First Amendment Defense to Libel and Defamation Cases

Since our country's founding, our courts have struggled to balance the First Amendment right to free speech with a person or business's right to be protected from having their reputation and good name destroyed by false and defamatory attacks on their reputation.

Justice Potter Stewart of the Supreme Court noted that the law of defamation "reflects no more than our basic concept of the essential dignity and worth of every human being". He warned that courts must be careful balancing the needs of persons to protect their good name while ensuing for "breathing space" to allow our freedom of speech protected by the First Amendment to flourish.

Before 1964, the courts drew the balance in favor of defamation plaintiffs. The Supreme Court looked at defamatory speech in the same manner it treated fighting words or obscene and pornographic expression - both forms of the speech at the time which were not given protection to the First Amendment. The Court gave no more than lip service to the First Amendment.

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) changed all that. In 1964, The Montgomery, Alabama Commissioner of Police sued the New York Times for libel for an article about his police department and him which contained some minor factual inaccuracies, but which was some substantially true. A biased local jury error awarded Sullivan $500,000. The Alabama appeals and supreme courts sustained that that ruling. The New York Times continued the fight. It appealed to the U.S. Supreme Court which heard the case. The Supreme Court reversed. It held "law applied by the Alabama courts is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct."

The landmark New York Time v Sullivan opinion opened the door for state and federal courts to take into account the First Amendment in deciding defamation lawsuits especially when the plaintiff bringing suit is a public figure.

The New York Times lead the way for individuals and not just large public media companies, to receive the protection of the First Amendment in defamations lawsuits. Free speech rights don't disappear depending on the size of the defendant or the nature of the rights at stake as the Supreme Court observed following the New York Times v Sullivan decision:

The First Amendment does not protect speech and assembly only to the extent it can be characterized as political. 'Great secular causes, with smaller ones, are guarded.' " (Citations omitted) We in no sense suggest that speech on private matters falls into one of the narrow and well-defined classes of expression which carries so little social value, such as obscenity, that the State can prohibit and punish such expression by all persons in its jurisdiction. (Citations omitted) For example, an employee's false criticism of his employer on grounds not of public concern may be cause for his discharge but would be entitled to the same protection in a libel action accorded an identical statement made by a man on the street. Connick v. Myers, 461 U.S. 138, 147 (1983).

"The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual." First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 777 (1978)

"[C]ases involving speech are to be considered 'against the background of a profound * * * commitment to the principle that debate * * * should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks.'" Linn v. United Plant Guard Workers of Am., Local 114, 383 U.S. 53, 62 (1966) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)); Abrams v. United States, 250 U.S. 616, 630 (Holmes, J., dissenting) ("I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe…").

Attempts to silence individuals through defamation suits clashes head-on with the First Amendment and nearly two centuries of jurisprudence based squarely on the principle that "the remedy to be applied is more speech, not enforced silence." Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring); see also Abrams v. United States, 250 U.S. 616, 630 (Holmes, J., dissenting) ("I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe…").

The First Amendment is grounded on the fundamental idea that society benefits from a full and free exchange of ideas and opinions. Sullivan, 376 U.S. at 266 (explaining that the First Amendment is designed "to secure the widest possible dissemination of information from diverse and antagonistic sources.") (internal quotes omitted); Roth v. United States, 354 U.S. 476, 488 (1957) ("The fundamental freedom of speech and press have contributed greatly to the development and well-being of our free society and are indispensable to its continued growth.").

That is not to say that the First Amendment absolutely protects all speech. But the speech not protected by the First Amendment is so exceptionally limited that even "the most repulsive speech enjoys immunity provided it falls short of a deliberate or reckless untruth." Linn, 383 U.S. at 63; FEC v. Wis. Right To Life, Inc., 551 U.S. 449, 474 (2007) ("Where the First Amendment is implicated, the tie goes to the speaker, not the censor."); see, e.g., Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967) (finding that First Amendment protects all speech regarding public issues or figures absent proof of actual malice). But "[f]ree speech is not restricted to compliments. . .[M]embers of a free society must be able to express candid opinions and make personal judgments. And those opinions and judgments may be harsh or critical-even abusive-yet still not subject the speaker or writer to civil liability." Madison v. Frazier, 539 F.3d 646, 657 (7th Cir. 2008). In expressing his opinions and critique of Plaintiffs, Bates may even make minor errors in detail. But an error in detail does not qualify as "deliberate or reckless untruth" and does not warrant censorship. Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974) ("The First Amendment requires that we protect some falsehood in order to protect speech that matters."); see Bose, 466 U.S. at 513 ("[E]rroneous statement is inevitable in free debate, and ... must be protected if the freedoms of expression are to have the 'breathing space' that they 'need ... to survive.'"). Libel plaintiffs are not permitted to use such suits to "silenc[e] one side of a public debate" which is "a drastic measure that would severely harm the public interest in freedom of speech…" Ameritech v. Voices for Choices, Inc., 03 C 3014, 2003 WL 21078026, at *3 (N.D. Ill. May 12, 2003).

First Amendment law continues to change and evolve. Defamation defense attorneys must have extensive knowledge of First Amendment law and where it is heading to defend the rights of defendants in defamation suits. Our attorneys have over thirty years of experience in this area.  Here is an opinion in one successful arbitration where we prevailed on a First Amendment Defense for our client after first forcing a settlement of the claims against our client in a federal court lawsuit.  

The Arbitrator held as follows when he ruled in favor of our client's right to post his opinions on the internet:

The First Amendment prohibits defamation actions based on "loose, figurative language that no reasonable person would believe presentedfacts." Imperial Apparel, Ltd. v Cosmo's Designer Direct, Inc., 227 Ill. 2d 381at397, 398 (2008). To prove defamation, a Claimant needs show the respondent made a false statement to a third party, that there was an unprivileged publication of the statement to a third party, and that the claimant was damaged. Dubinsky v. United Airlines Master Executive Council, 303 Ill. App. 3d 317, 323 (1st Dist 1999); Cianci v. Pettibone Corp. 298 Ill. App. 3d 419, 424 (1st Dist 1998). False statements do not equate with opinion. ...

"Where the First Amendment is implicated, the tie goes to the speaker, not the censor." FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 474(2007). This case is not a tie. Uninhibited, wide open, caustic, vehement, and unpleasantly sharp attacks are within the "profound commitment" favoring speech and disfavoring censorship. On this Record, the Arbitrator finds Claimants have been unable to establish, consistent with the First Amendment of the Constitution of the United States, that Mr. Bates' statements are such that removal from the Internet is warranted.Accordingly, the Arbitrator declines to Order same.

To arrange for a consultation with one of our Chicago First Amendment Defense attorneys, contact us online or call at our toll-free number at (833) 306-4933 or locally at (630) 333-0333.

Chicago Business Litigation Lawyer Blog - First Amendment
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