Libel or Slander: Libel is written, slander is oral.

Historically, defamation consisted of slander and libel. Slander is defamation by speaking, and libel is defamation by means of writing. After the invention of the printing press, the permanence of the written word meant that libel caused far more damage than slander. Slander, however, had a big impact in pre-literate communities where the spoken word was the primary way information was exchanged.

In modern times, the legal distinction between libel and slander has been narrowed. Most modern defamation cases involve libel, and modern writers have come to use the term "defamation" to describe both libel and slander.

Defamation consists of the following:

(1) a defamatory statement;

(2) published to third parties; and

(3) which the speaker or publisher knew or should have known was false.

Each of these element has generated controversy. We shall examine them in turn:

A. A Defamatory Communication

What is a "defamatory" statement?

1. A statement which causes harm to reputation.

A statement is defamatory if it "tends to injure the plaintiff's reputation and expose the plaintiff to public hatred, contempt, ridicule, or degradation." Phipps v. Clark Oil & Ref. Corp., 408 N.W.2d 569, 573 (Minn. 1987). When the defamatory meaning is not apparent on its face, the plaintiff has the burden of pleading and proving such extrinsic facts. Anderson v. Kammeier, 262 N.W.2d 366, 371 (Minn. 1977).

2. Defamation Per se

Some statements are so defamatory that they are considered defamation per se; and the plaintiff does not have to prove that the statements harmed his reputation. The classic examples of defamation per se are allegations of serious sexual misconduct; allegations of serious criminal misbehavior; or allegations that a person is afflicted with a loathsome disease. The historical examples of loathsome diseases are leprosy and venereal diseases. Allegations that a person is afflicted with AIDS may well constitute a modern variation on this form of defamation per se.

When a plaintiff is able to prove defamation per se, damages are presumed, but the presumption is rebuttable.

3. What Constitutes Injury to Reputation?

The plaintiff must establish proof of damage to reputation in order to recover any damages for mental anguish; see Gobin v. Globe Publishing Co., 232 Kan. 1, 649 P.2d 1239, 1244 (1982); Swanson v. American Hardware Mutual Ins. Co., 359 N.W.2d 705, 707 (Minn. App. 1984) (rev. denied) ("To establish a claim in a defamation action [plaintiff] must prove that the [defendant] made false and defamatory statements about them which injured their reputation.").

Evidence of plaintiff's poor reputation is generally admissible to mitigate damages. Davis v. Hamilton, 92 N.W. 512, 515 (Minn. 1902); Finklea v. Jacksonville Daily Progress, 742 S.W.2d 512, 517 (Tex. App. 1987). If an individual's reputation cannot be further damaged, a defamation suit serves no purpose, wastes judicial resources, and hinders First Amendment interests. Id.

The "libel-proof" plaintiff. A plaintiff is "libel-proof" when his reputation has been irreparably stained by prior publications. At the point the challenged statements are published, then, plaintiff's reputation is already so damaged that a plaintiff cannot recover more than nominal damages for subsequent defamatory statements. Marcone v. Penthouse Int'l Magazine for Men, 754 F.2d 1072, 1079 (3rd Cir. 1985).

However, a court will not dismiss a defamation action merely because the plaintiff already has a bad reputation. Schiavone Construction Co. v. Time, Inc., 646 F. Supp. 1511, 1516 (D.N.J. 1986), rev'd, 847 F.2d 1069, 1072-73 (3rd Cir. 1988). Finklea, 742 S.W.2d at 516 ("[E]ven the public outcast's remaining good reputation is entitled to protection.") Rather the statement upon which the defamation claim is based should relate to the same matters upon which the prior bad reputation was founded, or to substantially similar matters.

In extreme cases, a plaintiff's general reputation may be so bad that a court will hold a plaintiff libel-proof on all matters. For example, Charles Manson or Adolph Hitler could not be damaged by defamatory statements. Langston v. Eagle Publishing Co., 719 S.W.2d 612, 623 (Tex. App. 1986).

B. The Statement was published to third persons

Defamatory statements must be communicated to a third party. You cannot defame someone by speaking to them alone, or by muttering to yourself. This element of defamation is virtually always satisfied when claims are made against newspapers and broadcast media.

C. The defendant knew or should have known that the
communication was false

Defamation allows recovery for unfair damage to reputation. As a consequence, if true statements are made about a person which damage their reputation, they cannot maintain a lawsuit.

This is a relatively recent development. One origin of libel and slander laws was a criminal cause of action by the English Crown used to silence its critics; hence, it was the truth of the alleged libel which provoked the lawsuit. However, as the right of free speech developed and gained support, the use of defamation to suppress true statements was rejected. Virtually all states today apparently require that the alleged defamatory statement be false before a defamation action may proceed.

For example, the Minnesota Supreme Court has held:

We hold that a private individual may recover actual damages for a defamatory publication upon proof that the defendant knew or in the exercise of reasonable care should have known that the defamatory statement was false. The conduct of defamation defendants will be judged on whether the conduct was that of a reasonable person under the circumstances.

Jadwin v. Minneapolis Star & Tribune Co., 367 N.W.2d 476, 491 (Minn. 1985). Other cases follow this reasoning. See LeDoux v. Northwest Publications, Inc., 521 N.W.2d 59, 67 (Minn. App. 1994) ("In order for a statement to be defamatory . . . it must be false."); Janklow v. Newsweek, Inc., 759 F.2d 644, 648 (8th Cir. 1985), cert. den., 479 U.S. 883 (1987) ("Libel, by definition, consists of publication of a false and unprivileged fact.").

However, the U.S. Supreme Court has expressly reserved the question of whether the U.S. Constitution requires purely private defamation plaintiffs to prove falsity in all cases. See Philadelphia Newspapers, Inc. v. Hepps, 476 U.S. 767, 779 n.4 (1986). In other words, there may be no constitutional barrier if a particular state wishes to allow defamation actions even for true statements.

How false is false? The test is whether the alleged defamatory statement as a whole is true or false. Minor inaccuracies are not subject to defamation claims if the overall substance of the statement is true. "The plaintiff cannot succeed in meeting the burden of proving falsity by showing that only that the statement is not literally true in every detail. If the statement is true in substance, inaccuracies of expression or detail are immaterial." Jadwin, supra, 390 N.W.2d at 441.

No Defamation by Implication. Failure to report all the facts may lead to a defamatory conclusion by the reader. But unless the overall substance of the statement can be proven false, no defamation claim will arise. "[T]he cause of action known as defamation by implication . . . is not recognized in Minnesota." Kortz v. Midwest Communications, Inc., 20 Media Law Rep. (BNA) 1860, 1865 (Ramsey County Dist. Ct. 1992). A public official may not maintain a defamation by implication claim. Diesen v. Hessberg, 455 N.W.2d 446, 451 (Minn. 1990).

D. Negligence Is Standard Of Liability

In Minnesota, the defendant is liable if it "knew or should have known in the exercise of reasonable care" that the defamatory statement was false. Jadwin, supra. This is the standard formulation for liability based on negligence, that is, liability arising from failure to take due care.

This is a low standard of liability. However, First Amendment considerations substantially limit the application of this standard.

II. Defenses to Defamation

A. Truth

Truth is a complete defense to a defamation claim. This is simply the flip side of the requirement that plaintiff prove the falsity of the alleged defamatory statement.