The distinction between defamation and free speech often confuses those dealing with online issues. While free speech is a protected right under the First Amendment of the U.S. Constitution, it does not shield individuals publishing harmful false statements that constitute defamation. This guide explains the crucial differences between defamation and protected free speech to help you understand when legal action might be necessary.
What Is Freedom of Speech?
Freedom of speech allows individuals to express their opinions without government interference, fostering open dialogue and debate. However, this freedom is not absolute. The First Amendment does not protect hate speech, threats, or speech inciting imminent lawless action. Most relevant for those experiencing online harm, including from negative Google reviews or being canceled on a social media, freedom of speech does not protect individuals purposefully publishing false statements to destroy another person’s reputation.
What Is Defamation?
Defamation involves the publication of false statements that harm the reputation of a person (or even a business), either through libel (written) or slander (spoken).
In the United States, defamation law generally requires establishing several elements:
- False Statement: The defendant made a false and defamatory statement about the plaintiff.
- Made to a Third Party: The statement was communicated to someone other than the plaintiff.
- The Statement is Offered up as a Fact (Not Opinion)
- Intent: The statement meets the requisite intent as determined by the court, depending on whether the person being defamed is a public or private figure
- Damages: The statement caused harm to the plaintiff.
Distinguishing Between Free Speech and Defamation
The key to distinguishing free speech from defamation lies in whether a statement is found to be an opinion or fact. Opinions are protected by free speech, while false statements of fact are not.
Example of Opinion: “I think this restaurant is terrible!” This is purely an opinion and as such would be protected as free speech.
Example of Defamation: “This restaurant uses rotten meat in its dishes.” If this statement is false, it’s defamatory because it asserts harmful false statement of fact.
Understanding the nature of the statement—opinion versus fact—is critical and typically requires a sophisticated, state specific, legal analysis. In many cases, if the crux of what is being said is true, some falsities are permissible without constituting defamation.
Simply claiming that a statement is “opinion” does not automatically shield it from being considered defamatory. Courts evaluate whether a reasonable person could interpret the statement as asserting a verifiable fact—a statement that can be proven true or false. The context in which the statement is made is crucial in this assessment. While statements on Internet forums are often viewed as opinions or hyperbole, courts will still examine the context to determine if the statement is likely to be perceived as a genuine opinion (e.g., “I really hate Dr. John Doe”) rather than a fact masquerading as an opinion (e.g., “It is my opinion that Dr. John Doe committed malpractice when he did my medical procedure”).
Special Considerations for Public Issues and Public Figures
Determining whether a statement is free speech or defamation, especially when the subject is a public figure, is complex. Statements about public issues or public figures enjoy enhanced protection under the First Amendment. However, even public figures can be defamed if false statements were made with actual malice—knowing they were false or with reckless disregard for the truth.
Public figures are not limited to those who hold official positions or are famous; they can also be individuals who have placed themselves into public controversies. Courts often examine the role the defamed person has played in public discussions or controversies to decide if they meet the criteria of a public figure. For example, a person who makes a TikTok video that goes viral in response to a politician’s post might also be considered a public figure in a defamation lawsuit, much like the politician.
Navigating the Complex Intersection Between Defamation and Protected Free Speech
Navigating between defamation and free speech requires careful consideration of what was said, the context in which it was said, and who it concerns. While individuals have the right to speak freely, they do not have the right to harm others with false statements.
For anyone being targeted by harmful online statements, understanding these distinctions is crucial. If you believe you are the victim of online defamation, consulting with an experienced defamation attorney can help clarify your situation and determine if legal action is warranted. Protecting your reputation against false claims while respecting free speech is a delicate balance that requires professional insight and support. For more information, please contact Internet Defamation & Content Removal Lawyer Ali Arko (ala@kjk.com or 216.716.5642).