Libel, Slander, And The Constitution: What's Protected?

Libel and slander refer to written and oral defamation respectively. Libel and slander laws have historically clashed with First Amendment rights of free speech and free press. Before 1964, state law tort claims for defamation weighed more heavily in the legal balance than the constitutional right to freedom of speech or press. However, in 1964, the Supreme Court recognised that libel laws could have a chilling effect on debate about public issues and established that a public official had to show actual malice to win a defamation case.

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Libel and slander are considered defamation, which is not protected by the First Amendment

Before 1964, state law tort claims for defamation weighed more heavily in the legal balance than the constitutional right to freedom of speech or press protected by the First Amendment. Defamation, like many other common-law torts, was not subject to constitutional baselines. In fact, the Supreme Court famously referred to libel in Chaplinsky v. New Hampshire (1942) as an unprotected category of speech, similar to obscenity or fighting words.

In 1964, at the height of the Civil Rights Movement, the Supreme Court recognised that libel laws could have a chilling effect on debate about public issues and established that a public official had to show actual malice to win a defamation case. In the landmark case, *New York Times v. Sullivan*, the Supreme Court said that a state's libel laws were subject to free speech protections of the First Amendment.

Libel is written defamation, while slander is oral defamation

In 1964, the Supreme Court recognised that libel laws could have a chilling effect on debate about public issues and established that a public official had to show actual malice to win a defamation case. The Court said libel could "claim no talismanic immunity from constitutional limitations," and the standards for proving defamation must "satisfy the First Amendment". Justices Hugo Black, William O. Douglas, and Arthur Goldberg, concurring, would have held libel laws per se unconstitutional.

Libel and slander are forms of defamation that can have serious consequences for those who are defamed. Defamatory comments might include false comments that a person committed a particular crime or engaged in certain sexual activities. The clash between the First Amendment rights of free speech and free press and the interests served by defamation law can lead to expensive litigation, million-dollar jury verdicts and negative public views of the press.

Libel laws can have a chilling effect on debate about public issues

Before 1964, state law tort claims for defamation weighed more heavily in the legal balance than the constitutional right to freedom of speech or press protected by the First Amendment. Defamation was not subject to constitutional baselines. The Supreme Court referred to libel in *Chaplinsky v. New Hampshire* (1942) as an unprotected category of speech, similar to obscenity or fighting words.

Libel generally refers to written defamation, while slander refers to oral defamation. However, much spoken speech that has a written transcript falls under the rubric of libel. The First Amendment rights of free speech and free press often clash with the interests served by defamation law. The press exists in large part to report on issues of public concern. However, individuals possess a right not to be subjected to falsehoods that impugn their character. The clash between the two rights can lead to expensive litigation, million-dollar jury verdicts and negative public views of the press.

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Libel and slander can lead to expensive litigation and negative public views of the press

Historically, American and English law treated libel as wholly without any free-speech protections. Before 1964, state law tort claims for defamation were given more weight than the constitutional right to freedom of speech or press protected by the First Amendment. In 1942, the Supreme Court referred to libel in *Chaplinsky v. New Hampshire* as an unprotected category of speech, similar to obscenity or fighting words.

However, this changed in 1964 during the Civil Rights Movement. In the landmark case of *New York Times v. Sullivan*, the Supreme Court recognised that libel laws could have a chilling effect on debate about public issues. The Court held that a public official had to show actual malice to win a defamation case, setting a new standard that balanced free speech protections with the interests served by defamation law. This case established that libel laws are subject to the free speech protections of the First Amendment, demonstrating a shift in legal perspectives on the issue.

Libel and slander are not protected by the Constitution, but they are subject to free speech protections

Defamation, like many other common-law torts, was not subject to constitutional baselines before 1964. In 1942, the Supreme Court referred to libel in Chaplinsky v. New Hampshire as an unprotected category of speech, similar to obscenity or fighting words. It wasn't until 1964, at the height of the Civil Rights Movement, that the Supreme Court said that a state's libel laws were subject to free speech protections of the First Amendment. In the case of New York Times v. Sullivan, the Supreme Court recognised that libel laws could have a chilling effect on debate about public issues. The Court established that a public official had to show actual malice to win a defamation case.

In the case of New York Times v. Sullivan, the Court considered the case "against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials". The Court said libel could "claim no talismanic immunity from constitutional limitations", and the standards for proving defamation must "satisfy the First Amendment". Justices Hugo Black, William O. Douglas, and Arthur Goldberg, concurring, would have held libel laws per se unconstitutional.

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