By Brian S. Kabateck
A slew of recent high-profile cases is calling attention to the complex issue of free speech vs. defamation.
Several celebrity figures have used their expansive media/social media platforms to make outrageous, inflammatory, and damaging comments in a public forum—and because many of these comments have been demonstrably untrue, they have arguably crossed the line into defamation.
In simplest terms, defamation, also called defamation of character, is the act of knowingly and publicly making a false statement that damages another person’s reputation and brings harm. There are two types of defamation: slander is spoken defamation, and libel is in writing.
The family of George Floyd is bringing a $250 million lawsuit against rapper Kanye West (now known as “Ye”) over comments made last week on the podcast Drink Champs. Floyd’s death in 2020, after officer Derek Chauvin kneeled on his neck for nearly nine minutes, sparked a national outcry against police brutality and was ruled a homicide by the Hennepin County Medical Examiner’s Office. But in the Drink Champs interview, West suggested that Floyd died because of fentanyl use.
In a statement, the Floyd family’s attorneys, The Witherspoon Law Group, have called Ye’s comments “harassment, misappropriation, defamation, and infliction of emotional distress.” Kay Harper Williams, an attorney with Witherspoon, elaborated, “Free speech rights do not include harassment, lies, misrepresentation, and the misappropriation of George Floyd’s legacy. Some words have consequences, and Mr. West will be made to understand that.”
Drink Champs has pulled the episode and apologized.
Nevertheless, the Floyd family suit faces hurdles; it can be difficult to prove defamation when there is no living person whose reputation has been harmed. However, they may have a strong case for the intentional infliction of emotional distress on George Floyd’s young daughter, Gianna.
In mid-October, a Connecticut jury found Infowars founder Alex Jones—extreme right-wing conspiracy theorist and television shock jock—liable for defamation for his devastating comments about the tragic 2012 Sandy Hook Elementary School massacre that took the lives of 20 children and six adults. Jones has repeatedly asserted that the shooting was a hoax perpetrated to take away the gun rights of U.S. citizens. Jones’s statements have caused actual harm—his fans have harassed the victims’ families for years.
The jury ordered Jones to pay nearly one billion dollars in compensatory damages to the victims’ families. And the verdict could still grow—next month, and a judge will decide how much to award in punitive damages. Jones also lost a similar suit against him in Texas, where a jury awarded two Sandy Hook parents nearly $50 million. In that case, Travis County District Judge Maya Guerra Gamble asked jurors in the Alex Jones trial to consider “the extent to which such conduct offends a public sense of propriety.”
Jones has vowed to fight the suits and is attempting to shield his assets through bankruptcy. But speaking with Reuters, I explained that Jones’s “underlying conduct was egregious, and that’s the kind of thing that could get you beyond the limits of a bankruptcy.”
Tesla Inc. boss Elon Musk won a 2019 defamation case against him concerning his remarks on Twitter. The $190 million suit was brought by Vernon Unsworth, a British cave diver who helped lead the renowned rescue of a soccer team that had become stranded in a flooded cave in Thailand in 2018. When Musk sent a mini-submarine to the site of the cave system, Unsworth called it a publicity stunt and told the tech magnate to “stick his submarine where it hurts.” Musk retaliated by calling Unsworth “pedo guy” (slang for pedophile) on Twitter.
The case was closely watched because, as Reuters reported, “Legal experts believe it was the first major defamation lawsuit brought by a private individual over remarks on Twitter to be decided by a jury.”
After the trial, Unsworth’s lawyer told reporters, “This verdict puts everyone’s reputation at risk.” And Reuters reported, “Other lawyers specializing in defamation agreed the verdict reflects how the freewheeling nature of social media has altered understandings of what distinguishes libel punishable in court from casual rhetoric and hyperbole protected as free speech.”
While the First Amendment does protect the right to speak and write unpopular, offensive, mean, or disparaging opinions, there are categories of “free speech” that are not protected by the First Amendment, which includes: obscenity, child pornography, fraud, incitement to violence, actual threats of violence, and defamation. Defamation is a tort in most states.
These three cases share similarities due to a heightened cultural consciousness involving celebrities that made outrageous, hurtful, provocative, and demonstrably false statements in some cases.
These incidents have happened in close succession—and in each case, we’re confronting the collision of a valued principle of our democracy, free speech. We are now faced with the complicated reality and real-life consequences of “influencers” having an almost unlimited and unchecked platform where they may spread misinformation, untruths, baseless theories, damaging lies, spur harassment, and even hint at inciting violence.
Defamation isn’t limited to high-profile cases. If your life and reputation have suffered harm because someone knowingly and intentionally published injurious falsehoods about you—seek qualified legal counsel. The skilled and caring plaintiff’s attorneys at Kabatek LLP can help you pursue damages and get your life back on course.