Defamation of Character or Free Speech?

The First Amendment protects free speech, but when an untrue statement causes real harm, defamation laws and constitutional protections can collide.

Updated by , J.D. · University of San Francisco School of Law

Defamation laws protect people whose careers, reputations, finances and/or health have been damaged by untrue, harmful statements. However, defamation law often intersects with laws protecting the freedom of speech guaranteed by the First Amendment to the U.S. Constitution.

So, just as it's important to protect people from the harms that untrue statements may cause, it's necessary to protect the right to speak freely and without fear of reprisal. In this article we'll take a closer look at this delicate balance that can make its way to the forefront of a civil lawsuit for defamation.

What Is a Protected Opinion?

If the defendant can prove the statement he or she made was true, the defamation case ends there. People cannot be punished for speaking the truth, no matter how ugly or embarrassing it may be. Truth is always a defense to a claim of defamation.

Opinions, however, are murkier territory. Statements of opinion generally receive protection under the First Amendment. The question then becomes, what is an opinion? Is it usually sufficient for a speaker to preface a statement (one that might otherwise be considered defamatory) with the words "I think" or "In my opinion"?

The answer, of course, is no. People cannot say whatever they want and get protection for their comments by tacking on a couple of qualifying words. The U.S. Supreme Court has said that a statement is an opinion that merits protection when it is (1) about a matter of public concern, (2) expressed in a way that makes it hard to prove whether it is true or false, and (3) can't be reasonably interpreted to be a factual statement about someone. (The Supreme Court case is Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).)

To apply this test, courts usually consider several factors, such as the manner in which the harmful statement was made.

  • Did the speaker use figurative or hyperbolic language, making it hard to view the statement as an expression of fact?
  • If the statement is published in print or online, what was its overall context?
  • Would the context make it hard for a reader to think the writer was conveying a fact?

Consider political cartoons. These appear in newspapers and online all the time and are often highly critical of the subjects they depict. But they are also opinions that are intended to be humorous, and anyone reading a political cartoon is probably going to know that the writer/artist did not intend to express a fact.

Finally, courts will look at whether the statement is factual enough that it can be proven true or false. If it cannot be proven either true or false, it probably will be deemed an opinion and will not be actionable via a defamation claim. However, laws vary from one jurisdiction to another, and some jurisdictions might not draw much distinction between fact and opinion in these kinds of cases.

Matters of Public Interest

If you make a statement about a matter of public interest, i.e., a local political scandal, it probably will not be considered defamatory. For example, if you tell people that you think it is true that a local politician took a bribe, when such allegations are all over the local headlines, that is probably protected speech. This is not only an opinion, which is typically protected, but it is also about a matter of public concern—allegations of corruption of community officials.

A similar example would be criticizing the actions of school board members when it comes to protecting students. Because free speech—and even critical speech—is encouraged, especially when it comes to issues that are significant to the community, such statements are not typically considered defamatory.

Public Officials/Figures

Public officials and public figures have placed themselves in the public eye and, therefore, it is more difficult for them to bring a successful defamation claim. In addition to the things private individuals must prove, public officials and figures must prove that a statement was made with actual malice—meaning that the speaker either knew the statement was false or acted with reckless disregard for whether it was true or false.

This is because the law encourages free speech, especially when it comes to politicians or prominent local figures who have placed themselves in the public eye and can expect more public scrutiny than the average person faces. Celebrities often find themselves the subject of media scrutiny and criticism, but because they are public figures, they would have to prove actual malice to prove that someone defamed them.

Sometimes, people end up becoming public figures without intending to. An example is someone who has been accused of committing a high-profile crime. So, it is important to remember that not everyone chooses to be in the limelight, but nevertheless, those people still may face additional hurdles when it comes to proving they have been defamed.

Because First Amendment issues can provide significant barriers to defamation claims, it is important to consult with an experienced attorney to determine whether you have a viable claim—or, on the other side of the defamation lawsuit coin, whether statements you made may be entitled to free speech protection. Learn more about a lawyer's role in a defamation lawsuit.