Defamation, Opinion, and Malice

Defamation requires three elements. The first is that a defamatory statement be made. A defamatory statement is one that is harmful to one's reputation and is provably untrue. An opinionated statement is NOT defamatory. Second, the defamatory statement must be published to THIRD parties. You can't defame someone by speaking to them alone or emailing them. Third, the author, publisher, or speaker knew or should have known the statement was false. The jurisdiction of defamation is usually where statements are published at, not where they are read it.

If the defamatory meaning is not apparent on its face, the plaintiff has the burden of pleading and proving such extrinsic facts. Anderson v. Kammeier, 262 N.W.2d 366, 371 (Minn. 1977).

The plaintiff must establish proof of damage to reputation in order to recover any damages for mental anguish; see Gobin v. Globe Publishing Co., 232 Kan. 1, 649 P.2d 1239, 1244 (1982); Swanson v. American Hardware Mutual Ins. Co., 359 N.W.2d 705, 707 (Minn. App. 1984) (rev. denied)

If there is evidence of a plaintiff's already poor reputation it is generally admissible to mitigate damages. Davis v. Hamilton, 92 N.W. 512, 515 (Minn. 1902); Finklea v. Jacksonville Daily Progress, 742 S.W.2d 512, 517 (Tex. App. 1987).

If an individual (such as a celebrity), company, or corporation's reputation cannot be further damaged, a defamation suit is pointless, wastes judicial resources, and impedes First Amendment rights. An example would be Dennis Rodman. Rodman, a basketball celebrity, made a name for himself with a "bad boy" reputation. It would be hard for him to argue in court that someone was ruining his reputation, since he had already ruined his reputation himself.

Since this website focuses primarily on trademarks, it is CRITICAL for you to understand that the First Amendment requires that a defamation plaintiff, such as Walmart or Ford or a celebrity, prove actual malice or reckless disregard of the truth if the plaintiff is a public official or public figure. New York Times v. Sullivan, 376 U.S. 254 (1964).

The First Amendment requires a defendant to prove actual malice to win a defamation claim when the defendant is a public figure. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974); Carr v. Forbes, Inc., 259 F.3d 273, 278 (4th Cir. 2001).

In National Foundation for Cancer Research, Inc. v. Council of Better Business Bureaus, Inc., 705 F.2d 98, 101 (4th Cir.) an organization that forces itself into the public view through “massive solicitation efforts” is deemed to be public figure, cert. denied, 464 U.S. 830 (1983).

An example of a plaintiff whose extensive advertising efforts of its product was determined to be limited-purpose public figure. A limited-purpose public figure is one who participates, by their own will, in a discussion about a public controversy, and has access to the media, such as the Internet, to get their view across. One can also be an involuntary limited-purpose public figure. An example, would be someone involved in a major public occurrence can be considered an involuntary, limited-purpose public figure.

When the plaintiff is a public figure the burden of proof is much greater. A public figure plaintiff must prove the malicious intent of the defendant or the defendant acted with reckless disregard for the truth with "clear and convincing proof". New York Times v. Sullivan, 376 U.S. 254, 286 (1964)

Statements of Opinion.

The First Amendment protects statements of opinion, as distinct from statements of fact, against claims of defamation. However, you cannot just preface a defamatory statement with, "In my opinion...." Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). A statement is an opinion when:
(1) The statement addresses matters of public concern;
(2) the statement expressed in a manner that is not provably true or false; and
(3) the statement cannot be reasonably interpreted as intended to convey actual facts about a person.

Fair comment on a matter of public interest, arguments made with an honest belief in their soundness on a matter of public interest are defendable against a defamation claim, even if such arguments are logically unsound; if a reasonable person could honestly entertain such an opinion, the statement is protected. -Wikipedia

Even if erroneous, without Actual Malice “Statements of opinion are not generally actionable.” Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 731 (9th Cir. 1999).

Not-libelous, Non-slanderous, & Non-defamatory:

  • Calling someone a "bitch" or a "son of a bitch"
  • Saying a company or person "SUCKS"
  • Stating that someone "smells funny" or is "arrogant"
  • Stating that someone is "acting like..."