Social media has fueled the rise of defamation lawsuits in the United States, causing companies and individuals alike to question what limits properly restrain individuals, on the internet and otherwise, from making false claims and what recourse may be available to them. Quinn Emanuel has successfully litigated high-profile defamation suits on both the plaintiff- and defense-side, including its notable win on behalf of Elon Musk, the CEO of Tesla and SpaceX. January 2020: Complete Victory in Defamation Jury Trial, Quinn Emanuel, https://www.quinnemanuel.com/the-firm/our-notable-victories/january-2020-complete-victory-in-defamation-jury-trial/. The firm has also secured victories that have clarified the scope of discovery a defendant may seek regarding a plaintiff's damages claim in a defamation action and set important free speech precedents in state courts. August 2019: QE Scores Another Defamation Win; Decision Clarifies Scope of Damages Discovery, Quinn Emanuel, https://www.quinnemanuel.com/the-firm/our-notable-victories/august-2019-qe-scores-another-defamation-win-decision-clarifies-scope-of-damages-discovery/; Victory 2018: Pro Bono Victory in Defamation Case Sets Important Free Speech Precedent, Quinn Emanuel, https://www.quinnemanuel.com/the-firm/our-notable-victories/victory-november-2018-pro-bono-victory-in-defamation-case-sets-important-free-speech-precedent/.
Defamation is commonly understood to be the action of damaging an individual's reputation through speech, whether verbal (slander) or written (libel). Although the First Amendment imposes limitations on defamation claims, they are largely governed by state law. The particular legal standards applicable to defamation claims, therefore, vary state to state. This article explores the general principles of defamation that are laid out in the Restatement (Second) of Torts § 558 (1977), with examples from representative jurisdictions. Although some states criminalize certain types of defamation, this article does not address criminal laws on defamation, libel, and similar offenses.
In recent years, anti-SLAPP legislation has emerged as growing force in the realm of state defamation law. Under certain circumstances, anti-SLAPP statutes can act as a shield for those facing strategic lawsuits against public participation (SLAPPs)—suits filed to use, or threaten to use, the legal process to intimidate people and companies exercising their First Amendment rights. This article considers the impact of increasingly prevalent anti-SLAPP laws on individuals and corporations who bring or defend against defamation suits in the future. First, however, the article discusses what constitutes defamation.
False and Defamatory Statement Concerning Another
The first requirement to establish defamation is that the statement must allege a fact, not an opinion. Whether or not a statement is an opinion is determined by the words used, the immediate context of the statement, and the larger context in which the statement is made. Courts typically ask whether a reasonable reader would find that the statement expressed an opinion. See, e.g., Croce v. New York Times, 930 F.3d 787, 793 (6th Cir. 2019). However, an opinion that implies a fact may still be subject to a defamation claim. See, e.g., Milkovich v. Lorain Journal, 497 U.S. 1, 1 (1990). The statement must also not be either "imaginative expression" or "rhetorical hyperbole." Id. at 20.
Additionally, only statements that can reasonably be understood as imputing facts may be defamatory. "For words to be defamatory, they must be understood in a defamatory sense . . . . Next, the context in which the statement was made must be considered . . . . This contextual analysis demands that the courts look at the nature and full content of the communication and to the knowledge and understanding of the audience to whom the publication was directed." Seelig v. Infinity Broad. Corp., 97 Cal. App. 4th 798, 809 - 10 (2002) (collecting cases). While there is tolerance for some margin of error, the plaintiff must prove that the statement is materially false. Phila. Newspapers v. Hepps, 475 U.S. 767, 769 (1986).
Finally, the statement must be about an identifiable entity, such as an individual or corporation. Under the some circumstances, an individual may have a claim arising from a defamatory statement about a group of people to which the individual belongs. See, e.g., Restatement (Second) of Torts § 564A (1977).
