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Why most people don't understand the legal definition of "defamation" anymore: they are misdirected by lobbyists, lawyers, and government stooges to believe in a new definition, a definition that will shut them up.
"An act of communication that causes someone to be shamed, ridiculed, held in contempt, lowered in the estimation of the community, or to lose employment status or earnings or otherwise suffer a damaged reputation. Such defamation is couched in 'defamatory language'."
That is the first paragraph of the legal definition of defamation in the US. Given that, many people can't understand why I have not been sued for defamation. After all, it appears to be my intent to ridicule my enemies and to damage their reputation. However, these people are ignoring the last sentence. Ridiculing people is not against the law, and neither is damaging their reputation. Both are against the law or actionable only when they are done with defamatory language. What is defamatory language? In short, it is telling lies. Therefore, defamation is not ridiculing someone or damaging their reputation. Defamation is telling lies about someone in order to ridicule them or damage their reputation.
Many people don't understand that, which is why we have so many frivolous lawsuits filed. They don't bother to read past the opening sentences, so they don't have any idea what defamation really is. They think that if they have been shamed in any way, they have an actionable offense. But of course they don't, because they may have set themselves up for shame. Just as you can't sue the police for ruining your reputation by arresting you for a crime you committed, you can't sue a writer for saying you are a creep, when you are in fact a creep.
Not only is truth a defense in a defamation lawsuit, opinion is also. You are allowed to think that other people are phonies, that they are wrong, and that they are jerks, and to say so. If you weren't, then every political candidate would sue his or her opponent in every election. Everyone interviewed by Bill O'Reilly would sue him. Everyone on the short end of a bad review would sue the critic, and criticism would be over.
Some think that once a critic starts giving reasons for his opinion, the opinion has turned into a statement of fact, but that isn't true either. Courts have always let the public weighs these reasons, except when the reasons are obviously and demonstrably false. A critic would have to be saying things that he and everyone else knows are false, and doing it with pretty clear malice, in order to be guilty of defamation. In the US, defamation is very hard to prove, which is why the gossip rags can say all the things they do. It is why O'Reilly can say all the things he does. O'Reilly is probably telling lies on purpose, with malice, and yet that would be very difficult to prove. To prove his statements were false, you would bring in your experts and he would bring in his. The judge would then dismiss the whole thing as politics, saying it is up to the viewer to decide.
Another reason there aren't more defamation lawsuits is that those claiming to be defamed are put in the position of proving the statements aren't true. And the defendant is given the opportunity in court to prove they are true. If you are suing someone for defamation, the last thing you want to do is give them a public, highly publicized forum for proving that you do indeed deserve to be ridiculed, shamed, or to lose your job. Bill O'Reilly showed that when he sued Al Franken for defamation. All he did is give Franken an opportunity to prove in court that O'Reilly was indeed a liar. Remember that Rush Limbaugh did not sue Franken when Franken titled his book, "Rush Limbaugh is a Big Fat Idiot." Why didn't he? Because Rush IS demonstrably big and fat, and because "idiot" is an opinion.
Opinion and criticism is being squelched by the threat of lawsuits, but this is the fault of the critic as much as the litigator. Many people are allowing themselves to be silenced, through sheer cowardice. All they need to say is what Franken said: "Please sue me! I need the publicity!" Franken knew that his books were protected in about ten different ways. One, they were true. Two, they were opinion. Three, they were satire. Etc.
Sadly, the legal requirements for defamation in Europe are much lower than in the US. About all you have to do is prove you lost some sleep, and they fine the other guy a year's salary. But of course this is as much the fault of the critics and writers over there as it is the fault of the litigators or attorneys or the government. Why? Because the government is answerable to the people in Europe just as much as it is here. If writers are being repressed, it is because they are allowing themselves to be repressed. I lived in Europe for several years and was not impressed by the courage of anyone there. Most people I talked to didn't see any need for freedom of speech or of the press, and they actually ridiculed us Americans for talking about it so much. I talked to many people about the David Irving case and I couldn't get anyone to defend him on principle. I honestly couldn't believe it. Maybe the current crisis over there will cause a change of course. Maybe the Europeans will finally realize that they need stronger Constitutional protections of speech and press, and quit fining the various Brigitte Bardots for having an opinion.
Of course the Europeans are not the only ones in danger. We are sliding that direction in a thousand ways, and as it happens we are also backsliding on this question of defamation. Although the Franken case was recent and was decided quickly and correctly, we also have a lot of writers caving in to slap suits. Not only that, but we have a lot of bullshit legislation like cyberbullying, hate speech, and so on. We are only a small step away from criminalizing dissent. We have "free speech zones" outside of political events (which turn out to be actual cages) when legally the whole country is a free speech zone. We have the Anti-Defamation League redefining defamation as anything that conflicts with their desired policies. And we have the CIA and Pentagon censoring newspapers and books, redacting unclassified information, which is illegal. No government agency is allowed to do that, according to the Constitution, and the only reason they get away with is that we allow them to. We put up with it and we elect people who put up with it. It is not that we are much more courageous than Europeans, it is that we are still mostly protected by the courage of our ancestors, who had the foresight to draw up a pretty strict Constitution. In my opinion, the Constitution could be much longer and clearer, forbidding many more things to the government, with stated penalties, but it would be a good first step to protect what we have. As it is, we are losing it quickly, and may soon face fines or jail time for disagreeing with the government, our bosses, or our opponents. Writers all over the world must stand up for their right to speak their minds. And those who aren't writers had better join them.
But why do so many people misunderstand defamation? Is it only because they don't read closely enough? No, it is because they often or always read propaganda, and this propaganda is written by lobbyists, attorneys, or paid government spinners, all of whom would prefer they learn to accept a new definition of defamation. Although the legal definition hasn't changed, these people want you to think it has, so that you will shut up and do what you are told. They want you to be scared of a lawsuit every time you have an opinion. They don't want you to talk, to blog, to write papers, or to write letters to the editor. They want you to second guess yourself at every moment, so that you end up doing nothing. If they can shut you up, the only ones talking will be them: those paid by the powers that be to keep the power and the money where it is. So they convince you that defamation is now just the act of ruining someone's reputation. Yes, that illustration at the top of this page was drawn up by some think tank or agency, expressly to lower the threshold of defamation, and to scare or otherwise push you into keeping silent. Don't do it. Don't be silent. Even if I disagree with you, I don't want you to be silent. Primarily, I want you to tell the government, the lobbyists and the lawyers to shove their new manufactured and false definition of defamation, in the loudest possible voice. The old definition was fine.
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