As discussed elsewhere in this guide, there are substantial privileges and defenses available to defendants in defamation actions. The First Amendment and related state law doctrines that protect speech often present insurmountable obstacles for defamation plaintiffs. In response, plaintiffs often attempt to evade rather than overcome these obstacles by relabeling their defamation claims as another form of legal claim.
In lawsuits based upon allegedly false speech, it is common for plaintiffs to include a wide variety of ancillary claims in addition to their main defamation claim. Common additional claims include:
- Intentional or negligent infliction of emotional distress
- Tortious interference with contract or business relations
- "False light" invasion of privacy
- Unfair or deceptive trade practices
- Fraud or misrepresentation
- State or federal civil rights act violations
- Conspiracy to commit defamation
Each of these claims has its own elements and defenses, which an attorney can assist you to understand (see especially our section on "false light" claims). However, a number of courts, including the United States Supreme Court, have raised additional concerns when such claims are premised upon allegations that the defendant published a false statement that damaged the plaintiff's reputation -- i.e., the classic defamation lawsuit fact pattern.
In Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), the U.S. Supreme Court considered claims brought against Hustler Magazine by high-profile preacher and pundit Jerry Falwell arising out of a parody ad that ran in the magazine. The claims based on the parody ad included defamation and intentional infliction of emotional distress; a jury decided in Hustler's favor on the defamation claim, but awarded damages to Falwell on the emotional distress claim. The Supreme Court reversed the jury verdict for Falwell on the emotional distress claim, invoking constitutional standards applied in defamation cases to do so. Rejecting as irrelevant the distinction that emotional distress cases are concerned with an intent to injure feelings rather than reputation, id. at 52-53, the Court held that the First Amendment standards stated in the defamation case of New York Times Co. v. Sullivan were equally applicable to Falwell's emotional distress claims as an essential protection for free speech. Id. at 53-56. Because Falwell had failed to prove "a false statement of fact which was made with 'actual malice,'" the Court held that he was not entitled to recover damages for emotional distress. Id. at 56-57.
Subsequently, other courts have held that plaintiffs cannot evade constitutional and state law privileges and defenses for speech by recasting their defamation claims as different theories of tort. See, e.g., Yohe v. Nugent, 321 F.3d 35, 44 (1st Cir. 2003) ("[A] plaintiff cannot evade the protections of the fair report privilege merely by re-labeling his claim."); Tierney v. Vahle, 304 F.3d 734, 743 (7th Cir. 2002) ("To evade the constitutional limitations on defamation suits by charging the alleged defamer with participation in a conspiracy, which is to say just by relabeling the tort, cannot be permitted."); Chaiken v. VV Pub. Corp., 119 F.3d 1018, 1034 (2nd Cir. 1997) ("[T]he Chaikens cannot avoid the obstacles involved in a defamation claim by simply relabeling it as a claim for intentional infliction of emotional distress."); Brown v. Hearst Corp., 54 F.3d 21, 27 (1st Cir. 1995) ("it is not imaginable that [a false light claim] could escape the same constitutional constraint as [a] defamation claim"); Beverly Hills Foodland, Inc. v. United Food and Commercial Workers Union, Local 655, 39 F.3d 191, 196 (8th Cir. 1994) ([T]he malice standard required for actionable defamation claims during labor disputes must equally be met for a tortious interference claim based on the same conduct or statements. This is only logical as a plaintiff may not avoid the protection afforded by the Constitution ... merely by the use of creative pleading."); see also Correllas v. Viveiros, 410 Mass. 314, 324 (1991) ("A privilege which protected an individual from liability for defamation would be of little value if the individual were subject to liability under a different theory of tort.").
Therefore, if a plaintiff brings a variety of claims against you based upon allegedly false statements, you might be able to rely upon both defenses to the particular claims asserted as well as First Amendment and state law defenses to defamation (whether or not the plaintiff actually includes a specific defamation claim in his complaint).
On the other hand, it is unlikely that defamation defenses would apply to claims based upon true speech, such as publication of private facts, or intellectual property claims, such as trademark infringement or violations of the right of publicity. However, these claims are not related to injury to personal reputation; rather, they involve revelation of private information (for a private facts claim), damage to a brand or business (for a trademark claim), or misappropriation of the commercial value of one's name (for a right of publicity claim). If it appears that a plaintiff is attempting to use one of these theories of liability to sue you for damage to his or her individual reputation from an allegedly false statement, you probably would have a strong argument that such theories are simply inapplicable. Rather, the plaintiff would have to proceed instead on a defamation claim (with all of the burdens placed upon the plaintiff in such a case).
