Do defamation lawyers threaten free speech? It depends who you ask. At LATE NIGHT LAW, we fight for free speech by litigating First Amendment free speech claims, in addition to litigating defamation claims. But while we certainly value freedom of speech, we believe that the truth is more important than free speech.
Does that proposition trouble you? You probably aren’t alone. Americans tend to view free speech as an end in itself. But while free speech is among the highest of our American values, we should keep in mind that the real purpose of free speech is the search for truth. As Thomas Jefferson said, “Reason and free inquiry are the only effectual agents against error.”
A mechanic may enjoy the process of repairing an engine. He may even believe in that process. But the purpose of repairing an engine is to get a vehicle back up and running. Mechanics don’t repair engines simply to repair them. Just like automotive repair is an agent against engine failure, free speech is an “agent against error”—and against falsehood.
Defamation is a form of speech that is not protected by the First Amendment. It is defined as “malicious or groundless harm to the reputation or good name of another by the making of a false statement to a third person.” (Black’s Law Dictionary, 11th ed.) For centuries, the Anglo-American common law has recognized defamation as a civil cause of action, and many recent defamation cases are well-known, e.g., Depp v. Heard, Va. Cir. Ct. No. CL-2019-0002911; and Dominion Voting Systems, Inc. v. Fox News Network, Del.Super. N21C-03-257. The framers of the First Amendment were well aware of the common law of defamation and had no intent to limit it. Indeed, the Supreme Court imposed no constitutional limitations on common law defamation suits until the 1960s.
But while attorneys have been bringing defamation lawsuits for ages, “defamation law” as such has never really been a dedicated area of practice like bankruptcy, intellectual property, or criminal defense. In the era of 24/7 social media, that is beginning to change. Because today it is easier than ever before to harm a person’s reputation, a handful of law firms around the country are now practicing defamation law as a full-time, dedicated field of practice. Here at LATE NIGHT LAW, we are among the small handful of those pioneering firms.
Just what does it mean to practice defamation law? It means that our primary concern is with your reputation. If someone is defaming you, we use legal means to put a stop to the defamation. The essential result we’re after in all of our cases is for you to sleep better at night, knowing that your reputation is no longer under attack.
We also practice defamation defense—meaning that, if you are accused of defamation based on statements you made that are verifiably true, we want to defend you and vindicate your First Amendment rights. But the fact of the matter is that lies do not further the search for truth, and defamation has never been a protected form of speech under the First Amendment. As Justice Kagan said during her confirmation hearing, “Reputational harm is real harm. And the legal system should not pretend that it is not.”
If you have a defamation matter, or if your reputation is under attack, contact LATE NIGHT LAW to discuss your options with a defamation attorney, at (505) 225-2623. We are licensed in Washington state, and in New Mexico.
This article is not legal advice, and does not create an attorney-client relationship between the reader and Late Night Law. Please consult an attorney for individualized advice if you have a legal matter.