Communication Torts

Communication Torts

Freedom of speech has been reduced to a tool, like the Roto-Rooter’s snake that periodically is plunged down the sewer line to ensure the free flow of commerce through the pipes.1



Private Facts

False Light



Practice Notes


As part of the discussion of the incitement standard in chapter 4 we introduced some concepts of basic tort law. Here we expand those concepts and explain the specific torts that are traditionally called communication torts. Defamation, private facts, false light, appropriation, and intrusion are often called the communication torts because they are the civil legal actions most often pursued by private citizens who feel they have been wronged by journalists, advertisers, public relations practitioners, and photographers. Defamation has a long history that has evolved from English common law. Private facts, false light, appropriation, and intrusion appeared as causes of actions for the first time in the late 19th century and are often referred to as modern communication torts.2 Of course, what is “modern” is relative. Both case law and statutes describing the modern communication torts have been evolving for more than 100 years. Defamation law is the amalgamation of centuries of common law, U.S. Constitutional interpretation, and individual state laws. It is, therefore, extraordinarily complex. Some legal scholars argue that defamation is virtually useless as a means of protecting private citizens who are wronged by sloppy or dishonest media coverage.3 These same scholars often argue defamation is less important than privacy because defamation laws only protect individual citizens, whereas privacy laws protect the entire society against intrusions by government and media.4 Despite these arguments, we begin with an explanation of defamation because we believe understanding the basic concept of defamation provides a good foundation for an explanation of more modern communication torts.

The basic concept of defamation is simple and easy to understand, and basic understanding is all that is required for an honest and careful communications practitioner to protect him or herself. We begin with a very basic introduction to defamation, move to more complicated components, and then to modern communication torts. We conclude with two practice notes, the first of which addresses the misperception that opinion is a defense to defamation and other communication torts. The second practice note explains how employee communication may be a defense to communication torts for public relations practitioners.


Defamation is a combination of the two even older torts of libel and slander. Slander is the use of the spoken word to injure the reputation of another person or to expose the person to public contempt or disgrace. Libel is the use of written communication to cause the same kinds of harm to another person. Historically, the distinction between libel and slander was significant. In the societies where these common law actions evolved, most people could not write, so written words seemed more powerful or more truthful and were therefore more likely than speech to cause harm. Prior to the advent of devices for recording speech, the spoken word was ephemeral and usually spoken insults or lies did not have the same potential for harm as did written language. With modern recording and broadcast media and the high rates of literacy in the United States, the distinction between libel and slander has become trivial. In nearly all circumstances, libel and slander are combined into a single action called defamation. With very few exceptions, we treat libel and slander under the single label of defamation.

One has committed the civil offense of defamation when he or she, with intent, communicates an untrue and defamatory statement about another and identifies the person or entity defamed. In many jurisdictions, there is also a criminal offense called defamation. Criminal defamation has the same elements as civil defamation but usually adds a requirement to show willful intent to harm and actual financial harm.

You may notice the tautology of using “makes a defamatory statement” as part of the definition of defamation. This confusion arises because defamation was an element of both libel and slander, and defamation is also the term adopted by most jurisdictions to describe the combination of libel and slander.

The order in which the elements of defamation are presented in Exhibit 9.1 is unusual, but we find this structure useful, because it permits the statement of the elements in a single sentence most students find easier to remember than a list of otherwise unrelated words. It may help to think of defamation as:

Exhibit 9.1.  Elements of defamation (the plaintiff must prove all six to win an action for defamation).

Element 1

Untrue statement

Element 2

About the plaintiff

Element 3

That defames the plaintiff

Element 4

Communicated or published

Element 5

By the defendant

Element 6

With intent by the defendant

An untrue statement, about the plaintiff that defames the plaintiff’, and is communicated to a third party by the defendant with intent by the defendant.

