What is the difference between defamation and freedom of speech

Supreme Court has said that a statement is an opinion that merits protection when it is 1 about a matter of public concern, 2 expressed in a way that makes it hard to prove whether it is true or false, and 3 can't be reasonably interpreted to be a factual statement about someone. The Supreme Court case is Milkovich v. Lorain Journal Co. To apply this test, courts usually consider several factors, such as the manner in which the harmful statement was made.

Consider political cartoons. These appear in newspapers and online all the time and are often highly critical of the subjects they depict. Finally, courts will look at whether the statement is factual enough that it can be proven true or false. If it cannot be proven either true or false, it probably will be deemed an opinion and will not be actionable via a defamation claim. However, laws vary from one jurisdiction to another, and some jurisdictions might not draw much distinction between fact and opinion in these kinds of cases.

If you make a statement about a matter of public interest, i. For example, if you tell people that you think it is true that a local politician took a bribe, when such allegations are all over the local headlines, that is probably protected speech.

This is not only an opinion, which is typically protected, but it is also about a matter of public concern—allegations of corruption of community officials. A similar example would be criticizing the actions of school board members when it comes to protecting students. Because free speech—and even critical speech—is encouraged, especially when it comes to issues that are significant to the community, such statements are not typically considered defamatory.

Public officials and public figures have placed themselves in the public eye and, therefore, it is more difficult for them to bring a successful defamation claim. In addition to the things private individuals must prove, public officials and figures must prove that a statement was made with actual malice—meaning that the speaker either knew the statement was false or acted with reckless disregard for whether it was true or false. Proxmire , where the Court refused to provide absolute immunity to a senator being sued by a scientist who had been accused by the senator of wasting tax payer money in a press release.

The chief executives of federal, state, and local government are also provided absolute privilege. The reasoning behind this is the same as the legislators — removing the fear of defamation suits allows the government official more freedom to govern without pressure. The last form of absolute privilege given is for publishers who have received consent from the plaintiff.

This can take the form of publishing releases which the plaintiff has signed, making it a matter of contract rather than defamation law. A reporter has the qualified privilege to report the going-ons within official public meetings, even if defamatory statements take place at that meeting. In Cox Broadcasting Corp. The reporter had asked for and received the name from a clerk in open court.

The Supreme Court held that since the reporter had lawfully acquired the name through a public meeting, they were allowed to report it. Search Site. Defamation is the communication of a false statement that harms the reputation of another. Defamation has always acted as a limit on both the freedom of speech as well as the freedom of the press. There is no such thing as a false opinion or idea — however, there can be a false fact, and these are not protected under the First Amendment.

When these false facts harm the reputation of others, legal action can be taken against the speaker. Since the press reports on people and events constantly, claims of defamation are bound to occur by those who either have incorrect, negative, or unwanted facts reported about them. However, if there was no First Amendment protection for the press, the press might become too cautious — afraid to report controversial facts out of the fear of being sued by anyone who did not like the coverage.

The Supreme Court has strove to balance the interests of a free press with the privacy and dignity of others. As a person becomes more well-known or takes official positions in the government, the Court has afforded them less protections. Traditionally, the press was only exempt from libel claims if it reported on a public figure or the government and met certain standards.

The statements of fact had to be substantially true, and comments or opinions had to be fully justified by those true facts. Libel required that a defamatory statement had been made about a plaintiff and communicated to a third party. Sullivan decision. A group of civil rights leaders and clergyman took out a full page advertisement in the New York Times which described the abuse they endured from local police and asked for support for Martin Luther King.

In response, an Alabama commissioner who oversaw the police departments brought a libel lawsuit against the New York Times and the leaders listed in the ad. New York Times v. Sullivan Gertz v. Welch Time, Inc. Pape Bose Corp. Government Officials Important Cases With this new standard, who would be considered a public official?

The Court outlined this shortly after Sullivan, in the case Rosenblatt v Bauer. The operator of a county-owned recreational area sued a local paper columnist over an article that implied mismanagement of funds related to the area.

The lower courts determined that the operator was not a public official, and therefore did not need to prove the high standard required under Sullivan. Rosenblatt v Bauer Subsequently the students' original letter of complaint was published in the Canberra Times without repercussions.

