It is tremendously hard to sue for defamation. And that’s a good thing.
Every once in a while, I’ll get someone calling my office wanting to sue someone because they were called a bad name or something, and I have to explain to them how the laws work in America.
Defamation includes libel (written) and slander (spoken). In order to win a case, I’d have to prove three things:
First, that the statement was false. This is usually the easiest thing to prove, but sometimes the thing being said is merely an opinion. “Joe is a jerk” is not true or false. “Joe is a pedophile” is a lie.
But there’s even more to it than that — you have to show that the person who made the statement knew that it was false. If they said it thinking that it was true, then that’s a defense. (Truth is always a defense against libel and slander).
And if the person who wrote or said this was a reporter, then you also have to show that they knew it was not true and they had “malicious intent” in spreading it.
That’s a tough standard — but even if you meet that, you still have two other burdens to overcome.
So the second thing is to show that other people believed it. If someone calls you a martian, then that’s clearly a lie. But if no one believes them, then what’s the point? The lie has to be believed by others.
And finally, you have to show that you were seriously harmed in some way and not just insulted. You need to show that because of the lie, you lost your job and people are throwing bricks at your house and spitting on you as you walk down the street. You have to prove damage.
So if someone says “Joe is gay” and it’s not true and the person who said it knows that it’s not true, you’ve met the first burden. If everyone believes it, then you’ve met the second burden. But if no one cares and you aren’t harmed in the slightest other than perhaps being upset or embarrassed or insulted, then you have no case.
So the next time someone says they want to sue for defamation and then complain that no lawyer will take the case, you’ll understand why.
Correction, “malicious intent” standard only applies to a public figure. Also, you can be sued if you don’t know the truth or falsity of the statement. Paper was recently sued because police gave us a name for a mugshot of “Joe Blow Sr.” …it was Joe Blow Jr. The Dad sued. He didn’t win, but he sued.
1. You’re correct about the public figure; sorry, that’s what I was thinking since papers usually write about public figures.
2. Just because you CAN sue doesn’t mean you will win. In all of the examples above, you could sue, but the law would be against you.