Having been a trial lawyer in Alaska for nearly 25 years, I frequently get calls concerning the law of defamation of character (libel and slander). Frankly, most of the people I consult with concerning an allegation of defamation of character do not have a meritorious defamation case, or if they do the money “damages” are either hard to prove or nearly nonexistent. In other words, the false statement was either not defamatory as a matter of law, or it just amounted to a matter of hurt feelings. Consider this article a primer on Alaska law of defamation, which usually would cost you about $500 to come to talk to me about for a couple of hours.
What Alaska’s Law on Defamation of Character?
Defamation is a civil lawsuit which provides a remedy for somebody to sue another when the defendant’s false words end up causing harm to the plaintiff’s reputation or livelihood. It is important to note, you cannot defame someone to themselves…if it is not “published,” somebody else besides the aggrieved person must at least overhear the false statement. There are some false statements that are so serious that the law presumes they injure someone’s reputation and as such damages do not need to be proven. These more serious type of defamatory statements are called defamation “per se.” Somewhat less serious defamatory statements are called defamation “per quod,” and although they are false, they are not actionable without proof of damages. The Alaska pattern civil jury instructions make this distinction quite clear.
What is Defamation Per Se and Why Are Only Those Damages Presumed?
There are four traditional categories of defamation “per se“: those which involve (A) a crime, (B) a loathsome disease, (C) sexual misconduct, and (D) statements injurious to a person’s trade or business. Prior Alaska Supreme Court cases have directly addressed three of the four traditional categories (criminal conduct, sexual misconduct, and injury to trade or business.) Again, the important distinction is that proof of damages is not required if the defendant’s statement constitutes defamation per se. Actually, at common law, all defamatory statements made in writing were actionable without proof of damages, but it is not clear whether Alaska would follow that common law approach. There is good reason to believe, however, that Alaska would allow a defamation case to proceed without proof of damages if the false statement was made in writing rather than spoken; in other words, in Alaska, it may be the case that libel is easier to prove than slander. Certainly, if a plaintiff in the defamation case is able to prove the defamatory statements caused him or her lost earnings, future lost earning capacities, or other lost business or economic opportunities, those economic losses are recoverable in the defamation suit. But that does not mean such damages are at all easy to prove, which is why the law provides that certain defamatory statements (per se) are actionable without specific proof of damages to the harmed party. Obviously getting fired from your job based on defamatory statements would be actionable, and the economic harm easier to prove, than in a self-employment situation (where the damages might include loss of current clients or a reasonable expectation of losing future clients).
What’s the Difference between Libel and Slander?
“Libel” is a written or published defamatory statement, while “slander” is defamation by the spoken word. In today’s world of social media saturation, the most common places to find libelous statements are in letters to the editor of local newspapers, public comments on media websites (newspapers or magazines), blog posts, comments to blog posts, and Internet chat rooms or listservs. I have personally been libeled on Craigslist “Rants and Raves” on a couple occasions, but one has to pick their battles wisely. Sometimes it is just best to let something go than to draw attention to it. Also, online defamation/libel is harder to pursue because of the built-in anonymity with which many people protect themselves nowadays. For what it’s worth, I usually remember the distinction between libel and slander by using the first letter of each word: you Libel someone in a Letter, but you Slander someone with Spoken words. Not a terribly sophisticated pneumonic device, but it works for me. (Who remembers the 12 cranial nerves from high school by: “On Old Olympus Towering Tops a Finn and German Viewed Some Hops”?)
What if the Person Was a Public Figure in Alaska?
If the person allegedly defamed was a “public figure,” the law of defamation is quite different; specifically, it is much harder to prove because the case from the United States Supreme Court in 1964 entitled New York Times vs. Sullivan. This case arose when the Montgomery, Alabama Public Safety Commissioner, LB Sullivan, sued the New York Times for what he claimed were inaccurate criticisms of actions by the police in the civil rights era (not in a story, but in a full-page advertisement which sought money to defend Martin Luther King Jr. against a perjury indictment in Alabama). Importantly, however, the advertisement did not even mention Mr. Sullivan. Regardless, Sullivan won a verdict of $500,000 in his Alabama lawsuit. The US Supreme Court reversed that case and stripped Sullivan of his victory, in its watershed ruling that public officials can only recover for defamation (libel or slander) if they can prove “actual malice.” Alaska jurisprudence adheres to the New York Times vs. Sullivan “actual malice standard” by requiring public figures to prove that the defendant “either knew that the statement was false or had serious doubts about the truth of the statement.”
Does It Matter Whether the Issue Was a Matter of Public Concern?
Moreover, the New York Times actual malice standard applies not just to public figures, but also to cases where the alleged defamatory statement regards a “matter of public concern.” Actually, it was in 1940 that the US Supreme Court first articulated the concept that the First Amendment afforded greater protection to statements that concern matters of public interest. In Thornhill vs. Alabama, Justice Frank Murphy wrote for the Court: “The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern, without previous restraint or fear of subsequent punishment.” Over 30 years later, the Supreme Court explicitly extended the “actual malice” standard to statements about matters of public concern — even when the plaintiff is a private, not a public, figure. According to the Supreme Court in Rosenbloom vs. Metromedia: “if a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual did not ‘voluntarily’ choose to become involved. The public’s interest is in the event; the public focus is on the conduct of the participant and the content, effect, and significance of the conduct, not the participant’s prior anonymity or notoriety.”
