In this era of fake news, criminal accusations, and allegations of misconduct made toward politicians, some people may wonder why they don’t sue to set the record straight. The main reason may be that, because the First Amendment protects freedom of speech and of the press, any action based on the content of statements must satisfy narrowly defined requirements, and politicians, as public figures, must also meet significantly higher burdens of proof than an ordinary person.

What Defines Defamation in a Massachusetts Court?

Defamation is the catch-all term that incorporates the torts of slander and libel. Slander refers to oral statements, and libel applies to the written word. In Massachusetts, as in most states, to succeed in a defamation case, a plaintiff must establish facts proving by a preponderance of the evidence that (1) the defendant published a false statement regarding the plaintiff—that is, the defendant communicated the statement concerning the plaintiff to a third party; (2) the statement could damage the plaintiff’s reputation in the community; and (3) the statement caused economic loss or other damage. The law of defamation concentrates on “substantial truth” so that minor inaccuracies will not amount to falsity so long as ‘the substance, the gist, the sting,’ of the defamatory statement is justified.

Proving Defamation

In a defamation case, a court will categorize a plaintiff as either a general public figure, a limited public figure, or a private citizen. To prove defamation, an ordinary person must prove that the defendant made the false statement, at least, negligently. However, if the court concludes that a plaintiff is either a limited or general public figure, the plaintiff must prove “clearly and convincingly” that the alleged defamatory statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not. A person may be deemed a general public figure where there is evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society. Politicians generally fall into the category of public figures.

Finally, statements of opinion or those which do not contain objectively verifiable facts are not actionable. As the Supreme Court put it, “however pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” In determining whether a statement reasonably could be understood as fact or opinion, a court must “examine the statement in its totality in the context in which it was uttered or published,” and “must consider all the words used, not merely a particular phrase or sentence.” Factors to be considered include “the specific language used”; “whether the statement is verifiable”; “the general context of the statement”; and “the broader context in which the statement appeared”; as well as any “cautionary terms used by the person publishing the statement.”

The law of defamation, including the heightened standards for public figures and matters of public concern, preserve robust public discussion on important issues, topics and events, and also discourage baseless or strategic lawsuits that would have a chilling effect on speech and the exchange of ideas. For those same reasons, the court of public opinion rather than a court of law continues to present the preferred arena for setting the record straight.

Call Now For a Free Consultation

If you are in a situation where you feel you may have an actionable case for defamation, contact Attorney Bob Allison today by calling 978-740-9433 or by filling out our online form. You will receive a free consultation to review your case.