A. Truth is an absolute complete defense to a defamation claim. This is simply the flip side of the requirement that plaintiff prove the falsity of the alleged defamatory statement.
B. The First Amendment
1. Public Officials/Public Figures: Actual Malice must be proven.
The First Amendment requires that when the plaintiff is a public official or public figure that they show that the statements made were made with “ACTUAL MALICE.”. New York Times v. Sullivan, 376 U.S. 254 (1964). This is a much higher burden of proof for a public figure plaintiff. Instead of showing objectively that a "reasonable person" knew or should have known the defamatory statement was false, a public figure plaintiff must prove the intent of the defendant was malicious, or that they acted with reckless disregard for the truth. This allows the defendant to prove its good faith intent and efforts as a defense.
2. Matter of Public Concern: Actual Malice must be proven.
In cases where the media defendant is treating an issue of public concern, the First Amendment also requires proof of actual malice or reckless disregard of the truth, even if the plaintiff is not a public figure.
3. Matter of Public Concern: Plaintiff Must Prove Statement is False.
Proof of falsity required when media defendant addresses topic of public concern; regardless of public/private status of plaintiff.
4. Who is a Public Official or Public Figure?
a.) Public Official. Governmental policy-makers are public officials, while public employees generally are not public officials. The Court has generally held that to determine if a person is a “public figure” it must be shown:
(1) Does plaintiff performs governmental duties directly related to the public interest;
(2) Does plaintiff holds a position to influence significantly the resolution of public issues; and
(3) Does the plaintiff have, or appears to the public to have, substantial responsibility for or control over the conduct of government affairs.
b.) Public Figure. A "public figure" is a person who is publicly prominent, so much so that discussion or commentary about that person amounts to a "public concern." However, such persons are not necessarily public figures for any purpose: status as a public figure may only extend to the particular area in which they are publicly prominent. Examples: Michael Jordan or Donald Trump. The extent of a person's status as a public figure will be subject to extensive litigation in each case. The U.S. Supreme has established some guidelines on who constitutes a public figure:
(1) Involuntary Public Figure: become public figure through no purposeful action of their own, including those who have become especially prominent in the affairs of society;
(2) Always Public Figures: those who occupy position of such persuasive power and influence that they are deemed public figures for all purposes;
(3) Public Figures on Specific Issues: "those who have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved."
C. Qualified Privileges.
Sometimes a statement made can be considered privileged. Certain issues are qualified such as legislative statements, court statements, statements made within a complaint or answer in litigation, or statements made which are required to be made by law. The plaintiff may typically only overcome a qualified privilege by showing actual malice. It is the plaintiff's burden to show that the defendant did not have "reasonable and proper grounds" for the allegedly defamatory statement.
D. Opinion Defense.
The First Amendment protects statements of opinion, as distinct from statements of fact, against claims of defamation. However, the test is not the author's mere characterization of the statement as "opinion." A statement is an opinion when:
- The statement addresses matters of public concern;
- The statement expressed in a manner that is not provably true or false; and
- The statement cannot be reasonably interpreted as intended to convey actual facts about a person.
In addition, the U.S. Supreme Court articulated some standards to assist in determining whether a statement is intended to convey an actual fact about a person, or not:
(1) Is the language loose, figurative, or hyperbolic, which would negate the impression that the speaker was seriously maintaining the truth of the underlying facts?
(2) Does the general tenor of the article negate the impression that the speaker was seriously maintaining the truth of the underlying fact? And
(3) Is the connotation sufficiently factual to be susceptible of being proved true or false?
Other factors to consider:
(1) How precise and specific is the statement?
(2) Is the statement verifiable?
(3) What is the literary and social context of the statement?
(4) What is the public context of the statement?
If a statement is determined to be an opinion, then it cannot be the subject of a defamation suit. The reason is that opinions are not capable of being proven true or false, and the plaintiff cannot therefore prove one of the elements of a defamation claim. "[S]tatements regarding matters of public concern which are not sufficiently factual to be capable of being proven true or false, and statements which cannot be reasonably interpreted as stating actual facts are absolutely protected.
E. Legal Obligation to Publish is an Absolute Defense to Defamation.
If a defendant was legally required to publish the allegedly defamatory statement, they cannot be held liable for defamation. Responses to court subpoenas, formal requests for information from government agencies, and the like fall into this category.
