Opinion: Youngstown lawyer explains freedom of speech
It all depends on the laws governing defamation which is defined as a false statement presented as a fact that damages the reputation of a third party. Here is a little guide.
As I noted in previous columns, the rights enumerated in the US Constitution are not absolute.
For example, the Supreme Court ruled in 1919 that yelling “fire” in a crowded theater is not protected speech under the First Amendment. Unsurprisingly, this one exception has given rise to many questions and hundreds of cases regarding the type of expression is protected by the Bill of Rights. For example, can a person in this hypothetical overcrowded theater stand up and accuse another of a crime or distribute a flyer that attacks someone else’s character?
As is often – and often exasperatingly – the case with constitutional questions, the answer is, “It depends.”
In this case, it depends on the laws governing defamation which is defined as a false statement presented as a fact that harms or damages the reputation of a third party. There are two types of defamation: slander, a false statement made orally; and defamation, a false statement made in writing. And, since the dawn of the computer and internet age, that includes emails and social media posts.
While libel is not considered a crime at the federal level or in Ohio, libel and slander are torts, which means victims can sue for damages. To win in court, a plaintiff must prove:
1.) The statement has been reported as a fact to another person;
2.) The statement was false;
3.) The claimant suffered damage;
4.) The person who made the statement was negligent.
It sounds simple enough, except that we are talking about the law, so nothing could be further from the truth. And speaking of truth, this is an absolute defense against defamation because if what is said or written is true, it cannot be false, and therefore, it cannot be defamatory or slanderous, no matter what. the damage this can cause.
Here’s another fun fact: Public figures have virtually no chance of winning libel lawsuits thanks to New York Times v. Sullivan, a unanimous Supreme Court decision of 1964 that set the standard for “absent wickedness.” Under this legal principle, the target of a defamatory statement must prove that the person or entity who wrote or uttered it did so knowing or showing reckless disregard that he was wrong.
Who qualifies as a public figure? Politicians, celebrities, business leaders, unions and community leaders and, well, me. It means Mahoning Questions can post pretty much anything they want on me and there isn’t much I can do about it.
Finally, consider this scenario: two neighbors who are not public figures have a contentious relationship. Neighbor A posts on Facebook that neighbor B is beating his wife and children and kicking his dog. The statement is false, but people believe him and ostracize neighbor B, he is fired from his job and suffers other torments.
Neighbor B can sue Neighbor A, but can it sue Facebook for providing a platform for the lies?
No, because section 230 of the Communications Decency Act (CDA 230) states that Facebook and other IT service providers are not considered publishers of user posted content and are not responsible for them.
So while Neighbor B may be able to squeeze a few dollars from Neighbor B, he will not receive a check drawn on Mark Zuckerberg’s multi-billion dollar account.
– Lawyer David Betras, a senior partner at Betras, Kopp & Harshman LLC., leads the firm’s non-contentious activities and practices criminal defense law in state and federal courts. He has practiced law for 35 years. Do you have a legal question you would like to answer here? Send it to [email protected]