What Is Defamation, and What Is the Penalty?

The topic of discussion for this Constitution Monday has to do with freedom from defamation. The First Amendment states: “Congress shall make no law … abridging the freedom of speech, or of the press….”

The First Amendment protects all statements that are true unless the statements qualify as “hate speech.” Slander (oral statements) or libel (written statements) are statements that are not protected. An article published at FindLaw.com gave the elements for a defamation lawsuit. 

State defamation laws vary, but some accepted standards exist no matter where you are or who you are suing. Generally, to win a defamation lawsuit, you must prove that:

1. Some made a statement; [Must be spoken (slander), written (libel), or otherwise expressed in some manner.]

2. The statement was published;

3. The statement caused you injury;

4. The statement was false; and

5. The statement did not fall into a privileged category

Tyler O’Neil posted an article about a lawsuit for defamation. He wrote, “In order to win a defamation lawsuit, the person suing must convince the court and ultimately the jury that the slanderer didn’t just publish something false, but that he did so even while suspecting that the attack was false.” He continued with the following explanation: 

Immigration enforcement activist D.A. King’s lawsuit against the Southern Poverty Law Center made it to the discovery process while so many other lawsuits have failed precisely because King showed that the SPLC had reason to doubt the truth of its claim that his organization, the Dustin Inman Society, was an “anti-immigrant hate group.” In fact, the SPLC had explicitly stated that the society was not a “hate group” in 2011, but it reversed course in 2018, right after registering a lobbyist to oppose a bill the society supported.

As I wrote in my book “Making Hate Pay,” the SPLC routinely brands mainstream conservative and Christian organizations “hate groups,” putting them on a map with chapters of the Ku Klux Klan. This smear inspired a terrorist attack in 2012, but when conservatives sue to defend their good names in court, they repeatedly fail, in part because they do not allege that the SPLC itself doubted the “hate group” smear.

King can claim that, and newly revealed evidence bolsters his claim even further.

According to an article King unearthed on the SPLC website, not only did the SPLC state publicly that his group was not a “hate group” before it reversed course, but an SPLC whistleblower who went on to describe the SPLC’s “hate” accusations as a “highly profitable scam” had himself been involved in the SPLC’s monitoring of King’s organization. He even quoted a source who stated that an early version of King’s organization was not a “traditional “hate” group” ….

The SPLC has since removed that article from its website at some point between 2007 and 2016, according to the internet archive, but users preserved the article through screenshots. King tipped off The Daily Signal to the article’s existence.