Reflections on Defamation

By: Rudman Winchell Attorney Brent A. Singer

My Mother always told me “If you can’t say something nice about someone, don’t say anything at all.” So it’s a wonder I ended up being a lawyer. The truth is, though, even my Mother, God rest her soul, probably said a bad thing about someone from time to time. But to my knowledge, she was never sued for defamation. And neither have I been sued, thank goodness. So why not? I mean, people say bad things about other people all the time, so why aren’t there zillions of defamation cases pending all the time?

It is surprisingly easy, really, to commit defamation (defamation can take the form of either “slander,” when it is done by the spoken word, or “libel,” when it is done in print—which today would include on line communcations). Basically, all you need to do to commit defamation is to carelessly (i.e., without using the care of an ordinary person under the circumstances) say something false about someone else that puts the other person in a bad light tending to harm his reputation. That is enough in Maine to subject you to liability for any economic harm caused to that person by what you said, unless that person is a so-called “public figure,” like a movie star, Senator, or the like. In that case, “free speech” allows you to say bad things that are false about that person, unless you do so with a reckless disregard for the truth (or, of course, unless you do so knowing that it is false). And if the non-public figure can show he was economically harmed by what you said—even by one dollar—then the person can also recover money from you to compensate him for his emotional distress, humiliation, shame, and loss of reputation, generally.

So if I say “in private” to my friend that Charlotte is a jerk, could that be slander? Probably not. The reason is that “jerk” is too vague and too difficult to verify by objective tests and standards. Basically, the test for determining whether a derogatory statement, if false, could be defamatory is whether the speaker is expressing a subjective view, an interpretation, a theory, conjecture or surmise, rather than claiming to be in possession of objectively verifiable facts. Imaginative expression, rhetorical hyperbole, and loose figurative language that no reasonable person would believe presented facts (so-called “opinions”), are not actionable. A particular phrase is not defamatory unless in context it reasonably can be understood as having an easily ascertainable and objectively verifiable meaning. The vaguer the term, or the more meanings it reasonably can convey, the less likely it is to be actionable. Essentially the test is whether a judge can imagine objective evidence that might conclusively prove or disprove it, or is it loose language that cannot be objectively verified. Calling someone a “jerk” is more like loose language that cannot be objectively verified, so it I tell my friend that Charlotte is a jerk, I’m probably o.k. even if she is not a jerk.

If, on the other hand, I say “In my opinion, last night I saw Charlotte walking down my street with a gun shooting the windows out of cars,” I don’t get a pass because I prefaced it with “in my opinion.” Instead, what I said was not vague, loose language. Instead, it implied ascertainable and objectively verifiably facts, namely, that Charlotte was out shooting last night. If she was not, and if I carelessly arrived at that conclusion, I’m well done the road to defamation.

Does it matter that I say something “in private” to my friend? Not really. That still can count as “publication” for purposes of defamation. The issue here is more pragmatic. If I say something bad about another “in private,” the chances of the other person knowing I said it are less, and the chances that it will cause any sort of economic harm are less. But if I told my friend “in private” that Charlotte is a thief, and that “got out,” I could be in trouble if Charlotte is not a thief and if I were careless (i.e., negligent) in arriving at that conclusion. I would still be in the clear if when I told my friend Charlotte is a thief, I didn’t authorize or intend for my friend to repeat it, and if my friend is not generally a blabbermouth. But if from an objective point of view I was not reasonable to think my friend would keep his mouth shut, I’d be in trouble.

Furthermore, if I carelessly say certain types of false things about someone, they can sue me and recover from me many, many thousands of dollars (even hundreds of thousands of dollars) even if they can’t actually prove they lost a cent because of what I said. This is so-called “slander per se,” where I wrongly say that someone (1) committed a serious crime (misdemeanor marijuana possession probably won’t suffice these days), (2) has a “loathsome disease,” (3) engaged in serious sexual misconduct, or (4) has flaws that would adversely affect his fitness for the proper conduct of his business or profession. Furthermore, if I say something careless, bad, and false about someone in writing, even if it doesn’t fit one of these four categories, he can still get me for many, many thousands of dollars without proof of loss of a single cent. This is because by and large the law simply “presumes” that people are damaged when false things are negligently published in writing about them.

There are many more nuances in the law of defamation having to do with which side has the “burden of proof” on various issues, whether that burden is the simple “preponderance of the evidence” standard or some tougher standard, and whether what was said, even if false, was on a topic of “public concern.” And there are areas in life where the law gives me a bit more latitude to shoot my mouth off, such as when I’m calling the police, giving testimony as a witness in court, or talking about a former employee. But even in those cases I can be in trouble if I am reckless or if I act from improper motives.

The moral of the story, I think, is that my Mother was right. What else would you want me to say?