Constitutional Privileges

One of the most jealously defended freedoms that Americans have is the first amendment right to free speech.

Because the laws of defamation essentially prohibit certain forms of speech, there are times when defamation laws will clash with the first amendment. While much of the time the plaintiff will have a viable cause of action, there are times when defamatory statements may be privileged as a matter of constitutional law simply because the right of free speech is held to outweigh the interest in protecting the plaintiff’s reputation.

Whether or not defendant is entitled to constitutional protection hinges on the status of the plaintiff. Typically, plaintiffs can be placed into one of three categories:

1. public officials
2. public figures
3. private individuals

Defendants who make defamatory statements about public officials enjoy the highest level of constitutional protection. See Rosenblatt v. Baer, 383 U.S. 75 (1966). The whole idea behind the first amendment was to allow ordinary citizens to speak freely about the behavior of public officials without the risk of being held either civilly or criminally liable for their statements.

Public figures are people who are not public officials but are people that have either:

1. Achieved such widespread fame that they have essentially become public figures.
2. They voluntarily enter into a public situation and become a public figure for the duration of that situation.

In such cases, statements against these people will also enjoy the highest level of constitutional protection.

Michael Jordan is an example of a person who has achieved such widespread fame that he is considered a public figure for constitutional defamation purposes.

An example of a person who voluntarily enters into a public issue and becomes a public figure for that specific issue would be the lead attorney in a highly publicized class action suit seeking to prevent oil drilling in Alaska.

In identifying these limited public figures the court will look at three things. First the court will look at the specific controversy that the person is involved in. Second, the court will look to see if the plaintiff has voluntarily involved himself in the controversy. And third, the court will look to see if the defamation spoken about this person was relevant to his participation in the particular situation. See Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

Please note that there are instances in which a private person can become a temporary public figure through no fault of his own. For example, someone who acts heroically in a highly publicized disaster can become a temporary public figure. See Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287 (D.C. Cir. 1980).

Where public officials or public figures become plaintiffs in defamation cases, they must prove that the defamatory statement was made with actual malice. Actual malice is defined as either knowledge that the defamatory statement was false or reckless disregard for the truth of the statement. See N.Y. Times v. Sullivan, 376 U.S. 254 (1964).

The understanding here is that if the statement was made with actual malice, no public interest is served by protecting the statement, and thus, the plaintiff has a viable cause of action.

However, the plaintiff must show that the defendant was subjectively aware that the statement was not true or was subjectively reckless as to its truth when he made the statement.

Please note that it is not enough for the plaintiff to show that the defendant acted with spite or ill will toward the plaintiff. We are not interested in the defendant’s motive. Only the truth of the statement will determine liability.

If a public official can prove actual malice, he is entitled to collect whatever damages are available under the laws of that particular state.

Where plaintiff is a private person, a lower constitutional protection applies. In fact, constitutional limitations on defamation do not apply where the plaintiff is a private figure unless the defamatory statements involve a matter of public concern.

For the most part the constitution allows each individual state to determine its standards for liability. The only constitutional guideline the states must follow prohibits the states from applying strict liability to defamation cases.