The new trend seems to be accusing everyone you disagree with of being a misogynist, a Nazi or even a pedophile. The recent case of Liz Crokin, who is now being faced with a potential lawsuit for her tweets about Chrissy Teigen, proves that publicly labelling someone the latter with little or, in her case, no evidence to support your claim can land you in serious legal trouble. So I decided to delve into the murky waters of defamation, and explain what the difference is between protected speech and slander.
First off, let me dispel some common misconceptions. Defamation of character is not a crime, it is a civil tort. Slander is when defamation is spoken, libel is when it is printed. Some words you can sue over, some words you can’t, and some people have less rights than others when it comes to defamation. For instance, I can legally say that I think someone might be a pedophile, but if I say they are a pedophile, I may wind up paying dearly for my choice of words.
If the person being accused has been convicted of a sex offense involving minors, then it’s not slander, because it’s a fact. However, if they’ve never been convicted or even arrested on such charges, telling a third party they are a pedophile is dishonest, and damaging to their character. Above all else, damages must be proven in order to win a defamation suit. Merely claiming your feelings were hurt is not considered proof of damages. If you can prove that you lost your job because of false allegations, then you have a case for damages. The more broad the defamation circulated, the more damages may be proven, and the more serious the judgement will be against the respondent. For instance, a tweet to your 50,000 followers is much more serious than a text to a friend.
Hyperboles are words that are not meant to be taken literally. The words “idiot” and “retard” are generally considered hyperboles – unless the person saying someone is an idiot or a retard is falsely stating or implying by their comment that the person has a medically-diagnosed mental impairment. These slang words are generally not used in that context, and are not meant to be taken that way. If they are used as hyperboles, that is free speech and, although it is not nice to call someone a retard or an idiot, they are generally not considered defamatory. If one were to preface a hyperbole with “I think,” then the statement is not defamatory in any context. If a comment is made that can be proved neither true nor false, then that is opinion, and opinion is free speech.
Calling someone a pedophile is an interesting exception, because it is defamatory in and of itself, and can lead to a reputational injury so damaging that the court may assume reputational injury has occurred, even without proof.
Interestingly enough, many homeowners are actually covered for defamation, up to a certain dollar amount, by their homeowner’s insurance policy. A plaintiff simply needs to have an attorney write a letter to the accused, telling him to put his insurance carrier on notice. The insurance provider will most likely settle the case, as this tends to be less costly than paying a team of attorneys to take on a potentially lengthy case.
As for Chrissy Teigen, she, and other prominent public figures, have given up some of their rights of privacy in exchange for a more “valuable” (as in worth a lot of money) right to publicity. They must prove that there was “actual malice” involved in saying or printing something defamatory about them. Actual malice can only be proven if it can be shown that a statement was made with reckless disregard of whether it was true or false. Most celebrities and public officials will not bother with the fake news stories and conspiracy theories about them or, even, some of the photos that invade their private lives. Why not? Because they would be living in a courtroom otherwise, as they would be suing people all the time.
Celebrities have sued, however, when stories or photos intrude too much or are too damaging to their reputations – and they often win such suits. Miss Crokin, for example, has given Teigen plenty of documented evidence to present an argument that her statements were indeed actual malice, because Crokin not only tweeted that her claims were based on a pizza emoji and photos of Teigen’s daughter in costumes, but she repeatedly tagged Teigen’s account in her tweets. This is considered targeted harassment by Twitter, and makes Liz what I refer to as a “click whore.”
The largest purveyors of character assassination, celebrity gossip magazines and tabloids like USA Today and the National Enquirer, have expert legal teams and massive litigation funds for a reason. They often set aside a considerable amount of money, expecting to be sued for the often obviously untrue statements they make. The stories that they are most apt to be sued over are the very stories that make them the most revenue. It sort of balances out for them, as the increase in sales often covers the costs of a lost lawsuit, and every judge has a different perspective on determining damages. There’s an air of gambling to it.
“The law isn’t justice. It’s a very imperfect mechanism. If you press exactly
the right buttons and are also lucky, justice may show up in the answer. A mechanism is all the law was ever intended to be.”