In the United States, we prize our freedom. Being able to speak our minds without fear of persecution is an essential American right. Unfortunately, some people take this freedom too far, going beyond protected opinions to make ugly, untrue accusations that can cause real harm to a person’s standing in the community or an entity’s financial viability. Just as we have laws to protect the right to free speech, we also take action against untrue, defamatory statements that cause harm. It is important to understand the difference between the two.

Free speech provides the right not to speak and to use offensive words and phrases to express political messages, without fear of retaliation, regulation, or interference. It allows us to contribute money (within limits) to political campaigns and to advertise commercial products and professional services (within limits.) It also allows us to perform symbolic acts like burning the flag. However, there are things that our right to free speech does not allow us to do, including some speech that may cause a breach of the peace or cause violence.

Importantly, free speech is protected and held harmless from civil litigation as long as it is truthful or based on an honest opinion, and that is exactly why it is so important to understand what defamation is.

Defamation of character is when a false statement of fact is made that injures another’s reputation. Defamation can be perpetrated through the written word – in which case it is known as libel – or through a spoken statement, in which case it is known as slander. Either way, proving defamation requires establishing that:

  • The statement was heard or read
  • The statement was false
  • The statement injured the reputation of a person or entity
  • The statement can’t be the subject of any kind of privilege that shields the defendant of liability

If these conditions are in place then there is a good chance that defamation has happened, although it’s important to note that defamation is much harder to prove if the victim is a public figure.

The most important element that distinguishes free speech and defamation is the question of whether the person making the false statement knew that it was false. Freedom of speech is not a defense to purposely destroying somebody else’s reputation.