As I have noted in previous columns, the rights enumerated in the U.S. Constitution are not absolute.
For example, the Supreme Court ruled in 1919 that yelling “fire” in a crowded theater is not protected speech under the First Amendment. Not surprisingly, this one exception has given rise to many questions and hundreds of cases regarding what type of expression is shielded by the Bill of Rights. For example, can a person in that hypothetical crowded theater stand up and accuse another of a crime or pass out a leaflet that impugns someone else’s character?
As is often — and often maddeningly — the case with issues involving the Constitution, the answer is, “It depends.”
In this instance, it depends on the laws governing defamation which is defined as a false statement presented as a fact that injures or damages a third party’s reputation. There are two types of defamation: slander, an untrue statement made orally; and libel, an untrue statement made in writing. And, since the dawn of the computer age and the internet, that includes email and social media posts.
While defamation is not considered a crime at the federal level or in Ohio, both libel and slander are civil torts which means victims can sue for damages. To win in court a plaintiff must prove:
1.) The statement was reported as fact to another person;
2.) The statement was false;
3.) The plaintiff suffered damages;
4.) The person making the statement was negligent.
Seems pretty straightforward, except we are talking about the law so nothing could be further from the truth. And speaking of the truth, it is an absolute defense to defamation because if what is said or written is true, it cannot be false, and therefore, it can be neither libelous nor slanderous no matter how much damage it may cause.
Here is another fun fact: Public figures have virtually no chance of winning defamation suits thanks to New York Times v. Sullivan, a unanimous 1964 Supreme Court ruling that established the “absent malice” standard. Under this legal principle, the target of a defamatory statement must prove the person or entity that wrote or uttered it did so with knowledge of or reckless disregard for the fact that it was untrue.
Who qualifies as a public figure? Politicians, celebrities, business, labor, and community leaders, and, well, me. This means Mahoning Matters can publish just about anything they want to about me and there is not much I can do about it.
Finally, consider this scenario: two neighbors who are not public figures have a contentious relationship. Neighbor A posts on Facebook that Neighbor B beats his wife and kids and kicks his dog. The statement is false, but people believe it and ostracize Neighbor B, he is fired from his job and suffers other torments.
Neighbor B can sue Neighbor A, but can he sue Facebook for providing a platform for the lies?
No, because Section 230 of the Communications Decency Act (CDA 230) holds that Facebook and other computer service providers are not considered publishers of content posted by users and are not responsible for it.
So while Neighbor B may be able to wring a few bucks out of Neighbor B, he will not be getting a check drawn on Mark Zuckerberg’s multi-billion dollar account.
— Attorney David Betras, a senior partner at Betras, Kopp & Harshman LLC., directs the firm’s non-litigation activities and practices criminal defense law in both the state and federal courts. He has practiced law for 35 years. Have a legal question you'd like answered here? Send it to email@example.com.