First Amendment Defenses in Libel and Defamation Litigation

Defamation law does not exist in a vacuum. Every libel or slander case is constrained by constitutional protections for free speech and a free press. The First Amendment and parallel provisions of state constitutions limit who can sue, what they must prove, and which kinds of statements are protected as opinion or commentary.

For over 40 years, DiTommaso Lubin, P.C.’s Defamation, Libel & Free Speech Defense Practice Group has defended clients by invoking these constitutional safeguards on behalf of media organizations, influencers, businesses, professionals, and consumers.

Public Officials, Public Figures, and Actual Malice

When a plaintiff is a public official or public figure, or sometimes even a limited‑purpose public figure, the Constitution requires them to prove “actual malice”—that the defendant either knew the challenged statement was false or acted with reckless disregard for its truth or falsity. This demanding standard is often outcome‑determinative.

Our work in this area includes:

• Evaluating whether the plaintiff is properly characterized as a public official, public figure, or limited‑purpose public figure based on their role, notoriety, and involvement in the controversy.
• Demonstrating that our clients acted responsibly, relied on credible sources, and did not harbor serious doubts about the truth of their statements.
• Using discovery strategically to highlight the absence of evidence of actual malice and to show that any errors were at most negligent, not reckless.
• Seeking early dismissal or summary judgment where the plaintiff cannot meet the constitutional standard.

Opinion, Rhetorical Hyperbole, and Protected Commentary

The First Amendment also protects statements that cannot reasonably be interpreted as stating actual facts. Courts routinely dismiss defamation claims where the challenged statements are:

• Opinions based on disclosed true facts that the audience can evaluate for themselves.
• Rhetorical hyperbole or colorful expressions of viewpoint, rather than literal accusations of criminal or professional misconduct.
• Satirical or figurative language that no reasonable reader or viewer would understand as a concrete factual assertion.

We analyze the entire context of the publication—its tone, format, audience, and the broader debate in which it appears—to show that the plaintiff is trying to treat protected opinion or commentary as if it were a factual allegation.

Matters of Public Concern and Media Defendants

Speech on matters of public concern receives heightened constitutional protection, particularly where media defendants or journalists are involved. In such cases, courts are often more willing to apply robust defenses, including:

• Requiring clear proof of falsity and fault before allowing a case to proceed to trial.
• Applying broad fair‑reporting and neutral‑reportage doctrines.
• Recognizing that vigorous debate on public issues will naturally involve sharp criticism and strong language.

Our attorneys have been involved in cases touching on high‑profile public controversies and have been quoted in national media analyzing the First Amendment issues raised by major defamation suits, including those brought against national news networks over their coverage of the 2020 election.

Working at the Intersection of Free Speech and Reputation

Defamation law requires balancing the right to speak and report with the right not to be falsely accused. Because our firm represents both plaintiffs and defendants in libel and slander matters, we appreciate this balance from both perspectives. When defending clients, we:

• Frame cases around the constitutional values at stake and emphasize the importance of robust debate and reporting.
• Use First Amendment defenses in tandem with substantial truth, privilege, and anti‑SLAPP protections.
• Seek to resolve cases at the motion‑to‑dismiss or summary‑judgment stages wherever possible, to avoid the chilling effect of prolonged litigation.

Talk With Our First Amendment and Libel Defense Team

If you are being sued for defamation based on news reporting, commentary, online reviews, or other speech on matters of public concern, or if you are a public figure facing false accusations, you need counsel who understands both defamation law and the constitutional defenses available.

Contact attorney Peter S. Lubin or attorney James V. DiTommaso for a free consultation about First Amendment defenses in your case.

Call 630-333-0333 or reach us through our online contact form.

This page is for informational purposes only and does not constitute legal advice. Contacting us does not create an attorney–client relationship. Past results do not guarantee a similar outcome.