History of Defamation Law

Defamation occurs when an individual or company makes a false statement about a person to a third party or parties that injures the reputation of that person. Defamatory statements can be oral or written. Defamatory statements that are written are referred to as libel. Oral defamatory statements are called slander. The advent of the internet has spawned a new type of defamation as well: cybersmearing. While historically there was a difference between libel and slander, Illinois and many other states have long since done away with any distinction between the two and refer to both simply as defamation. In general, defamation is a tort that provides for civil damages, though some states do have criminal defamation statutes.

For the early part of America’s history, federal and state governments often used defamation laws to repress critical speech. Only seven years after the First Amendment was ratified, Congress passed the Sedition Act of 1798, which criminalized any speech deemed "false, scandalous, or malicious" concerning the president, Congress, or the federal government. The Sedition Act was used to imprison and convict a number of Americans including a Congressman who was convicted and imprisoned for calling President John Adams a man with "a continual grasp for power." Less than two decades later, Congress passed additional laws aimed at controlling speech and silencing critics. Among these laws were the Espionage Act of 1917 and a later amendment, the Sedition Act of 1918. Many states followed the federal government’s example and passed their own state law versions of the Espionage and Sedition Acts to criminalize speech at the state level.

The Supreme Court did little to stop these attempts to quell criticism at the federal or state level, often barely taking even mentioning the First Amendment in libel or slander cases. Until the latter half of the twentieth century, plaintiffs in defamation cases held a definitive advantage. Many states presumed the falsity of a defendant’s statement, placing the burden of proof entirely on the defamation defendant to prove the truth of the allegedly libelous statement. 

A shift in the Supreme Court’s view of defamation and its relationship to the First Amendment began with the Supreme Court’s 1964 decision in New York Times Co. v. Sullivan. The Sullivan case arose in the midst of the civil rights movement. In 1960, the New York Times published an editorial advertisement accusing the Montgomery, Alabama police department of several atrocities against African Americans. The city commissioner, L.B. Sullivan, filed a libel suit against the New York Times for several factual inaccuracies in the advertisement. A jury awarded Sullivan $500,000. The New York Times appealed the verdict all the way to the Supreme Court.

In its opinion, the Supreme Court reversed the jury verdict finding that “the 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.” While acknowledging the factual inaccuracies in the advertisement, the court reasoned that “erroneous statement is inevitable in free debate” and permitting critics of public officials to be held liable for any and all factual errors could silence speech on matters of public interest. To combat this, the court established the actual malice requirement—a requirement that still pervades slander law to this day. A few years later, the Supreme Court expanded this rule in the case of Curtis Publishing Co. v. Butts.

These landmark cases clarified that the First Amendment is squarely implicated in cases involving accusations of libel, slander and defamation. Additionally, they led to the development of many of the slander defenses that protect defamation defendants to this day. Chief among these defenses is that of non-actionable opinion, which provides that the First Amendment protects statements of pure opinion from liability. Another defense is the substantial truth defense, which provides that a statement is not considered defamatory if the “gist” or “sting” of the statement is true even if it contains minor factual inaccuracies. Another is the defense of innocent construction, a defense applicable only in libel per se cases and which provides that a statement that is capable of a reasonable non-defamatory construction will not be considered defamatory. Click here to read about our successful defense of a client based on the innocent construction defense.

First Amendment jurisprudence has evolved a great deal since Sullivan and continues to do so to this day. Accordingly, it always advisable to seek the services of an experienced defamation, libel and cybersmear attorney with an in-depth knowledge of First Amendment law and recent advancements in the law.

The attorneys at Lubin Austermuehle have over thirty years of experience defending and prosecuting defamation, slander, libel and cyber-smear lawsuits. We are knowledgeable regarding the changes and complexities of this evolving area of the law. We are committed to fighting for our clients' rights in the courtroom and at the negotiating table. Conveniently located in Chicago and Elmhurst, Illinois, we have successfully litigated defamation, trade libel, internet defamation, and cyber smear cases for clients all over the Chicago area. To schedule a consultation with one of our skilled attorneys, you can contact us online or give us a call on our toll-free number at 630-333-0333.