Society and Culture

Liar, Liar Pants on Fire

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This week Law Street broke the story of the FBI’s latest violent crime data — if you haven’t checked it out yet you definitely should. This week, though, I want to talk about crimes of defamation, because though they are rarely discussed, they have similar ability to do serious harm to a person’s life. These are caused by careless, negligent, and often malicious words of one person against another. Some of these people are just talking to hear their own voices, and some are liars — there is a special place in hell for liars.


Crimes of defamation are rarely talked about on a large scale because, really, how do you quantify them?  Where do we draw the line between “Freedom of speech” and “defamatory content?” The area between the two is gray, but the laws exist to determine what is casual conversation and what is illegal.

The Supreme Court defines defamation as a four-element offense, which requires:

  1. A false statement purporting to be fact concerning another person or entity;
  2. Publication or communication of that statement to a third person;
  3. Fault on the part of the person making the statement amounting to intent or at least negligence;  and,
  4. Some harm caused to the person or entity who is the subject of the statement. 

Some states, like New York, take these federal guidelines a step further and determine various rules for defamation depending on the person being defamed. The first category is for “private” people — a group into which most of us fall. Private people are more broadly protected. If you negligently say something that is defamatory against me, and the above four elements are met, you’ve broken the law. It’s that simple!

New York also has two other classes: public official and public figure. President Barack Obama is a public official; Kim Kardashian is a public figure. (Get the difference?) These people have taken steps to thrust themselves into the public consciousness, and with widespread notoriety comes widespread ridicule and judgment. I believe the legal term is “Mo Money, Mo Problems.”


When dealing with Kim Kardashian, President Obama, or any other public person, New York mandates that a fifth requirement must be met: the defamatory speech must be malicious. Malice requires a specific intent to cause harm to a person — it’s a tougher hurdle to jump, but the rewards are much greater. When a U.K. newspaper claimed that Liberace was gay in the late 50s, he sued it for defamation and libel and was awarded a large amount of money. Tom Cruise won a similar suit, and let’s not forget when Lindsay Lohan tried to sue E-Trade for their drunk baby named “Lindsay.”

Liar, Liar Pants on Fire

The law says that truth is an affirmative defense to any claim of defamation. That is, if the defamatory statement is based on a true story, the speech is within the bounds of the law. This makes sense, right?  If you are a known thief, and someone tells their best friend that you steal, that is totally okay.

What’s not okay is when the defamation occurs and is based on untrue information. The law recognizes that the power of words and one’s reputation can carry a person very far, and does its best to protect an otherwise innocent person from being victimized by lies and rumors.

The point of these defamation laws is to combat that victimization. Because of these laws, an unfairly accused or viciously maligned person can stand firm in her innocence or his correct assertion. An easy way to do this is to have an adjudicatory decision in your favor, i.e. you’ve gone to court and won. In other words, proof is of paramount importance when attempting to bolster one’s argument in a defamation case.

“Show Me the Receipts!”

There are various ways to determine if something is true or false, and one of the easiest ways to make that determination is to review the record. Courts and triers of fact rely on hundreds of thousands, likely even millions, of pages of documents annually in order to parse out the truth from all of malarky. That is why law schools across the country focus on organization, meticulous record keeping, and the importance of creating a paper trail. It’s why we create elaborate filing systems, why every document is backed up, and why everything is committed to writing. The quickest way to piss off a lawyer is to make an assertion without substantiating evidence.

50 Cent, the Poet Laureate of the early 2000s, put it best when he said, “I talk a lot of shit, but I can back it up.”

The moral of the story is that crime is a problem, but we need to broaden the discussion. All criminal activity is reprehensible, and when the law is broken there need to be consequences. The law exists so that criminals don’t do whatever they want to do, and the same preclusions apply with words.

And if all else fails, don’t lie.

Peter Davidson is a recent graduate of law school who rants about news & politics and raves over the ups & downs of FUNemployment in the current legal economy. Tweet him @PeterDavidsonII.

Featured image courtesy of [Angie Linder/Christina via Flickr]

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Peter Davidson II
Peter Davidson is a recent law school graduate who rants about news & politics and raves over the ups & downs of FUNemployment in the current legal economy. Contact Peter at



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