What Is Libel? A First Amendment Analysis

The First Amendment protects freedom of speech from government limits or punishment.

But can someone ever go too far? Is lying about someone protected as free speech?

See when false speech about someone meets the criteria for libel and loses free speech protection.

What is libel?

Libel is the publication of false statements that damage someone’s reputation. Libel refers to specific claims that can be proved untrue. An opinion is not libel. Publishing a true statement that damages someone’s reputation might be an invasion of privacy, but it is not libel.

Libel is one of two types of defamation. Libel applies to defamation that is written, while the other type is slander, which is spoken defamation. 

When might libel apply?

Libel means defamation that is written, so any text-based content that is published or posted could potentially be libelous if it meets the elements of libel under a state’s law.

Libel would therefore apply to common media like newspapers, books, magazines, social media posts, bulletin boards and even flyers.

Who can be held responsible for libel?

With some exceptions, anyone who publishes or republishes a libelous statement can be sued. This includes the author of the allegedly libelous content, any editors who were involved in creating that content, and the publisher of that content, as publishers are typically heavily involved in selecting, reviewing and editing material like books and articles before publishing them.

For example, the U.S. Supreme Court case of New York Times Co. v. Sullivan (1964) involved a lawsuit filed by the public safety commissioner of Montgomery, Alabama, over an ad that civil rights organizers placed in The New York Times. He sued both the organizers who created the advertisement and the Times for publishing it. The Supreme Court said the ad wasn’t libel despite containing several minor errors because those errors weren’t made knowingly or recklessly. That ruling created the “actual malice” standard, which sets a high threshold where a speaker must have had knowledge or reckless disregard for whether the statement was false for a public official or public figure to win a libel lawsuit.

Who can be held responsible for libel that is posted online?

Note that when it comes to social media posts, other users who share or repost defamatory posts may also be liable in addition to the original poster.

On the other hand, content distributors and platforms are typically not legally liable if they sell or make available a publication that contains libel. Newsstands, bookstores and libraries generally cannot read and evaluate the contents of every publication they distribute, so they are not held responsible for the contents.

Websites that host users’ content, such as Facebook, Reddit or X, are treated as distributors (like bookstores) rather than as publishers and are typically not liable for the content of users’ posts. The law that establishes this, called Section 230, is controversial as some argue that when platforms’ software recommends content, it becomes more like a publisher and should be responsible for illegal content like libel.

What are the standards by which libel cases are judged?

Each state has its own libel laws. The Supreme Court has set the standards by which they can be enforced while aligning with the First Amendment.

But generally, state laws require proving that a statement is a materially and substantially false assertion of fact that is defamatory, is about a living person or corporation, is published, is made with some degree of fault, and that causes damage to the subject of the statement. Here is more information about each of these criteria:

• Materially and substantially false: A significant or important falsehood, not an insignificant error.
• Assertion of fact: Something that is verifiable as true or false, not a statement of opinion.
• Defamatory: Harmful to someone’s reputation.
• About a living individual or a corporation: The statement must identify an actual person. For instance, a nonfiction book could contain libel if it makes false, harmful statements about someone. A fictional novel can also be libelous if it includes a character who is identifiable as a real living person, even if the name is changed, and disparages that person. If a character is called “John Doe” in a novel but shares the same age, background, job, characteristics, etc. such that it is apparent to any reader that the character is portraying real-life “Jack Moe,” then Moe can pursue a libel lawsuit if the novel’s contents defame him. This is why many novels include disclaimers that they are not based on any real people and any resemblance to real people is coincidental. In 2009, Vickie Stewart successfully sued her acquaintance Haywood Smith, the author of “The Red Hat Club.” The novel included a character named SuSu who had more than a dozen traits and background elements in common with Stewart but who was portrayed in a way that a jury found libelous.
• Published: This simply means that someone other than the speaker and the person they are speaking about hears the statement.
• With some degree of fault: When made about a private person, showing negligence is enough to demonstrate fault. Even if the publisher didn’t know that the information was false when released, they can still be held accountable for libel if they should have known. A public figure such as a government official, celebrity or well-known community leader claiming someone has libeled them must show that the person’s false statement was made with actual malice.
• Causes damage to the subject of the statement: The subject of the statement must show actual economic injury, but the law also provides for compensation for emotional injury and, in some instances, “punitive” damages that are meant to deter similar behavior in the future.

A person suing for libel can only win their lawsuit if they can prove that all of these elements are met.

What laws other than the First Amendment impact libel?

Most libel cases are civil. The person who believes they’ve been wronged sues the publisher of the potentially libelous statement.

But some states have criminal penalties for libel, meaning that under certain circumstances, you can get arrested for it. The libelous statement would have to be deemed serious enough to be a criminal case. The theory is that the damage is to the public rather than to a private individual. In criminal libel, the state becomes the prosecutor against the speaker. The defamation involved in criminal libel could be of another person, a public official, a government body, a group or even a deceased person.

Some criminal libel laws have been held by the Supreme Court to violate the First Amendment by limiting too much speech, including a Louisiana law in 1962 and a Kentucky law in 1966.

But in 1952, the court upheld the criminal libel conviction of a Chicago man who had circulated leaflets urging the government to unite against violence he said was committed against white people by Black people.

According to the American Civil Liberties Union, 14 states have criminal libel laws.

In 2023, the Supreme Court declined to hear an appeal in a case about New Hampshire’s criminal defamation law. In the case, a man was arrested, pled guilty and was fined after calling a business a scam and accusing the business owner of crimes. The same man was later arrested for anonymous online comments about a retiring police officer, but the charges were dropped. The man sued claiming the law under which he had been twice arrested was unconstitutional, but he lost in court.

What is the current debate about making it easier to win libel lawsuits or maintaining current standards?

It is very hard for public figures to win libel lawsuits. They must meet a high bar to prove that a statement is libel.

The Supreme Court has said that because “erroneous statement is inevitable in free debate,” there must be “breathing space” for people to talk about and criticize public figures.

Supporters of the current standard say that if powerful people could easily win libel lawsuits, others would be too afraid of expensive lawsuits to talk about public figures. Any small mistake could have serious consequences.

However, this high standard has its critics, including Supreme Court Justices Neil Gorsuch and Clarence Thomas, who argue that misinformation has grown too rampant. They say that making it easier to win libel lawsuits could decrease the spread of false information. However, in recent years, the Supreme Court has declined to hear defamation cases that could have given it an opportunity to reconsider the precedent for libel.

This report is compiled based on previously published Freedom Forum content and with the input of Freedom Forum First Amendment Specialist Kevin Goldberg. The editor is Karen Hansen. Email.