“Sticks and stones may break my bones, but words will never hurt me.” No doubt everyone has had the unpleasant experience of being called names, most likely on the play ground or playing fields of our school days. While many people may not know it, name calling, or as it’s more correctly known in legal circles, defamation, is actually a civil cause of action which may get the name caller in legal hot water.
In order to commit defamation, four different things are required: 1) a false statement of fact; 2) fault amounting at least to negligence as to the truth or falsity of the statement (there is an important exception, but more on this later); 3) publication; and 4) damages to the party about whom the false statement was made.
The first element of defamation, a false statement of fact is actually more difficult than it seems. Courts are very clear that stating an opinion, no matter how rude, cruel, or untrue is not defamation; the statement must be one of fact. For example, the statement: “I think John Doe is a crook” is not a false statement, I’m just saying what I think about John Doe. On the other hand, saying “John Doe is a crook” if untrue, is defamatory.
The second element of defamation, fault amounting to at least negligence as to the truth or falsity of the statement, is the one where the most lawyerly ink has been spilled. For private people (i.e. most of us) mere negligence from the speaker as to the truth of his or her statement is enough for defamation. This means if I said “John Doe is a crook” but didn’t know anything about whether he was or wasn’t a crook, I could potentially be liable for defamation.
On the other hand, because of the First Amendment and the free speech rights contained therein, for famous people (or, in legal parlance, public figures) a statement will not be defamatory unless made with “actual malice” which means the maker of the statement either knew the statement was false or was completely reckless in ascertaining the truth or falsity of the statement. The actual malice requirement protects media companies (newspapers etc.) who report on notable news events and people but who may not always be able to be certain that their sources are accurate etc. However, for the rest of us, it’s probably best (as our mothers always told us) to just stick with saying things we know to be true.
The third and fourth elements of defamation are a bit more self-explanatory: publication requires that a statement (either written or spoken) be made to at least one person. Thus, I can say “John Doe is a crook” in the privacy of my bedroom all I want without worrying about John Doe coming after me but if one person hears me, I might be in trouble if Mr. Doe is of a litigious disposition.
Finally, damages. This is often actually the hardest part of defamation to prove (except in a few limited cases where damages are presumed). As I said at the beginning of this article, in general, words don’t hurt, or at least cause any monetary harm. So, before you decide to sue someone for defamation, make sure that you actually have some loss that money can compensate you for.
In sum, the best way to stay out of trouble in defamation is to follow mom’s advice, tell the truth and, barring that, if you can’t say something nice, don’t say anything at all. If you need more advice than that, a competent attorney can certainly be of assistance.
Clifford Gravett is a local attorney with the Virgin Valley law firm of Bingham Snow & Caldwell located in Mesquite and serves clients in Nevada, Arizona, and Utah (702-346-7300 / www.binghamsnow.com)