Freedom of speech is a personal right granted to all individuals as enshrined by the Constitution. Freedom of speech, however, is not absolute. Freedom of speech is limited when that freedom encroaches on another individual's freedom. Defamation -- the act of creating false statements about a person and communicating those statements to another person, causing harm to the subject's reputation and standing in the community.
Defamation is governed primarily by state law. Although the Constitution and case precedents interpreting freedom of speech also form a crucial part of defamation law. While state law differs as to the specific acts that constitute defamation, the types of harm caused by such act, and the penalties that accompany such act, the general elements that must be proved are basically similar.
Defamation is called libel, when the defamatory statements are printed, written, or broadcasted, and called slander when the defamatory statements are communicated orally. While defamation per se is not difficult to prove as the statements are so vicious the harm is obvious, libel and slander may not be as easy to prove. For one, proving that the false statements were communicated as fact, rather than opinion, is difficult, the aggrieved party would need a lawyer who specializes in these types of cases. Moreover, proving intent and damages require extrinsic evidence that may be difficult to obtain, especially when freedom of speech is taken into consideration. Malice, for one, is difficult to prove as the aggrieved party need to produce clear and convincing evidence that the person who communicated the false statement knew beforehand that the statement was false.
In addition to proving defamation, intent, and harm, one of the more difficult tasks for defamation attorneys is countering the defense's possible argument that the false statement is not defamatory. Typical defense for defamation would be that the statement was an opinion based on accurate facts, minor reporting errors, and the statement was the truth. The U.S. Supreme Court has, in many cases, ruled that government officials, political candidates, heroes, and celebrities are generally exempted from filing defamation cases with respect to their status as public figures, except when malice or intent is proven.
The harm, which include being shamed, hated, or belittled, caused by the defamatory statements gives rise to damages. Most states would require that the damaged party demand a printed retraction of the defamatory statement before proceeding to filing a case in court. If the damaged party decides to sue without first seeking retraction or if the damaged party receives a retraction but proceeds to sue anyway, most states will limit the damages the damaged party may pursue to the actual or special damages they experienced, such as loss of employment or wages. If it is proven that the person who made the false statements acted with intentional malice, then the aggrieved party will be entitled to additional damages, including damages for loss of business. It is thus wise for the damaged party to seek advice from counsel before making any step towards seeking restitution, as making one wrong move could lessen the damages that is due the aggrieved party.