As a reporter it's crucial to understand the basics of libel and libel law. Generally speaking, the United States has the freest press in the world, as guaranteed by the First Amendment to the U.S. Constitution. American journalists are generally free to pursue their reporting wherever it may take them, and to cover topics, as The New York Times motto puts it, “without fear or favor.”
But that doesn’t mean reporters can write anything they want. Rumor, innuendo and gossip are things hard-news reporters generally avoid (as opposed to reporters on the celebrity beat). Most importantly, reporters do not have the right to libel the people they write about.
In other words, with great freedom comes great responsibility. Libel law is where the press freedoms guaranteed by the First Amendment meet the requirements of responsible journalism.
What Is Libel?
Libel is published defamation of character, as opposed to spoken defamation of character, which is slander.
- Exposes a person to hatred, shame, disgrace, contempt or ridicule.
- Injures a person’s reputation or causes the person to be shunned or avoided.
- Injures the person in his or her occupation.
Examples might include accusing someone of having committed a heinous crime, or of having a disease that might cause them to be shunned.
Two other important points:
- Libel is by definition false. Anything that is provably true cannot be libelous.
- “Published” in this context simply means that the libelous statement is communicated to someone other than the person being libeled. That can mean anything from an article that's photocopied and distributed to just a few people to a story that appears in a newspaper with millions of subscribers.
Defenses Against Libel
There are several common defenses a reporter has against a libel lawsuit:
- Truth Since libel is by definition false, if a journalist reports something that is true it cannot be libelous, even if it damages a person’s reputation. Truth is the reporter’s best defense against a libel suit.
- Privilege Accurate reports about official proceedings – anything from a murder trial to a city council meeting or a congressional hearing – cannot be libelous. This may seem like an odd defense, but imagine covering a murder trial without it. Conceivably, the reporter covering that trial could be sued for libel every time someone in the courtroom accused the defendant of murder.
- Fair Comment & Criticism This defense covers expressions of opinion, everything from movie reviews to columns on the op-ed page. The fair comment and criticism defense allows reporters to express opinions no matter how scathing or critical. Examples might include a rock critic ripping into the latest Britney Spears CD, or a political columnist writing that she believes President Bush is doing a horrible job.
Public Officials vs. Private Individuals
In order to win a libel lawsuit, private individuals need only prove that an article about them was libelous, and that it was published.
But public officials – people who work in government at the local, state or federal level – have a tougher time winning libel lawsuits than private individuals.
Public officials must not only prove that an article was libelous and that it was published; they must also prove it was published with something called “actual malice.”
Actual malice means that:
- The story was published with the knowledge that it was false.
- The story was published with reckless disregard of whether or not it was false.
Times vs. SullivanThis interpretation of libel law comes from the 1964 U.S. Supreme Court ruling Times vs. Sullivan. In Times vs. Sullivan the court said that making it too easy for government officials to win libel suits would have a chilling effect on the press and its ability to aggressively report on the important issues of the day.
Since Times vs. Sullivan, the use of the “actual malice” standard to prove libel has been expanded from just public officials to public figures, which basically means anyone who is in the public eye.
Put simply, politicians, celebrities, sports stars, high-profile corporate executives and the like all must meet the “actual malice” requirement in order to win a libel suit.
For journalists, the best way to avoid a libel suit is to do responsible reporting. Don’t be shy about investigating wrongdoing committed by powerful people, agencies and institutions, but make sure you have the facts to back up what you say.