History of Defamation Law

Defamation occurs when an individual or company makes a false statement about a person to a third party or parties that injures the reputation of that person. Defamatory statements can be oral or written. Defamatory statements that are written are referred to as libel. Oral defamatory statements are called slander. The advent of the internet has spawned a new type of defamation as well: cybersmearing. While historically there was a difference between libel and slander, Illinois and many other states have long since done away with any distinction between the two and refer to both simply as defamation. In general, defamation is a tort that provides for civil damages, though some states do have criminal defamation statutes.

For the early part of America’s history, federal and state governments often used defamation laws to repress critical speech. Only seven years after the First Amendment was ratified, Congress passed the Sedition Act of 1798, which criminalized any speech deemed "false, scandalous, or malicious" concerning the president, Congress, or the federal government. The Sedition Act was used to imprison and convict a number of Americans including a Congressman who was convicted and imprisoned for calling President John Adams a man with "a continual grasp for power." Less than two decades later, Congress passed additional laws aimed at controlling speech and silencing critics. Among these laws were the Espionage Act of 1917 and a later amendment, the Sedition Act of 1918. Many states followed the federal government’s example and passed their own state law versions of the Espionage and Sedition Acts to criminalize speech at the state level.

The Supreme Court did little to stop these attempts to quell criticism at the federal or state level, often barely taking even mentioning the First Amendment in libel or slander cases. Until the latter half of the twentieth century, plaintiffs in defamation cases held a definitive advantage. Many states presumed the falsity of a defendant’s statement, placing the burden of proof entirely on the defamation defendant to prove the truth of the allegedly libelous statement. 

A shift in the Supreme Court’s view of defamation and its relationship to the First Amendment began with the Supreme Court’s 1964 decision in New York Times Co. v. Sullivan. The Sullivan case arose in the midst of the civil rights movement. In 1960, the New York Times published an editorial advertisement accusing the Montgomery, Alabama police department of several atrocities against African Americans. The city commissioner, L.B. Sullivan, filed a libel suit against the New York Times for several factual inaccuracies in the advertisement. A jury awarded Sullivan $500,000. The New York Times appealed the verdict all the way to the Supreme Court.

In its opinion, the Supreme Court reversed the jury verdict finding that “the law applied by the Alabama courts is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments.” While acknowledging the factual inaccuracies in the advertisement, the court reasoned that “erroneous statement is inevitable in free debate” and permitting critics of public officials to be held liable for any and all factual errors could silence speech on matters of public interest. To combat this, the court established the actual malice requirement—a requirement that still pervades slander law to this day. A few years later, the Supreme Court expanded this rule in the case of Curtis Publishing Co. v. Butts.

These landmark cases clarified that the First Amendment is squarely implicated in cases involving accusations of libel, slander and defamation. Additionally, they led to the development of many of the slander defenses that protect defamation defendants to this day. Chief among these defenses is that of non-actionable opinion, which provides that the First Amendment protects statements of pure opinion from liability. Another defense is the substantial truth defense, which provides that a statement is not considered defamatory if the “gist” or “sting” of the statement is true even if it contains minor factual inaccuracies. Another is the defense of innocent construction, a defense applicable only in libel per se cases and which provides that a statement that is capable of a reasonable non-defamatory construction will not be considered defamatory. Click here to read about our successful defense of a client based on the innocent construction defense.

First Amendment jurisprudence has evolved a great deal since Sullivan and continues to do so to this day. Accordingly, it always advisable to seek the services of an experienced defamation, libel and cybersmear attorney with an in-depth knowledge of First Amendment law and recent advancements in the law.

The attorneys at Lubin Austermuehle have over thirty years of experience defending and prosecuting defamation, slander, libel and cyber-smear lawsuits. We are knowledgeable regarding the changes and complexities of this evolving area of the law. We are committed to fighting for our clients' rights in the courtroom and at the negotiating table. Conveniently located in Chicago and Elmhurst, Illinois, we have successfully litigated defamation, trade libel, internet defamation, and cyber smear cases for clients all over the Chicago area. To schedule a consultation with one of our skilled attorneys, you can contact us online or give us a call on our toll-free number at 630-333-0333.

Client Reviews
"I was referred to Peter Lubin from someone in the car business to handle a law suit. From the moment I made the appointment Peter and his staff were outstanding. This wasn't an easy case, most lawyers had turned me down. However, Peter took the time to meet with me and review everything. He took on the case, and constantly communicated with me about updates and case information. We beat this non-compete agreement case in record time. I would use him again and recommend him to my closest family and friends. 5 stars is not enough to thank him for his service." Sebastian R.
"I worked on two occasions with Peter Lubin and his staff. They took their time with me and discussed each and every item in detail. The group makes you feel like you are part of the family and not just another hourly charge. I recommend Peter to anyone who asks me for a referral. If you are looking for a top notch attorney at a reasonable rate, look no further than Lubin Austermuehle." Kurt A.
"Excellent law firm. My case was a complicated arbitration dispute from another state. Was handled with utmost professionalism and decency. Mr. Peter Lubin was able to successfully resolve the case on my behalf and got me a very favorable settlement. Would recommend to anyone looking for a serious law firm. Great staff and great lawyers!" Albey L.
"I have known Peter Lubin for over 30 years. He has represented me on occasion with sound legal advice. He is a shrewd and tough negotiator leading to positive outcomes and averting prolonged legal hassles in court. He comes from a family with a legal pedigree and deep roots in Chicago's top legal community. You want him on your case. You need him on your opponents case. He won't stop fighting until he wins." Christopher G.
"Peter and his team helped us with an auto fraud case. They communicated well (timely and very responsive), investigated deeply, and negotiated a very good settlement. We were able to resolve our significant issue without a large burden and in a manner that allowed for us to come out ahead. I'd recommend Peter and his team strongly!" R.J. Callahan
"Peter was really nice and helpful when I came to him with an initial question about a non-compete. Would definitely reach out again, recommended to everyone." Johannes B.