Freedom of Speech: What’s slander? What’s libel?—How to Legal

Welcome back to How to Legal — Freedom of Speech: What’s slander? What’s libel?

In this installment we’ll look at:

Remember to pace yourself. There’s a lot of information here. You can bookmark How to Legal and come back later. Scroll down to what interests you and skip the rest.

The more you know about the legal process, freedom of speech, and defamation laws, the easier it becomes to tell the difference between fake news versus proper judicial procedures and people who have been defamed.

Thanks for being a part of the solution to the fake news crisis.

Let’s do this.

Protected speech versus unprotected speech. What’s defamation, slander & libel?

In part, according to Cornell University Law School:

Defamation is a statement that injures a third party’s reputation. The tort of defamation includes both libel (written statements) and slander (spoken statements).

Slander: Spoken. Slander is a false statement, usually made orally, which defames another person.”

Libel: Written. Libel is a method of defamation expressed by print, writing, pictures, signs, effigies, or any communication embodied in physical form that is injurious to a person’s reputation, exposes a person to public hatred, contempt or ridicule, or injures a person in his/her business or profession.

Cornell University Law School

How to find the elements of defamation laws state to state with a Delaware case example

To locate the elements of defamation law in different jurisdictions, let’s briefly revisit Fake News, Defamation & Disinformation Case Law, and the United States v. Gonzalez.

In the United States v. Gonzalez, a horrific cyberstalking case that resulted in two people’s death, the Third Circuit, an appeals court, set precedence.

This horrific case started with words — defamatory statements. It started with what some people might call “First Amendment” rights, and it ended in murder. Two people were killed. Ultimately, the defendants were sentenced to life in prison.

As this case demonstrates, there are people among us who are seemingly devoid of a conscience, hateful, malignant, cruel, two-faced, [insert your description here], who will say anything for years to harm a woman that results in her death. In this case, it was family members.

Defamation is a big deal. Judges faithfully and promptly applying defamation laws pursuant to the judicial canons and oaths is a big deal. People’s lives may depend on it. You never know the full extent of the damage words can cause until you do.

The Third Circuit’s introduction provides a case summary of this horrific cyberstalking case:

This case concerns challenges by David Matusiewicz and Amy Gonzalez (together, the “defendants”) to their convictions for conspiracy to commit interstate stalking and cyberstalking, interstate stalking resulting in death, and cyber stalking resulting in death, and to their resulting life sentences for conspiracy to commit interstate stalking and cyberstalking which resulted in the death of Christine Belford, the ex-wife of David Matusiewicz.

The defendants are siblings and were 4 indicted, along with their mother, Lenore Matusiewicz, after their father, Thomas Matusiewicz, shot and killed Belford and himself in the lobby of the New Castle County Courthouse.

They engaged in a years-long conspiracy with Thomas Matusiewicz, an unindicted co-conspirator, to harass Belford, which ultimately resulted in her death. On appeal, each defendant challenges, inter alia, the constitutionality of the statutes under which they were convicted, the jury’s verdict on sufficiency of the evidence grounds, various evidentiary rulings of the District Court, as well as numerous challenges to their sentences of life imprisonment.

Faced with numerous issues of first impression in this complicated case, District Judge Gerald McHugh, sitting by designation, handled this case with exceptional precision and care. We will affirm the District Court in all respects.

United States v. Amy Gonzalez, 16-1540 (3rd Cir. 2018), Court of Appeals for the Third Circuit

Please remember this case whenever you hear anyone holler “freedom of speech” as if it’s open-ended. It’s not.

You can read some of the court filings at Courtlistener.

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What are the elements of Defamation laws?

The United States v. Gonzalez was heard in Delaware. Thus, you would need to refer to the Delaware defamation laws to find the elements.

One place, among many open-source resources, that I like to use to locate defamation laws is Kelly Warner Law.

This firm’s website provides the elements in different states.

From Kelly Warner Law’s website, in part:

Defamation elements in Delaware

Following are the Elements Required to Prove Defamation in Delaware:

A cause of action for libel or slander in Delaware requires proving the following:

+ The defendant published or verbally broadcast a false communication of fact;

+ The communication under protest is about the plaintiff;

+ The statement in question caused material or reputational harm to the plaintiff;

+ The defendant acted either negligently or with actual malice.

+ Delaware doesn’t require a defamed person to be identified by name in a libelous or slanderous statement. There only needs to be enough information for a “reasonable person” to understand that the plaintiff is the target.

Source Kelly Warner Law

Oath-breaker judges v Oath-follower judges

The last element is typically written in pleadings as “defamation by implication.” Oath-breaker judges, seemingly hellbent on throwing a high-damage defamation case, ignore elements. They leave evidence of their lack of impartiality and misconduct in their rulings. Oath-followers don’t. Oath-following judges faithfully apply ALL the elements.

There’s a very big difference, yes?

What’s defamation per se?

Defamation per se is a statement considered inherently damaging to a person’s reputation or community standing. Delaware recognizes four types of statements as defamatory per se:

1. A disparaging statement intended to hurt a person in his or her trade or business;

2. A statement indicating commission of a crime of moral turpitude;

3. Implying a person suffers from a repugnant disease; and

4. Disparaging statements regarding the sexual activities.

You may learn more about the different types of defamation laws, state to state, at kellywarnerlaw.com.

For an in-depth explanation of defamation per se, where typically damages do not need to be proven because the statement(s) are inherently defamatory on their face (per se), versus defamation per quod where the statements are not inherently defamatory, thus damages must be proven, read What is Defamation per se from Findlaw.com.