Untrue Statement

Some careful legal scholars may question the inclusion of falsehood or “untrue statement” as an element of defamation. We acknowledge that historically falsehood was not an element of defamation. Under common law, the plaintiff was not required to prove the statements made about him or her were not true. Rather, truth was what is called an affirmative defense and it could be raised by the defendant. For example, under traditional common law, if a newspaper ran an article saying the local mayor was corrupt, the mayor could sue for defamation. The newspaper could defend against the action by the mayor by proving the statement was true. In effect, the newspaper, which is the defendant in this example, would have to prove the mayor really was corrupt. This affirmative defense differs from an element because the defendant must initially raise the question of truth and the defendant must prove the statement is true.5

Falsehood as an Element

Initially the U.S. Supreme Court began to impose the burden of proving falsehood only on plaintiffs who were public figures.6 The Supreme Court also applied this burden on private citizens in 1986. In its decision in Philadelphia Newspapers, Inc. v. Hepps,7 the Court addressed an allegation of defamation by the owner of a convenience store chain. The story alleged the storeowners used ties to crime syndicates to influence the state’s laws. The trial judge instructed the jury the plaintiffs had to prove the statements made against them were not true and the jury returned a verdict for the defendant newspaper. This verdict was, at least in part, the result of the plaintiff’s inability to prove it actually did not have ties to organized crime. The Pennsylvania Supreme Court reversed and remanded the case saying the defendants had to prove the statements were true. The Pennsylvania Supreme Court was using the traditional affirmative defense logic. In effect, the court said falsehood is not an element of defamation, but rather that truth is a defense the defendant must prove. The case was then appealed to the U.S. Supreme Court, which agreed with the trial court and not with the Pennsylvania Supreme Court.8 In Hepps, the U.S. Supreme Court did not entirely overturn the notion of affirmative defense, but did leave us with a rule that says if the plaintiff is a public figure or if the subject of the allegedly defamatory statement is a matter of “public concern,” then the plaintiff bears the burden of proving falsehood.9 The careful communications professional should note that the defendant still bears the burden of proving his or her statements are true where both the plaintiff is private figure and the subject matter is not a matter of public concern.10 We, therefore, think it reasonable to include “untrue statement” in the list of elements for defamation.

The definition of a public figure and the concept of matters of public interest also are essential to differentiating levels of intent. The terms public figure and matter of public interest are defined and discussed in the section on intent later in this chapter.

How Much “Truth” is Required?

In order to prove a statement is not true, it is not enough to show that there are minor inaccuracies. For example, slight variations in terminology or minor errors in quotations are not enough to make a statement false. As long as the gist or general meaning of the statement is accurate, it is legally “true.” An example of this principle of the “gist of the truth” can be seen in the case of Strada v. Connecticut Newspapers, Inc.11 During the reelection campaign of William Strada, a state senator, the defendant newspapers ran a story describing his relationship with criminals. The story specifically said Strada had taken trips with the criminals to Las Vegas and New Orleans. At trial, both parties agreed Strada had never taken the trips to Las Vegas or to New Orleans, but he had gone to Reno with an alleged criminal named DePoli. The court ruled that inaccurately stating the destination of the trip did not change the fact that the assertion was essentially true. They said, “The sting of this excerpt . . . does not arise from the trip location . . . but rather from the fact that the plaintiff had taken a trip in some way connected with DePoli.”12 As long as the component of the statement that caused the defamation or harm is accurate, the statement is “legally” true.

This same principle applies to minor modifications of quotes. Of course, the courts are not judging journalistic or agency/client ethics; they are only determining what is true for the purpose of defending against an allegation of defamation. For the purpose of defending against defamation, “[i]f an author alters a speaker’s words but effects no material change in meaning,” then the statement or quotation is still legally true.13

Communication professionals are not free to alter information in a way that gives a false impression. In fact, even if the statements made are technically true, they may be “legally” false if they lead a reasonable reader to an inaccurate conclusion. If accurate statements are made but details necessary to clarify or explain are omitted and the omissions create a false impression, the statement, as a whole, may be an “untrue statement” for the purposes of proving defamation.14

About the Plaintiff

Of course, for a plaintiff to sue for defamation, he or she must prove the untrue statement is actually about him or her. If the statement mentions the plaintiff by name or title, this element is easily met. If a newspaper article says, “the mayor of Smallville is corrupt,” the statement is about whomever holds the office of mayor at the time of publication. If the statement says, “John Doe is a thief’ and your name is John Doe, the article is about you unless there are so many people named John Doe that there might be some other conclusion. This element only becomes complicated when the allegedly defamatory statement is about a group of people.

