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I have a recollection that late in the 20th century in the United States, A called B a "bastard." B sued A for defamation.

The court ruled in favor of the defendant. Its first observation was that (at the time) one of out every four American children was born out of "wedlock," (the literal meaning of "bastard.") The judge also noted that "bastard" and similar swear words were in wide use at the time, and that people would take it as such, and not as an accusation that the circumstances of B's birth were compromised.

My guess is that B's suit would have had a much better chance to succeed a century or two earlier, in the late nineteenth or eighteenth century. So what would be the standard for "defamation?" Would it be related to contemporary understanding or usage?

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    I'm assuming your question is restricted to the US? – Roy May 27 '15 at 17:31
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    @Roy: Yes. Edit approved. – Libra May 27 '15 at 17:42
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There are four criteria used today in the United States:

  1. The statement was false, but was claimed as true.
  2. The statement must have been made to a third, previously uninvolved party.
  3. The statement must have been made by the accused party.
  4. The statement caused harm.

The first (and very important) criterion was discussed in New York Times v. Sullivan, where it was ruled that

A State cannot, under the First and Fourteenth Amendments, award damages to a public official for defamatory falsehood relating to his official conduct unless he proves "actual malice" -- that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false. Pp. 265-292.

(c) Factual error, content defamatory of official reputation, or both, are insufficient to warrant an award of damages for false statements unless "actual malice" -- knowledge that statements are false or in reckless disregard of the truth -- is alleged and proved. Pp. 279-283.

Quoting Wikipedia and Justice Black,

The Court held that a public official suing for defamation must prove that the statement in question was made with actual malice. In this context, the phrase refers to knowledge or reckless lack of investigation, rather than its ordinary meaning of malicious intent. In his concurring opinion, Justice Black explained that "'[m]alice,' even as defined by the Court, is an elusive, abstract concept, hard to prove and hard to disprove. The requirement that malice be proved provides at best an evanescent protection for the right critically to discuss public affairs and certainly does not measure up to the sturdy safeguard embodied in the First Amendment."

New York Times v. Sullivan is regarded as one of the most - of not the most - important defamation cases of the century. It was argued in 1964. If the case you discuss - which I haven't been able to find - occurred after to the ruling, then it could have been dismissed, because A did not intend it as malicious in the sense of defamation (and did not claim it was true), though it was almost certainly meant as an insult. Had this case occurred prior to New York Times v. Sullivan, things might have been different.

Non-public officials

Things are different for private officials.

Those who are not classified as public figures are considered private figures. To support a claim for defamation, in most states a private figure need only show negligence by the publisher, a much lower standard than "actual malice." Some states, however, impose a higher standard on private figures, especially if the statement concerns a matter of public importance. You should review your state's specific law in the State Law: Defamation section of this guide for more information.


Note: There are differences between defamation, libel, and slander; a quick overview is given here: "Generally speaking, defamation is the issuance of a false statement about another person, which causes that person to suffer harm. Slander involves the making of defamatory statements by a transitory (non-fixed) representation, usually an oral (spoken) representation. Libel involves the making of defamatory statements in a printed or fixed medium, such as a magazine or newspaper."

  • Answer upvoted, but I believe your first point is a bit off. In a landmark case regarding a novel called the "Red Hat Club," the book was purported as fiction but the plaintiff won a libel suit because "other people" reasonably believed it to be true. The reason was that the "backstory" (the background story of the protagonist) was actually very close to the truth, even though the main story was fictitious. But how was a reader to tell the difference between fact and fiction? – Libra May 27 '15 at 17:52
  • @TomAu Reading about that, and a related case (that of Ms. Pring), it seems that the courts ruled based on what a "reasonable person" would think. It's a bit subjective - Wikipedia mentions the same for "reasonable doubt" - and that subjectivity seems to be the important factor. Some of these cases could go either way. – HDE 226868 May 27 '15 at 17:59
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    @TomAu - Libel is different than defamation. Written word has long been considered more damaging than spoken. – Chad May 27 '15 at 18:00
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    @Chad IIRC, libel is a subset of defamation (defamation is the general class of things; spoken defamation is slander, written defamation is libel). Also, "actual malice" is only inherently applicable to public figures and public officials; application of the standard to defamation of private figures if the plaintiff is only looking for compensatory damages depends on the state. – cpast May 27 '15 at 18:52
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    The cases you cite refer specifically to public officials. There are very different standards that apply to non-public figures. In addition, the "harm" requirement is not universal; in defamation per se, harm is assumed from the nature of the defamatory statement. – chapka May 28 '15 at 18:01

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