Defamation

The First Amendment does not protect acts of defaming another person. Defamation is often defined in state statutes. For instance, the Texas statute defines defamation as an expression "in written or other graphic form that tends to blacken the memory of the dead or that tends to injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury."

Example: Texas cattleman brought a lawsuit against Oprah Winfrey based on defamation claims. She had broadcast a show entitled "Dangerous Foods," which concentrated on beef and its alleged danger to the American public. Winfrey prevailed, partly on a First Amendment basis, because "speech on public issues occupies the highest rung of the hierarchy of First Amendment values and is entitled to special protection."

My home was poorly constructed, and I spoke out against the builder in a television interview. Are my comments protected?

Yes. A citizen has the right to inform the public of his or her dissatisfaction with a product and/or its manufacturer. Additionally, if you are advocating for legislation or a government investigation of the builder's business practices, your speech is even further beyond restraint.

TIP: Concerns and comments that allege a danger to the public's health and safety are protected free speech. You should not feel restrained from speaking out on these issues and threats of defamation from whomever you might be targeting are not valid.

In order to get publicity for my cause, I falsely stated to television stations that a local businessman owned shares in a company that is illegally dumping in the lake. Can I be sued for defamation?

Yes. You made the comments although you knew they were false and with malicious intent. The First Amendment does not protect speech made with a reckless disregard for the truth.

I was quoted in the local newspaper as saying a school board member did not have the education or intelligence to be running the schools. Are my comments protected free speech?

Yes. The First Amendment always protects an opinion. Your comments about the school member's intelligence and education reflect your opinion.

A bartender accused me of being drunk in front of everyone at my company's Christmas party. Can I sue him for defamation?

No. Accusing a person of intoxication or drunkenness is not defamatory, in and of itself.

Sidebar: A co-worker who tells other employees including your supervisor that you are drinking on the job and often intoxicated at work is making defamatory statements. This situation is treated differently because his or her comments are injuring your professional reputation and employment status.

I accused my daughter's teacher of molesting her and have since found out the teacher was not involved. Does the teacher have a claim of defamation against me?

Yes. Accusations of criminal conduct against another person constitute defamation. The First Amendment does not protect your statements since there is no truth in them.

I told some parents with children at camp about several complaints of inappropriate touching that had been lodged against one of the counselors when in fact there had been only two. Can he sue me for defamation?

No. Since your statement was partly true, it is protected by the First Amendment and is not defamatory.

Sidebar: Accusations that are knowingly false and made with the intent to harm the reputation of the accused are not protected speech.

During an evaluation, a supervisor told me I was lazy, unattractive and put no effort into my work. Can I sue him for defamation?

No. Those statements are your supervisor's opinions and are protected by the First Amendment. You do not have an action for defamation against him.

In an e-mail to all the female employees in my company, I referred to our supervisor as "the boss from hell" and "Satan." Does he have a claim for defamation against me?

No. Your statements constitute exaggeration and overstatements in the context of employment issues concerning you and your co-workers.

In my capacity as a city official, I compiled a report listing city employees with excessive overtime; however, one of the employees was listed incorrectly. Can she sue me for defamation?

No. In order to sue a public official, the employee must show that you had "actual malice" toward her by naming her in the report. Since the report was compiled to ascertain the fitness of city employees for the public's welfare and you believed the overtime calculations were accurate, the employee does not have a claim for defamation.

Sidebar: "Actual malice" requires a showing that the speaker had a reckless disregard for the truth, had serious doubts about the truth of his or her statement or purposely avoided the truth.