Over the weekend, reports surfaced that an Al Jazeera documentary would report that the Guyer Institute, an Indianapolis anti-aging clinic supplied Peyton Manning with human growth hormone, a performance-enhancing drug banned by the NFL. Manning has denied that he used HGH, calling the claim that he did “defamation.” Yesterday, I was interviewed by WISH TV’s Howard Monroe, who included my comments within a story about what Manning would face if he pursued a defamation case. This provides an opportunity to expand a bit upon what anyone faces if they pursue a defamation claim.
The law places a high value on a person’s reputation, and actions taken to damage a person’s reputation are taken seriously. A defamatory statement is one that tends to harm that reputation by lowering the person in the community’s estimation or deterring third persons from dealing or associating with the person.
Some types of false statements are so serious, that courts assume that they are defamatory. These include the statements that suggest (1) criminal conduct; (2) a loathsome disease; (3) misconduct in a person’s trade, profession, office, or occupation; or (4) sexual misconduct. A person who is the victim of this kind of defamation is presumed to be harmed. Arguably, Peyton Manning is the victim of this kind of defamation, as the HGH accusations claim misconduct in his profession.
If someone is defamed in a way that does not fit into these categories of “presumed” defamation, then they aren’t entitled to damages automatically. Rather, they need to show that the defamation has harmed them in some particular way, such as showing a loss of income or extra expense. Generally, a person who wants to make a defamation claim wants to fall in the first category, rather than this second category.
But not everyone who has been the subject of defamation can sue. For example, if the defamatory statement is true, then there is no way to recover. Moreover, a statement can only lead to a lawsuit if it states a fact, rather than an opinion. You can’t sue if someone calls you a jerk; you can if someone calls you a thief. And there are certain times that the law protects people who make false statements of fact, so long as they are made in good faith. For example, you may not win a suit against someone if the statement is made while reporting a crime to the police, making employment references, or communicating within a company. It doesn’t appear that any of these rules would prevent Peyton Manning from winning a lawsuit about the HGH reports.
Most people pursuing a defamation claim won’t have to deal with more legal issues than these. But this doesn’t hold true for Peyton Manning. The courts have held that public figures must prove more—that the statement was made with “actual malice.” In legal terms, this means that the person either knew that the statement was false or recklessly disregarded whether it was false. “Reckless disregard” means that the person had serious doubts about the truth of the statement. This same standard applies in Indiana to anyone talking about matters of public or general concern. Making the situation more difficult, the standard for proving actual malice is tougher than ordinary civil cases (although it is less than the State faces in a criminal case).
These protections come from the First Amendment, which guards our freedom of speech. Courts make it harder to sue about these issues, to make sure that a person’s right to speak publicly about public issues isn’t jeopardized.
Indiana has gone further to protect this right by enacting what’s called an anti-SLAPP (Strategic Litigation Against Public Participation) statute. This statute allows a defendant to ask to have the case dismissed if they can prove that the speech was connected with a public issue, made in good faith, and reasonably based in fact. If the defendant wins this motion, then the plaintiff must pay the defendant’s attorney’s fees. The statute also provides that this process will take no more than 180 days.
These legal barriers do not prevent all defamation claims dealing with public figures and issues, but they do make them more difficult to prove. We will have to see whether Manning wishes to deal with them.