Define Maliciousness

Defamation is directly linked to one's reputation. The act of defamation is any form of communicating false statements about a person, place, or entity that causes damage to the reputation. There are two forms of defamation. The spoken word is called slander, and the written word is called libel. Either is considered a civil wrong or tort. State laws concerning defamation vary widely. That's why if you intend to pursue a case for defamation, it's crucial to work with a lawyer with experience in this law area within your state.
 
Morgan and Morgan have offices across the country with dedicated lawyers well-versed in the nuance and complexity of defamation cases, including if the defamation is criminal in nature and the possible defenses the offending party may use.

Throughout history, civilized society has concluded that defamation is unacceptable. Punishment has ranged from cutting out the tongue of the offender to imprisonment and, in modern times, to financial liability for any damage caused. However, there is a distinct difference between articulating an opinion and defamation under the law.

For example, if someone states, "I think Luis spends too much time thinking about himself," that is their opinion. There is no way to prove demonstrably whether that is a false statement in regard to how Luis thinks, feels, and acts. However, if the same person says, "I think Luis stole company funds earmarked for charity," that is still an opinion but infers that Luis committed a crime. If the statement is untrue, it could amount to defamation. For this reason, the news media wisely reports on "alleged" crimes. Even when reporting on a convicted murderer, they'll refer to the individual as a "convicted murderer," not a "murderer."

Still, to meet the requirements of defamation, the person making statements about our imaginary Luis being a thief would have needed to know that the statement was untrue or have made the statement with reckless disregard for the truth. Reckless disregard for the truth means the person was either highly aware of the likelihood that the statement was without merit or had serious doubts about the legitimacy of the source where they learned the information yet made the statement as if it were fact anyway.  

However, there is a clear difference in how the law handles defamation, depending on whether you're a public figure or a private citizen. If a private citizen is defamed, the offending party may be held financially accountable for any losses incurred if they made a defamatory statement with negligence. In this instance, negligence means the person making the statement should have reasonably known it was false or at least questioned it before expressing themselves. It is far easier for a private citizen to satisfy the requirements of a defamation lawsuit compared to a public figure.

For public figures to be successful in a defamation lawsuit, they must prove the statement was defamatory and that it was made with actual malice (or an intention to inflict harm.) The requirement for the element of malice makes it exceedingly difficult for public figures to win a defamation lawsuit. This means that when they are successful, the evidence must have substantially proven the malicious state of mind of the offender.  

While illustrating the mind of a person that defames another may seem impossible, the courts may allow other supporting facts to demonstrate malice, such as a preexisting condition between the two parties that would naturally cause the desire for revenge or other acts or statements by the defaming party that shows a desire to injure the plaintiff.

Still, the defendant can counter these arguments and show an absence of malice. For example, if they had an honest belief in the validity of their statements because it was based on information from an unimpeachable and trustworthy source. Another defense is that they made the statements with an honest motive to protect the public from the fraudulent character of the plaintiff.

However, the courts recognize that a false statement made against the reputation of another still has the power to harm, even without the motive behind it being bad blood. Still, if the defendant knew the statement was false when it was made, the reasons were unjustified, or they were indifferent to the effects and refused to make a retraction, these actions together can infer malice.

A public figure is generally someone well-known in many households. For example, Shaquille O'Neil, Stephen King, Bill Burr, and Tina Fey are all public figures you've likely heard about. These individuals are famous through ambition and choice. Still, regular people can become public figures overnight if something happens that pushes them into the spotlight. In the case of involuntarily famous people, some courts have made the distinction between the two. Thus, those defamed while involuntarily prominent usually have a better chance for safeguards against defamation and collecting compensation when it occurs.

The courts protect intentional public figures to a lesser degree because they actively seek out the limelight and, thus, must deal with both positive and negative attention. Furthermore, famous people have far more access to the media than regular people, so they can use that power to invalidate any negative statements without aid from the court system.

