A. Defamation

• Library: The South Carolina Law of Torts (SCBar) (2023 Ed.)

A. Defamation

1. Introduction¹

The modern law of defamation is a blend of constitutional law and common law designed to balance two competing values. On the one hand, the common law action for defamation has historically protected the interest that we all have in our reputation and standing in the community.² On the other hand, the constitutional values underlying the First Amendment require that debate on matters of public interest not be "chilled" by the threat of suits for defamation. As a result of the tension between these values, it is necessary to understand both the historical background of defamation and the effect of First Amendment values on that background.³

In the early development of the common law, the balance between these values was tilted strongly in favor of reputation. Common law defamation could be, except in the case of privileged utterances, a matter of strict liability. Any spoken or written statement injurious to plaintiff's reputation communicated to someone other than the plaintiff was usually actionable. Malice, meaning the intent to injure or ill will toward the plaintiff, was generally presumed from the utterance, as was falsity. In addition, except for the requirement of "special damages" in certain cases, damage was presumed, and a judgment for the plaintiff could be sustained even upon a verdict of nominal damages.

Except for the denial of elements of the claim—for example, of the fact of publication to a third person or of the defamatory meaning or effect of the utterance—the defendant could defend only on two basic grounds. First, the defendant could show that what the defendant had stated regarding the plaintiff was true. Second, the defendant could claim that the statement was privileged—i.e., that the defendant's conduct involved one of the privileged interests that took precedence over the protection of reputation. For example, judges and other participants were absolutely protected from suit for defamation uttered in the course of legal proceedings, even where activated by demonstrable malice or ill will against the plaintiff. As to certain commercial, proprietary, or moral interests, the common law provided a conditional or qualified privilege, and the plaintiff could recover for defamation in such cases only upon a showing of express malice or ill will on the part of the defendant or a showing that the scope of the privilege was exceeded.

This common law scheme has been revised in many important respects over the years as the United States Supreme Court imposed First Amendment restrictions on the law of defamation. The basis of this "constitutionalizing" of defamation law is the "incorporation doctrine," under which portions of the Bill of Rights have been "incorporated" into the due process clause of the Fourteenth Amendment⁴ and are thus binding on the states.⁵ Initially, it had appeared that libel law might fall outside the protection of the First Amendment.⁶ However, in 1964 the United States Supreme Court held that the First Amendment limited state libel law,⁷ and that Court's decisions have changed defamation law substantially.⁸ The net result of these developments is that the private interest in reputation must always be balanced against the public interest in free speech, which often prevails.

2. Common Law Defamation

a. The Elements of Common Law Defamation

In order to recover for defamation, a plaintiff must allege that some message, "expressed either by writing or printing, or by signs, pictures, effigies, or the like,"⁹ had the following characteristics:

(1) it had a defamatory meaning;
(2) it was published with actual or implied malice;
(3) it was false;
(4) it was published by the defendant;
(5) it concerned plaintiff; and
(6) it resulted in legally presumed damages or in special damages to plaintiff.¹⁰

This listing cannot be appreciated fully without also understanding that the law will presume that some of the elements exist where a sufficient showing is made concerning another element. In particular, certain types of statements are considered so harmful to reputation that the law presumes that they are defamatory, that damages resulted, and that malice existed.¹¹ Moreover, a defamatory statement is presumed to be false; truth is an affirmative defense.

Defamation does not focus on the hurt to the defamed party's feelings, but on the injury to that party's reputation.¹² The interest in reputation is personal, and only living persons can be defamed; there is no cause of action for defamation of a person who is dead.¹³ Organizations like corporations, associations, and partnerships can sue for defamation that affects their business or other organizational interests.¹⁴ A defamation claim may survive the "neutral principals of law approach"¹⁵ when the claim arises in the context of a church or religious dispute.¹⁶

