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Defamation

Posted on June 8, 2021 in Firm News

In our age of opinions, we believe that we can say or write anything we want.  For instance, after having settled a lawsuit, you decide to write about the lawsuit on an open forum like Yelp.  You state something along the lines of “This tattoo shop gave me a scar and I won the lawsuit”.  There are a few reasons as to why you shouldn’t write that in any open forum.

For example, if the lawsuit settled out of court and you signed a settlement agreement there is usually a statement in the agreement against any libel or slander.  Libel is a defamation statement in writing.  Slander is a defamation statement verbally stated.  Therefore, the settlement agreement would have provisions against you saying or writing anything that would be considered defamatory toward the opposing party, and they could take you back to court.

Under Nevada law, defamation is a “catch-all” for false statements that cause damage to someone’s reputation.  As defined in Nevada Revised Statutes (NRS 200.510(1)) “ A libel is a malicious defamation, expressed by printing, writing, signs, pictures or the like, tending to blacken the memory of the dead, or to impeach the honesty, integrity, virtue, or reputation, or to publish the natural defects of a living person or persons, or community of persons, or association of persons, and thereby to expose them to public hatred, contempt or ridicule.  Every person, whether the writer or publisher, convicted of the offense is guilty of a gross misdemeanor.  In all prosecutions for libel the truth may be given in evidence to the jury, and, if it shall appear to the jury that the matter charged as libelous is true and was published for good motive and for justifiable ends, the party shall be acquitted, and the jury shall have the right to determine the law and the fact.”  Which means it can be charged as a crime.  More commonly it is  the subject of a civil suit brought by an injured party.

When charged as a crime, libel must be proven beyond a reasonable doubt. But in a civil case, it need only be proved by a “preponderance of the evidence” – that is, that it is more likely than not that the defendant defamed the plaintiff.  Slander is basically the same as libel but applies to statements made orally.  Otherwise, the elements are the same.  However, as it can be harder to prove that a damaging statement was made verbally (or that a verbal statement caused damages), defamation cases more frequently involve libel.

The First Amendment to the U.S. Constitution provides that the government may not prohibit free speech.  However, this right is not absolute.  In the context of a defamation suit, the United States Supreme Court has held that there is “no constitutional value in false statements of fact.”

Additionally, the Nevada Constitution provides:  Every citizen may freely speak, write and publish his sentiments on all subjects being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for libels, the truth may be given in evidence to the Jury; and if it shall appear to the Jury that the matter charged as libelous is true and was published with good motives and for justifiable ends, the party shall be acquitted or exonerated.

When it comes to statements, be careful as to what you say.  As Plato stated “Opinion is the medium between knowledge and ignorance.”