United States Defamation Law - Development

Development

See also: Defamation and the First Amendment to the United States Constitution

Laws regulating slander and libel in the United States began to develop even before the American Revolution. In one of the most famous cases, New York publisher John Peter Zenger was imprisoned for 8 months in 1734 for printing attacks on the governor of the colony. Zenger won his case and was acquitted by jury in 1735 under the counsel of Andrew Hamilton. The case established some precedent that the truth should be an absolute defense against libel charges. Previous English defamation law had not provided this guarantee. Gouverneur Morris, a major contributor in the framing of the U.S. Constitution said, "The trial of Zenger in 1735 was the germ of American freedom, the morning star of that liberty which subsequently revolutionized America."

Zenger's case also established that libel cases, though they were civil rather than criminal cases, could be heard by a jury, which would have the authority to rule on the allegations and to set the amount of monetary damages awarded.

The First Amendment of the U.S. Constitution was designed specifically to protect freedom of the press. However, for most of the history of the United States, the Supreme Court neglected to use it to rule on libel cases. This left libel laws, based upon the traditional common law of defamation inherited from the English legal system, mixed across the states.

In 1964, however, the court issued an opinion in New York Times Co. v. Sullivan, 376 U.S. 254 (1964) dramatically changing the nature of libel law in the United States. In that case, the court determined that public officials could win a suit for libel only if they could demonstrate "actual malice" on the part of reporters or publishers. In that case, "actual malice" was defined as "knowledge that the information was false" or that it was published "with reckless disregard of whether it was false or not." This decision was later extended to cover "public figures", although the standard is still considerably lower in the case of private individuals.

In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Supreme Court suggested that a plaintiff could not win a defamation suit when the statements in question were expressions of opinion rather than fact. In the words of the court, "under the First Amendment, there is no such thing as a false idea". However, the Court subsequently rejected the notion of a First Amendment opinion privilege, in Milkovich v. Lorain Journal Co., 474 U.S. 953 (1985). In Gertz, the Supreme Court also established a mens rea or culpability requirement for defamation; states cannot impose strict liability because that would run afoul of the First Amendment. This holding differs significantly from most other common law jurisdictions, which still have strict liability for defamation.

In Hustler Magazine v. Falwell, 485 U.S. 46 (1988), the Supreme Court ruled that a parody advertisement claiming Jerry Falwell had engaged in an incestuous act with his mother in an outhouse, while false, could not allow Falwell to win damages for emotional distress because the statement was so obviously ridiculous that it was clearly not true; an allegation believed by nobody, it was ruled, brought no liability upon the author. The court thus overturned a lower court's upholding of an award where the jury had decided against the claim of libel but had awarded damages for emotional distress.

After Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 N.Y. Misc. Lexis 229 (N.Y. Sup. Ct. May 24, 1995), applied the standard publisher/distributor test to find an online bulletin board liable for post by a third party, Congress specifically enacted 47 U.S.C. § 230 (1996) to reverse the Prodigy findings and to provide for private blocking and screening of offensive material. § 230(c) states "that no provider or user of an interactive computer shall be treated as a publisher or speaker of any information provided by another information content provider," thereby providing forums immunity for statements provided by third parties. Thereafter, cases such as Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997), and Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998), have demonstrated that although courts are expressly uneasy with applying § 230, they are bound to find providers like AOL immune from defamatory postings. This immunity applies even if the providers are notified of defamatory material and neglect to remove it, because provider liability upon notice would likely cause a flood of complaints to providers, would be a large burden on providers, and would have a chilling effect on freedom of speech on the Internet.

In Barrett v. Rosenthal, 146 P.3d 510 (Cal. 2006), the California Supreme Court ruled that 47 U.S.C. § 230(c)(1) does not permit web sites to be sued for libel that was written by other parties.

To solve the problem of libel tourism, the SPEECH Act makes foreign libel judgments unenforceable in U.S. courts, unless those judgments are compliant with the U.S. First Amendment. The act was passed by the 111th United States Congress and signed into law by President Barack Obama.