A very general rule is that individual members of a small group may sue for defamation when the group is defamed, but individual members of a large group cannot. This leaves the question, how large is a large group? Very often the judge in such a case will simply ask the jury to decide if people reading or hearing the allegedly defamatory statement would think it is about the plaintiff. One case helps to make the point that members of fairly large groups may be individual plaintiffs when the group is defamed. An article in a 1958 issue of True magazine described the dangers of amphetamine use by college athletes. The article contained the allegation that the University of Oklahoma’s 1956 national championship football team took steroids by nasal inhalant and included the copy:

Evidence showed the inhalant used by the Oklahoma football players contained spirit of peppermint, not steroids. Spirit of peppermint was used to help fatigued players combat dry mouth and its use did not violate any law or athletic regulation.

Although there were more than 75 players on the football team, only one, a second-string fullback named Dennit Morris, sued the publisher for defamation. One issue addressed by the state Supreme Court was whether the statement was “about the plaintiff.” The court in that case ruled the group was small enough and Morris was so well associated with it that he would be recognized as a member of the group and would be harmed by the defamatory statement.16 The U.S. Supreme Court later denied certiorari, effectively leaving the state court ruling in place.

In 1952, Crown Publishers in New York offered a book for sale that was aggressively critical of Neiman-Marcus, a Texas department store. The Neiman-Marcus Corporation and three different groups of its employees sued the publisher for defamation. The three groups of employees were 9 models, 15 salesmen, and 33 saleswomen. The book alleged the models and saleswomen at the store were prostitutes and the salesmen were engaged in illegal homosexual activities. Much of the case turned on whether the groups of employees could be plaintiffs because none of them had been identified by name. The New York District Court that heard the case ruled the nine models could be plaintiffs because they were all the models at the store at the time of the publication. The court dismissed the suits by the salesmen and saleswomen because the store was so large the sales staff was constantly changing, and the salespeople had not shown they were employed at the time of the publication or the alleged defamation.17 In short, the plaintiff must be able to prove both that he or she is a recognized member of the group and that he or she was a member of the group at the time referred to in the defamatory statement.

One final problem for plaintiffs proving they have been identified is unique to government employees. In its decision in New York Times v. Sullivan,18 the U.S. Supreme Court ruled political or government officials do not have the same right to be protected from defamation as do private citizens. Some courts have expanded this ruling to say that when a government agency is criticized its individual members cannot sue for defamation. For example, in the Virginia case of Dean v. Dearing,19 the Virginia Supreme Court ruled an individual policeman could not sue for defamation for a statement saying his police department was corrupt, even though the department only had five to eight members. The logic for this exception for government officials or agents seems to be to protect the right to comment on and criticize the government.

Defames the Plaintiff

For the purpo se of decidin g whether To win an action in defamation, the plaintiff must show that he or she has been defamed. Remember this dual use of the word defame is a product of the merger of the actions of libel and slander and that defamation can mean both the legal action resulting from the merger of libel and slander and the specific element of harm that is required in such actions. In the context of the required element of harm, to be defamed means to be injured by a communication that damages reputation or social standing. Such communication may cause other people to ostracize the plaintiff or it might cause potential customers, clients, or patients to withhold their business. Furthermore, the harm of the communication can vary with the context. For example, if a plumber was called an incompetent writer that is probably not defamatory. We do not expect plumbers to write well, so being called an incompetent writer would not damage the professional reputation of a plumber. If the same communication was uttered referring to a journalist or public relations practitioner, it could be defamatory because being thought of as an incompetent writer would harm the professional reputation of the professional communicator. Some statements would damage the reputation of any citizen. For example, being called a cheat, thief, or murderer would defame almost anyone. What makes a communication defamatory is that someone hearing it would reasonably understand the reputation of the plaintiff has been damaged.

In all civil actions, the plaintiff must prove some kind of harm was done by the defendant. In most actions the harm must be financial. In other words, to win most civil suits the plaintiff must show he or she actually lost money or something of value in order to win. Defamation differs from most civil actions in that it may not be necessary to show actual financial harm. The harm may be assumed. The assumption of harm has evolved along with a complex set of terms and rules. Given how difficult it would be to prove the financial value of reputation or social standing, it is easy to see how different courts through time have found justification for assuming harm.

