Every so often I get a call from a potential client who wants to litigate against someone for “defaming” them. The caller is generally spitting mad and wants blood. This is usually in the context where the client was the subject of some rant by some aggrieved party where he or she gets cursed at in front of a bunch of others.
Think of the homeowner’s association meeting or the school board meeting where somebody stands up and starts swearing up and down that you’re a no good so-and-so or that you’re a crook and probably stole a lot of money from the group.
Defamation comes mainly in two forms: slander (oral defamation) or libel (written defamation).
In order to maintain a viable claim for defamation an aggrieved party needs three things: 1. An affirmative misrepresentation of facts; 2. Publication of the statement to third parties; and, 3. Economic damages.
Now, as far as the affirmative representation of facts, let’s consider: It is not defamation to name-call – if I call someone a jerk, an idiot, a dope, a number of curse words, etc., that’s my opinion and it’s not actionable. There is where Donald Trump’s rhetoric comes in – almost all of his juvenile insults are just that, silly insults and are not actionable.
What is true defamation is when the name calling has some real legal meaning behind it, such as, You’re an: embezzler, or thief, or felon, or rapist, or perjurer, or child molester, etc. These terms are either provable as true or they’re a lie. Remember, truth is a 100% defense to defamation. So, if your town mayor is found to be a convicted embezzler, it’s okay to confide in others to further check this out.
The defamatory statements must have been “published” to third parties – this does not mean these words need to be in writing. It does mean that these false statements must have been spread around to others, orally or in writing. If I whisper in someone’s ear and call them an arsonist – it’s just between the two of us. No harm, no foul. If I call someone running for the Fire Department Board an arsonist at a public meeting, that’s a problem. Again, assuming it’s not true.
Finally is the difficult issue of proving economic damages. How does one valuate his or her personal reputation? How do you put a number on it? This question is no easier for a judge or jury. There have been cases where the Plaintiff won a defamation suit and the financial judgment awarded was $1, mainly for failure to prove an economic loss. After paying attorney fees, these Plaintiffs realize they won the battle of proving defamation but lost the economic war.
Now there is one difference here in Florida – If the defamatory statement goes to one’s business reputation, damages can be imputed – simplifying the burden of proof. So if the defamed party loses his or her job due to the slanderous statement, that’s an easy measure of damages – lost wages. If a restaurant owner sees his business drop off by 50% because someone maligned the restaurant owner as one who frequently serves up food with e-coli contamination, that’s a measure of real provable damages by loss of profits.
Mostly I discourage clients from suing defamatory speakers. It is generally cost prohibitive and after I send the speaker a “cease and desist” letter, there is almost an immediate abatement of the obnoxious behavior. And generally the one who loses his or her cool and starts maligning others in public are considered to be the big jerks in the room anyway.
I had my own personal experience a few years ago when a certain addle-brained lawyer started maligning me to every lawyer in town stating that I had “ripped him off”. Now that wasn’t true and I could have pursued it further, but given this speaker’s existing reputation, his difficulty with the truth and the fact that he was a known obnoxious jerk, a gigantic blow hard and a small minded idiot, I didn’t worry about it. I knew everyone would consider the source. And, by the way, none of those terms in my previous sentence are actionable.
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