liar libel: a defamation lawsuit by a plaintiff who claims the defendant’s statement that the plaintiff lied about a material matter is an assertion of fact, not opinion.
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Before the #MeToo movement, libel lawsuits from people accused of lying were in decline. Indeed, a 2016 law review article chronicled what it called “the slow, quiet and troubled demise of liar libel.”
These days, a remarkable number of libel suits, including ones against Bill Cosby, Bill O’Reilly, Roy S. Moore and Mr. Trump, have been filed by women who say they were defamed by men who denied their accusations of sexual misconduct.
Courts have struggled with such suits. Calling someone a liar can be an insult, an opinion or hyperbole, all of which are protected by the First Amendment. But an assertion of fact soberly presented from someone in a position to know the truth can amount to libel. A lot depends on context, and courts have had a hard time drawing a line.
This past year marked the twenty-fifth anniversary of Milkovich v. Lorain Journal Co., in which the Supreme Court of the United States held that an accusation that an individual lied is a statement of fact actionable in defamation. [footnote] In the years that have followed, the lower courts have all but completely nullified this ruling. Milkovich announced a major doctrinal shift by disowning the lower courts’ longstanding interpretation of Gertz v. Robert Welch [footnote] as creating a separate constitutional privilege for expressions of opinion.
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At a broad doctrinal level, the [Supreme] Court rejected the reading of Gertz that the lower courts had almost unanimously used for sixteen years and announced that the Constitution affords no separate and distinct protection for expressions of opinion. [footnote] But the Court did not leave matters there. Relying on its decision in Philadelphia Newspapers, Inc. v. Hepps, [footnote] the Court observed that statements on matters of public concern must be provably false in order to be actionable [footnote] and acknowledged that “imaginative expression,” “loose, figurative” language, and “rhetorical hyperbole” are not provably false. [footnote] The Court used as an example the statement, “In my opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin.” [footnote] The Court found that this “would not be action- able” because it could not “reasonably [be] interpreted as stating actual facts about an individual.”[footnote] . . .
What became of Milkovich? Not much. Despite its broad and dramatic disavowal of the longstanding opinion doctrine, Milkovich made almost no difference to the trajectory of defamation law. After all, the Court’s recognition of protection for “imaginative expression,” “loose, figurative” language, and “rhetorical hyperbole” [footnote] offered an alternative strategy to defendants in defamation cases. In response to Milkovich, media lawyers resorted to the simple expedient of substituting “rhetorical hyperbole” for “opinion” in their briefs. [footnote] And most courts that later considered such cases applied the same standard they had previously applied and “reached the result that they likely would have before the Supreme Court decided [Milkovich].” [footnote] Milkovich thus had little, if any, effect on the broad contours of libel doctrine.
See article at: Leonard Niehoff & Ashley Messenger, “Milkovich v. Lorain Journal Twenty-five Years Later: The Slow, Quiet, and Troubled Demise of Liar Libel,” University of Michigan Journal of Law Reform, Volume 49, Issue 2, 2016
Accusations of dishonesty or lying, or the act of calling someone a liar are an epithet for the ages. Ordinarily, an insult, even one as timeless as liar, would be viewed simply as an insult, not worthy of legal liability. But the impact of imputing dishonesty by calling someone a liar could have legal consequences under the tort of defamation. For centuries, defamation law has tested the harm to a person’s reputation after the person is branded a liar, and the standards for liability, harm, and the contextual meaning of the epithet are, at best, inconsistent and often considered murky. Precedent testing the liar epithet lacks clear and consistent application across courts and jurisdictions.
The tort liability surrounding the word “liar” has been litigated in recent years with mixed and conflicting court rulings.
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Calling someone a liar has never been a nice thing to say. As an insult, it immediately casts doubt on every aspect of the target’s integrity, self-worth, and being. Insults, while not endearing, do not necessarily rise to the level of defamation.[footnote] . . . Much like humanity itself, the law of defamation has evolved and will continue to develop.[footnote] However, calling someone a liar straddles the line between actionable defamation and a statement that may be immunized by at least the opinion privilege.[footnote]
Falsity is the most basic element of defamation.[footnote] In some settings, calling someone a liar may be a clear matter of fact, which could lead to liability.[footnote] In other settings, this epithet may be more of a term of art, protected by the opinion privilege.[footnote]