Don't Bet the Business

Just outside the courthouse in Adams County, Ohio, Joseph Edgar Forman (better known by his stage name, Afroman) declared that his victory in a civil defamation trial was truly a victory for America and for free expression. But if there was a hard and fast rule against lawsuits over speech, the case against Afroman would never have made it to trial.

The case against Afroman was brought by employees of the Adams County Sheriff's Department, who claimed they’d been defamed in Afroman’s music videos and songs. In the relevant songs, Afroman offered entertaining and less than charitable descriptions of the sheriff department employees who raided his home. These descriptions varied from the innocuous (desiring lemon pound cake) to the serious (pedophilia).

Free speech is one of the most misunderstood concepts in American jurisprudence, and for the business owner, believing you have a fundamental right to say anything can land your company and you in troubled waters. Understanding free speech begins with distinguishing constitutionally protected speech from “free speech,” the societal value.

1^st Amendment Speech

Constitutionally protected free speech bars the government from suppressing free expression. This right obviously has notable exceptions. For example, yelling fire in a crowded theater is not protected speech. Schenck v. United States, 249 U.S. 47 (1919).

As the U.S. Supreme Court explained, “[t]he text and original meaning of those Amendments, as well as this Court's longstanding precedents, establish that the Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech,” Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802, 808 (2019), meaning a person might be sued for their false statements under certain conditions.

Free Expression & Defamation

While not constitutionally protected, American law recognizes an inherent value in free expression. That value is especially implied when “public figures” are involved. The tension between private actions (libel, slander, defamation) and free speech is well-recognized.

It has been said that whatever is added to the field of libel is taken from the field of free debate. While less compelling, these same considerations are also at play in private, non-political expression. Thus, the defamation action has been narrowly tailored to limit free speech as little as possible.

Sarmont v. DeWitt, 2024 IL App (2d) 230239, ¶ 58 (cleaned up).

To that end, defamation lawsuits brought by public officials, like the plaintiffs in Afroman’s case, carry an “actual malice” requirement. The actual malice requirement comes from the U.S. Supreme Court: “The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964).

This requirement doesn’t always prevent cases from moving to trial. For example, in the Afroman case, in denying the motion to dismiss the defamation count brought by the plaintiffs, the court reasoned in October 2023 that “the court cannot conclude as a matter of law at this point in the proceeding that the statements made by [Afroman] were not made with actual malice.” It then took almost two and a half years for the case to conclude after trial.

Elements of Ohio Defamation Law

In Afroman’s case, the Adams County Sheriff employees embroiled in the litigation had to prove four defamation elements under Ohio law: “(1) a false and defamatory statement, (2) unprivileged publication to a third party, (3) a requisite amount of fault on the part of the publisher, and (4) actionability or special harm caused by the statement.” Hout v. City of Mansfield, 550 F. Supp. 2d 701, 747 (N.D. Ohio 2008).

Elements of Illinois Defamation Law

The elements of a defamation claim under Illinois law are: “(1) the defendant made a false statement about the plaintiff, (2) the defendant made an unprivileged publication of that statement to a third party, and (3) this publication caused damages.” Coghlan v. Beck, 984 N.E.2d 132, 145 (1st Dist. 2013).

In Illinois, actions for defamation can proceed on two distinct fronts: per se, and per quod.

Defamation per se falls into limited categories: “(1) words that impute the commission of a criminal offense; (2) words that impute infection with a loathsome communicable disease; (3) words that impute an inability to perform or want of integrity in the discharge of duties of office or employment; or (4) words that prejudice a party, or impute lack of ability, in his or her trade, profession or business.” Bryson v. News Am. Publications, Inc., 174 Ill. 2d 77, 88 (1996). Per se defamation allows damages to be presumed. Bryson v. News Am. Publications, Inc., 174 Ill. 2d 77, 87 (1996) (“If a defamatory statement is actionable per se, the plaintiff need not plead or prove actual damage to her reputation to recover.”).

Defamation per quod, differently, proceeds “where the defamatory character of a statement is not apparent on its face and extrinsic evidence is necessary to demonstrate its injurious meaning or where a statement is defamatory on its face but does not fall under one of the categories of statements which are actionable per se.” Maag v. Illinois Coal. for Jobs, Growth & Prosperity, 368 Ill. App. 3d 844, 852–53 (5th Dist. 2006).

Regardless of the type of defamation implicated, business owners can find themselves in protracted litigation for unguarded statements. While Afroman was victorious in his case involving sheriff office employees who raided his home, there were still significant costs for his time and legal defense, let alone the emotional and even psychological toll litigation can take on the parties involved.

It is always best for business owners to avoid liability whenever possible. Working proactively with legal counsel to avoid or mitigate liability can help you achieve that goal.