Is Truth a Defense to Defamation in Alaska?
In most instances, yes, truth is an absolute defense to a defamation lawsuit. (One exception would be a defamation case based on so-called “false light invasion of privacy,” which although a species of defamation is really a separate cause of action altogether.) Importantly, when considering that truth is a defense, you must also realize that just saying or writing “I think” before the defamatory and untrue statement does not automatically convert a statement of fact into a statement of opinion. So when is a statement of opinion still considered a statement of fact? Let’s look at that next.
What If The Statement Was Phrased as an Opinion, Not a Fact?
Merely phrasing a statement as purportedly “an opinion” does not necessarily save the defamer from an adverse jury verdict. Indeed, Alaska Civil Pattern Jury Instruction 16.06 states that: “For the plaintiff to recover, the statement must have been a false statement of fact, not an opinion. A statement of fact is a statement that can be proved to be true or false. An opinion may be considered a statement of fact if the opinion suggests that facts exist to support the opinion. In deciding this issue, [the jury] should consider whether the average person would conclude from the language of the statement and its context that the defendant was making a statement of fact. Rhetorical hyperbole, vigorous epithets, lusty and imaginative expressions of contempt, and language used in a loose, figurative sense are generally not considered to be statements of fact.” Lusty and imaginative expression of contempt? What in the world does that mean? In 2001, the Alaska Supreme Court considered a defamation case in which the plaintiff alleged that several defendants falsely described his church as a cult, and falsely described him personally as a “cult recruiter.” In Sands vs. Living Word Fellowship, Alaska’s Supreme Court held that the defamation claim by the pastor was barred by the First Amendment: “The First Amendment bars actions for defamation where the allegedly defamatory statements are expressions of ideas and ‘cannot reasonably be interpreted as stating actual facts about an individual.'” Thus, in its ultimate analysis, the Court held that the allegedly false statements were of a religious belief and opinion, not factual statements that were capable of being proven true or false. In a separate case, in 2007, the Alaska Supreme Court ruled that a radio talk-show host’s comments (live on the air), which implied a woman listener had no sex life, were not actionable as defamation. In Carpenter vs. Westwood One, the Alaska Supreme Court held that although the statements were offensive to a rational person, they were not defamatory because of the opinion/fact distinction and the First Amendment.
What Kind of Money Damages Can Be Recovered in the Defamation Lawsuit?
Alaska Civil Pattern Jury Instruction 16.07 makes clear that the plaintiff is entitled to recover damages in the following categories if he or she proves that the defendant’s wrongful conduct was a “substantial factor” in causing them: (1) harm to their property, business, trade, profession, or occupation; (2) expenses they had to pay as a result of the defamatory statements; (3) harm to their reputation; and, (4) shame, mortification, or hurt feelings. And in the case of defamation per se, the jury instruction goes on: “Even if the plaintiff has not proved any actual damages for harm to reputation or shame, mortification, or hurt feelings, the law assumes that the plaintiff suffered this harm.” That presumed-damages language can make or break a defamation lawsuit in Alaska.
Do Some People Have a Privilege to Make Defamatory Statements in Alaska?
In certain circumstances, the law protects a defendant from liability for making a false statement. For example, there is a conditional privilege for those with a common business interest in sharing information. In that circumstance, the defendant enjoys a privilege if he or she can prove each of the following elements is more likely true than not: (1) the false statement about plaintiff was made to another person who shared a common business interest with the defendant; and, (2) when the defendant made the false statement, he or she reasonably believed that the other person was entitled to know the information in the statement. However, the defendant may lose this privilege if the plaintiff can prove the defendant acted with actual malice: i.e., the defendant either knew that the statement was false or had serious doubts about the truth of the statement.
The Alaska Supreme Court has recognized a total of eight categories of conditional privileges concerning defamation, as follows:
1. The plaintiff who was the subject of the false statement was a public official who held a position of sufficient importance to cause the public to have an interest beyond its general interest in all public employees;
2. The plaintiff who was the subject of the false statement was a public figure;
3. The false statement related to a matter of public interest or concern;
4. The false statement was made by an inferior government administrative officer and concerned the officer’s duties;
5. The false statement was a re-publication by a newspaper of a statement either privileged as made by its original maker or the newspaper reasonably believed that to be the case;
6. The false statement was contained in a government report re-published by a newspaper;
7. The false statement was made to a government official concerning matters affecting the discharge of the official’s duties; and,
8. The maker and the intended recipient of the false statement shared a common interest in knowledge of the information in the false statement.
Are There Downsides to Suing for Defamation of Character?
It is always the case in Alaska that if you sue somebody and you lose, it’s possible you could end up owing them a portion of their attorney’s fees. A defamation (slander or libel) case is no different, so a consultation with a skilled attorney who has handled other defamation cases is a must. Ordinarily, you would not owe them all of their attorney’s fees, but roughly one-third of their fees could be awarded (plus litigation costs). The point of this law is to provide some disincentive for filing frivolous litigation against another.
Will Hiring a Lawyer Help Me Decide Whether to Sue for Defamation of Character?
Yes. A consultation with a skilled civil attorney might save you a lot of time, energy and wasted money. Keep in mind that a criminal lawyer is your legal advocate and must give you sound advice rather than telling you whatever they think you want to hear to get you to hire them. If you have any further questions about this topic, feel free to call my office in at 907.262.9164 or send me an email personally at Eric@TrialGuy.com.