Lesson 33 - Libel 2:

Libel: Defenses.

Let's say you were silly enough to send an email to someone saying: "Nathan, an accountant, calculated my taxes incorrectly." This person tells someone else what you said, and then someone tells Nathan, and then others take their business elsewhere. Nathan then sues you for libel: Are you stuck? Not necessarily. You may have a defense. Here are four of the most significant defenses:

First, the statement may be *true*. If it is true, then you can't be sued for defaming Nathan. Libel only protects against false factual allegations, not against true ones.
Second, you may have an *absolute privilege* to make the statement, even though it was falsely defamatory. For example, if the email was to your husband, then even though falsely defamatory, you have an absolute immunity. (Your husband may not when he repeated it to someone else, but that is a different question.) Or if you made these comments as a witness in court, or as a witness in a legislative hearing, or as a witness in an executive hearing: In each of these cases you would have an immunity against a libel action. (You may be prosecuted for perjury if what you say is false, but again, that's a different question).
Third, you may have a *qualified privilege* to make the statement, even though it is falsely defamatory. This is sometimes called the privilege of fair comment, and it covers a wide range of cases. But the essence of it is that where there is some sort of public or community concern at stake, you can say things that are "fair criticisms." So long as you don't do it out of spite, if the email was sent to Nathan's boss, or to the IRS, then you may have some defense to the claim. (This defense is closely related to an important twist to the law of libel given by the Free Speech Clause of the First Amendment which we=92ll discuss more later.)
Finally, if your statement was just an opinion, then it will not be libel. So you say "Madonna is the worst performer ever," then what you say is not actionable. It is opinion, not fact (even if it is fact for you.) This is true even if the criticism is "unfair." Unfair criticism is not defamation. That does not mean that you can change a fact into an opinion merely by qualifying it. If you say, "I think Madonna is a murderer" then that is likely a statement of fact, not opinion. Clearly, the line will be hard to draw at times, but usually not. Perhaps the best statement of the test is this: Does the statement reasonably imply some false factual claim? If it does, then it can be defamatory; if not, then it cannot.

What if the writer was extremely careful, checked the facts, but it turned out that the facts were wrong: Liable for libel? Under most state law, the writer must at least be negligent about the facts before he or she is liable. If he or she knew the writing was false, then of course there is liability. But usually, there must be a showing that the writer was at least careless.

Next time we add another important qualification: What if instead of Nathan the accountant, you said something false about President Clinton, or even Clint Eastwood?

authors:

Larry Lessig David Post Eugene Volokh

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