Can You Afford Your 1st Amendment Rights?

The business of “sounding off” and speaking “truth to power” is not a new phenomenon in America. A bit of it goes back to 1734 when a jury in New York decided to ignore the judge’s instructions and held that newspaper publisher Peter Zenger would not be held liable for his disparaging publication about royal governor William Cosby.

Back then there were probably fewer than 100 printing presses in all of America. Technology changed and by the late 19^th century every hamlet had a newspaper and some cities supported five. It was an age rife with defamation claims but there were some guardrails to prevent libel. Someone had to write the defamation, someone had to typeset it. Then it had to be printed and distributed. Each step produced some delay and a chance to “call it back.”

Today smartphones are our modern printing press and there are 300 million of them in the U.S. alone.  As we all know, we can lie in bed, conjure a defamatory thought, log onto the phone and type anything we want. Once we hit SEND, there is really very little we can do to call it back or limit where our thought goes as it is dispersed into the “ether.”

A false statement doesn’t need to be “written” to support a lawsuit by someone who is offended by it and suffers a loss of reputation. But, while words spoken in anger rarely travel far, writings can travel the world in seconds and inflict some very serious damage. They can also create reciprocal damage through a civil wrong (a tort) called “invasion of privacy.”

This past week has brought us yet another round of divorce separations among the famous and somewhat famous, where one or both spouses decided that the world needed to know “the truth” about the person they once loved enough to marry. We also witnessed Hunter Biden offer some opinions about the incumbent First Lady and her past that begot a threat of a $1 billion lawsuit. Last month First Lady’s husband filed a $10 billion claim against the Wall Street Journal in response to reporting about how he signed a certain birthday greeting to the late Jeffrey Epstein.

Among the truly famous or infamous, this becomes kind of a blood sport. Both Biden and the Journal seem to be welcoming the suits because a plaintiff will need to answer questions under oath about all aspects of the claim. One does wonder how many days Mr. and Mrs. Trump will want to spend discussing their contacts with Mr. Epstein with a crowd of lawyers asking pointed questions. But, regular folk to often underestimate what a defamation case costs to prosecute and defend and how serious the damage issue can be. Realize as well that if you are sued for defamation, chances are you will have very little insurance coverage unless you have some umbrella insurance in addition to the conventional homeowner’s policy.

People also don’t give consideration to the fact that, even today, reputation can affect the ability to earn income. If your spouse works at the local convenience store or repairs autos, your allegations on ”X” or Tumblr that your spouse is an “abuser” or a “fraud”  probably won’t change that person’s world- although you can still be sued. But where you throw those kinds of allegations out there and your spouse is a cop, a teacher, a physician or otherwise in a position of public trust, you could find that spouse is terminated from employment. Divorce clients anxious to tell their story often miss the fact that in today’s world their “story” may cross the globe. It may also come back when your kids walk through the door and ask what’s going on, because your allegations are now being discussed on the playground.

So, before you decide to fire up the phone or the tablet to disperse your truth, you should know, it could produce a lawsuit seeking money damages for harm to the affected person’s reputation. In court, they have burden of showing:

1. The statement you made about them was false. Understand that you may be dead certain that what you wrote/said was true, but a jury gets to decide whether your statement was false.
2. The false statement was shared with someone else besides your spouse. It could be your mother-in-law. It could be the millions who follow you on “X.”
3. You either knew the statement to be false when you said it or you put it out there without no concern for making certain it was true.

4. Your false statement caused economic harm to the person you wrote or spoke of. . Proving “real” damage is often a concern for lawyers who bring these lawsuits, but juries are inclined to award damages when they see malicious statements thrown into the public atmosphere without any real use.

The sum of all this is that in an age when your phone is your printing press, you need to stop, look and listen before you dump your load of invective over the bow of the boat. That can be hard. What you write might even be true. But, “your truth” may not be seen by a jury as “their” truth and they are the folks who decide what is true and what isn’t in a courtroom. Whether you are famous or not, defamation law applies to all of us and the best view is to not have it applied to you at all.