While freedom of speech is a Constitutional right, defamation and the right of publicity are a hodge-podge of state and common laws. Although these laws differ from state to state, some general guidelines do emerge. Since the following is an amalgamation of various state laws, it would be wise to compare them against the defamation laws in your own state.
First, we will look at the laws of defamation in general. Second, we will examine how these laws apply in cyberspace.
Slander is a verbal defamatory statement, made with malice and causing damage to its intended victim. Slander is divided into two categories: slander per se and slander.
(1) Slander per se. Slander per se relates back to English common law in the 1500′s, and is narrowly confined to specific subject matter. Proof of falsity, malice and damage are presumed if the slander is slander per se. Slander per se relates only to defamatory verbal statements in one of the following categories: Sexual misconduct, lack of business acumen, a communicable disease, or criminal conduct that involves either moral impropriety or has the potential to lead to imprisonment.
(2) Slander. If the verbal defamation does not fall into one of the preceding categories, but does include speech that could be reasonably interpreted to be defamatory on its face, slander can be proven if the plaintiff proves the statement was false, made with malice, and the plaintiff can prove special harm or pecuniary damage. The question of whether the statement could be interpreted as being defamatory is one of law. The actual determination of whether the statement in question was indeed understood as defamatory is a question of fact.
Tomorrow . . . The Law of Libel