Defamation has been difficult to prove in the United States, in part because of the need to establish malice ”“ a precedent set in the 1964 case Sullivan versus The New York Times Co. But with journalist E. Jean Carroll”™s $5 million May 9 victory over former President Donald J. Trump in a defamation/sexual assault suit and Dominion Voting Systems”™ April 18 settlement with Fox News Network for $787.5 million over false claims that Dominion committed fraud in the 2020 presidential election, it would appear that defamation just got somewhat easier to prove legally. That possibility will be further tested as Fox faces another defamation suit from a voting technology company, the privately owned, multinational Smartmatic, for $2.7 billion ($1.1 billion more than the Dominion suit).
Meanwhile, Dominion ”“ which is owned by founding CEO John Poulos, Staple Street Capital, a private equity firm in Manhattan; and PennantPark Investment, a financial firm in Miami ”“ is not done, suing Trump lawyers Rudolph Giuliani, the former mayor of New York City, and Sidney Powell for allegedly spreading the lie that Dominion rigged voting machines as part of a conspiracy to rob Trump of the 2020 presidential election.
As for Carroll, she is considering whether to file a new defamation suit against Trump for comments he made in a May 10 town hall on CNN. There he doubled down on the defamatory remarks for which he had just been found liable. (An earlier defamation suit filed by Carroll against Trump is still pending. In that case, Trump has said he cannot be held liable for remarks he made in his official capacity as president.)
So the time is ripe to consider the legal complexities of defamation.
What is defamation?
Legally speaking, defamation is a broad term that refers to any false information that harms the reputation of a person, business or organization. In the Dominion and Smartmatic lawsuits, they have accused Fox of spreading false information injurious to their companies”™ reputations. Hence defamation.
Underneath the umbrella of defamation are two terms frequently misunderstood and confused ”“ libel and slander. Libel is a form of defamation that refers to statements that are published or broadcast, whereas slander is defamatory statements that are not published”¯”“”¯more along the lines of being said in conversation. Since the Dominion and Smartmatic cases regard statements broadcast on national TV, they are considered libel suits.
Proving defamation
The way the legal system is set up for lawsuits about defamation, the burden of proof lies with the plaintiff. As such, the party accusing another of defamation must show that the alleged defamatory statement meets certain criteria:
- For libel cases, the first thing a plaintiff must prove is that the statement was published or broadcast. Generally, this is one of the easiest things to prove in a lawsuit, because the plaintiff can just submit the link to where it was published online, a physical copy if it were published in print, or video or audio files if it were broadcast.
- Second, the statement must identify the plaintiff directly by name. A vague description of the plaintiff is not enough to constitute defamation, (although actor Johnny Depp successfully sued his former wife, Amber Heard, for libel over a 2018 Washington Post op-ed in which she described herself as a “public figure representing domestic abuse,” without ever naming him. In that case, it was assumed everyone knew whom she was talking about). But that is an exception to the rule: The defamatory statement either does or does not mention the plaintiff”™s name.
- Where it becomes tricky is proving harm to a plaintiff”™s reputation. Sometimes, it”™s obvious what constitutes defamation, because the words are so clearly harmful on their face. Other times, it is important to consider the statement within context to determine whether the plaintiff”™s reputation has been harmed.
- The lines also become blurred regarding proof that the defamatory statement is a “false statement of fact.” Statements that can be proven true or false statements of opinion are not considered defamatory. Sometimes, it can be difficult to distinguish between what is an opinion and what is being stated as fact. (In the Dominion versus Fox case, Fox tried in vain to suggest it was just reporting opinion.)
- However, perhaps the most difficult thing to prove in a defamation case is the degree of fault. Ultimately, there are two different standards of fault, based on the profile of the plaintiff. A public official or figure will have to go much further and prove actual malice whereas a private individual or company typically must only prove negligence. (The greater burden of proof for a public figure was established in the Sullivan versus The New York Times case, in which the United States Supreme Court ruled in favor of The Times in a unanimous decision that rested on the First Amendment protection of free speech and the need for a public figure to prove “actual malice” ”“ that what was said or written about him/her was done so “with knowledge that it was false or with reckless disregard for the truth.”
The difficulties of defamation lawsuits
This malice standard is a large part of what makes the legal system so complicated in defamation cases. It”™s much easier to prove simple negligence in defamation cases for plaintiffs who are not public figures.
Given Carroll”™s prominence as a onetime columnist for Elle magazine and Dominion”™s role as a manufacturer of voting machines, both were considered public figures facing uphill battles in proving defamation. What the Carroll victory and the whopping Dominion-Fox settlement, one of the largest in history, show, experts have said, is that even in the digital age of instant opinion-making, often put forth by celebrities, no one is above the law when it comes to being held accountable for making false, scurrilous claims against others.
Omar Ochoa is the founding attorney of the Texas-based Omar Ochoa Law Firm. He holds degrees in business administration, accounting and economics from the University of Texas at Austin as well as a degree from the University of Texas School of Law there. As a trial lawyer, he has handled a variety of state and federal cases involving antitrust, class actions, insurance matters, securities, oil and gas, trade secrets, construction law, environmental law, qui tam (in which a whistleblower brings a suit on behalf of the U.S. government), the Fair Credit Reporting Act, employment issues, private equity transactions and breaches of contract.