Among other things, he said of a review of the Broadcasting Act "that its main concern will be to save the necks of the Government's rich mates. Hutchinson sued on the basis of imputations in the letter, which can be judged defamatory even when not intended by the writer. Hutchinson said he wouldn't accept just an apology; he wanted a damages payment and his legal costs covered.

It argued that the prosecution case against Ray, Peter and Brian Mickelberg -- sentenced to prison for swindling gold from the Perth Mint -- was based on questionable evidence. The book sold rapidly in Perth until police threatened to sue the book's distributor and any bookseller or other business offering it for sale.

The Police Union introduced a levy on its members to fund dozens of legal actions against Lovell, the distributor and retailers. The defamation threats and actions effectively suppressed any general availability of the book. Over a decade later, none of the suits against Lovell had reached trial, but remained active despite repeated attempts to strike them out for lack of prosecution. Afterwards, he and his family suffered a series of attacks.

Skrijel went to jail but was later freed and his sentence set aside. Skrijel prepared a leaflet about the issue and distributed it in Kerr's electorate in Tasmania during the federal election campaign. Kerr wrote to the Tasmanian media saying he would not sue Skrijel but that he would sue any media outlet that repeated Skrijel's "false and defamatory allegations.

In practice, the structure of the court system and the media serve the powerful while doing little to protect the reputation of ordinary people. They undermine the open dialogue needed in a democracy. There are various options for responding to uses of defamation law to silence free speech. Each has strengths and weaknesses. Writers can learn simple steps to avoid triggering defamation threats and actions.

The most important rule is to state the facts, not the conclusion. Let readers draw their own conclusions. Be sure that you have documents to back up statements that you make.

Sometimes understatement -- saying less than everything you believe to be true -- is more effective than wide claims. If you are writing something that might be defamatory, it's wise to obtain an opinion from someone knowledgeable. Remember, though, that lawyers usually recommend that you don't say something if there's even the slightest risk of being sued. Another way to avoid being sued for defamation is to produce and distribute material anonymously. Some individuals produce leaflets.

They are careful to use printers and photocopiers that cannot be traced. At times when few people will notice them, they distribute the leaflets in letterboxes, ready to dump the remainder if challenged. Gloves of course -- no fingerprints. For those using electronic mail, it's possible to send messages through anonymous remailers, so the receivers can't trace the sender. These techniques of avoiding defamation law may get around the problem, but don't do much to eliminate it.

They illustrate that defamation law does more to inhibit the search for truth than foster it. If an anonymous person circulates defamatory material about you, you can't contact them to sort out discrepancies. Send a copy of what you propose to publish to people who might sue. If they don't respond, it will be harder for them to sue successfully later, since they haven't acted to stop spreading of the statement. If they say that what you've written is defamatory, ask for specifics: which particular statements or claims are defamatory and why?

Then you can judge whether their objections are valid. It's not defamatory to criticise a person to their face or to send them a letter criticising them. It's only defamation when your comments are heard or read by someone else -- a "third party.

If you have to censor your writing or speech to avoid defamation, keep a copy of the original, uncensored version -- in several very safe places. Save it for later and for others, perhaps after all concerned are dead. You might also inform relevant people, especially those who might threaten defamation, that you have saved the uncensored version. Defamation law distorts history.

How nice it would be to read the uncensored versions of old newspapers, if only they existed! By saving the unexpurgated versions, you can help challenge this whitewashing of history. If you are threatened with a defamation action, one strategy is to just ignore it and carry on as before.

Alternatively, invite the threatener to send the writ to your solicitor. Most threats are bluffs and should be called. The main thing is not to be deterred from speaking out. The more people who call bluffs, the less effective they become. If you receive a defamation writ, try to find a solicitor who is willing to defend free speech cases at a small fee or, if you have little money, no cost. Shop around for someone to defend you. If you send us information about your case, we may be able to refer you to a suitable person.

Just because you are sued doesn't mean you can't say anything more. Many organisations avoid making comment by saying that an issue is sub judice -- under judicial consideration -- but that's just an excuse. You can still speak. In particular, you can comment on the defamation action itself and its impact on free speech. It's also helpful to get others to make statements about your case. A powerful response to a defamation suit is to expand the original criticism. Defamation suits aim to shut down comment.

If enough people respond by asserting their original claims more forcefully and widely, this will make defamation threats counterproductive. McDonald's sued. Steel and Morris, with no income, defended themselves.