The rules for assumed harm vary from state to state, but there are some general principles that apply in most jurisdictions. These rules were evolving long before libel and slander were combined into defamation, so they still do vary depending on the medium of communication. If the communication is in a relatively permanent medium, like writing, it is treated as libel. If the communication is an ephemeral form like speech, it is treated like slander.

For the purpose of deciding whether or not to require some proof of harm, libel is divided into the categories of libel per se and libel per quod. Libel per se is a statement that “on its face” obviously harms the reputation of a subject. The statement “Student John Doe is a cheat” is an example of libel per se. Libel per quod only damages the subject’s reputation if other information is known. For example the statement “Student John Doe worked on his homework with Student Sally Smith” is only defamatory if the person reading the statement knows that students who work together are cheating. Libel per se is more direct, more likely to injure and, in most jurisdictions, can be prosecuted without any evidence of financial harm. In most jurisdictions, a plaintiff pursuing an action in libel per quod must show some measurable financial harm unless the allegation fits in a very narrow list of historic topics that included accusations of

  1. criminal conduct,
  2. moral turpitude,
  3. infection with a loathsome disease,
  4. professional incompetence, or
  5. unchastity of a woman.

In defamation actions that arise from a spoken communication, the rules in most jurisdictions require proof of some financial harm unless the communication made one of the very specific accusations just listed.

One way to determine whether or not the plaintiff must prove actual financial harm is to work through the requirements for proof of harm described in Exhibit 9.2. First, ask yourself, “Is the communication permanent or ephemeral?” If the communication is in writing or some other permanent medium, then ask if it is libel per se or libel per quod. If it is libel per se, there is no need to prove financial harm. If the statement is libel per quod it is treated the same as communications in ephemeral media like speech. Plaintiffs challenging statements that are either libel per quod or slander need not prove financial harm if those statements include one of the five specific allegations listed. If the statement is libel per quod or slander and does not include one of the five specific allegations then the plaintiff must prove financial harm.20

Exhibit 9.2.  Requirement for Proof of Harm in Defamation Actions.


Per Se: No need to prove actual damage


Per Quod: treated like slander


Statement involves: criminal conduct, moral turpitude, “loathsome disease,” misconduct in profession, or unchastity of a woman


Must prove actual damage

It may be helpful to remember these rules evolved in a society where women who were unchaste were unlikely to be able to marry and when marriage was thought of as the only appropriate social role for a woman. Also, “loathsome diseases” were sexually transmitted diseases and highly contagious diseases. Accusations involving such diseases were socially devastating when the technology to cure them did not exist.

One final note about harm is worth mentioning. Without a proof of financial harm a plaintiff may win a defamation lawsuit, but then he or she may receive only a token award from the court. In today’s litigious world, such an award means the plaintiff may not even recover her or his attorneys’ fees and court costs. In short, such actions are only worthwhile if the plaintiff can afford to lose money to repair his or her reputation.

Communicated or Published

No matter how vicious, untruthful, or hurtful a statement is, it cannot be defamation unless it is communicated to a third party. The logic behind this principle is that if a statement is only delivered to the person defamed, he or she will know the statement is not true and there will not be any harm to his or her reputation. Communication to a third party may take the form of publication, broadcast, or simply a loud voice. The element of “communication or publication” is met if the defamatory statement is delivered by the defendant to anyone other than the plaintiff him or herself. For example, a college professor could privately accuse a student of cheating. Even if untrue and very hurtful, this accusation is not defamation if it is delivered privately to the student. The same statement or accusation delivered in front of a class full of students has been communicated and would meet this one element of defamation. The communication has to be made by the defendant. If the student accused of cheating tells his or her fellow students about the accusation, this is not communication because the defendant professor did not do it. The defendant must intend to communicate the defamatory statement. If, for example, the professor sent an e-mail to the student and the student’s roommate intercepted the message and read the accusation, the defamatory statement probably has not been communicated because the professor did not intend to deliver it to anyone other than the student involved.

The intent to communicate does not require the defendant to communicate the message deliberately to a third party. The intent requirement can be met if there is a reckless lack of care by the defendant. Extending the example of the professor accusing the student of cheating, if the professor makes the accusation in a very loud voice that is overheard by other students or faculty, the professor has communicated the accusation because of his or her recklessness.