Unprivileged Publication to a Third Party
Privileges such as the fair report privilege, the neutral reportage privilege, and the fair comment privilege may stymie a claim for defamation in some states. Typically, the fair report privilege protects fair and accurate reporting of official proceedings and court documents. See Howell v. Enterprise Publishing, 455 Mass. 641 (2010). And the neutral reportage privilege generally applies "'when a responsible, prominent organization . . . makes serious charges against a public figure [and] the First Amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter's private views regarding their validity.'" Khawar v. Globe Int'l, Inc., 19 Cal. 4th 254, 268 (1998) (emphases omitted), as modified (Dec. 22, 1998) (quoting Edwards v. National Audubon Society, Inc., 556 F.2d 113 (2d Cir. 1977)). Finally, the fair comment privilege is a "long recognized" doctrine that—in some states—grants members of the media the ability to comment on matters of public interest as long as the opinion conveyed is based on true facts. Boley v. Atl. Monthly Grp., 950 F. Supp. 2d 249, 259 (D.D.C. 2013); see Jankovic v. Int'l Crisis Grp., 593 F.3d 22, 29 (D.C. Cir. 2010).
Fault Amounting At Least to Negligence on the Part of the Publisher
Fault is analyzed differently depending on if the individual alleging defamation is a public or private figure.
For public figures, such as individuals who have ready access to mass media and are influential in ordering society, the fault standard is actual malice. See Curtis Pub. Co. v. Butts, 388 U.S. 130, 165 (1967). Actual malice requires that a statement be made either with the knowledge of its falsity or with a reckless disregard for falsity at the moment of publication—the plaintiff must prove that the defendant entertained serious doubts as to the truth of the statement or had a high degree of awareness of its probable falsity. See N.Y. Times v. Sullivan, 376 U.S. 254, 280 (1964). Limited purpose public figures, such as individuals at the forefront of cabined controversies, are also subject to the actual malice standard. See, e.g., Hatfill v. N.Y. Times, 532 F.3d 312, 324 (4th Cir. 2008) (finding a researcher to be a limited purpose public figure because he "voluntarily assumed a role of special prominence" in a controversy) (citation omitted). As opposed to public figures, to whom the public figure designation applies in all aspects of their life, limited purpose public figures are only considered public figures for purposes of a specific controversy. As such, the actual malice standard only applies to statements regarding fields and topics in which they are considered a public figure. See id.
For private individuals pulled into public issues, states have defined their own standards of liability, which include both negligence or actual malice, depending on the state. Gertz v. Robert Welch, 418 U.S. 323, 347 (1974). For private figures experiencing an issue in private, most states apply a negligence standard, and the publisher is subject to liability if it did not exercise reasonable care.
Either Actionability of the Statement Irrespective of Special Harm or the Existence of Special Harm Caused by the Publication
Damages may take the form of lost income or employment, among others. Although the standards vary by state, often when a statement is found to be defamatory per se, harm is presumed without proof or other allegations of special damages. See Jacobus v. Trump, 51 N.Y.S.3d 330, 335 (Sup. Ct.), aff'd, 64 N.Y.S.3d 889 (2017). In order to be defamation per se, many states require the statement to defame the plaintiff on its face, that is, without the need for extrinsic evidence to explain the statement's defamatory nature. See, e.g., Cal. Civ. Code § 45a; Fashion 21 v. Coal. for Humane Immigrant Rights 12 Cal. Rptr. 3d 493 (Ct. App. 2004) (allegation plaintiff is guilty of a crime is defamatory on its face).
In sum, a plaintiff must generally plead that the defendant has made, with fault and without privilege, a false factual statement about an identifiable individual, and this statement must both harm an individual's reputation and cause damages.
Anti-SLAPP Laws
Potential litigants should also consider state anti-SLAPP laws, which provide a remedy to strategic lawsuits against public participation (SLAPPs): suits filed by individuals or corporations attempting to use courts, or the threat of a lawsuit, to intimidate those exercising their First Amendment rights. Anti-SLAPP laws enable defendants to get defamation lawsuits dismissed quickly if, for example, the speech at issue is of public concern or if the plaintiff has a low probability of winning the lawsuit. Anti-SLAPP legislation is thus a powerful tool for those facing retaliatory speech-based claims, so individuals and corporate entities who might otherwise bring defamation claims should carefully consider whether their claim can withstand scrutiny required under these laws.