(1) Defamatory Meaning

A communication is defamatory if it tends "to impeach the honesty, integrity, virtue, or reputation, or publish the natural or alleged defects, of one who is alive, and thereby to expose [the person] to public hatred, contempt, ridicule, or obloquy, or to cause [the person] to be shunned or avoided, or to injure [the person] in [the person's] office, business, or occupation."¹⁷ Stated differently, the publication of a statement is defamatory if it tends to harm the reputation of another as to lower that other person in the estimation of the community or to deter third persons from associating or dealing with the person.¹⁸

As a general matter, the court first determines whether the language is capable of the defamatory meaning ascribed to it.¹⁹ In making this determination, words must be placed in context and given their ordinary, popular meaning.²⁰ The court will not hunt for a forced and strained construction to put on ordinary words, but will construe them fairly, according to their natural and reasonable import, in the plain and popular sense in which the average reader naturally understands them. There is no presumption of defamation.²¹

A statement that is not ordinarily defamatory can become such if its meaning was affected by circumstances that are extrinsic to the statement involved.²² At common law, where "extrinsic facts" are necessary to indicate a defamatory meaning, "such extrinsic facts and circumstances must be set forth and connected with the words used by proper averment."²³ More specifically, this requirement has been stated in terms of the need to plead and prove the "inducement" and the "innuendo," both of which are terms of art whose meaning differs from ordinary usage.

The rule at common law was that, if the alleged defamatory statement was not . . . actionable per se, the plaintiff's complaint must show, by what was termed the inducement, the extrinsic circumstances which coupled with the language used affected the construction and rendered it actionable; [and] . . . by what was termed the innuendo, giving point or meaning to the matters expressed before in the charge (the inducement . . .), not as stating new facts, but the construction which the defendant intended . . . .²⁴

Where words are capable of different meanings, one of which is defamatory, the jury must determine which meaning was in fact conveyed to readers or listeners.²⁵ Plaintiff may offer evidence of the surrounding circumstances to show that defamatory meaning is to be inferred.²⁶ In such cases, the testimony of witnesses as to the sense in which they understood the publication is admissible.²⁷ In contrast, where words are susceptible of only one meaning under the circumstances, a witness will not be permitted to testify that the witness heard them in a different sense.²⁸

Defamation need not be accomplished in a direct, open or positive manner;²⁹ insinuation can be defamatory. "A mere insinuation is as actionable as a positive assertion if it is false and malicious and the meaning is plain."³⁰ For example, a cause of action is stated by allegations that the discharge of an employee in a position of trust, subsequent to the employee being required, over the employee's protest, to take a polygraph test, raises insinuations among fellow workers that the discharge was for wrongful activity.³¹ Similarly, press releases by a city manager made during the course of an investigation of the city building department insinuated that the director of the department and city electrical and plumbing inspectors were guilty of wrongdoing, involved a jury question concerning whether the releases were defamatory.³²

Conduct, when placed in context, may also convey a defamatory meaning. For example, dishonoring plaintiff's check drawn upon defendant's bank has been held to state a cause of action for libel.³³

Words of abuse normally do not give rise to a cause of action for defamation, but extrinsic circumstances may render them reasonably susceptible of a defamatory construction.³⁴ Similarly, a statement is not necessarily defamatory simply because it is unfavorable.³⁵

Words which make a conditional charge (such as, "if plaintiff made a certain statement in the future, he would have lied") are not actionable as defamation, because the assumption in the conditional clause relates to a situation not presently existing.³⁶

(2) Malice

Common law malice is also called "legal malice," "malice in law," "presumed malice," or "implied malice."³⁷ Common law malice means the defendant acted with ill will toward the plaintiff, or acted recklessly or wantonly, i.e., with conscious indifference of the plaintiff's rights.³⁸ Though it has been said that "malice" is a necessary element of actionable common law defamation,³⁹ this general statement may be misleading because common law malice may be either implied or actual.⁴⁰ Implied malice (or "malice in law") is a legal presumption that arises when certain defamatory statements are involved, thereby dispensing with the need to prove malice.⁴¹ "This form of malice is not necessarily inconsistent with an honest...