The Volokh Conspiracy

Truth as a Defense in Defamation Cases:

A reader asked me whether true reputation-injuring statements are categorically immune from defamation liability. (Let's set aside for now invasion of privacy and other torts.) His state statute, he noticed, provided that such statements are protected only if they are said with "good motives" and for "justifiable ends."

Historically, many state statutes indeed so limited the truth defense. Today, I expect that such limitations would be unconstitutional: Defamation liability is said to be constitutional because "there is no constitutional value in false statements of fact," a rationale that doesn't apply to true statements. As to statements on "public issues," the Court has expressly rejected the good motives/justifiable ends limitation. But my sense is that such a limitation would be rejected as to private-concern statements, too; and I know of no modern cases that continue to apply the limitation.

Except, that is, for the remarkable case of Johnson v. Johnson, 654 A.2d 1212 (R.I. 1995). The facts:

On the evening of August 29, 1986, plaintiff entered Twin Oaks Restaurant in Cranston and proceeded to walk to the podium. While at the podium, plaintiff [ex-wife] saw defendant [her ex-husband] approach and ask her how her “[epithet] lawyer Fishbein” was. The defendant then drew nearer plaintiff who was standing with her then boyfriend-now husband Philip Caliri. At a distance of about four feet, in a loud voice, defendant screamed, “Phil, you are a * * * [epithet]. You could have prevented this case.” The defendant then pointed his finger in the face of plaintiff, while talking to Philip Caliri but screaming for all to hear, “You and that [obscenity] whore are costing me a lot of money.” ...

The ex-wife sued, claiming that the ex-husband slandered her by calling her a "whore," which in context appeared to mean someone who was unfaithful, not someone who was a prostitute. The court concluded the charges were true: "The findings of fact made by the trial justice are clear and unequivocal that the plaintiff fit the definition of the defamatory term applied to her." Yet the court went on to rule that, while "[i]n this case some spite and ill will might be understandable," "the trial justice was [not] clearly wrong when he confirmed the probable finding of the jury (although no special interrogatories had been submitted) that defendant acted out of spite and ill will."

Result: The compensatory damages award was upheld, on the theory that reputation-injuring but true statements on matters of private concern could still be actionable if said out of "malicious motives." The punitive damages award, however, was rejected, because in this case "defendant was the victim of a long course of reprehensible behavior committed against him by plaintiff."

I think this is an outlier case, which is inconsistent with the Court's false statement of fact jurisprudence, and which most American courts would not follow. Yet there it is, from the Rhode Island Supreme Court in 1995.

Anonymo the Anonymous:
"plaintiff saw defendant [his ex-wife]" and "defendant then pointed his finger"

Don't know if it's in the original or your typo, but there appears to be some ambiguity as to who "defendant" and "plaintiff" are; no big deal but it makes the story a little hard to follow.
7.6.2007 12:56am
whit:
i said this in another post. i'll say it again.

it's RHODE ISLAND

dershowitz had it right
7.6.2007 1:04am
vukdog:
I was under the impression that libel by implication was still a valid cause of action in many jurisdictions. It allows a claim even if all the individual statements are true if there is omission of a material fact or a juxtaposition of literally true facts that leave a libelous impression on a reasonable reader or listener.
7.6.2007 1:10am
crane (mail):
Is it official now that "whore" has followed the lead of "bastard" in becoming a more-or-less generic insult? I was under the impression that it usually meant a promiscuous person, (albeit not necessarily a prostitute any longer) as in the humorous definition pair:

whore: a woman who will sleep with anyone
lesbian: a woman who will sleep with anyone but you

Although, I did recently hear a stand-up comic call his wife a whore for failing to warn him that their vacation to warmer climes would include a visit to a very cold tourist attraction. They're still married, as far as I know, despite his habit of verbally abusing her in his comedy routines.
7.6.2007 2:21am
Eugene Volokh (www):
Anonymo: Sorry, will correct.