Where there is foreseeable repetition of a message there is communication. Those in the professions of journalism, public relations, advertising, and photography should foresee that their written and graphic work will be shown to others. For legal purposes, almost everything those in these professions say and do is communicated. Thus, they should anticipate that even internal memoranda, draft articles, campaign proposals, or story boards will be circulated and therefore meet the legal definition of communication.

Generally speaking, reporting or repeating a statement that has already been made public does not constitute a new communication.21 This principle is often called republication and its application to communications professionals is discussed in greater detail under defenses later in this chapter. For now, note that to avoid communicating defamatory information, communication professionals should avoid repeating statements that appear false.

One final issue about communication should be discussed. If a publisher produces a book, magazine, or newspaper in one state and then distributes the same material either in another state or in another medium of communication, is the distribution in a second state a new communication or simply a continuation of the original communication? This question becomes important where the victim of defamation wants to either pick a friendly state in which to sue or wants to sue several times in the hopes of receiving a larger judgment. Most states have adopted the “single publication rule.” This rule means each repetition or redistribution of a statement is not a new communication or a new act of defamation. However, there are exceptions to this rule. For example, in its decision in Keeton v. Hustler Magazine the U.S. Supreme Court allowed a New York resident to sue Hustler Magazine in New Hampshire. Hustler’s corporate headquarters are in Ohio and the first “communication” of the allegedly defamatory statement was made in Ohio. The plaintiff chose to sue in New Hampshire because that state has particularly “plaintiff-friendly” defamation laws. In their decision, the justices reasoned that Hustler deliberately took advantage of the economy of New Hampshire and therefore made a “communication” in New Hampshire that was subject to the suit.22 The Florida Supreme Court also ruled that where a newspaper is distributed in multiple counties within the state a plaintiff may initiate a defamation action in any county where an allegedly defamatory statement is communicated.23 In both of these cases, the courts ruled that the plaintiff can only sue for one communication of the alleged defamatory statement but did rule the plaintiff could choose a friendly venue where the communication was disseminated.

By the Defendant

The requirement to prove the defendant made the allegedly defamatory statement is the simplest of the elements of defamation. In very rare circumstances, a professional communicator may find his or her work has been modified by an editor or publisher. These modifications can raise questions about who actually made the challenged statement. However, virtually all defamation cases bring a claim against the publication or broadcaster of the statement. We discuss the concept of respondeat superior in more detail in the chapter on employment law. For now, we simply say, if you are the publisher, managing editor, or chief executive of any medium of communication and the medium contains a defamatory statement, you are probably responsible.

It should also be noted that republication or repeating a defamatory statement could create a new liability. In other words, if a reporter, or other communications practitioner, quotes a defamatory statement made by another person, the communications professional may be liable for making the statement if he or she intended to cause harm or had reason to know the statement was not true. This principle of republication is addressed in more detail in the section on defenses to defamation.

With Intent

To a lawyer, intent does not mean the same thing that it does to most laymen, so we begin this section by explaining the legal concept of intent. At law, intent simply means having the appropriate state of mind. For example, if you are driving and are hit by another car you may be able to sue the driver of the other car and force him or her to pay for the damage to your car. Such suits require that you prove an intent on the part of the other driver. In most jurisdictions, the intent you have to prove is called negligence. You do not have to prove the other driver actually intended to hit your car; you only have to prove that he or she was negligent. Negligent means not being as careful as you should be. For cases in defamation, each state has created its own standard for intent. Some states require only a showing of negligence and require no proof of intent at all. Those states that require no proof of intent presume if the statement is defamatory and untrue, the “intent” element has been met.

In 1964, the U.S. Supreme Court began to standardize the requirement for intent in its decision in New York Times v. Sullivan.24 Although the Sullivan decision did create a national standard for intent, it certainly did not simplify the standard.

