Vladimir from Croatia says USA law about defamation is weak

>> Steve Palmer: All righty, here we are, Lawyer Talk,,,,, Off The Record, on the air, again on the video airwaves as well, taking questions. So today, another q and a session coming at me, actually, all the way from Croatia. We've got Vladimir from Croatia, law student. I love this, I love that. This format of podcasting online, uh, sort of, um, non traditional Media, it lets us reach the entire globe, which I think, you know, uh, it can only help an exchange of ideas across the globe, can only help educate everybody. And, uh, apropos to that point, uh, Vladimir has an interesting question. He says, dear Mister Palmer, uh, I'm a law student. I study a semester, uh, on comparing international law about defamation. USA law about defamation is weak compared to different countries. But I don't understand, why is USA law about defamation week? Because of strong USA constitution. Have you ever experienced as a lawyer, a defamation case? Did you win? Why is defamation cases not popular in the USA court system? And, uh, it's a great question. So it's interesting that he thinks that our laws are weak on defamation, which sort of tells me that elsewhere people have a lot more success, um, suing people for defamation.

Martin Sullivan: Let's talk about defamation lawsuits in the United States

But let's generally talk about defamation, uh, uh, as a sort of a Law School matter. Uh, there are certain elements, so this is what we call tort. Torts are where you get to sue somebody for doing something that wronged you. And generally speaking, there are elements of torts, meaning you have to prove certain things. And the common law in the US, so the common law has its roots back in, uh, England and France, but generally speaking, most of that is written down now in statutes. But the elements would be basically this. Under the common law, the defendant made a false statement of fact concerning a plaintiff. So the guy getting sued said something that's false about the plaintiff. The defendant made the defamatory statement to a third party knowing that it was false, or they should have known it was false. In other words, you can't just stick your head in the sand and act like you didn't know, uh, the defamatory statement was disseminated through a publication or communication. In other words, you can't just m utter it to yourself in your bedroom and later, uh, and have that be defamation and that a plaintiff's reputation suffered damage or harm. Now, these elements may change. I'm going to get to that for a minute. But, uh, those are basically what you have to prove. And the big thing you can see here is false. Uh, so if you know it's false, that's, that can become defamation. Um, if you don't know it's false, that can be a defense. And then also in many situations, the truth becomes a defense. So, uh, I think what you're getting at here, I think what Vladimir is getting at is, in the US, let's talk sort of about publications, because now, uh, with Facebook, with, uh, newspapers, with online newspapers, now, um, people, lots of this stuff is easy to publish, so it's easy to, quote, disseminate to others. So your statements get out there pretty quickly. Um, when things are written in print, defamation, ah, becomes something called libel, which is really similar. So we're going to talk about that. So, generally speaking, uh, it becomes very difficult to recover in the US, because we have that pesky thing called the United States Constitution. Once we wrote the constitution, go read the federalist papers, but there was a big debate about whether we needed a bill of rights, because everybody thought, the founders sort of thought that, wow, we don't need no bill of rights, because the Constitution is so broad that it protects everything. And the people who wanted the Bill of rights said, no, if we don't put these things down, uh, they'll get lost in the shuffle. The people against the Bill of Rights said, well, if we write them down, it's going to act like these are the only rights that we have. Somewhere in the middle, it sort of has worked out, but the first one of these things is called the First Amendment, and it's, uh, the freedom of speech, freedom of press. So we, as a country, as a founding, fundamental, uh, concept, we have decided that we're gonna protect speech. And it has to do a lot with what was going on at the Time, uh, with the king George sort of tamping down, uh, free speech of the colonists. But at any rate, we don't need to go down that rabbit hole. Uh, but freedom of press is one of the most protected, coveted ideas in our country. It always has been. So suing a publication, uh, for defamation or libel, rather, becomes very difficult. Um, generally speaking, uh, there was a big case, so this went on and on and on forever. And there's lots of litigation in the United States, and the US Supreme Court has touched on this many times, and I'm not going to go through all that. But, uh, the big case you want to look at, Vlad, is New York Times versus Sullivan. And this had to do with a publication, uh, the New York Times published for, um, a group of civil rights leaders and clergymen took out a full page ad in the New York Times which described the abuse they endured from local police and asked for support from Martin Luther King. So this is back in the civil rights days. So already it's politically charged, right. Um, and charged with all sorts of, uh, uh, animosity on both sides of the civil rights debate. And generally speaking, what New York Times versus Sullivan said, um, is that you can't succeed in suing a newspaper absent malice. So it really sort of redefined what the truth is. So if, unless you can show actual malice on behalf of the publication, in other words, they either knew or they were very reckless in not knowing what they were publishing was false, then it's really difficult to recover. And, you know, they're. This. This actually spawned an interesting. There's a great movie, I'm a movie buff, and if you go look at, there's a back, and I think that probably the seventies, there's a movie called absence of malice. And it's got some great actors in it. It's got Paul Newman in it. It's got Sally Field and I think a young Sally field. And, uh, it's got an old character actor who I love named Wolford Brimley. He was in a bunch of stuff. But, uh, Wilford Brimley played a federal judge. And he calls them all in at one point and puts, uh, a big dip of, uh, Copenhagen in his mouth and says, like, you know, you ain't gonna see dabs in some malice. And, you know, the point is, is that it's a very difficult standard to meet. And what they're really talking about is whether you have to actually prove damages. In other words, if I say something bad about you right now on the air, um, and it's true, that's a defense. Um, um. But even if it's not true, the question is, what are the damages? How much have I really hurt you? And that becomes something really difficult to, uh, uh, to prove. And if, if you show malice, you may be able to get actual punitive damages. In other words, you could recover damages just as a punishment. Damages, money as a punishment. Uh, uh, instead of actual damages, like, um, um. All right, I lost my job or something. And then, you know, this is a. This is a broad brush of covering this topic. So forgive me, it's a really complicated question, but think there are other areas. Like, if I sue a private individual, uh, in defamation or libel, sometimes it's easier for me to recover. Say, if somebody slammed or libels me, rather, or defames me in the context of my employment or my profession, that can be per se. In other words, I can get, uh, punitive damages. I don't actually have to show actual damages. Uh, so I hope this helps. But generally speaking, the answer to your question is, you are correct. The first amendment in our country is king. So we often in the United States don't understand or sort of, this is baked into our being, it's baked into our legal system. We have these freedoms and protections, and everything sort of revolves around the backbone of our constitution. Um, so it makes perfect sense to me that european countries don't have, uh, or maybe it's easier to win in such cases in european countries. Uh, the other part of your question is, have I ever actually successfully sued somebody or even defended somebody in an action like this? Now, I don't do civil work like that. I'm not a litigator. I do know this, though. Finding lawyers to take these cases is difficult. It might be easier now. And there's, there's sort of special interest groups that do this, and, um, you know, just look at some of the Facebook and other litigation out there, and there's a whole other topic we can talk about, about whether those entities are protected. But, you know, these are tough cases. Lawyers shy away from them for all the reasons we're talking about. They're hard to win. So you spend a bunch of Time, you spend a bunch of money, and you don't win. That's. That's difficult. You either have to pass that cost along to the plaintiff, your client, who has to spend money and not win. Sometimes special interest groups do this out of, um, maybe principal, so they're willing to allocate the funds, uh, but they're few and far between. I have never successfully prosecuted nor defended one because I have never had one. I have tried to refer them out for people, and, uh, again, I think, generally speaking, that comes up sort, uh, of negative.

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