The first major distinction is fact versus nonactionable expression. Courts examine how a reasonable audience would understand the words in context. A speaker cannot immunize a fabricated factual accusation by adding "in my opinion." Conversely, parody, loose rhetorical exaggeration, and value judgments that cannot reasonably be proved true or false ordinarily receive protection. A satirical cartoon depicting a mayor as a clown differs from a report asserting that the mayor accepted a named bribe on a particular date.

Plaintiff status and subject matter determine the constitutional fault rule. Under New York Times Co. v. Sullivan, a public official seeking damages for a false statement concerning official conduct must prove actual malice. Public figures generally face the same demanding standard for statements within the relevant public controversy. Actual malice means knowledge that the statement was false or reckless disregard for whether it was true. It does not mean spite, hostility, or a desire to embarrass.

Reckless disregard is more than an ordinary failure to investigate. Evidence that a publisher purposefully avoided obvious reasons to doubt a serious accusation can support the standard; a mere mistake or careless choice does not automatically do so. The rule accepts some risk of error so speakers are not frightened away from investigating officials or debating public questions.

A private person does not automatically have to prove actual malice. States may use a less demanding fault rule, subject to constitutional limits that become especially important when speech concerns a matter of public concern or when the plaintiff seeks presumed or punitive damages. Fame is not the only question: courts distinguish public officials, all-purpose public figures, and people who voluntarily become prominent in a particular controversy.

Government action enters through the courts and state tort law. A private plaintiff files the case, but a judgment enforcing an unconstitutional liability rule is state action. Freedom of the press therefore limits defamation judgments without granting publishers absolute immunity for deliberate or recklessly false factual accusations.

A newspaper reports, after relying on a credible but mistaken source, that a city commissioner diverted public funds. If the commissioner sues over official conduct, proving falsity and reputational injury is not enough. The commissioner must establish that the publisher knew the report was false or consciously disregarded a high probability of falsity. Evidence of personal dislike alone does not satisfy that burden.

Use a fixed sequence: identify the challenged statement, decide whether a reasonable reader would understand a verifiable fact, test falsity, classify the plaintiff and subject, and select the required fault standard. Offense and harshness do not replace these elements. Defamation concerns injury from false factual assertion, not a general right to be free from criticism.

Video lesson: Freedom of Speech: Crash Course Government and Politics #25