Is It Protected By The First Amendment?
The United States Constitution protects freedom of speech and the Courts have consistently upheld peoples’ right to express their ideas and opinions. However, defamation is not protected.
Defamation is defined as the expression of a false statement meant to harm the reputation of an individual or a group. Therefore constituting as a form of personal injury— socially.
Defamation can hurt your business; it can do tremendous damage to you personally and even go so far as to make it impossible for you to carry on in your profession. While you may respect a person’s right to disagree with the business you are in or the cause you are pursuing you need not respect their right to lie about you in a way that will permanently cripple your ability to carry on in the world.
There is a great deal of chatter and opinion that is exchanged in a variety of media nowadays. It is not that difficult for such smears to become accepted as fact. You need to fight against such lies. Working with a personal Injury attorney will help you fight back against any concerted attempt to besmirch your character or reputation.
How Do You Determine If It Is Protected or Not?
Courts have tried to balance an individual's right to free speech with other's right to not be subject to defamation. As a result, in order to prove defamation five key elements must be at play.
A statement of fact
For defamation to have occurred, somebody must have made the statement that is considered defamatory. To be considered defamatory, the statement must concern a matter of fact, not simply an opinion. This can be done orally (Slander) or written (Libel).
A published statement
To be published, the statement need not necessarily be published in print, such as a newspaper or book. For the purposes of defamation, the statement is considered published if a third party sees, reads or hears it. A Twitter post, Facebook status update, or even a deleted snapchat are each considered "published" statements for purposes of a defamation action.
The statement caused injury
An injury is considered to have occurred if the plaintiff's reputation was harmed by the statement. For example, a contractor could lose work if a competitor tells potential clients on an online forum that the contractor routinely fails to complete work on a timely basis, harming their reputation and leading to financial difficulties.
The statement must be false
As with the above example, claiming a contractor fails to complete work on a timely basis is only considered defamatory if it can be shown that, in fact, the contractor has a history of completing work in a timely manner. It is not enough to show that a published statement simply does injury to the plaintiff; rather, for it to be determined to be "defamatory" it must also be shown that the statement is false.
The statement is not privileged
There are some instances when a person may say something that is both untrue and injurious to another party, but where that person is protected from being sued for defamation. Statements that are considered privileged vary considerably. Witness testimony is an example of this. Although witnesses at trial are obliged to tell the truth to the best of their ability, they cannot be sued if they make statements that would be considered defamatory outside of the courtroom. The reason for this privileged status is because courts want to ensure that witnesses feel free to speak openly about what they know or believe to be true, without concern about being held liable for possible defamation.