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Last edited Sat Mar 10, 2012, 11:09 AM - Edit history (2)
First, defamation is the general term that covers both libel (which is a defamatory statement made in writing) and slander (a defamatory statement made orally). Assuming that Limpy publishes a transcript of his shows (and I don't know if he does), he could be sued for both slander and libel.
Second, as between slander and libel, there generally is no difference in the elements of the cause of action. To make out a case of libel or slander, a plaintiff typically must prove:
That the defendant made a false and defamatory statement of fact concerning the plaintiff.
That the defendant acted at least negligently in making the defamatory statement.
That the plaintiff was damaged by the defamatory statement.
A "defamatory statement" is generally defined as a statement of fact that tends to expose a person to public scorn or ridicule (although different states describe defamation more or less specifically than that).
The burden of proof (including the burden of proving that the statement was false) typically is on the plaintiff, although some states have shifted the burden to the defendant to prove that the statement was true. In any case, truth is a defense, so even in states where the plaintiff bears the burden of proving the statement in question was false, defendants can seek discovery from the plaintiff in an effort to show that the statement was true.
Also, some states specifically instruct juries that in determining whether the statement defamed the plaintiff, the jury is to consider "the plain and natural meaning of the statement, taken as a whole." Some states also direct juries to consider how the statement would be perceived by a "reasonable person" while others instruct juries also to consider how it was meant by the defendant.
Third, certain types of statements are deemed "per se" libelous or slanderous, including statements falsely accusing a person of crime, immoral acts, inchastity, or having a loathsome disease. Falsey stating that someone is a "slut" or a "prostitute" is typically regarded as an example of a statement that is "per se" defamatory. With respect to such statements, the plaintiff still has to prove the statement was a false statement of fact (in those jurisdictions where the burden of proving falsity is placed on the plaintiff) but does not have to prove that the statement harmed his/her reputation or caused any actual damages. At minimum, someone who has been the target of a defamatory per se statement is entitled to a nominal amount of "general" damages for harm to their reputation. More than nominal damages can be imposed depending on the degree of harm to reputation that the jury concludes has been incurred by the plaintiff (for example, if the defendant shows that the plaintiff had a lousy reputation, then the general damages will be less than would be the case if the plaintiff shows that he/she has an exemplary reputation). In additon to these "general" damages, a plaintiff can attempt to prove and recover "actual" (or "special"
damages based on provable economic losses, such as lost wages or business. And where the plaintiff shows that the statement was made with "actual malice," punitive damages typically can and will be awarded.
Fourth, as a matter of constitutional law, a higher burden is placed on a plaintiff that has attained the status of a "public figure," either for all purposes or for a "limited purpose." This constitutional standard applies to all cases alleging defmation -- slander AND libel, even slander and libel "per se." Where the plaintiff is a public figure (all purpose or limited purpose), the plaintiff must establish that the defendant made with defamatory statement with "actual malice" -- meaning that the defendant had actual knowledge that the statement they were making was false or that the defendant made the statement with reckless disregard as to whether the statement was true or false. (In cases that involve a purely "private" person, all that the plaintiff must show is that the defendant made the false statement negiligently (i.e., did not exercise the level of care in making the statement that one would expect from a "reasonable person."
A couple of additional notes. Its often said that one can't be held liable for defamation if one is merely stating an "opinion." To a certain degree that is true, but merely labelling something an "opinion" (such as "in my opinion, she is a prostitute" isn't necessarily sufficient to protect a defendant. To prove that the statement in issue is one of opinion not fact, the defendant typically must show that the statement addresses a matter of public concern in a manner that is not provably true or false and cannot be reasonably interpreted as intended to convey actual facts about a person. (Thus, in my example, the statement "in my opinion she is a prostitute" is not considered an opinion for purposes of defamation law). In addition, other factors that can come into play in determining whether an allegedly defamatory statement is actionable are whether the language used is figurative or hyperbolic, or whether the general tenor of the statement, taken in context, is such that it negates the conclusion that a reasonable person would perceive the speaker as seriously maintaining the truth of the underlying facts.
As indicated, the precise standards applied to defamation cases can vary somewhat from state to state. For those that are interested in understanding the elements of a defamation case, one option is to google "model jury instructions defamation" -- that should lead you to onliine versions of the model (or "pattern" jury instructions that have been adopted by various states for civil cases. Typically, there is a specific set of instructions for "defamation" (or "libel and slander" .
Hope this helps.
