First Amendment and Defamation

Defamation and Free Speech Cases

We handle defamation cases on both sides. Sometimes our client is the person who was lied about. Sometimes our client is the person being threatened with a lawsuit for saying something true. We also bring First Amendment claims against government actors who retaliate against speech or try to silence it.

If you are here because someone posted something false about you and it is spreading, or because someone is demanding money and a retraction from you, the first thing to know is that the instinct to respond immediately and publicly is almost always wrong. A public rebuttal republishes the statement to a wider audience and hands the other side new quotes. An angry demand letter, fired off before anyone has evaluated the claim, can turn a nuisance into a lawsuit you did not want. And the deadline is short. Both New Jersey and New York give you one year from publication to sue for defamation, and the clock does not wait until you find out. It is an unforgiving statute of limitations with no second chances.

So the first thing we do is slow down and figure out what you actually have.

What a Defamation Claim Requires

You need a false statement of fact about you, published to at least one other person, made with the required level of fault, that caused harm. Written or recorded statements are libel. Spoken statements are slander. Each element does work, and most claims fail on one of them.

It has to be false. Truth is a complete defense, and substantial truth is good enough. Minor inaccuracies in an otherwise accurate account will not support a claim.

It has to be fact, not opinion. This is where most cases are won or lost. There is no blanket protection for anything labeled an opinion, but a statement that cannot reasonably be read as asserting actual facts is not actionable. Courts look at the exact words, whether they can be proven true or false, and the context. A heated online forum reads differently from an investigative article. Calling someone incompetent is usually opinion. Saying they were fired for stealing is a factual assertion, and it is either true or it is not.

The fault standard depends on who you are. Public officials and public figures have to prove actual malice: that the speaker knew the statement was false or recklessly disregarded whether it was. That standard is deliberately hard to meet, and it is the main reason prominent people lose defamation cases. Private individuals suing over statements on matters of public concern generally have to show at least negligence about the truth and have to prove falsity themselves. New Jersey has extended actual-malice-level protection to some situations beyond the classic public figure case, so who you are and what the statement was about is a real strategic question, not a formality.

The harm has to be real. Some kinds of statements have traditionally been actionable without proof of specific loss: accusations of serious crime, statements attacking professional competence, claims about certain diseases, allegations of sexual misconduct. Outside those categories you need to show actual damage, and “people looked at me differently” is hard to put a number on.

Claims That Are Not Quite Defamation

People often come in describing something that is close to defamation but not exactly. Sometimes another claim fits better: false light invasion of privacy, public disclosure of private facts, tortious interference with a contract or a business relationship, trade libel, or a claim under New York’s statutory right of privacy for commercial use of your name or picture without consent. That New York statute is narrower than most people expect.

And sometimes there is no claim at all, because the statement was true, or was opinion, or was privileged. Statements made in court proceedings, fair and accurate reports of official proceedings, and communications between people who share a legitimate interest are all protected to varying degrees. When the privilege is going to hold, we tell you. It is far cheaper to hear that from us than from a judge.

If You Are the One Being Sued

We defend defamation claims, and the defense is often stronger than the person being threatened realizes.

Both states now have real protections against lawsuits brought to punish speech. New York expanded its anti-SLAPP law in 2020. It now covers speech on any matter of public interest, requires the plaintiff to prove actual malice, and allows the defendant to recover attorneys’ fees. That is a serious deterrent to a weak claim. New Jersey adopted a version of the Uniform Public Expression Protection Act more recently, with an expedited motion and fee-shifting. Where these statutes apply, the early motion is often the entire case.

For statements made online, Section 230 of the Communications Decency Act protects platforms, and often people who merely share someone else’s content, from being treated as the publisher. It does not protect the person who wrote the statement in the first place.

Pre-Publication Review, Retractions, and the Limits of Injunctions

We also do the quieter work: reviewing articles, books, reviews, and marketing copy before they go out; writing retraction demands designed to actually get a retraction rather than a defensive letter back from the other side’s lawyer; and responding to cease-and-desist letters that claim more than the law allows.

One thing we counsel about often is the remedy people want most, a court order making the other person stop talking. Courts almost never grant it. A prior restraint on speech carries a heavy presumption of unconstitutionality, and a judge is very unlikely to order silence in advance. Damages after the fact, a retraction, and in some cases removal of specific false statements are the realistic tools.

Talk to Us Early

The limitations period is one year and it started running when the statement was published. Early advice preserves options that disappear quickly.

Call (201) 431-6199 or email info@wenstrandlaw.com. Offices in Cranford, New Jersey and on Madison Avenue in Manhattan.