Can I sue for defamation (libel slander) Truth as a defense.

Can I sue for defamation (libel / slander)? Truth as a defense.

Many times, politics boils over into allegations by supporters of one side against supporters of the opposing side that become heated. Sometimes, one side will threaten to file a suit for defamation, which encompasses libel if the defamatory statement is in writing, and slander if the defamation by oral or spoken communication. OUSD politics is no different.

It is often said that: “In an action for libel [or slander], proof of the truth of the defamatory statements is an absolute defense.” Draper v. Hellman Commercial Trust & Savings Bank (1928) 203 Cal. 26, 34. However, the law goes further than to require the absolute, objective truth of the statement.

Only the “Gist or Sting” of the Remark Must be True

Indeed, “the law does not require [the defendant] to justify the literal truth of every word of the allegedly defamatory content, nor must we parse each word written by [the defendant] to determine its truthfulness. It is sufficient if the defendant proves true the substance of the charge, irrespective of slight inaccuracy in the details, so long as the imputation is substantially true so as to justify the ‘gist or sting’ of the remark. Where an imputation is substantially true so as to justify the ‘gist or sting’ of the remark, the truth defense is established.” Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 697.

“Though mere opinions are generally not actionable, statement that implies a false assertion of fact is actionable. It is not the literal truth or falsity of each word or detail used in a statement which determines whether or not it is defamatory; rather, the determinative question is whether the ‘gist or sting’ of the statement is true or false, benign or defamatory, in substance.” Billauer v. Escobar-Eck (2023) 88 Cal.App.5th 953, 967.

Rhetorical Hyperbole is Protected as Free Speech

“Statements of fact are actionable as defamation, while opinions generally are not. However, opinions may be actionable if they imply an assertion of objective fact.” Terry v. Davis Cmty. Church (2005) 131 Cal.App. 4th 1534, 1552.

Thus, “statements cannot form the basis of a defamation action if they cannot be reasonably interpreted as stating actual facts about an individual. Thus, rhetorical hyperbole, vigorous epithets, lusty and imaginative expressions of contempt and language used in a loose, figurative sense will not support a defamation action.Grenier v. Taylor (2015) 234 Cal.App.4th 471, 486.

This is because “‘imaginative expression’ [and] ‘rhetorical hyperbole’ . . . has traditionally added much to the discourse of our Nation.” Rosenaur v. Scherer (2001) 88 Cal.App. 4th 260, 279.

In Rosenaur v. Scherer (2001) 88 Cal.App. 4th 260, 279, calling plaintiff a “thief” and “liar” during a political campaign was deemed hyperbole, not actionable defamation because “Courts must be cautious lest we inhibit vigorous public debate about … public issues. If we err, it should be on the side of allowing free-flowing discussion of current events. We must allow plenty of ‘breathing space’ for such commentary.”

OUSD Parents, Students, Teachers and Community Members Should Speak Freely

The First Amendment protects a wide latitude of political speech both stated literally and for rhetorical purposes. Political campaigns and political generally can involve making expressing opinions that may not be popular. Few defamation cases are filed, and many in the political context end with an award of attorney’s fees to the defendant based on California’s Anti-SLAPP law. Always consult with a qualified defamation lawyer before filing a lawsuit alleging libel or slander.