Last week in United States v. Alvarez, the United States Supreme Court struck down the “Stolen Valor Act” which made it a crime to lie about receiving a military decoration or medal. The court recognized that a lie, in and of itself, is protected by the First Amendment unless it creates some “legally cognizable harm.” One of the types of “legally cognizable harm” recognized by the court was defamation. In California, the rules on defamation change depending on whether the defamed individual is a public figure or a private figure and it also depends on whether the lie is about a matter of public concern or private concern. As a business law litigation attorney, most of the defamation cases I deal with involve private figures who are defamed about private matters. Most of our cases arise in a business context where two parties have a dispute and then tell others about their point of view.
The elements of this type of defamation action can be found in the California Civil Jury Instructions. First, the statement had to be made to a person other than the Plaintiff. In other words, it is not defamation to tell someone a lie about themselves. If some one writes a letter addressed to you personally telling you that you cheated them on a real estate transaction, that alone is not defamation; the statement had to be made to someone else. However, let’s say you are in a crowded elevator and someone loudly shouts defamatory statements to you. Since the statement was heard by others, that may satisfy this requirement.