That’s because the First Amendment to the U.S. Constitution mandates that the press not be controlled by the government, in contrast to many countries around the world, where press freedom is either severely curtailed or nonexistent. That unparalleled level of freedom has made the American news media very powerful.
But that doesn’t mean reporters can simply publish anything they want, and in the U.S., libel law is where the power of the press and its responsibilities intersect. So every reporter should have a basic understanding of libel.
What is libel?
Libel is published defamation of character, as opposed to spoken defamation of character, which is slander.
Libel exposes a person to hatred, shame, disgrace, contempt or ridicule. It injures a person’s reputation or causes the person to be shunned or avoided, and it may injure the person in his or her occupation.
So what might be in example of libel? Accusing someone of having committed a heinous crime, or of having a disease such as leprosy that might cause them to be shunned.
Libel is by definition false. Anything that is provably true cannot be libelous.
And for something libelous to be published, it just has to be communicated to someone other than the person being libeled. So publication can mean anything from an article that’s photocopied and distributed to just a few people to a story that appears in a large newspaper like The New York Times.
What are the elements of libel?
The elements of libel are what a person who sues for libel must prove in order to win their lawsuit. They must prove:
That a statement was libelous
That the statement was published
Defenses against libel
If you are a journalist who is sued for libel, there are three common legal defenses.
- Truth: Since libel is by definition false, if a
news report is true it can’t be libelous, even if it damages a person’s
reputation. Truth is the reporter’s best defense against a libel suit.
The key is in doing thorough and careful reporting in order to prove
something is true.
- Privilege: Accurate reports about official
proceedings – anything from a murder trial to a congressional hearing –
cannot be libelous. This may seem like an odd defense, but imagine a
reporter covering a murder trial. Theoretically he could be sued for
libel every time someone in the courtroom accused the defendant of
- Fair Comment & Criticism: This defense covers expressions of opinion, everything from movie reviews to columns about politics. The fair comment and criticism defense allows reporters to express opinions no matter how scathing or critical. Examples might include a film critic ripping the latest Adam Sandler flick, or a political columnist excoriating the president for doing a horrible job.
Public Officials vs. Private Individuals: In order to win a libel lawsuit, private individuals need only prove that an article about them was libelous, and that it was published. But public officials who work in the local, state or federal government must also prove a story was published with something called “actual malice.”
Actual malice means that the story was published with the knowledge that it was false, and/or that it was published with reckless disregard of whether or not it was false.
Times vs. Sullivan
The most important legal ruling on libel law was the 1964 U.S. Supreme Court verdict in a case called Times vs. Sullivan. In Times vs. Sullivan, the court said that making it too easy for government officials to win libel suits would have a chilling effect on the press and its ability to aggressively report on the important issues of the day. Times vs. Sullivan established the actual malice threshold for public officials wanting to sue for libel.
Since Times vs. Sullivan, the use of the actual malice standard has been expanded to also include public figures, which essentially means anyone who is in the public eye.
This means that celebrities, sports stars, high-profile corporate executives and the like all must meet the actual malice requirement in order to win a libel suit.
For journalists, it’s important to remember that most libel lawsuits are the result of careless reporting. So the best way avoid being sued is to do thorough, responsible reporting. Don’t be afraid to probe wrongdoing committed by powerful people, agencies and institutions. Just be sure you have the facts to back you up.