Vail Law: Freedom of speech isn’t absolute
Vail, CO, Colorado
Freedom of speech is a fundamental right of every Vail Valley resident and American citizen, assured by no less than the United States Constitution. Unlike in totalitarian societies, ours is a land where every freedom-loving man, woman and child is guaranteed the unfettered freedom to open his or her mouth and insert his or her foot as deeply as the guardians of his or her own conscience dictate.
Ours is a society in which every Tom, Dick and Mary can make whatever degree of a fool of him- or herself he or she might desire. In this land, you can say whatever you darn well please about just about anything or anyone; you can even dis the president and the storm troopers will not come kicking in your door and cart you off to Sing Sing in the morning. Our freedom of speech is limitless!
The law of defamation is the chalk line on the playing field of free speech. It defines the boundaries, and when you step out of line, the piper must be paid. Stated simply, defamation is offering up something disparaging and damaging about another. It is the holding of another person to ridicule, scorn or contempt in a respectable and considerable part of the community.
Defamation may be criminal – subject to punishment by the state – or civil; that is, subject to a lawsuit, seeking monetary damages. Defamation includes both libel, which is written or printed defamation, and slander, which is spoken.
It has been variously said that the hallmark of defamation is that the allegedly defaming remark tends to injure the reputation and to diminish the esteem, respect, goodwill or confidence of the person against whom the defaming comment is directed. Defamation encompasses derogatory or unpleasant attacks against another which exposes the person to contempt, hatred or ridicule. It is the unprivileged publication (whether orally or written) of false statements about another which naturally and proximately result in injury to the person.
There are a couple of caveats concerning defamation, however.
First, the statement must be false. If you call a thief a thief, that is not defaming. Truth, it has been said, is an absolute defense. Second, the allegedly injurious remark must be uttered absent privilege. You would have a hard time making a charge of defamation stick, for instance, against a cop who, in the performance of his or her duty yelled out “stop thief!” when later, it turned out the person against whom such remark was directed was not the thief at all.
Except in certain, specific circumstances, the defaming remark must be shown to have directly caused injury or damage. Take for example, where one defames another, the result of which is that the person against whom the remark was made is left at the altar by his or her affianced.
In such instance, suit against the alleged defamer could be brought and, upon proof that the betrothed’s abandonment flowed as a direct consequence of the remark, damages could be sought and awarded by the Court.
There are certain species of defamation that are considered by the law to be so out of line, so entirely egregious, that there needs be no showing of damage flowing from the remark at all. One simply needs to prove that the remark was made and defamation will be found. These instances are, collectively, known as defamation per se (which, literally means “by itself”, that is, “without further proof”). Defamation per se has traditionally included: False charges of the commission of a crime; imputation of some offensive or loathsome disease which would tend to separate the defamed person from the society of others; or impugning someone in his livelihood or trade.
Libel can be symbolic or pictorial in addition to written. A defamatory drawing or symbol can constitute libel as easily as a sentence, paragraph or novel-length harangue. Similarly, slander can encompass expressions or gestures in addition to the spoken word.
One last thing – there are certain privileges to remark, not always falteringly, about “public” persons, that is, persons in the public spotlight, such as politicians, actors and sports personalities. Stated simply, it is harder to defame a public person than it is to defame a private individual which is how rags like the National Enquirer exist and even thrive (and why I can call the National Enquirer a “rag” in the first place).
While sticks and stones may break your bones, contrary to the popular children’ verse, names can — and often do — hurt. It is to defend against the outrageous slings, arrows and vicissitudes of such gratuitous misfortune that the law of defamation exists and, perhaps, maintains our free society as a more civil place in which we all may harmoniously live.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. He may be heard on Wednesday nights at 7:00 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at his e-mail address: email@example.com
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