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How to Legal: Freedom of Speech: What’s Slander? What’s Libel?

How to Legal: What's slander? What's libel
Freedom of speech is not the freedom to defame, defraud, or the freedom to incite violence.

Welcome back to How to Legal where we use the good side of the Internet to combat the dark side, in this Internet era of fake news, misinformation, disinformation and/or defamation against ethical judges and people.

To simplify, hereinafter, "fake news" refers to 'fake news, misinformation, disinformation and/or defamation."

In this installment we’ll look at:

  1. protected speech versus unprotected speech. What’s defamation?;
  2. the difference between slander and libel;
  3. the elements of defamation laws in different states with a Delaware case example;
  4. defamation per se;
  5. the actual malice standard;
  6. reckless disregard for the truth;
  7. how public figures versus private citizens are treated;
  8. how to look up case law;
  9. some defamation landmark cases; and
  10. case law with a citation breakdown.

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 innocent people.

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.

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?

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.” It is typically, based on the theory that broadcasting reaches a larger audience than printed publications. Thus, damage-wise, words spoken over the air on television or radio are treated more harshly.

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

Defamation law elements, state to state

This child is not defaming any body.
Another great pixabay pic. This adorable child is not defaming anybody.

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 a woman’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 with a woman’s death. Ultimately, the defendants were sentenced to life in prison.

So, yes, as this case demonstrates, there are people among us who are seemingly devoid of a conscience, hateful, malignant, nefarious, 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.

As such, judges faithfully and impartially applying defamation laws (all laws) 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 were open ended. It’s not.

You can read some of the court filings at Courtlistner.

What are the elements of Defamation laws?

Rule of law. Illegal v legal. How to Legal.  Defamation laws. Protected speech v. unprotected speech.
Due justice serves the rich and the poor.

United States v. Gonzalez was heard in Delaware, so you would need to refer to the Delaware defamation laws to find out.

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

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 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 obviously applies to all counts, torts, laws, and is what the Rapid Response Guide to fake news was referring too. 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. (bold 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’s Mode’s Official Website)

What’s actual malice?

How to Legal. Now you know the answers
Now you know the answer because you’re learning How to Legal.

Okay, moving forward, what’s actual malice?

You need to know this because “actual malice” is a part of defamation laws 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. Sullivan376 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 of freedom of speech and press which may protect libelous words about a public official in order to foster vigorous debate about government and public affairs.

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 always 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 (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

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

Defamation Law: Public Figures v. Private Citizens

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

How to Legal. The scales are balanced
You can use open source legal resources to learn How to Legal.

CaseBriefs provides an explanation for law students.

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

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 which 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 legalese style. Hope that’s clear.

Okay, time to wrap this up.

As always, I hope you feel empowered having taken some time to learn more about the justice system and defamation laws, so you will not be duped by fake news about ethical judges who faithfully apply the law and innocent people.

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

Dancing in nature
Take breaks when you How to Legal

Thank you for being a part of a solution to combating the fake news crisis. Signing off now 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? See, Spoons official website.

* * Legal Disclaimer * *

None of the information I publish on this website is legal advice.  This information is for educational purposes, and a public service, to help combat fake news. If you need legal advice, please consult with a licensed professional in your area.

If you would like to show support for my efforts to make the Internet a safer and more honest place you can send donations here.  Thank you. If you are stressed out by fake news, real news, or for any reason, check out Stuff for Stress and some merch.

Lastly, if you see any typos or mistakes, kindly send me an email so I can fix it. Thanks.