While “defamation” (libel, slander) is a creature of state law, the elements one must prove are more or less the same across jurisdictions: a defamation claim requires a (1) false statement (2) of “fact” that (3) reasonably carries “defamatory meaning”; (4) is communicated to a third party without authorization; (5) causes “damage”; and (6) is made with the requisite level of fault (“negligence,” when the plaintiff is a private figure or the matter is one of private concern, or “actual malice” when the plaintiff is a public figure or the matter is one of public concern). A “defamatory” statement, generally, is one that tends to damage a person’s reputation or hold that person up to scorn, hatred or ridicule in the eyes of the community.
Reputational tort cases become complex when they involve a “public figure” plaintiff or a private figure who “voluntarily injects himself or is drawn into a particular public controversy” (or “matter of public concern”). In most cases, defendants will argue one or the other applies due to the heightened burden of proof a plaintiff must meet to succeed under such circumstances. Federal Constitutional law comes into play in these cases due to their potential impact on a defendant’s First Amendment rights. In particular, “actual malice” becomes a required element of proof, rather than the lesser ordinary common law “negligence.”
Moreover, in most jurisdictions now, powerful media lobbyists have secured legislation that is referred to as “Anti-SLAPP” legislation, which stands for “Anti-Strategic Lawsuits Against Public Participation.” As with “actual malice”, when a plaintiff is a “public figure” or the matter reported is one of “public concern,” Anti-SLAPP statutes are implicated. These statutes, when they apply, immediately halt the plaintiff’s ability to gather evidence, yet still require the plaintiff to come forward with evidence supporting every element of his or her claim at the very outset of the lawsuit. And most importantly, plaintiffs who are unsuccessful in fighting off Anti-SLAPP motions are penalized with liability for the defendant’s attorney’s fees and court costs.
Due to this potential exposure alone, when deciding whether or not to bring a “reputational tort” case, you need a skilled and experienced attorney who understands the complex interplay between state law and Federal Constitutional law and knows how to navigate the Anti-SLAPP motion process. Our firm can provide this skill and experience. Our newest addition to the firm, Marc J. Mandich, successfully fended off multiple Anti-SLAPP motions by the oldest of media defendants, the New York Times Company, in federal Court in Louisiana. In so doing, he obtained important rulings from the United States Court of Appeals for the Fifth Circuit that lessened the plaintiff’s initial burden in media lawsuits in Louisiana, questioned the applicability of state Anti-SLAPP statutes in federal courts (an issue that is still being heavily litigated across the United States), and held (as a matter of first impression in the Fifth Circuit) that quotation of an individual’s exact words out of context – even when the words spoken are quoted verbatim – can support a valid defamation claim. See Block v. The New York Times Company, et al., 867 F.3d 585 (5th Cir. 2017); and Block v. The New York Times Company, et al., 815 F.3d 218 (5th Cir. 2016).