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Defamation Defense: Is There a Third “Bite of the Apple” Available?

In defamation cases, there are two basic “tried and true” defenses utilized in lawsuits whether the charge is libel, slander or both. The first is “truth” because one of the elements that must be proven in a defamation lawsuit is the falsity of the statement. Therefore if the statement is true, there is no basis for defamation.

The second basic defense is “protected opinion” and that is defined in two ways (Milkovich v. Lorain Journal Co.). The first involves statements that are not “provable as false,” meaning the language cannot be proved true or false by a core of objective evidence. This category of opinion also involves a statement of subjective belief based on disclosed true facts. The second involves statements that “cannot reasonably [be] interpreted as stating actual facts,” meaning “loose, figurative, or hyperbolic language which would negate the impression that the writer was seriously maintaining” an actual fact, or where the “general tenor of the article” negates the impression that actual facts are being asserted.

Is it possible though, in certain circumstances, there could be a third defense? One that might not apply in every case but could be applicable in the so-called “gray areas” of defamation. I came across such a situation in a case in Spokane, WA in which I represented the defendant. It proved quite successful and I termed the type of defense “Common Belief.” First some background.

The Spokane case was a case where a nonprofit organization conducted a nationwide search and hired someone in New York who relocated his family across country to fill the position. Three months after beginning work, the employee’s “superior” became aware of an aspect of his personal life that (while not illegal) was judged not suitable for someone employed by the organization – despite the fact the employee was doing his work well and had a good reputation in the industry. After being terminated, the employee started a blog and for two years used it to castigate the superior (not the organization) in a plethora of negative comments, aspersions and references. Some were statements, some were opinions, some commentary.

I was retained to represent the defendant. After a review of all the documents and legal filings as well as a review of portions of his blog this appeared to be a clear case of defamation. Just as I was about to advise the attorney to have his client settle and quick, I began reading some emails and letters I was provided as well as some newspaper articles on the case and related to the organization in general and specifically the superior. In doing so, it became clear that much of the “negative communications” he was disseminating about the superior were in fact echoed in statements and opinions made by others (who were not sued by the superior), both who had worked in the organization or had interacted with the superior through the organization. In other words there was a commonality of perception about the superior that was widespread. What I term a “Common Belief.” Using that defense we turned the case around to a successful conclusion for the defendant.

Would this “Common Belief” defense work in every defamation case. Probably not. But it is something to be considered if needed or applicable.

Note to Attorneys – For those who might dismiss this somewhat creative, “outside of the box” type of defense; if your case will be decided by a jury, remember cases decided by juries occasionally don’t follow the strict letter of the law when the decision comes down. Sometimes the facts don’t always determine the outcome, the best interpretation of them does or juries can be swayed by irrelevant or tangential case arguments or analyses. (e.g. think O.J. Simpson murder trial.)

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