When is it Libel to Call Someone a Liar?

DefamationAs I wrote about in this blog post, defamation is a tort (civil wrong) and can also be a crime.

Defamation in writing is called libel, and spoken defamation is called slander.

Commonly, for a defendant to be liable for defamation under tort law, he or she must:

  • make an intentional false communication,
  • either written or spoken,
  • that harms a person's reputation,
  • decreases the respect, regard, or confidence in which a person is held, or
  • induces disparaging, hostile, or disagreeable opinions or feelings against a person.

Some types of statements are considered defamatory "per se." That means they're defamatory on their face and presumed harmful whether or not the plaintiff can prove actual harm.

Loathsome Diseases

For example, statements can be defamatory per se if they state or suggest that the plaintiff:

  • was or is involved in criminal activity
  • has or had a "loathsome," contagious, or infectious disease (such as a sexually transmitted disease)
  • was or is promiscuous or engaged in sexual misconduct
  • was or is engaged in unprofessional conduct in connection with a business, trade, or profession

Calling someone a liar isn't normally defamatory per se.

So when is it defamatory to call someone a liar?

You Callin' Me a Liar?

As the New York Times notes,

Courts have struggled with such suits. Calling someone a liar can be an insult, an opinion or hyperbole, all of which are protected by the First Amendment. But an assertion of fact soberly presented from someone in a position to know the truth can amount to libel. A lot depends on context, and courts have had a hard time drawing a line.

Cases challenging accusations of lying are on the upswing. As the Times reports,

Before the #MeToo movement, libel lawsuits from people accused of lying were in decline. Indeed, a 2016 law review article chronicled what it called “the slow, quiet and troubled demise of liar libel.”

These days, a remarkable number of libel suits, including ones against Bill CosbyBill O’ReillyRoy S. Moore and Mr. Trump, have been filed by women who say they were defamed by men who denied their accusations of sexual misconduct.

This legal question is also at issue in a case involving President Donald Trump.

Kissed and Groped

Summer Zervos, a former contestant on "The Apprentice," sued Trump, charging him with defamation for calling her a liar when she said he had kissed and groped her, without her consent, in his New York Office and at a Los Angeles hotel.

Trump's attorneys asked the court to dismiss the case, saying that “Political statements in political contexts are nonactionable political opinion.”

But the judge allowed it to move forward, stating

That [Trump's] statements about plaintiff’s veracity were made while he was campaigning to become president of the United States does not make them any less actionable.

Trump's lawyers have filed an appeal.

According to Michigan Law Professor Leonard Niehoff, an expert on "liar libel" quoted by the Times,

Not all liar libel cases are created equal. The plaintiff has a stronger case where the defendant has personal knowledge of the matter. If the president himself denies having an affair, this is a statement of fact. After all, he knows whether he did or didn’t.

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