Is Libel a Crime?

Currently, there are 13 states that have criminal libel laws on the books that can still be enforced. Still, prosecution for this crime is extremely rare, and jail time being handed down is even rarer. These states include Idaho, Louisiana, Michigan, Minnesota, New Mexico, North Carolina, Oklahoma, Utah, Virginia, Wisconsin, Montana, New Hampshire, and North Dakota. Most other states' criminal libel laws have been overturned for being too vague, too broad, and an infringement of free speech. Our government has worked faithfully to protect freedom of speech, and rightfully so.

Even states that have criminal libel statutes require a high standard of proof which means you must prove the defamer's statements were false beyond a reasonable doubt. Some states require the added burden of proof that statements against public officials or public figures were made with actual malice. This means you must prove the statements were made with the knowledge that it was false or with reckless disregard for whether it was false or not.

Both libel and slander fall under the broader category of defamation, an area of the law that allows for a civil remedy when someone's statements cause harm to your reputation. Libel is when someone writes or publishes a defamatory statement. Slander is when someone verbally makes an untrue statement about another individual. Either version can make the wrongdoer liable in a defamation lawsuit.

Libel is the publication of a false statement in the form of writing that causes harm to your reputation and makes the victim feel ashamed, disgraced, or subjected to hatred, ridicule, or scorn by the public. Libel can occur in many forms, such as publication in books, newspapers, emails, social media, newsletters, posters, flyers, and more.
Some examples of libelous statements could include false claims that an individual:

• Is involved in criminal activity
• Has sexually transmitted diseases
• Cheats on their significant other
• Abuses their spouse or children
• Steals money from their clients
• Commits fraud
• Is a pedophile
• Has a mental defect
• Does not have the professional credentials required for their position

Slander is when an individual makes a verbal statement or gesture that causes harm to a person's reputation. The result can make the victim feel ashamed, humiliated, or subjected to hatred, ridicule, or shunned by the public. Slander can occur just about anywhere, but usually in public forums such as business meetings, churches, schools, town halls, online videos, and more. The libelous statements above can also be used as examples of slanderous statements.  

Every state has its own defamation laws, but the doctrine is usually the same. To be successful in a defamation lawsuit, you must show that the defendant:

• Made a false statement as if it was a fact (opinions are not defamatory, we'll cover this more)
• The statement was made to a third party (other than you)
• The statement caused harm to your reputation or business
• The statement doesn't fall under a privileged category

It's essential to understand that if someone makes an unkind remark to you and only you, that is not defamation. For example, say your neighbor slips a note under your door, and it reads, “you are a thief.” That is not libel because it's just between the two of you. On the other hand, if they put a message like that on the front door of your apartment building where all the residents come and go, you might have a case for libel.

Certain types of communication fall into an absolute privileged category, meaning an individual can make false statements without fear of being sued for defamation. Examples of such communications are as follows:

• During judicial proceedings
• Communications by high government officials
• During legislative debates
• Political speeches and broadcasts
• Between spouses

Obviously, lying under oath is a crime in itself. However, testimony cannot be used in a defamation case. If the person then repeats the lie or another version of it outside of the courthouse, then their statements could be used to pursue a civil claim.

Qualified Privilege

Other forms of communication fall under the qualified privilege category, meaning they may have had a reason to justify making the statement. Suppose the statement is defamatory but falls under qualified privilege. In that case, you must then prove they made the statement intentionally and with malice. State laws will further define the requirements. Here are a few examples where qualified privilege may apply:

• Statements in government proceedings or reporting
• Statements made by lower government legislators such as local town board members
• Private citizen testimony during government proceedings
• Statements made in self-defense
• Statements made to warn others of potential danger
• Specific types of statements made by a former employer about an employee to a potential new employer (such as the employee was fired for theft and the statement is made as a warning)
• Published criticism concerning a book or film by a critic

While defamation can be upsetting and may even cause you to lose business and relationships, there are some valid defenses that you would need to overcome to be successful in suing for libel or slander. The number one defense to defamation of character is truth. If the statement were true, it would be an absolute defense, even if the statement was harmful. For example, suppose a former employer tells a potential new employer that you use drugs, and that's why you were fired. If they can prove that's why you were fired by producing a failed drug test, then that is a valid defense, and you would not have a case.

Privileged statements, as mentioned previously, are a complete defense. Suppose a prosecuting attorney maligns you during a trial. In that case, you cannot sue them for defamation afterward since it's a judicial proceeding. Another example would be if a reporter was reporting on a story about you and shared statements that put you in a bad light. Those comments may be protected because the information is important to the public.

Opinions are another defense to defamation. Someone must make a statement as if it were a fact to be defamatory. For example, say you're a contractor, and your competitor publishes something on a neighborhood website that says, "John Q. uses stolen materials to make his bids cheaper than mine." If that were untrue, that would be defamatory. On the other hand, if your competitor publishes a statement that says, "I think John Q. is crooked," that is their opinion and may not be actionable because opinions fall under free speech, however hurtful it may be.

Another defense is innocent dissemination. A small website publisher could use this defense if defamatory comments were made under the comment section on a story. While website publishers should make efforts to make sure their users don't run amuck, they didn't make the statements and may not have known what users were posting.   

Understanding the Statute of Limitations for Libel and Slander

If you believe you have a valid claim for libel, talking with the lawyers at Morgan and Morgan is an excellent first step. However, when answering the question, "is libel a crime," it's important to remember that the statute of limitations applies to this type of lawsuit. Every state has its own deadline for filing this sort of claim, some as little as one year. If the deadline has passed, you will not be able to sue for compensation. Generally, the deadline countdown starts on the date when the statement was made.
Unfortunately, even if the statement is republished later, it does not reset the clock in most states because of the single publication rule. That also means that you cannot bring another separate lawsuit if it's republished later.

Some states have a discovery rule exception to the statute of limitations. A discovery rule sets the statute of limitations time clock to when you first discovered or should have discovered a defamatory statement was made about you. For example, suppose you were fired from your job with no explanation. Later, past your state's statute of limitations, you hear through the grapevine that a former colleague told your boss you had been arrested for domestic violence. In that case, the statute of limitation would begin on the date you learned of it.

There are some other ways to extend the statute of limitations, such as if the defendant leaves the state before you can file or if the defamed person is under 18 at the time of the statement. When the defamed person reaches 18, the time clock starts running.

While it’s disappointing that there isn’t much chance an individual who caused you great reputational harm will go to jail, you do have the legal remedy of filing a civil claim for financial compensation. Morgan and Morgan can help. You might be able to recover compensatory damages if libel caused you to lose your job, clients, or business or caused damage to your personal relationships. Any emotional damage may also be compensated. When the courts see that your rights were violated, you may also be awarded nominal damages as well even if you can't precisely prove losses.

While libel cases can be challenging to win, we believe in protecting our client's rights and holding wrongdoers accountable for the harm they inflict on innocent individuals. You need capable legal representation with a track record for success. At Morgan and Morgan, we have an exceptional track record for winning and the expertise and tenacity to ensure your claim is successful. If we don't win, you don't have to pay. Contact us today for a free and confidential case evaluation.