Defamation
Reputations take years.
Damage takes seconds.
A commitment
to the truth.
A false statement can cost a person their livelihood, standing, and peace of mind, and a business its customers. At the same time, the freedom to speak, criticize, and report is fundamental.
The LOCD represents individuals and businesses harmed by false statements, and those accused of defamation, in Utah and California. Cassandra Dawn brings careful analysis of the words, the context, and the law to each matter.
Defining the claim
What
defamation
is.
Defamation is a false statement of fact, communicated to others, that harms someone’s reputation.
In Utah, a defamation claim requires proof that the defendant published the statements, that the statements were false and not subject to privilege, that they were published with the required degree of fault, and that they resulted in damages.
California defines defamation through its libel and slander statutes. Libel, for example, is a false and unprivileged publication that exposes a person to “hatred, contempt, ridicule, or obloquy,” causes the person to be shunned or avoided, or tends to injure the person in their occupation.
Truth matters most
A true statement is not defamatory, however unflattering. When speech involves a matter of public concern, the plaintiff generally bears the burden of proving the statement false. Every case begins with the precise words used, what they would reasonably be understood to mean, and whether they can be proved true or false.
The core questions
01
Publication
Was the statement communicated to someone other than the person it concerns?
02
Falsity
Is it a false statement of fact, rather than true, or an opinion?
03
Fault
Did the speaker act with the level of fault the law requires?
04
Harm
Did the statement damage reputation, business, or livelihood?
Privileges, defenses, and the required level of fault depend on the speaker, the subject, the setting, and whether Utah or California law applies.
Forms of defamation
Written,
spoken, or
commercial.
The form a statement takes can affect what must be proved and what damages are available.
01Libel
Libel is defamation in a fixed form: writing, printing, pictures, or other fixed representations. Articles, letters, emails, reviews, and social media posts can all be libel.
02Slander
Slander is defamation that is spoken. California treats certain spoken accusations as especially harmful, including false charges of a crime and statements that tend directly to injure a person in their office, profession, trade, or business.
03Business Defamation
A false statement can injure a professional or a company by suggesting incompetence, dishonesty, or misconduct in its business, with a natural tendency to lessen its profits. Businesses and professionals depend on reputation, and the damage can show up quickly in lost clients, contracts, and revenue.
04Trade Libel & Injurious Falsehood
Related claims protect property and commercial interests, rather than personal reputation. Utah’s injurious falsehood tort covers the common-law claims of slander of title and trade libel, which address false statements about property, such as a product or service being sold. These claims generally require proof of malice and special damages.
The First Amendment
Where speech
ends and
defamation
begins.
The Constitution protects robust debate. It does not protect false statements of fact that destroy reputations.
The Supreme Court has described a “profound national commitment” to debate on public issues that is “uninhibited, robust, and wide-open,” even when it includes “vehement, caustic, and sometimes unpleasantly sharp attacks.”
The right to an opinion
“Under the First Amendment, there is no such thing as a false idea.” But labeling a statement an opinion does not automatically protect it. There is no “wholesale defamation exemption for anything that might be labeled ‘opinion.’” On matters of public concern, the question is whether the statement implies a fact that can be proved false.
Humor, parody & hyperbole
Statements that cannot reasonably be interpreted as stating actual facts are protected. That includes “rhetorical hyperbole” and “vigorous epithet[s]” and parody that “could not reasonably be understood as describing actual facts.” Context matters: the same words can be a joke in one setting and an accusation in another.
News & other exceptions
Privileged
speech.
Some statements are protected because of where, or why, they were made.
The law protects fair and true reports of public proceedings so the press and the public can learn what happens in courts, legislatures, and government. California protects a fair and true report to a public journal of a judicial, legislative, or other public official proceeding. Utah protects fair and true reports, made without malice, of public official proceedings and public meetings.
Utah also treats as privileged statements made in the proper discharge of an official duty and in legislative, judicial, or other official proceedings. Other privileges may apply to communications between people who share a legitimate interest in the subject.
Anti-SLAPP laws
An early test of the claim.
Both states allow defendants to seek early dismissal of claims based on protected speech. California’s special motion to strike applies to claims arising from speech in connection with a public issue, unless the plaintiff shows a probability of prevailing. Utah’s Uniform Public Expression Protection Act applies to claims based on speech in governmental proceedings or on matters of public concern. These procedures can decide a case early, so they matter to both sides from the start.
Public or private
Who you are
changes
the rules.
The law asks more of public officials and public figures who choose to enter public debate.
