In this age of social media and increasing incivility, lawyers often get requests to consider taking defamation/ slander/libel cases. While the circumstances which give rise to these requests are distressing to the people experiencing them, successful cases of this nature are rare because of limitations imposed by the Constitutional First Amendment right of free speech, and other privileges or immunities. Defamation and slander are synonymous, and libel simply means to publish a defamatory statement in writing. “To establish defamation, there must be evidence that a defendant failed to exercise reasonable care in publishing, without a valid privilege, a false and defamatory statement of fact about the plaintiff to a third party.”
So, in order to bring a lawsuit against someone for defamation, you need to prove what they said is false and that they said or wrote it to someone other than the person it is about. You also need to prove that it is defamatory, that is “language must tend to lower the plaintiff in the esteem of any substantial and respectable group, even though it may be quite a small minority.”
Perhaps the most important privilege is that established by the United States Supreme Court in New York Times Company v. Sullivan (1964), which held that, because of the free speech protections in the Constitution, special rules apply to statements about public figures. If the allegedly defamatory statement was about a public figure concerning a matter of public interest, there could be no recovery unless the plaintiff could prove the statement was made with a deliberate indifference to or disregard of whether the statement was true or false.
One of the cases which the Supreme Court relied on was Chagnon v. Union Leader Corp. (1961), which had been tried and argued by my father and his then senior partner, the great New Hampshire trial lawyer Stanley Brown.
According to my father, the Chagnon case was the beginning of the late William Loeb’s (publisher of the New Hampshire Union Leader) dislike of him. Mr. Chagnon owned a nursery that was given a contract by the city of Manchester to supply trees for the landscaping. The Union Leader ran an article stating that the trees were inferior to those required by the contract. This article might not seem very sensational; however, it went to the heart of Mr. Cha- gnon’s business, and he sued, claiming that it was false. A jury agreed, and awarded him $99,000, a very large sum at that time.
The case was appealed to the New Hampshire Supreme Court, and the Court found that the state- ments were untrue, and were not justified, because they were made with a reckless disregard of the truth. It introduced the term “actual malice,” which the United States Supreme Court adopted inSullivan and has been the foundation of defamation/libel law ever since. The unfortunate flip side to that protection is that false and defamatory claims are frequently made about public officials, and they have little or no recourse through a libel or defamation lawsuit. It has been argued that this is not unfair because famous people have greater access to the media and can rebut lies more easily than a private citizen could.
Another important privilege which protects even ordinary citizens against libel or defamation judgments is for statements made in legal or public proceedings. The “fair report” privilege protects media outlets from liability for reporting on statements made in public meetings that turn out to be untrue.
The most important immunity for most of us is section 230(c) of the Communications Decency Act (CDA). That says, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” That prevents social media companies such as Facebook from being sued because of defamatory statements posted by its users, and it also protects users who retweet or repost such comments. While the original poster can be sued, a lawsuit against only that person is rarely financially feasible.
Understandably, there has been discussion about repealing this law. The recent New Hampshire Supreme Court case, Banaian v. Bascom (May 2022) illustrates how much damage can result from the current law. A middle school teacher was the victim of a hack of the school’s website when the hacker, a high school student, changed her webpage to a sexually suggestive one.
Another student took a picture of the altered website and tweeted that image over Twitter. Several more people retweeted this. As a result, the teacher was subject to “school-wide ridicule,” was unable to work for approximately six months, and suffered financial and reputational harm. However, when she tried to sue those retweeters, the Supreme Court agreed with the trial court that the retweeters had immunity. This case illustrates the modern landscape of defamation and libel law.