The Sullivan case arose at the height of the U.S. Civil Rights Movement. The facts of the case involve a full-page advertorial run by a civil rights group in The New York Times. Part of the advertorial described police reaction to a peaceful civil rights demonstration at Alabama State University in Montgomery. It said, “truckloads of police armed with shotguns and teargas” surrounded peaceful demonstrators and the authorities padlocked the university dining hall in an attempt to starve the protestors into submission. Some of the statements in the advertorial were not true; for example, the university dining hall had never been padlocked. L.B. Sullivan, the police commissioner of Montgomery at the time of the advertorial, sued The New York Times for defamation. Under Alabama law, at the time, Sullivan did not have to prove any intent on the part of The New York Times. The trial courts in Alabama returned judgment for Sullivan and awarded him $500,000. The U.S. Supreme Court granted certiorari and in its decision said the Alabama law violated the U.S. Constitution because it failed to protect free speech and a free press. Specifically, the Supreme Court said there was a constitutional obligation to protect the right to criticize public officials.25

In the decision in New York Times v. Sullivan, Justice Brennan created what is called the “malice rule.” The rule is summarized in Exhibit 9.3. It prohibits a public official from collecting any damage in a defamation action arising from a statement about his or her official conduct unless the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”26

Exhibit 9.3.  Malice Rule.

Plaintiff Type

Plaintiff Defined

“Standard of Intent”

Public official

Elected or appointed government official with apparent authority or who is subject to independent public interest

Malice: Defendant knew the statement was not true or recklessly disregarded whether it was true or false

Public figure

Person who voluntarily puts him or herself in the public interest

Private person

Person who is involuntarily involved in a matter of interest or who is not involved in a public matter at all

States set their own standard

The Supreme Court’s decisions in Curtis Publishing Co. v. Butts and Associated Press v. Walker expanded the malice rule to cover public figures as well as public officials.27 This expansion of the malice rule was clarified by the Supreme Court in Gertz v. Robert Welch, Inc.28 Gertz was a lawyer who represented the family of a juvenile who had been shot by a Chicago policeman. Welsh was the publisher of the John Birch Society newsletter who wrote a very colorful article accusing Gertz of being a communist and the head of a criminal conspiracy against the police. In its decision, the U.S. Supreme Court ruled private citizens who do not voluntarily involve themselves in matters of public interest are not required to prove malice in order to win defamation lawsuits. The Court left the standard of “intent” in these cases entirely in the hands of the states. The decision in Gertz v. Welch did include one other ruling. The Court there said that plaintiffs may not receive punitive or presumed damages unless there is proof of malice. In other words, if there is no proof of malice, the plaintiff can only recover the value of what he or she actually lost because of the defamation.29

Who is a Public Official or Public Figure?

Obviously, high-ranking government officials are public officials, but there are questions about how far down the “chain of command” one may be before he or she is no longer a “public official.” For example, should a file clerk in a government office be given the same protections against acts of defamation as the president of the United States? In its decision in Rosenblatt v. Baer, the U.S. Supreme Court answered that question. The Court ruled a public official is a person who has or appears to have “substantial responsibility for or control over the conduct of public affairs,”30 or “[such] importance that the public has an independent interest in the qualifications and performance of the person.”31 The first of these tests is often called the “apparent government authority test” and the second is the “independent public interest test.”

Defining public figures has proven somewhat more difficult, but generally a public figure is a person who voluntarily puts him or herself in a position that meets the independent public interest test. For example, in its decision in Curtis Publishing v. Butts,32 the Supreme Court ruled a major college football coach had voluntarily accepted a position that created public interest in his qualifications and performance. In the Associated Press v. Walker decision, the Supreme Court ruled a person who became an active and public opponent of school desegregation had voluntarily put himself in the public interest.33 In Gertz v. Welch, the Court further noted that public figures give up their right to status as a private person only in the context of the public matter in which they are voluntarily involved.34 Gertz was an attorney and in the courtroom he was a public figure. However, Welch made untrue statements about things outside the courtroom, including Gertz’ politics and private beliefs. The Court ruled the entire life of a public figure is not open to comment or criticism. The requirement to prove malice only applies to statements made about the specific matters in which the public figure volunteered to involve him or herself.