Vukdog: What you describe is a different matter -- the principle there is that there is a false statement of fact, but strongly implied rather than expressly stated. Saying "I saw X running away from the dead body, with a bloody knife is his hand" may well be libelous if the speaker knows (but doesn't say) that X was running after the killer (who was running off to kill someone else) rather than being the killer himself.
7.6.2007 2:27am
scote (mail):
I thought I recalled mention that originally truth was not a defense against slander and slander was actually worse if it was found to be true...
7.6.2007 2:36am
David Muellenhoff (mail):
Stop me if this is old news, but back in law school there was a "First Affirmative Defense to Third Cause of Action" floating around, from an allegedly real defamation suit between, IIRC, two lawyers, one of whom had called the other an "asshole" in a public place. The concluding line of the defense was: "III. In truth and in fact, Plaintiff is an 'asshole.'" I've always remembered that line.

Don't know if the case was real or not, but here's the Affirmative Defense.
7.6.2007 3:26am
Bill Poser (mail) (www):
In English truth is not an absolute defense to defamation. One situation for which there is specifc statutory provision is that of "spent convictions", where, after a period of time, one's criminal record is sealed. If A refers to B's criminal conviction, and if the conviction has been sealed, even though the statement is true, and even if A has no duty of confidentiality toward B, if the statment is made with malice it is defamatory.
7.6.2007 5:23am
Constitutional Crisis (mail):
I wonder what the expletive before "Fishbein" was...and if Mr. Fishbein could similarly have sued for defamation.
7.6.2007 7:12am
Owen (mail):
I concur: the Rhode Island Supreme Court's ruling is certainly an outlier, probably because it was a poor decision with regards to the law. Besides, if you don't want to be called a whore, pervert, or a lecherous pervert, you shouldn't be cheating on your spouse and engaging in nasty public litigation. It's a shame that "privacy" has become synoymous with all manner of sexual misconduct.
7.6.2007 10:21am
Hoosier:
'the ex-husband slandered her by calling her a "whore," which in context appeared to mean someone who was unfaithful, not someone who was a prostitute.'

I love you lawyers: This could have come from a Kingley Amis novel.

If you have an interest in this, take a peek at German law. Personal insults are taken quite seriously, and one can incur a hefty fine for blasting-off against someone in public. (I think this comes under the Right to Human Dignity in the Basic Law. But I haven't been there in a long time, so best to check before, say, calling a meter-maid a 'pig in a skirt' or something like that.)
7.6.2007 10:36am
American Psikhushka (mail) (www):
The statement has to be intentionally public, correct? If you say something slanderous in a private conversation and I was illegally wiretapping you, can a third party claim it was slander if I publicize the statement?
7.6.2007 7:18pm
theobromophile (www):

Besides, if you don't want to be called a whore, pervert, or a lecherous pervert, you shouldn't be cheating on your spouse and engaging in nasty public litigation.


I think the point was that she wasn't cheating on her spouse and, not having done so, was justifiably upset at being called a whore.
7.6.2007 8:36pm
vukdog:

The statement has to be intentionally public, correct? If you say something slanderous in a private conversation and I was illegally wiretapping you, can a third party claim it was slander if I publicize the statement?

I believe the answer would be yes. Furthermore, by publicizing the statement you would also be guilty of slander or libel. There might be some causation issues regarding the extent of the liability of the initial speaker. I think you could only give the tape or otherwise reveal the slanderous statement to the person who was slandered to avoid a potential action against yourself.

Then the defendant in the primary slander action would also have a claim against you for the illegal wiretapping, and damages might be easier to establish given a prior judgment against the plaintiff himself. Of course the wiretapping itself may or may not be actionable depending on what state you find yourself in.
7.6.2007 10:54pm
Eric Barrett:
So if I read this right, she got her money, but she was found in a court of law to be, in fact, a "whore"? Ouch!
7.7.2007 10:17pm
ThePartyoftheFirstPart (mail) (www):
This decision that "whore" doesn't necessarily mean "prostitute" is consistent with the mitior sensus doctrine in which courts look for the "mildest sense" of allegedly defamatory words.

A 1922 American law dictionary, for example, contains an entry for the word slut, the sole purpose of which is to announce that the word means an “untidy woman” and therefore is not to be considered slanderous.
The slut doctrine, as I like to call it, came from an 1888 Illinois case that was not officially overruled by the Illinois Supreme Court until 1996.
7.8.2007 2:44pm