There’s a common misperception that the First Amendment to the United States Constitution protects all forms of speech. In fact, there are a number of exceptions that are not protected by constitutional free speech rights, including speech that is deemed obscene or pornographic, speech that incites illegal conduct, speech that violates copyright or trademark protections, and speech that is considered defamatory.
Defamation is oral or written communication that contains false statements that injures a person’s reputation. The communication must be made to a third party. It is not defamation if you make a false statement to another person but no one else hears or reads it. When defamation is in writing, it is referred to as libel. When spoken, it is known as slander.
Though slander is commonly thought of as an oral defamatory act, the definition is actually a little broader, encompassing all forms of defamation that are not in a fixed form such as a sound recording, video, or writing. Slanderous statements are temporary or transitory, rather than permanently fixed, and may include gestures, as well as spoken words. To be considered slander, the statement must be untrue and must be communicated to others as though it were true. Statements that are conveyed as opinions are not slander, and neither are true statements.
A slanderous statement must be untrue and must reasonably have the potential to damage another person’s reputation. Examples include:
Slander is a tort, or civil wrong, in all jurisdictions. Accordingly, a person injured by slander may file a lawsuit for damages against the person who made the false statement. To successfully prove slander, the injured party must show:
It’s important to understand, though, that different standards may apply depending on whether the person alleging slander is a private individual or a public figure.
Statements About Private Individuals: When the plaintiff is a private individual, the defendant may be found liable if the slanderous statement was:
Statements About Public Figures: If the person about whom the statement is made is considered a public figure, the defendant can be found liable only if the statement was made intentionally or recklessly.
Currently, only 13 states have statutes that allow for prosecution of criminal defamation: Idaho, Louisiana, Michigan, Minnesota, Montana, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Utah, Virginia, and Wisconsin. In these jurisdictions, however, it’s rare for a defendant to be found guilty and sentenced to jail, as the burden of proof is significantly higher in a criminal case.
A plaintiff with a defamation claim can typically seek the same kinds of damages as are available in other personal injury claims:
The defenses available generally correspond to the elements that must be proved to show slander:
Slander is a form of defamation that is typically spoken, rather than written down or otherwise appearing in a fixed medium. If such a statement is in writing, it is considered libel. A slanderous statement must include an untrue assertion of fact and be communicated to a third party. A person whose reputation is injured by slander may seek damages in a civil lawsuit. In a minority of U.S. states, slander may be prosecuted as a crime, but such instances are rare.
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