A public official cannot recover for a defamatory falsehood about official conduct without proving “actual malice,” meaning the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”
Public figures
Some people achieve such pervasive fame or notoriety that they are public figures for all purposes. More commonly, a person who voluntarily enters or is drawn into a particular public controversy becomes a public figure for that limited range of issues. Utah applies the same framework, and has held that a television reporter was not a public figure under the circumstances of her case.
Private individuals
States may set their own standard of liability for defamation of private individuals, so long as they do not impose liability without fault. But a private plaintiff who proves less than actual malice may recover only for actual injury, not presumed or punitive damages. Whether a person is public or private is often one of the most important, and most contested, questions in the case.
Historic case law
The cases that drew
the line.
1964
New York Times v. Sullivan
Established the actual malice standard for public officials, constitutionalizing the law of defamation.
1974
Gertz v. Robert Welch
Defined public figures and allowed states to protect private individuals under a lesser standard of fault.
1986
Philadelphia Newspapers v. Hepps
Placed the burden of proving falsity on the plaintiff when speech involves a matter of public concern.
1988
Hustler Magazine v. Falwell
Protected parody that could not reasonably be understood as stating actual facts, even when outrageous.
1990
Milkovich v. Lorain Journal
Rejected a separate privilege for “opinion,” focusing instead on whether a statement implies a provably false fact.
1997
Zeran v. America Online
Read Section 230 to give online platforms broad immunity for content posted by their users.
Experience on both sides
We don’t pick a side.
We pick the truth.
We represent people and businesses harmed by false statements, and those accused of defamation. Seeing both sides sharpens our analysis of the words, the context, and the law.
Bringing claims
When a falsehood
damages your name.
We evaluate whether a statement is a provable falsehood rather than opinion, whether a privilege applies, who is responsible, and how the harm can be shown, then pursue the claim in the proper forum.
Defending claims
When speech is
called defamation.
A claim may target truth, opinion, humor, or privileged speech, or a plaintiff may be unable to prove fault or damages. We test every element and evaluate early defenses, including anti-SLAPP procedures.
Every matter depends on its facts, evidence, applicable law, and circumstances.
Timing
One year
passes
quickly.
Defamation claims have short deadlines, and online evidence can disappear.
In both Utah and California, the statute of limitations for libel and slander is generally one year. When the clock starts, and whether it can be extended, depends on the facts.
Posts are edited, deleted, and buried. Preserving the statement, the date, the platform, and evidence of how far it spread, and of the harm it caused, can make a decisive difference, whether you are bringing a claim or defending one.
A considered first step
Questions worth asking.
We begin with the exact words, not a conclusion. A focused first conversation helps identify what deserves closer review.
Is an insulting post defamation?
Not necessarily. Insults, opinions, and obvious exaggeration are often protected. Defamation requires a false statement of fact that harms reputation. The words, the context, and the audience all matter.
Can I sue the platform where it was posted?
Usually not. Section 230 generally protects platforms, and users who repost, from liability for content created by someone else. The claim is generally against the person who wrote the statement.
I received a demand letter. What should I do?
Do not ignore it, and do not delete the content without advice, because deleting it may raise evidence concerns. Have the statement and the demand reviewed promptly. Truth, opinion, privilege, and anti-SLAPP procedures may all be relevant.
What should I share first?
Start with who made the statement, where and when it appeared, and a brief description of what was said. Please do not send screenshots, recordings, or confidential documents until we have completed a conflict review.
Request a case review
Start with the words.
We will consider
the way forward.
Whether you were defamed or accused of defamation, tell us briefly what happened.
We are deliberately selective so each engagement can receive the attention, preparation, and personal commitment it deserves.
Begin with a brief introduction.
Please send only a general overview, not screenshots, recordings, or attachments. An inquiry does not create an attorney-client relationship, confirm acceptance, or extend a deadline.
The age of social media
New platforms.
Old laws.
A post can reach thousands of people in minutes and remain searchable for years. The laws that govern it were largely written before social media existed.
Section 230 of the Communications Decency Act of 1996 provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Courts have read that language to bar claims that would hold platforms liable for deciding whether to publish, withdraw, or alter users’ content.
The California Supreme Court has extended that immunity to individual users who repost someone else’s statement, leaving injured people free to pursue the original author, and noting that any further expansion of liability “must await Congressional action.” State laws inconsistent with Section 230 cannot be enforced.
When the Supreme Court had the opportunity to address Section 230’s reach in 2023, it declined to do so. The result is a body of law written for a very different internet, applied to anonymous accounts, viral reposts, and online reviews that it was never designed to address.
Who wrote the original statement, and can they be identified?
Has it been saved before it is edited or deleted?
Where was it posted, and how far did it spread?