A Statement is Not Defamatory Just Because it is False

Fingers crossed defamatory

I received a call today involving this important point of law, but when I went to forward the caller an article on the topic, I found that I have apparently never written one. I hereby correct that omission.

Here is the simple concept.

Whether a statement is defamatory will be controlled by the context provided.

But before I expand further on that, let’s take one step back. You must first understand that a statement is not defamatory, just because it is false. I would think that would be self evident, but I have the following conversation with callers at least three times a week (obviously with varying fact patterns):

“I want to sue the Los Angeles Times. The paper mentioned me in an article, and claimed that I graduated from the Arizona State University. That’s a lie. I graduated from the University of Arizona.”

“I’m sorry, but I must be missing something. How is it defamatory to claim you graduated from Arizona State University?”

“Because it’s a lie. I did not graduate from ASU.”

“Yes, I get that, but a statement is not defamatory just because it is false. If I state you drive a red car, but you really drive a blue car, I have told a lie about you, but I’m sure you will agree that you would not be able to sue me for defamation, because there is nothing wrong with driving a red car.”

“I don’t agree with that at all. It’s a lie. You told a lie. You can’t just tell lies about me and get away with it. And there is something wrong with graduating from ASU. The University of Arizona is a much better school.”

“But even if that is true – that one school is better than the other – is there some context in the article that would make that important? Such as, they are attacking your credibility based on attendance at a lesser university?”

“No, it’s just wrong, and I don’t want people thinking I graduated from ASU. This could destroy my ability to find a job.”

Sorry caller, it doesn’t work that way. Despite your school loyalty, saying you graduated from ASU will not support a defamation action, even though it is false. A statement must be false to be defamatory, but a statement is not defamatory just because it is false.

Now that you know that basic rule, we can return to the important concept.

Whether a statement is defamatory will be controlled by the context provided.

For example, if I falsely state that Bill cheats on his taxes, and provide no other information, Bill could sue me successfully for defamation. I have falsely accused him of a criminal act.

But if I say, “Bill cheats on his taxes, because he takes a mortgage interest deduction, and no one should take such a deduction,” then Bill will not be able to successfully sue me.

Why? Unlike the first statement, in the second statement I have provided the basis for my conclusion that Bill is a tax cheat. The person who hears my statement is thus provided with sufficient information to either agree or disagree with my conclusion that taking a mortgage interest deduction makes one a tax cheat. It changes the statement from one of fact to one of opinion.

Man sitting looking at sunsetThe Restatement (Second) of Torts uses the example of Joe the Alcoholic. If I state only that “Joe is an Alcoholic,” I have provided insufficient facts for the listener to determine why I reached that conclusion. The listener will assume I am aware of facts that would support that determination. Joe could successfully sue me for defamation.

But if I say, “Joe is an alcoholic, because every night he sits in his backyard with a beer in his hand, watching the sunset,” that is not defamatory. Again, the listener can decide if those facts make Joe an alcoholic.

Of course, the predicate must be true. If Joe never sits in his backyard with a beer, then I have lied and might be liable for defamation. But don’t take this too far. If the predicate itself is not defamatory, then it won’t be defamatory just because it is false.

Consider this example:

“The police should arrest Joe. He’s having a mid-life crisis and bought a bright red Corvette, so you know he must be speeding around the neighborhood.”

In that case, even if the claim that Joe brought a bright red Corvette is false, it’s not defamatory because there is nothing wrong with buying a red Corvette. And context is provided for the conclusion that he must be speeding. The listener is told that the conclusion is based on the color and model of his car, and can decide if that is a valid basis to conclude that one is speeding.

In the Joe the alcoholic example, the lie about him sitting in his backyard with a beer isn’t what makes it defamatory; there’s nothing wrong with enjoying a cold one while watching the sunset. But in the example, I have stated that Joe is an alcoholic because of the nightly beer. If Joe proves that predicate is false, he might have a viable claim, but it would be a wobbler.

In a defamation action, the judge decides whether the average reader would attribute a defamatory meaning to the statement in question. A judge could conclude that no reasonable reader would agree that the nightly ritual attributed to Joe would make him an alcoholic. Thus, the claim would not be defamatory, even if false.

Be honest about whether the predicate is damaging.

As a last gasp, callers will sometimes try to fight me on whether the predicate is damaging. In other words, in one of my examples above, I said that falsely stating someone bought a red Corvette is not defamatory, because there is nothing “wrong” with buying a red Corvette. They will respond that of course there is something wrong with buying a red Corvette. It is a gas guzzler, and is the cliché example of a mid-life crisis.

“Libel is a false and unprivileged publication by writing … which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” (Civ.Code, § 45.)

No one is going to be shunned or avoided because they bought a Corvette. Anyone who would do so has bigger issues than this article can cover. The same is true of a person who attended ASU.

Don’t get hung up on the hyperbolic language.

If I’ve sent you to this article, this is the analysis you need to perform. And don’t get so focused on the hyperbolic language used that you can’t see the context.

“I want to sue for defamation. Someone published on Facebook that I am a murderer!”

“What did they say exactly?”

“Here, let me read it to you. ‘By refusing to get the second booster shot, Jane has probably infected hundreds of people with Covid, and many probably died as a result.’”

That is not actionable. Jane was not called a murderer, and the basis for the actual statement is clear. Any rational person reading the statement would not conclude that Jane is a murderer. Which is not to say that Jane won’t be flamed with comments joining in the chorus that she is a horrible person, but that does not transmute the original statement into defamation.

And while we’re at it, let’s run that hypothetical through the false predicate analysis. What if it turns out that Jane did get the second booster. Would that make the Facebook comment actionable, since the predicate is false? Probably not, but it would turn on whether the booster was required by law. If the government mandated the second booster, then the post falsely accuses Jane of breaking the law. (I’m not offering an opinion regarding the validity of such a law, just noting that it would be a violation.) The murderer comment still would not be actionable, since context is provided, but the false statement about her not getting the booster could be.

The “gist or sting” of the statement determines whether it is defamatory.

“The determinative question for a libel claim is whether the ‘gist or sting’ of the statement is true or false, benign or defamatory, in substance.” Bartholomew v. YouTube, LLC. (2017) 17 Cal.App.5th 1217, 1230.

A common mistake or ploy by attorneys is to take a statement out of context in order to make it defamatory, or to strip it of any defamatory meaning.

I currently represent a contractor in a defamation action, where a homeowner published verifiably false statements about the contractor. Her online complaints have nothing to do with the work, and everything was covered by insurance, but she imagines (and claims) crazy stuff.

One of her false statements was something like, “the contractor installed five windows in my home; windows that were stolen from Home Depot.” Her attorney brought an anti-SLAPP motion, claiming that statement was true, and therefore not defamatory. In order to make the statement true, he broke it down into fragments:

“The contractor installed five windows in my home.”

“Windows that were stolen from Home Depot.”

In her declaration in support of the anti-SLAPP motion, the homeowner attested that these statements were absolutely true. The contractor did install five windows, and she had heard that windows had been stolen from Home Depot.

That’s not the gist of the statement. The gist is that he installed stolen windows, and the larger implication is that he cheated the insurance company by charging for windows that he did not pay for. Obviously her anti-SLAPP motion was denied.

Don’t allow yourself to play this game. To analyze whether a statement is defamatory, step back and determine the true gist or sting of the statement.


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Aaron Morris
Morris & Stone, LLP
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