Sticks and Stones and the Modern Age

Sticks and stones may break my bones but words will never
hurt me.  It’s catchy, it rhymes, and it’s a great way to calm down a child who has just been called a bad name. But what your parents didn’t tell you is that
when you grow up, while your bones are still intact, words can and do hurt. 

In the old days, like 10 years ago, wide-spread publishing of a negative opinion or judgment took time and access to the local newspaper, radio, or television station. Now, I can leave your business and post a negative opinion on my blog, Facebook account, Twitter account and on your business website on the way to my car using my cell phone. And in case you haven’t noticed, these technological advancements have unleashed an avalanche of people just hoping to get attention by posting the loudest, harshest, most outrageous opinions on any topic and at any time. These advancements are both electrifying and terrifying. But what can we do to protect ourselves from those who mean to bring us down with their words?

The law of defamation can be somewhat complicated, and anytime you think you have been defamed, or you think you may have defamed someone, you should consult an attorney to discuss your specific facts and circumstances. Generally, though, it boils down to a simple idea – the First Amendment of the United States
Constitution gives us the right to speak our minds, but the law of defamation
acts as a deterrent to making up facts with the intention to bring harm to
another. 

You are allowed, of course, to have opinions about someone’s character – you may think your neighbor is a racist, for example.  You can even post on your Facebook status (though I don’t know why you would) that you think your boss is a racist.  In the case of Raible v. Newsweek, Inc., 341 F.Supp. 804 (W.D.Pa., 1972) the Court ruled that “to call a person a bigot or other appropriate name descriptive of his political, racial, religious, economic, or sociological philosophies gives no rise to an action for libel.”  But if you change your status to announce that your boss is a racist because he fired three people because of their skin color, you are no longer asserting an opinion you are couching your opinion as fact. That’s a whole different ball of wax. If your boss really did fire three people because of their skin color, shame on him or her. And you are protected, because truth is a defense to a claim of defamation – how can someone’s reputation be unfairly damaged by the truth?  But if you made up those facts, or if your facts were wrong, you may now be liable for damage to his or her reputation.

Damage to reputation can occur even if the defamation is published to a small group of people – it does not have to be in the newspaper to be harmful.  So even if you just posted to your Facebook page and your 234 “friends” you may have damaged a reputation.  But in social media, things are never as simple as they seem, are they? What happens when one of your “friends,” a co-worker, reposts your status to her 350 “friends,” one of whom reposts it again to her 500 “friends,” including a local business page that has 3,000 people who “like” it?  And then it is picked up by a local blogger who posts a blurb about your boss being a racist, a story that he “tweets” to his 23,000 followers. Like I said before, electrifying and terrifying.

In the end, you can’t stop someone from saying whatever they want – that’s how many people will interpret the protections of the First Amendment.  But the law does give you some protection from the troubled imagination and anger of others. 

If you think you have been hurt by someone’s negative comments – whether electronic, in person or otherwise – you should consult a lawyer to determine whether or not you have a legitimate claim for damages. This article is not intended to be legal advice, nor should it be considered as such.