When Gossip Becomes Slander: Defamation in Nevada

Not all speech is protected by the First Amendment, including certain categories of speech that impugn another’s reputation.

By Zachariah B. Parry, attorney at Pickard Parry Pfau.

For over two hundred years, this country has protected its citizens’ First Amendment rights: “Congress shall make no law … abridging the freedom of speech.” The freedom of speech has become an oft-repeated refrain, if often misunderstood. Although the freedom of speech is sacrosanct, it is not absolute. In the last two centuries, the judiciary has carved out exceptions to this right where its exercise infringes on certain rights of others. For example, threats, fighting words, obscenity, and child pornography all constitute speech and expression that can be abridged without running afoul of constitutional protections. Defamation, or sharing false and injurious statements of facts about others, creates another well-recognized exception.

In Nevada, to prove defamation, a plaintiff must prove that the defendant shared a false statement concerning the plaintiff in a way that harm’s the plaintiff’s reputation. The defendant must also have failed to exercise due care regarding the falsity of the statement. Libel is defamation in written form, and slander is spoken defamation. Libel is usually more serious because a written medium is more permanent and has the potential to reach a wider audience.

Courts look at defamation in four parts, and the plaintiff must prove all four “elements” of defamation to prevail. These four elements are the following:

  1. a false and defamatory statement by a defendant concerning the plaintiff;
  2. an unprivileged publication to a third person;
  3. fault, amounting to at least negligence; and
  4. actual or presumed damages

Because the plaintiff bears the burden of proof in civil litigation, if the defendant can rebut any one of the elements to the satisfaction of the fact-finder (either the judge or the jury), the defendant prevails.

False Statement of Fact

American jurisprudence, dating as far back as defamation itself, has held to the tenet that for a statement to be defamatory, it must also be false. Thus, truth is an absolute defense to a claim for defamation. No matter how damaging, no matter how socially unacceptable, indeed, no matter the consequences, a true statement of fact is not actionable in defamation. If a student who cheats on an exam is turned in to the dean and kicked out of the university, he cannot prevail in a suit for defamation. A corporate executive who is terminated and publicly branded a pariah because of an employee’s public disclosure of her more private—and embarrassing—proclivities has no case against the whistleblower as long as the statements made were true.

In addition to being false, the statements must also be of a factual nature rather than the expression of opinion. This proves to be a much murkier matter than determining whether a statement is true. Courts have long battled with drawing the line between statements of opinion and statements of fact. The United States Supreme Court has (seemingly) intentionally left the law vague in that regard: “Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact.” After several lower courts began applying a categorical exception to defamation for opinion statements, the U.S. Supreme Court discouraged such black-and-white analysis, but gave little additional guidance. Its relative silence since has left the individual states to set their own standards of differentiation.

Nevada does except opinion statements from those actionable in defamation. Nonetheless, “an opinion could be defamatory if a speaker suggests defamatory facts in the opinion.” What exactly that means is unclear. That riddle is left for the jury to solve with guidance from the Nevada Supreme Court: a statements fact-opinion status turns on “whether a reasonable person would be likely to understand the remark as an expression of the source’s opinion or as a statement of existing fact.” In other words, the Nevada Supreme Court is not sure what standard to apply, so it implores juries to try to be objective.

Unprivileged Publication to a Third Person

If the statement is false and is of a factual nature, it must also be shared to constitute defamation. The publication element does not require the false statement to be published in the traditional sense—in the newspaper, on the radio, or on television. It suffices that just one person, other than the plaintiff and defendant, is privy to the statement. Thus, a whispered warning to a potential client of a businessman’s unsavory business practices can constitute publication. Idle classroom chatter about a cheerleader’s supposed sexual promiscuity is published when heard by others. These statements, even though made in relative secrecy, if false, may constitution defamation.

Some statements, by their nature, are privileged, and are therefore immune from suit. Statements made by witness in a courtroom, for example, cannot subject them to liability for slander (though they may be criminally liable for perjury). Statements made between spouses or by legislators during legislative debates are also privileged, even if otherwise defamatory.

Fault

Defamation is an intentional tort, which means there must be some degree of purpose behind the wrong. Where the plaintiff is a private individual, only fault amounting to negligence must be proven, which means that the defendant must have at least failed to exercise reasonable care with regard to ascertaining the falsity of the fact before publicizing it. In other words, if the defendant had a good faith reason to believe that the statement made was true, there is no defamation, even if the statement was actually false.

On the other hand, where the plaintiff is a public figure—including those who “achieve such pervasive fame or notoriety that they become a public figure for all purposes and in all contexts”—actual malice must be proven. A public-figure plaintiff has a higher burden to prove defamation than the private-figure plaintiff. Indeed, the Constitution purposefully provides more protection to discourses in the public’s interest than it does to private matters. Whether a person is a public or private figure, like the fact-opinion dichotomy, is also a gray area.  To show malice, those determined to be public figures must prove that the defamatory statement was made with knowledge that it was false, or at least with reckless disregard for whether it was true, meaning the speaker had a “high degree of awareness of the probable falsity of the statement” or “serious doubts as to the publication’s truth.”

Damages

The false statement must be injurious; it must damage the plaintiff’s reputation. This could come in many forms. The plaintiff’s peers may have lost trust in the plaintiff, it may be harder for plaintiff to get a job or a loan, or plaintiff may no longer be welcome at an exclusive club. Dirty looks, less frequent invitations to social events, and missed opportunities may all be measures of harm to reputation.  In some cases proving injury may be difficult. It’s possible, after all, that the statement, though false, does not injure the plaintiff’s reputation, which may already be poor. In others, the injury may be misperceived or exaggerated.

In other types of cases damages are presumed and do not have to be proven. For example, statements that “tend[ ] to injure the plaintiff in his or her business or profession” carry with them the presumption of damages. The imputation of a serious crime, serious sexual misconduct, or having a loathsome disease also constitute defamation per se, which excuses the plaintiff from proving damages to prevail.

If you’ve been defamed—whether the victim of careless gossip or malicious calumny—or are being accused of libel or slander, seek the counsel of an experienced tort attorney.

Zachariah B. ParryZachariah B. Parry is a founding partner of the civil litigation law firm, Pickard Parry Pfau. He regularly litigates against parties with deep pockets like labor unions, racketeering enterprises and insurance companies. He has experienced success on both sides of the table, including multiple multi-million dollar judgments on behalf of plaintiffs in fraud cases and zero-dollar defense verdicts for his clients who were unjustly sued. In addition to litigating, Zach also teaches torts, contracts and Nevada practice and procedure at UNLV’s paralegal program.

Zach can be reached at zach@pickardparry.com, 702-910-4300, or through his firm’s website at www.pickardparry.com.


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