and acknowledge that the pair has "a relationship

with" Smollett. In an unusual move for an ongoing investigation, police officials who had

originally described the two as 'persons of interest' begin describing them as "potential suspects."

But by late that evening, investigators changed course and announced that the two men had been

released without charges (ABC, 2019).

The alleged suspected were revealed as being brothers, and one of them was Smollett's

personal trainer. Smollett became very angry that someone close to him could even think about

doing something so hurtful to him. After being interrogated by the police once again, the bothers

admitted that “ that the "Empire" actor allegedly paid them to help him orchestrate and stage the

crime (ABC,2019). The two brothers who claimed that Smollett helped him concoct the assault

after he became upset that a letter threatening him, sent to the "Empire" show's studio, did not

get enough attention. The brothers wrote a statement ensuring that "We are not racist," "We are

not homophobic, and we are not anti-Trump. We were born and raised in Chicago and are

American citizens. (ABC, 2019)”

Recently, the bothers have filed a defamation lawsuit against Jussie Smollett’s attorneys.

According to CNN “The federal lawsuit alleges defamation and false light by attorney Tina
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Glandian for saying, among other things, that brothers Olabinjo and Abimbola Osundairo

attacked the "Empire" actor and dealt steroids, and "inferring" that Abimbola engaged in sexual

relations with the actor (McLaughlin, 2019). Examining this case with the elements of

defamation, it would look like the following:

(1) Publication: Publication is easily proven. Jussie Smollett’s attorney Tina Glandian

has said on live television that the brothers attacked the stars. Although, the brothers

had already admitted to helping stage the crime.

(2) Identification: While speaking about the brothers and the crime, multiple pictures of

the two were shown.

(3) Defamation: The defamatory comments damaged the brother's reputation. They are

now being referred to as racist and homophobic.

(4) Injury: The brothers have faced difficulty obtaining jobs, attorney Greg Kulis said.

Their health-and-training business has faltered as a result of the allegations they

committed a hate crime and sold steroids, which they deny, and Abimbola Osundairo,

who is straight, has suffered reputational damage among a Nigerian community that

widely frowns on being gay, the brothers' legal team said. They've also been harassed

by paparazzi and reporters (McLaughlin, 2019).

(5) Fault: The brothers would need for the attorney to admit to everything that she has

falsely stated or prove that the accusations are real.

Tina Glandian responded with “At first we thought this comical legal document was a

parody. Instead, this so-called lawsuit by the brothers is more of their lawyer driven nonsense,

and a desperate attempt for them to stay relevant and further profit from an attack they admit

they perpetrated. While we know this ridiculous lawsuit will soon be dismissed because it lacks
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any legal footing, we look forward to exposing the fraud the Osundairo brothers and their

attorneys have committed on the public. (Sager, 2019)".

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References:

Criminal-libel statutes, state by state. (10, August 2006). Retrieved from

https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-the-
press/criminal-libel-statutes-state-by-state/

Critics question the constitutionality of criminal libel laws. (2003, February 01). Retrieved from
https://www.rcfp.org/journals/the-news-media-and-the-law-winter-2003/critics-question-
constituti/

Frese v. MacDonald – Challenge to New Hampshire Criminal Defamation Law. (2018,

December). Retrieved from https://www.aclu.org/cases/frese-v-macdonald-challenge-new-
hampshire-criminal-defamation-law

Friedersdorf, C. (2018, December 18). The ACLU Takes Aim at Criminal-Defamation Laws.
Retrieved from https://www.theatlantic.com/ideas/archive/2018/12/aclu-test-case-takes-aim-
criminal-defamation-laws/578383/

Isham, Duane, L, "Ohio State Law Journal," vol. 15, no. 3 (1954), 303-310.

Kevin Martin, Defamation Defined, 43 Chi.-Kent L. Rev. 2 (1966). Available at:

https://scholarship.kentlaw.iit.edu/cklawreview/vol43/iss1/3

McLaughlin, E. C. (2019, April 23). Brothers implicated, then cleared, in Jussie Smollett case
sue actor's legal team for defamation. Retrieved from
https://www.cnn.com/2019/04/23/us/jussie-smollett-brothers-lawsuit-defamation/index.html

Pelletier, N. (2016). The Emoji that Cost $20,000: Triggering Liability for ... Retrieved from
https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1948&context=law_journal_law_
policy

Sager, J. (2019, April 24). Brothers accused of attacking Jussie Smollett sue his attorneys for
defamation. Retrieved from https://www.foxnews.com/entertainment/jussie-smollett-lawyer-
osundairo-brothers-lawsuit-defamation

Steenson, Michael K., "Defamation Per Se: Defamation by Mistake?" (2000). Faculty
Scholarship. Paper 71. http://open.mitchellhamline.edu/facsch/71

What happened? Timeline of investigation into Jussie Smollett's attack claim. (2019, March 26).
Retrieved from https://abcnews.go.com/US/timeline-alleged-jussie-smollett-
attack/story?id=61124090
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