Libel and Slander

Libel, as defined in Black’s Law Dictionary, is “any publication that is injurious to the reputation of another.” Slander, on the other hand, is the “speaking of base and defamatory words tending to prejudice another in his reputation, office, trade, business, or means of livelihood.” Thus, libel is written defamation; slander is spoken. Until the second half of the twentieth century, defamation was not protected by the First Amendment.

Laws regulating libel and slander can be traced to pre-Norman times, when the church in medieval England assumed the primary role of resolving disputes over alleged damage to reputation. When libel or slander was proven, the most frequent remedy was a public apology. The church’s role continued after the Norman Conquest in 1066, when ecclesiastical courts were created to hear matters involving spiritual wrongs.

During the ensuing centuries, the jurisdiction of the church gradually gave way to that of the British judicial system, first to the Court of the Star Chamber—which primarily heard cases of seditious libel—and eventually to common law courts. As the British common law developed, a person complaining of libel or slander needed to prove only [Page 671] that another person made a defamatory statement about him and that the statement injured his reputation. If the statement accused the person of a crime, of suffering from a contagious disease, or of being unfit for his work because of dishonesty or incompetence, however, injury to reputation could be presumed. The person who made the statement could escape liability if he could prove his statement was true.

These common law concepts provided the bases for libel and slander laws in the United States until well into the twentieth century. While these laws varied from state to state, they generally provided that a libel or slander plaintiff needed to prove four elements to prevail: (1) that the defendant made a statement of fact to one or more other persons; (2) that the statement was about the plaintiff; (3) that the statement was defamatory; and (4) that the statement injured the plaintiff ’s reputation. In most states, the law presumed the defamatory statement to be false but allowed the defendant to defeat the claim by proving the statement true. Under the common law, it also usually was irrelevant whether the defendant was careful, negligent, or reckless in making the statement.

Until 1964, courts included libel and slander in the types of speech that were not protected by the First Amendment. In Chaplinsky v. New Hampshire (1942), the Court spoke of categories of speech “the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

In 1964, however, the Court in New York Times Co. v. Sullivan for the first time found a “Constitutional problem” in subjecting speech about public officials to common law defamation liability. In Sullivan, L. B. Sullivan, the commissioner in charge of the police department of Montgomery, Alabama, sued the Times over an advertisement decrying abuses suffered by southern black students during the civil rights movement. The ad contained several factual errors, particularly in describing events involving the Montgomery police department. No one at the newspaper, however, had attempted to verify the content of the ad.

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