Magazine article St. Louis Journalism Review

Libel: How Far Can You Go?

Magazine article St. Louis Journalism Review

Libel: How Far Can You Go?

Article excerpt

We have concluded another election year of candidates palling around with terrorists, associating with the guilty, and being smeared on talk radio. One might think it is impossible to go too far in defaming a public official or public figure.

Actually, says communication attorney Mark Sableman, the risk of libel and slander damages can still face individuals or the media who get sued for their criticisms. A couple of recent U.S. Supreme Court decisions have made it somewhat easier for a defamed person to sue successfully for damages, he said.

But the critics must try really hard to achieve the level of libelous defamation that would result in damages against them, he added.

"There is no question that the level of meanness and outrageousness in our discourse has gotten worse over the years, but I am not sure that libel law can control that," said Sableman, a partner in the St. Louis law firm Thompson Coburn LLP.

Much of the political criticism volleyed about during the 2008 elections amounted to quibbling over facts, such as how many times Candidate X voted against the troops, voted for earmarks, was for or against an issue, and so forth. "You don't make a libel suit out of different judgments on the same facts," Sableman said.

The Dole campaign ad

A television campaign ad ran in North Carolina by U.S. Sen. Elizabeth Dole made the list of "Top Ten Political Turkeys of 2008" published on CNN.com. The ad suggested that Dole's opponent, Kay Hagan, had taken "godless money" for her campaign at a "secret fundraiser" held by an adviser to an atheist organization. While a picture of Hagan was displayed on the screen, a woman's voice stated, "There is no God."

It turned out, however, that Hagan was an elder and Sunday School teacher at the First Presbyterian Church in Greensboro, N.C. Hagan filed a defamation and libel suit against Dole, but withdrew it after defeating the incumbent on election day.

Sableman does not believe the Hagan suit would have succeeded, although Dole's ad was apparently intended to be harmful and was prepared with reckless disregard for the truth.

It is a misconception that intent and disregard for facts are sufficient to create a strong case for libel, Sableman said. The defamatory statement must be stronger than an accusation of atheism.

"I don't think that is libelous," Sableman said. "To be libel, it has to be an accusation of serious criminal conduct or incompetence in an office, a profession or business, or sexual misconduct or a loathsome disease. The defamatory content prong in almost every state requires some thing seriously harmful to reputation.

"If you correctly or incorrectly accuse me of having an overdue library book or getting a parking fine, I can't sue you for libel. It is not a sufficiently serious legal violation to seriously damage my reputation. It has to be seriously harmful to reputation before it meets the defamatory content threshold for libel or slander."

Slander is defamation that is spoken as distinguished from libel which is written, printed, or any sign, picture or effigy.

What's libelous can change

Accusations that may have been scandalous decades ago won't go far in today's courtrooms, Sableman said. "Libel follows society's mores, and I don't think an accusation of non-traditional religious beliefs or non-beliefs would seriously tar someone's reputation akin to an accusation of serious criminal conduct. In the past, anything that wasn't traditional morality might have been considered sexual misconduct, such as being homosexual or promiscuous outside of marriage. I don't think an accusation of being homosexual is libelous any more, although it might have been considered almost per se libelous 100 or 50 years ago."

Two U.S. Supreme Court cases in recent decades have made it easier for a news organization to be sued successfully for libel, Sableman said. …

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