Generally, we see this play out in the media all the time. A salacious accusation against a famous personality goes public, then the celebrity makes the rounds in the media, giving their version of the story, or they deny the statement in its entirety. However, suppose the statement was true, and the person claiming it was a lie goes on to call their accuser a liar publicly. In that case, they, themselves, might be looking at a lawsuit.

The most robust defense against defamation is the truth. In fact, courts recognize that truth is an absolute defense against defamation. That means that however harmful, derogatory, or cruel, if a person speaks the truth, they cannot be liable for defamation because, by definition, truth is not defamatory. Only false statements presented as fact are defamatory.

For example, imagine a scenario where a preacher is having an affair with a married congregation member. That Sunday, the preacher's sermon is on the topic of the Ten Commandments, and he's pounding the pulpit, going on about how adultery is a sin. The spouse of the preacher's affair partner stands up in church and accuses him of being an adulterer and fraud because they have evidence of the affair. In this scenario, the preacher would probably not be able to win a defamation lawsuit against the accuser because the accuser spoke the truth, even though it likely means the end of the preacher's career and loss of respect in the community.

Nonetheless, opinions, for the most part, are protected under free speech. You can state an opinion about someone without it adding up to the defamation standards in many instances, but not all.

Still, some statements made in the spirit of satire or sarcasm could end up causing someone serious embarrassment. In these cases, a jury may be asked whether a reasonable person might think the statement is true. Otherwise, comedians, late-night talk show hosts, and other jokesters that fixate on humor, hyperbole, and jesting wouldn't be able to operate.

Here is an illustration. Sasha Baron Cohen is a comedian who is famous for impersonating fictional characters of his own device. A failed Senate candidate sued Cohen for $95 million after he was tricked into giving an interview where the actor pretended he had a technology that could detect sexual misconduct. Not only had the politician signed a waiver barring him from any legal claims connected to his appearance, but multiple judges found the stunt was clearly meant as comedy, meaning no reasonable person would assume Cohen was factually asserting the politician was a sexual offender, and the case was dismissed.

Finally, some statements are privileged, even if they are defamatory. Generally, any statement made by witnesses, attorneys, and judges during judicial proceedings is protected. Likewise, some government agents, legislators, and even private citizens are immune as long as the statement is made while operating in an official capacity or during legislative proceedings.  

At Morgan and Morgan, we understand defamation without legitimacy can have a devastating impact on people, businesses, and other entities. However, to have a winning defamation lawsuit, you generally have to be able to demonstrate injury. You have to show that you were exposed to ridicule, hatred, contempt, or disgrace by either written or spoken word and that this exposure damaged your reputation. A damaged reputation can often lead to loss of business, and friends and associates may shun you. You may even worry about your safety if you're accused of something heinous. While reputational damage can result in lost business, the stress caused can also lead to health issues or emotional harm. Here are the damages that a jury might consider in a defamation lawsuit:

• Damage to your reputation
• Distinct economic damages, such as loss of employment, clients, promotions, and security, or medical expenses
• Punitive damages if the defendant's actions were malicious, fraudulent, or oppressive

Demonstrating the loss of a specific dollar amount is not always required to win a defamation lawsuit. Still, it's advisable to calculate the damages to get the maximum possible. Otherwise, an award would be the jury's best guess. That's why working with a lawyer with knowledge and experience in such cases is crucial. Morgan and Morgan Law Firm have dedicated defamation lawyers ready to fight for you who will take the time to assess and calculate a fair value for your case.

If you're unsure how to define maliciousness related to your defamation lawsuit, we're here to guide you. For more than 35 years, Morgan and Morgan have worked to protect victims' rights when they need it most. Defamation lawsuits are notoriously hard to win because of the complexities and varying laws across the nation. However, with the right lawyer empowered with the resources of one of the country's largest law firms, your chances of success are substantially increased.

Contact us today for a free and confidential case evaluation.