The elements of defamation law are important to know when you are following court cases so you will know whether or not a judge is properly applying defamation law. This applies to all counts, torts, and laws. It is what the Rapid Response Guide to fake news was referring to in their guide to help educate the public about legal issues. See below, in part:

The focus of these responses is to provide the public with information to help them better understand the legal issues related to a specific situation, including the role of judges, the application of the law, and the restrictions and responsibilities placed on judges in the canons and rules. (underline mine)

Rapid Response to Fake News, Misleading Statements, and Unjust Criticism of the Judiciary

Okay, let’s break for a musical interlude, stretch, move around, and enjoy Depeche Mode’s “People are People” or other music you might like before moving on to what’s “actual malice.” >> Depeche Mode’s Official Website.

What’s the actual malice standard?

Okay, moving forward, what’s the actual malice standard?

You need to know this because “actual malice” is a part of defamation law as well.

Actual Malice is defined as a “knowing or reckless disregard for the truth.” See: Supreme Court 1964 ruling in New York Times Co. v. Sullivan.

In brief, in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), a landmark case, the Supreme Court reversed a libel damages judgment against the New York Times in 1964.  The decision established that the First Amendment guarantees freedom of speech and press which may protect libelous words about a public official to foster vigorous debate about government and public affairs.

Defamation landmark cases

Below is a helpful panel discussion, “50th Anniversary of New York Times v. Sullivan” (2014), if you wish to know more about this landmark case, and other cases dealing with privacy and defamation laws.

Source: Newseum Institute and the American Bar Association

If you’re not in the mood for a panel discussion, take another music break. You can get up and dance to Kim Mitchell’s prophetic song, “Go for a Soda.” … “Might as well go for a soda it’s better than slander, it’s better than lies,” or do something else that makes you feel good, and come back later.

>> Kim Mitchell’s website is here.

Reckless disregard for the truth

Okay, let’s keep going and break down “reckless disregard of the truth” a little bit further so you are clear. Here, we turn to the always helpful Merriam-Webster dictionary (the good side of the Internet).

Merriam-Webster tell us:

Legal Definition of reckless disregard of the truth

1: disregard of the truth or falsity of a defamatory statement by a person who is highly aware of its probable falsity or entertains serious doubts about its truth or when there are obvious reasons to doubt the veracity and accuracy of a source the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection— Garrison v. Louisiana, 379 U.S. 64 (1964) 2: a reckless lack of attention to the truth that misleads or deceives another (as a magistrate) whether false statements were made intentionally or in reckless disregard of the truth in support of the warrant— State v. O’Neil, 879 P.2d 950 (1994)

Merriam-Webster

Knowing about” actual malice,” and “the reckless disregard of the truth,” will also help to show you the proper application of defamation laws in high-damage court cases. This is also why the alleged defamatory statements must be read in context.

Oath-breaker judges don’t read the statements in context. Oath-follower judges do.

Defamation Law: How public figures versus private citizens are treated

Within defamation laws there’s another factor you need to know, and that’s the difference between how public figures, limited-purpose public figures, and private citizens are treated by the courts. This brings us to another landmark defamation case, Gertz v. Robert Welch, Inc.

CaseBriefs provides an explanation for law students.

If you wish to know more, you can look up case law at casetext.com and read the filings and the Seventh Circuit opinion in Gertz v. Robert Welch, Inc.

How to look up case law and grab citations

To demonstrate how casetext.com works, below is an excerpt I grabbed from Gertz v. Robert Welch, Inc.

I did it by highlighting a section of the court’s opinion with a citation that shows the differences between how public figures and private individuals are treated in court.

Because private individuals characteristically have less effective opportunities for rebuttal than do public officials and public figures, they are more vulnerable to injury from defamation. Because they have not voluntarily exposed themselves to increased risk of injury from defamatory falsehoods, they are also more deserving of recovery. The state interest in compensating injury to the reputation of private individuals is therefore greater than for public officials and public figures. Pp. 343-345.

Gertz v. Robert Welch, Inc., 418 U.S. 323, (1974)

Case law with a citation breakdown

Gertz v. Robert Welch, Inc., 418 U.S. 323, (1974) (citation directly above) is an example of case law with a citation.

[Elmer] Gertz is the plaintiff. Robert Welch, Inc. is the defendant. The citation is like a footnote or an endnote you see in books, but in legalese style. I hope that’s clear, yes?

What’s a limited-purpose public figure?

To learn about how a court views a limited-purpose public figure, consider reading, Hofstra Law Review’s “Whither the Limited-Purpose Public Figure,” by Rona Klein.

Okay, it’s time to wrap this up.

As always, I hope you feel empowered by learning more about the justice system and defamation laws, so you will not be deceived by fake news, politics, bad actors, or by oath-breaker judges and lawyers.

The more you learn about the justice system, the more you will respect, admire and appreciate the officers of the court who follow their oath during proceedings. Conversely, oath-breakers give bad actors a free pass to keep doing whatever they were doing and undermine the U.S. justice system.

Those who can make you believe absurdities can make you commit atrocities. —- Voltaire

Thank you for being a part of a solution to combating the fake news crisis by becoming informed and by benefiting from the good side of the Internet’s legal resources. Signing off to take a break before moving on to the next installment of How to Legal: Pleadings, defamation complaints, and altered exhibits. That means it’s time for a musical interlude.

For me, it’s with the Spoons, “Tell no lies.” What about you? Spoons’ official website.

Legal Disclaimer

None of this information may be construed as legal advice.  This information is for educational purposes, and a public service, to help combat fake news. If you need legal advice, consult with a licensed professional in your area.

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