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Defamation: Libel

Defamation is, in my experience, the most misunderstood legal cause of action. Seemingly every week we hear claims of slander or libel thrown about in political discourse or the internet. I suppose it’s unavoidable when opinions and hyperbole run amok. However, let’s take a look at what is legally required to make a submissible case for libel in Missouri.

Very generally, defamation occurs when one’s words reflect adversely upon another person’s integrity, character, good name or standing in the community. Defamation is bifurcated into slander and libel. Slander is spoken defamation. Libel is written defamation.

In Missouri, a plaintiff in a libel suit is required to prove four elements. First, the plaintiff must prove that the defamatory statements are “of or concerning” the plaintiff; in other words, the written statements must sufficiently identify the injured party. Second, the plaintiff must prove publication — that is, that third parties heard and understood the speech. Third, the defamatory statement must be one of a false statement of fact. It is very difficult, if not impossible, to prevail in proving that opinions are defamatory; rather, it almost always has to be statements of fact that are objectively verifiable (e.g., “I think he is a terrible worker” versus “he has syphilis”). Fourth, the plaintiff must make a showing that there have been damages as a result of the statement which are ascertainable.

If the plaintiff is a “public figure” or “public official,” then he or she would have to prove much more. A public figure/official has been defined by the U.S. Supreme Court as someone who has gained fame or notoriety in a community or who is extensively involved in society’s affairs. Needless to say, it’s a very hazy definition. But, a plaintiff who is a public figure/official will have to prove that the defamatory statement was made with “actual malice.” A statement is made with actual malice if the person who makes the statement made it with knowledge that it was false, or with “reckless disregard” of whether it was false.

This last requirement about public figures/officials is a result of Free Speech Under The First Amendment. The U.S. Supreme Court has interpreted that the First Amendment’s guarantee of free speech has the operative effective of elevating the burden of proof for public figures/officials proving defamation cases. The reasoning is that in a democratic society there needs to be a bustling “marketplace of ideas” where citizens can liberally exchange ideas.

As has been shown, libel is not something easily proven. It’s not enough simply that someone find a particular statement distasteful.

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