Beware of rules concerning libel

Gary Jacobsen
Published: October 13, 2008

We are fortunate that the News & Messenger is willing to print opinion columns and letters that cover a wide range of topics, many controversial. Most of the correspondence is straightforward and reflects
opinions sincerely held by the writers. A few, however, come very close to crossing a line called “libel.”

Alert editors shortstop opinion pieces that might place the writer, and perhaps even the newspaper, on the wrong end of a defamation lawsuit.

There are two matters the editor immediately considers: whether or not the comments are defamatory and the probability that they are false. If there is even a slight chance the statements are false, the
editor must then decide if the writer was motivated by malice.

If the defamatory comments appear in a printed form, or are broadcast over the radio, or are posted to a Web page, the person who has been defamed can bring a lawsuit for libel, normally in circuit court.
If the injured party prevails in court, the writer may be required by the judge to pay not only actual, but also punitive damages.

The prospect of a lawsuit for libel should not, however, deter writers from expressing their views, even in strong terms. There are, in fact, a number of defenses a writer can cite, should it become
necessary.

First, if the statements are true, that is an absolute defense. The defamed party may not like reading the comments in the newspaper or on a Web page, but if they are true there is nothing he can do
except, perhaps, to submit a rebuttal statement.

Next, the comments may be privileged if they are part of the public record — for example, if they appeared earlier in a court case or if they are part of a legislative proceeding. In these cases there is
almost nothing the defamed person can do. He can ask for a retraction, but there are no assurances he will get it.

Third, writers are entitled to express strong opinions about persons who are prominent in the news, such as politicians, movie stars and television personalities. This is called the “fair comment and
criticism” rule. Even if the statement is later shown to be false, the writer is protected as long as he was not motivated by malice in making it. Malice is generally defined as a “reckless disregard for the
truth.”

Some persons think that all expressions of opinion are protected. That is not true if the opinion relates to facts. It would be libelous to say or write, “In my opinion, John Doe violated 8 USC 1324a.”
Similarly, newspapers cannot protect themselves from libel lawsuits simply by printing “allegedly” before defamatory comments. However, if the writer expresses an opinion unrelated to underlying facts,
he or she is OK. In a letter to the editor, a person can say “In my opinion, columnist Joe Smith has a liberal (or conservative) bias.”

So continue to express yourself about issues you consider important. Write a weekly column or perhaps a letter to the editor. No one should be too upset by what your write since we are dealing with
mere words printed on a page. But please do not stray from the truth, or you may face a lawsuit for libel. Most opinions, clearly identified, are OK, but false statements are not.

Gary Jacobsen lives in Woodbridge. Contact him at .