Free to Defame?

Does the 1st amendment protect the making of untrue defamatory statements? The issue arises from the oppressive actions of a California woman who does not like her neighbours:

"Lemen owns a cottage only feet from the restaurant and led a campaign to restrict it because she said it disrupted the neighborhood. Aric Toll, 41, a chef who bought the restaurant and bar with his parents, filed a defamation lawsuit against Lemen, saying she was ruining his business.

After a trial, a judge ordered Lemen to stop videotaping Toll's customers and barred her from telling anyone that the bar makes sex videos, dabbles in child pornography, distributes illegal drugs, encourages lesbian activities, has mafia links, is a whorehouse or sells tainted food — all false statements, the court said, that Lemen had made. She appealed the order before it could be enforced.

It looks like the case could end up before SCOTUS. I don't think any prior restriction on the woman's speech is warranted. An award against her of large monetary damages should see justice done. Once defamation is forbidden, saying negative things about politicians could end up in court so often that political free speech would effectively be ended.

Though even lawsuits by politicians seeking monetary damages for defamation can be used to have a chilling effect -- which is more or less what has already happened in Singapore. As long as truth is an absolute defence, however, that should be of no great concern. Many jurisdictions, however, require that truth alone is not a sufficient defence in defamation cases. The utterance sometimes also has to be of "public benefit".

Partly because of the 1st Amendment, defamation is much harder to prove in the USA than it is in Britain or Australia, for instance. Gutnick vs. Dow Jones is a case in point for Australia. Some comments from a lawyer about different jurisdictions here and a commentary on the current British situation here. I am an Australian and I like the Australian laws best, oddly enough.

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