Defamation

Defamation is an injurious statement about a person’s reputation; it usually involves a defamer, who imputes questionable character or inappropriate conduct about another, the defamed party. Defamation law covers false communications that have the effect of injuring a person’s reputation and are accessible to a third party. Defamation law falls under the legal category of an intentional tort. Two types of tort actions are included under the broad legal construct of defamation law: libel and slander. Libel refers to a communication contained within a fixed medium of expression, such as a written memo to a third party, a blog, a billboard sign, or an image on the Internet. Slander refers to a communication expressed in a transitory manner, typically in oral form or depicted in a nonfixed medium such as verbal conversations or physical gestures conveyed to a third party. This entry looks at defamation law, its application in education, and potential remedies.

General Rules

Although the law with respect to defamation varies by state, some general principles have been established. In order for a cause of action based on defamation to proceed, a plaintiff must prove four elements: a false communication that has the effect of injuring his or her reputation; unprivileged communication that is accessible or published to a third party; fault based on some standard such as negligence, actual malice, or common law malice; and a requirement of special harm (e.g., defamation per quod), except under certain circumstances (e.g., defamation per se).

Under the law of defamation, statements of opinion and hyperbole are generally not defamatory; however, false statements that imply assertions of underlying facts are actionable. Further, the truth is a defense as long as a communication is substantially true.

Privileged Information

While some statements may be classified as defamatory, they may be privileged. Privilege is an affirmative defense made to counter a defamation cause of action, and the judge makes the determination of the privilege applicability as a matter of law. The issue of privilege is critical for school administrators and teachers who comment on student progress. Likewise, administrators and school boards assert privilege when discussing teacher evaluations.

Two forms of privilege exist: absolute, and qualified or conditional. Absolute privilege provides protection over communication, regardless of truth or even malice, and applies to relevant communications that are related to one’s position. Statements made by judges, legislators, governors, and other high-ranking government officials in their positions are covered as absolutely privileged. In most jurisdictions, communications from a state superintendent of public instruction fall under absolute privilege. In addition, according to the U.S. Supreme Court, all federal employees, regardless of rank, are clothed with absolute privilege over statements made pursuant to their positions.

Qualified privilege, also referred to as conditional privilege, applies to communications related to special roles or interests in statement. The communications must be made in good faith and asserted without reckless disregard for the truth. Statements made by board staff, administrators, and teachers in the course of their duties are typically classified as qualified privilege, provided that they are made in good faith and without reckless disregard for the truth.

Fault Standards

Depending on the case, three types of fault standards are followed for defamation law cases: (1) negligence, (2) actual malice, and (3) common law malice. The fault standard dictates whether a case meets the jurisdiction’s defamation law requirements.

The appropriate standard has been set in state statutes, constitutional law, and common law. The default rule requires at least negligence as the standard. In other words, a prudent person would not have published or not published without further investigation. In some cases, typically in matters that involve a public official or public figure, actual malice, which is derived from constitutional doctrine, is the rule. Actual malice is demonstration of clear and convincing evidence that the false communication was conveyed with knowledge of falsity or with reckless disregard of whether it was false or not. Finally, common law malice requires evidence of ill will, hostility, or an evil intent to defame or injure another.

Often, the standard makes a difference in the type of damages available. For instance, some states require a showing of negligence to recover compensatory damages from a defamation lawsuit; however, the standard of common law malice—or in some states, actual malice—must be shown to receive an award of punitive damages.

Defamation of Public Officials

The legal standard for defamation is different for public figures and public officials. When cases of defamation relate to public officials and public figures, the standard is raised to factor in the communicator’s First Amendment free speech rights.

Based on the hierarchy of public employees, persons are deemed public officials when they have or appear to have “substantial responsibility for or control over the conduct of government affairs” (Rosenblatt v. Baer, 1966, p. 85). Put another way, there are three ways in which one may be recognized as a public figure. Through one’s general fame and notoriety in the community, a person may be a public figure for all purposes and in all contexts. In addition, there are two types of limited public figures. One may become a limited public figure when one voluntarily injects oneself into a public controversy. For matters related to that context and issue, the person becomes a public figure. A limited public figure may also arise when, through acts of a public official, an individual who is otherwise a private figure is involuntarily thrust into the public eye, because the official’s actions affect that person. Whether one is a public official or public figure is a matter of law.

Under constitutional standards, an assertion that a statement about a public official or figure was untrue is by itself insufficient to hold a party liable for defamation. Instead, the subject of a defamatory statement must demonstrate through clear and convincing evidence that the false communication was made with actual malice. Under the law of defamation, actual malice is interpreted as communication conveyed with knowledge of falsity or with reckless disregard of whether it was false or not. Put another way, the defamer has to know that the communication is false or at least entertain serious doubts about the veracity of the communication.

Generally speaking, the courts have classified superintendents as limited public figures. Similarly, selected cases have concluded the same for coaches and athletic directors. In those cases, defamatory statements about superintendents or athletic coaches in relation to their jobs requires a showing of clear and convincing evidence that the false communication was made with actual malice; otherwise, the superintendent or coach may not recover damages.

The status of teachers and principals varies by jurisdiction. Depending on classifications, teachers and principals may need to prove defamation with a higher standard (i.e., clear and convincing evidence that the false communication was made with actual malice), while in other states teachers and principals need only to follow the general rule of defamation, which, depending on the jurisdiction, may simply be showing the defamer’s negligence.

Special Harm: Defamation Per Se Versus Defamation Per Quod

In some cases, the showing of special harm is not necessary, while in others it is a requisite for defamation. For instance, some communications can be so harmful to one’s reputation that courts recognize instances in which statements are defamation per se. That is, even without showing harm, statements on their face may be actionable per se. The courts acknowledge four instances of defamation per se: (1) communication imputing a criminal offense onto another; (2) communication claiming an individual suffers from a loathsome disease; (3) communication that affects one’s fitness to conduct business, trade, profession, or office; and (4) communication alleging serious sexual misconduct.

By contrast, defamation per quod is not summarily viewed as actionable. Instead, the context and the interpretation of the third party play a role in determining whether the communication is actionable. Insofar as a communication itself is not sufficient to demonstrate defamation, extrinsic evidence is required to prove the publication of a false, defamatory statement as well as the defamed party’s actual harm.

Remedies

Under defamation claims, remedies exist such as damages associated with defamation, retraction of the defamatory communication, and injunctive relief to stop continued defamatory publications. Typically, defamation cases involve compensatory damages. Under compensatory damages, the defamed is awarded a monetary value based on the harm that resulted from the false, defamatory communication. Alternatively, presumed damages or nominal damages may be sought. In addition, punitive damages may be asserted as a way to punish the defamer for outrageous conduct and to deter others from such behavior. The types of damages depend on the types of defamation and the standards used to hold defendants/ defamers liable.

Jeffrey C. Sun

See also First Amendment

Further Readings

  • Kenyon, A. (2006). Defamation: Comparative law and practice. New York: Routledge-Cavendish. 
  • Rossow, L. F., & Tate, J. O. (2003). The law of teacher evaluation (2nd ed.). Dayton, OH: Education Law Association

Legal Citations

  • Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). 
  • Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). 
  • New York Times Co. v. Sullivan, 376 U.S. 254 (1964). 
  • Rosenblatt v. Baer, 383 U.S. 75 (1966).