Defamation of Character: How to Avoid It - Writer's Digest

Defamation of Character:
How to Avoid It
Beware the slinging of slang: One
man’s compliment
may be another man’s defamation
suit.
By Amy Cook
If someone called you a “pimp,” would you (a) be insulted—it’s implying
that you sell people into prostitution, for cripes’ sake!—or (b) think you
were being called “cool” or “outrageous”? How you answer doesn’t just
tell us whether you’ve celebrated your 25th birthday yet—it could determine
whether you get sued for defamation.
Defamation is publishing a false, derogatory statement about someone
as fact. There are two key elements here: Is the statement able to be
proved true or false, and is it insulting? Neither is as simple as it may first
appear.
Common sense says it’s defamatory to falsely write that someone is a
pimp. But if you’ve ever watched MTV for a few minutes, you’ve learned
that calling someone a “pimp” can be a compliment. And, whether
you’ve added it to your vocabulary or not, choice (b) is an accepted
definition of the term in some camps, according to SlangSite.com. Evel
Knievel discovered this in his recent defamation lawsuit against ESPN’s
website dedicated to extreme sports.
If you write about other people, and especially if you write for the
web or other more fast-paced, cutting-edge publications that use slang,
exaggeration, parody and figurative language, the rules are changing.
You’ll need to consider the publication, its target audience, your story as
a whole and whether your subject is a public figure.

Target audience
In the Knievel case, ESPN’s website published a photo of the daredevil
with his arms around his wife and another woman, with the caption: “Evel
Knievel proves that you’re never too old to be a pimp.” The couple said
that the caption was defamatory because it accused Knievel of soliciting
prostitution and implied that his wife was a prostitute. The photo was
published on a portion of ESPN’s site devoted to youth-oriented sports,
such as skateboarding, surfing and motorcycle racing. Other photo captions
on the site used various slang words and phrases: “share the love,”
“hardcore,” “throwing down a pose,” “put back a few” and “hottie.”
Courts give a lot of weight to publications’ intended audiences, but
the investigation doesn’t end there. Even though the ESPN site generally
caters to teenagers and young adults who understand its captions in a
humorous way, the test is not only who was intended to read something,
but also who did read it. Knievel claimed that corporate clients who’d
seen the photograph and the caption dropped him as a spokesperson.
But, much to Knievel’s chagrin, the court ruled against him because—in
context—the audience wasn’t expected to believe that he was an actual
pimp.
Fact vs. funny
When using colorful language, can it be “proven” true or false? While
the court dismissed the case brought by Knievel because “pimp” wasn’t
being used in the traditional sense, the dissenting judge pointed out
that the outcome of cases like this will vary depending on whether the
court examines for truthfulness in the traditional meaning of a word or
phrase, or the slang meaning. In the traditional meaning of “pimp,” the
statement can be proven true or false. In the slang sense, it can’t. When
writing your piece, be sure any slang terms are clearly recognizable as
fanciful.
Dissecting intentions
Did you ever have a friend who teased you, often hurting your feelings,
and then said, “I was just kidding. Can’t you take a joke?” Writers can’t
get away with that. As one judge said, “Jocular intent of the publisher
will not relieve him from liability if it is reasonable not to understand the
utterance as a joke.”
For instance, a person who was sued for saying a judge was “drunk
on the bench” wasn’t able to get away with claiming his statements were
“hyperbole” because he made a factual statement. You can’t dodge a
defamation claim by saying the statement was just your opinion (Stand-

ing Comm. on Discipline of the United States Dist. Court v. Yagman,
1995). The court in that case said, “Statements that could reasonably be
understood as imputing specific criminal or other wrongful acts are not
entitled to constitutional protection merely because they are phrased in
the form of an opinion.” If you’re stating something as fact, and there’s
little context to determine your meaning, a defamation claim becomes
stronger.
Context connotations
Many stories mix fact and fantasy. If your stories involve real people, a
court will ask if there are signals that would convey to a reasonable person
that it shouldn’t be taken literally. In a recent case, Marshall Mathers,
better known as rapper Eminem, was sued by a private citizen about
whom he’d written a song. The lyrics were about a bully who abused
Mathers when he was a school kid. In Rolling Stone magazine, Mathers
said, “Everything in the song is true.”
While the song contains factual elements that the probable pugilist
admitted to, as the rap progresses, it describes highly unlikely incidents.
Mathers claims that the principal joins the bully in “stomping” him on the
head, and that his mother hits him on the head causing his “whole brain”
to fall out of his skull. The reasonable listener wouldn’t take the song lyrics
literally.
Public figures
Defamation charges are often coupled with a claim of intentional infliction
of emotional distress. In these cases, it makes a big difference if the
victim is a public or private citizen. Such a case was when Jerry Falwell
sued Hustler magazine for an ad parody the magazine put together that
depicted Falwell engaging in lewd and outrageous behavior. The jury
said the magazine hadn’t libeled him because the parody “could not
reasonably be understood as describing actual facts or events.”
With the emotional distress claim, Falwell had to meet a higher
burden of proof than a private person would. The First Amendment
prohibits public figures from recovering damages for intentional infliction
of emotional distress without also showing that the publication made a
false statement of fact that was made with “actual malice.” That is, the
publication must have known that the statement was false or acted with
reckless disregard as to its truth. In the Falwell case, the activities the
magazine depicted him doing didn’t really happen, but it wasn’t supposed
to be thought true.
The First Amendment and settled law generally are on the writer’s

side. Just remember: When writing about people and using slang or
satire, pick your publication wisely and be sure that the tenor of the piece
clues readers in that not everything is to be believed. WD
Amy Cook is a Chicago attorney and freelance writer focusing on matters
concerning writers and publishers.