Robbins: Is there an absolute right to free speech? | VailDaily.com

Robbins: Is there an absolute right to free speech?

A fundamental right of every American citizen, assured by no less than the United States Constitution, is the freedom to speak freely. 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, twinkle his or her tonsils at you and insert his or her foot as deeply as the guardians of his or her own conscience may 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, expostulating points of view both popular and unpopular, middle-of-the-road and controversial. In this land, you can say whatever you darn well please about just about anything or anyone; you can even diss the president—perform a clumsy parody of him on “The Late Show” before millions of sandpaper-eyed night owls if you like — and the stormtroopers will not come kicking in your door and cart you off to Sing Sing in the morning.  Our freedom of speech is limitless.

Well, almost, anyway.

When free speech goes too far

The law of defamation is the chalk line on the playing field of free speech.  It defines the boundaries, and when you step over the line, the piper must be paid. 

Stated simply, defamation is the offering up of 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 (that is, subject to punishment by the state) or civil (that is, subject to a lawsuit, seeking money damages). Defamation includes both libel (which is written or printed defamation) and slander (which is spoken). Slander and libel are the flip sides of the same defamation coin.

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 defamation is directed. Defamation encompasses derogatory or unpleasant attacks against another which expose the person to contempt, hatred, ridicule or obloquy. It is the unprivileged publication (whether oral or written) of false statements about another which naturally and proximately result in injury to the person about or against whom the remarks are made.

Details, details, details

There are, as one might expect, a couple of caveats, however, concerning defamation.

 First, the statement must be false. 

If you call a thief a thief, that is not defaming. Truth 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. 

Similarly, if a client, in the context of any attorney-client relationship, confides in me that So-And-So is a con man, owing to privilege, that is just between the two of us.

Except in certain, specific circumstances, the defaming remark must be shown to have directly (that is “proximately”) caused injury or damage to the person against whom the remark was made. 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. Don’t laugh, that, and worse, has happened. 

In such an instance, a 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 may 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; impugning the chastity of a woman; or impugning someone in his livelihood or trade. 

Not infrequently, in such per se cases, the victory may, however, be a pyrrhic one; while the plaintiff may “win” and defamation may thereby be proved, the damages awarded may at best be minimal.

Libel can be symbolic or pictorial in addition to encompassing the written word. 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 flatteringly, about “public” persons, that is persons in the public spotlight, such as politicians, actors and sports personalities. In this broadening internet world of ours, who may be a “public figure” seems to be expanding as quickly as the universe itself. 

In short, it is harder to defame a “public” person than it is to defame a private individual and that is why and how rags like the National Enquirer exist and even thrive (and why I can even 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 sometimes do — hurt you. It is to defend against the outrageous slings, arrows and vicissitudes of such gratuitous misfortune that the law of defamation exists and helps maintain our free society as a more civil place in which we all may harmoniously coexist.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, robbins@slblaw.com.