Finally, we should emphasize the fact that a person must have volunteered to become a public figure. He or she must have accepted a job or taken an action that drew the public’s attention. The Supreme Court has ruled that people who are forced into the public eye by news coverage are not public figures.35 Even people who hire public relations counsel to respond to the false allegations against them are not public figures.36

Defenses and Immunities

One may defend against any legal action, including defamation, by showing the plaintiff failed to prove one of the required elements. In addition to this defense there are affirmative defenses and immunities. Affirmative defenses and immunities can be used to avoid judgment even if the plaintiff does prove all elements of defamation. Remember, for example, that falsehood may be an element or truth may be an affirmative defense, depending on the circumstances and jurisdiction of a trial for defamation.

The words privilege and immunity are often confused or used interchangeably by those not being careful about the distinction. Often, affirmative defenses to defamation are described using the words privilege and absolute privilege when the appropriate term is immunity.37 This confusion may arise from the wording of Article I, Section 6 of the U.S. Constitution which says, in part: “Senators and Representatives shall . . . be privileged from arrest during their attendance at the session of their respective houses.” This phrase is the basis for one of the immunities from prosecution for defamation. Here, we are careful to use the words as they are most commonly defined in contemporary law.

Absolute Immunity

An absolute immunity from prosecution for defamation arises from Article I, Section 6 of the U.S. Constitution. This Constitutional provision has been interpreted to guarantee legislators freedom from prosecution for anything said in Congressional debates. This protection is given to legislators to ensure they are completely free to present all arguments for and against proposals. The immunity has been extended to judges and judicial proceedings38 and to the executive and administrative branches of government.39 Because of this immunity, a person who is subjected to even the most egregious insults cannot sue most government officials for defamation. This protection extends to legislators, mayors, judges, and even heads of government agencies.

While the protection is very broad, it does not protect these government officials everywhere. The immunity is only available for statements made in the context of official duties. The U.S. Supreme Court made this limitation very clear in its 1979 decision in Hutchinson v. Proxmire.40 The defendant in the case was then Senator William Proxmire. The senator publicly ridiculed wasteful government spending by presenting what he called the “Golden Fleece” award. One of his Golden Fleece awards was given to Dr. Ronald Hutchinson, the director of research at a mental hospital. Hutchinson had received a government grant to study aggression in primates. In a speech on the Senate floor, in a news release, and in a newsletter he mailed to constituents, Proxmire referred to Hutchinson’s studies with phrases like “monkey business” and “transparent worthlessness.” In short, Proxmire’s statements were unquestionably defamation of a professional research scholar like Hutchinson. Hutchinson sued Proxmire for defamation. The suit was dismissed by the trial court and the Court of Appeals also ruled for Proxmire. The logic for granting the judgments against Hutchinson was that Proxmire’s statements were immune from prosecution because they were made in his capacity as a senator. The U.S. Supreme Court reversed, saying:

A speech by Proxmire in the Senate would be wholly immune and would be available to other Members of Congress and to the public in the Congressional Record. But neither the newsletters nor the press release was ‘essential to the deliberations of the Senate’ and neither was part of the deliberative process.41

This holding has been applied to all immunity for government officials. Statements made by officials as part of their official duties or statements that are necessary for debate and deliberation in a government function are immune from suit for defamation. However, government officials acting beyond the scope of their official duties are not immune from suit for defamation.

Qualified Immunity

Several categories of communication have immunity from prosecution for defamation unless the defendant acts with malice. For example, communications between employers and employees, letters of reference, and statements in police reports cannot be the basis for suits in defamation unless the person making the statements did so for the purpose of harming the plaintiff.42

The courts have extended qualified immunity to the news media because of the interest in public oversight of government and large private organizations. To enjoy immunity, a reporter must be describing some public activity of a government official or public figure. Many jurisdictions do not grant immunity to reports of allegations contained in court documents before those documents are brought before a judge. Information in complaints, affidavits, and other pretrial documents therefore do not enjoy qualified immunity.43 Also, there is no immunity to report the statements of government or corporate executives until after the executive takes some public action.44

To have qualified immunity, statements reported must be public and must be accurately reported. Therefore, statements made in private meetings or closed hearings cannot be reported with immunity. Also, errors in quotations or even omissions of critical information can void the qualified immunity if the error or omission creates a false impression. It is not necessary to provide verbatim quotes, but a reporter must be careful not to change the meaning of the quotes or to put the report in a context that will create a false impression.45

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