Thursday, June 26, 2014

A Writer's Guide to the First Amendment: Be Careful Who You Libel

What is freedom of the press and how does it differ from freedom of speech? In one sense, it is merely a subset of freedom of speech. But speech that reaches the masses—or has the potential to—creates additional concerns. On one hand, it can do greater damage. On the other, the potential to reach a larger audience tempts government to take more severe measures to surpress any attempt to use it to speak out against the government. It was this latter concern that caused the founders to create a separate freedom for the press.

At the time, the clause applied to newspapers and pamphlets and books that came from a printing press, because those were the media that could reach large audiences. But if the size of the potential audience is the reason behind the clause, it should expand beyond these traditional media to include television and the Internet, and that is how courts tend to apply it. It can even cover blogs like this one. (See Obsidian Finance Group, LLC v. Cox, (9th Cir., Jan. 17, 2014).)

The U.S. Supreme Court developed the rules for media in a line of cases that began in 1964 with New York Times Co. v. Sullivan, 376 U.S. 254 (1964). In deciding the case, the Supreme Court noted that America is committed to “uninhibited, robust, and wide-open” public debate on public issues. Recognizing that no test is perfect, the Court believed it was better to err by protecting some false speech than by hindering truthful speech. According to the Court, requiring a speaker/writer to guarantee the truth of his statements at the pain of paying large libel judgments would inhibit criticism even when the speaker believed his statements were accurate.

For that reason, the Court held that the First Amendment “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’.”

The New York Times case was limited to comments about public officials. The Supreme Court later extended the same test to comments about public figures (e.g., the athletic director of the University of Georgia). It’s much harder to get away with libelous statements about private individuals, however.

But even the President of the United States can sue you—and win—if you libel him or her intentionally. You may even be liable for libel if you just don’t care whether you are telling the truth about a public official. That’s because of the exception for actual malice.

So what is actual malice? We’ll talk about that next month.


Kathryn Page Camp is a licensed attorney and full-time writer. Her most recent book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013), is a Kirkus’ Indie Books of the Month Selection. Kathryn is also the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at

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