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Free Speech Versus False Statements: New Jersey’s Libel, Slander, and Defamation Law

Just about everyone has been called a name or had someone say something about them that wasn’t true, but when does that false statement become actionable defamation?

Under the law in New Jersey, defamation requires at least three people. It occurs when someone (“A”) makes a specific factual assertion about another (“B”) to a third person (“C”). The statement cannot be a joke or an expression of opinion; it must be something that is capable of being proven true or false, and which is actually false.

To establish a claim for defamation, B must show that A made an untrue statement of fact to C, that this statement included assertions that were “defamatory,” meaning they were negative and harmful to B’s reputation or caused monetary losses, and that A made this statement either knowing it was false, or while failing to exercise care in determining whether it was true or false. In some cases, B must also show and prove that she had incurred actual damages.

Therefore first, the statement must be “published,” i.e. made to a third party. Although it need not be publicized for the world to read in Time Magazine or hear on the six o’clock news, someone else must hear or read it. (If the third person reads the defamatory statement, the defamation is called “libel,” if she hears it, it’s called “slander.) Thus, A calling B a derogatory term or making a false statement of fact directly to B, is not defamation, because no third party heard it.

Next, the statement must be false. Even if harmful to a person’s reputation, a statement that is true is absolutely immune from a defamation claim by the First Amendment of the United States Constitution which protects free speech. Therefore, “truth” is a nearly unbeatable defense to a defamation claim.

However, once it is ascertained that the statement was false and “published,” it has to be determined whether it was sufficiently defamatory. It is not enough that B’s feelings were hurt or that B was embarrassed by the statement, it must be shown that C viewed B less favorably as a result.

This determination takes into consideration the person being defamed and her reputation, the circumstances in which the statement was made, the form and context of the statement, and the reasonable interpretation of the people who heard or read the statement. A statement may be defamatory if it causes the loss of the confidence and good will in which the victim was held by others, causing a negative impact of that person’s reputation in her community or workplace.

Further, A must have made the statement knowing that it was untrue, or failing to take any steps to check. This protects people when they unknowingly make false statements. If a person has taken all reasonable care to ascertain the truth, then it would be unjust to penalize her.

Sometimes, it is enough to prove defamation without having to prove actual damages if the defamation is so severe and egregious that damages are presumed. This kind of statement is called defamation, slander, or libel “per se.”

In New Jersey, four categories of statements qualify as defamation per se including statements that a person: (1) committed a crime; (2) has a loathsome disease; (3) engaged in serious sexual misconduct; or (4) engaged in conduct or having a trait that in incompatible with B’s business. These types of statements are considered so clearly defamatory that B’s reputation must have been harmed by it.

The attorneys at McLaughlin & Nardi, LLC are experienced with the law of defamation and are familiar with its evolution in New Jersey. To learn more about what we can do to help, please visit our website, contact one of our lawyers at (973) 890-0004, or email us at