Anti-SLAPP laws have become increasingly widespread. On July 17, 2024, Pennsylvania passed a new anti-SLAPP law that offers broad immunity from civil liability for "protected public expression"-based claims. Pennsylvania Protects Press Freedom, Passes Anti-SLAPP Statute, JDSupra (July 18, 2024), https://www.jdsupra.com/legalnews/pennsylvania-protects-press-freedom-5260163. Meanwhile, the Ohio House of Representatives introduced an anti-SLAPP bill in late June 2024 following the passage of an identical bill in the state Senate. Ohio bill would allow courts to throw out frivolous SLAPP suits, The Lima News (July 16, 2024), https://www.limaohio.com/news/2024/07/16/ohio-bill-would-allow-courts-to-throw-out-frivolous-slapp-suits/. The Ohio bill enjoys broad bipartisan support, as did the recently passed Pennsylvania law. As states continue to consider, pass, and strengthen existing anti-SLAPP legislation, individuals and entities who may have otherwise considered litigating defamation claims may be required to thoroughly evaluate their claims to ensure compliance with such legislation.
As of the date of this article, Pennsylvania joins 33 other states and the District of Columbia in enacting this protective measure. Anti-SLAPP laws differ in content and scope; however, potential plaintiffs should be aware of common provisions within anti-SLAPP laws that seek to deter weak defamation claims, including fee-shifting provisions, and the potential for counterclaims, also called SLAPP-back litigation. As an example of the wide-ranging nature of such laws, Illinois protects individuals from cases related to government action, while New Mexico reaches statements related to "conduct or speech undertaken or made in connection with a public hearing or public meeting." See Dan Greenberg, David Kaating, & Helen Knowles-Gardner, Anti-SLAPP Statutes: 2023 Report Card, Institute for Free Speech (Nov. 2, 2023), https://www.ifs.org/anti-slapp-report/#Ratings-and-Grades. State anti-SLAPP laws also have varying procedural mechanisms which can impact whether other proceedings are suspended upon the initiation of a SLAPP claim, the timing of dismissal for SLAPP claims, and whether the burden of proof shifts between the movant and respondent during the suit. As with substantive defamation law, differences across states create distinctive case law and warrant special consideration of the operative state law.
In several states, defendants may recover costs and attorneys' fees from plaintiffs upon satisfaction of an anti-SLAPP motion. For example, California and Tennessee explicitly provide for this, while other states are more limited in their relevant provisions. See id. In Nebraska, courts determine whether to award such funds, while Oklahoma mandates payment "as justice and equity may require." Id. Other examples of varying implementation include the District of Columbia providing only a presumption to award fees. Id. At the other end of the spectrum, Maryland's anti-SLAPP law does not shift costs or fees to the prevailing party at all. Id.
Quinn Emanuel has experience litigating anti-SLAPP suits. We defended a young woman against suit by a wealthy and powerful foreign prince, who alleged our client defamed him by blogging about how he had sexually abused her while she was a teenager in Nigeria. Our team secured dismissal of most of the case on an anti-SLAPP motion, obtained an award of attorney's fees, and created new precedent protecting the rights of victims who speak out against sexual abuse. Facing a renewed anti-SLAPP motion by Quinn Emanuel and our client, the plaintiff stipulated to dismiss with prejudice what remained of the case.
Potential plaintiffs should also be cognizant of the potential for counterclaims or separate litigation, sometimes known as "SLAPP-back" lawsuits, where former SLAPP defendants may sue for damages for abuse of the legal process. Numerous state laws contain provisions that provide for such claims, including California, Delaware, Hawaii, Minnesota, Nevada, New York, Rhode Island, and Utah. Responding to Strategic Lawsuits Against Public Participation (SLAPPs), Digital Media Law Project, https://www.dmlp.org/legal-guide/responding-strategic-lawsuits-against-public-participation-slapps.
The ultimate goal of anti-SLAPP statutes is to decrease the number of meritless defamation lawsuits brought in state courts. While anti-SLAPP legislation may be a tool for those facing retaliatory speech-based claims, individuals and entities who might otherwise bring defamation claims should consider whether their claim can withstand the scrutiny required under these laws before automatically pursuing such litigation. Anti-SLAPP Legal Guide, Reporters Committee for Freedom of the Press, https://www.rcfp.org/anti-slapp-legal-guide/ (last visited on July 23, 2024).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.