Private Figure Defamation - "Actual Injury" and Harm to Reputation

© Bob E. Lype, 2025

The following article was published, in excerpted form, in the Tennessee Bar Journal, Volume 61, No. 2 (March/April, 2025). The full article is shown below (i.e., not the excerpted, redacted version which was published by the Journal), to provide more complete context.

 

          A person’s reputation, or “good name” (hopefully), can be a thing of great value. Lawyers who litigate defamation cases are familiar with the words of Shakespeare from Othello:

Good name in man and woman, dear my lord,
Is the immediate jewel of their souls: Who steals my purse steals trash; ‘tis something, nothing,
‘Twas mine, ‘tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.[i] 

            However, since reputation is not a thing that can be seen or touched, how can it be measured or given a value? For that matter, where do we locate it or observe it? Does everyone actually have one? And if these questions leave one puzzled, consider then the difficulties of proving, or measuring, harm or injury to one’s reputation.

        Yet that is a primary aim defamation law is supposed to address – harm or injury to one’s reputation caused by a false, defamatory statement “published” to others about that person. As Tennessee courts have noted, “it is reputation which is defamed, reputation which is injured, and reputation which is protected by the law of defamation.”[ii] Stated another way by the Tennessee Supreme Court, “The basis for an action for defamation, whether it be slander or libel, is that the defamation has resulted in an injury to the person’s character and reputation.”[iii] Tennessee has also rejected the idea of “presumed damages” from statements which were once considered defamatory per se,[iv] holding that “the per se/per quod distinction is no longer a viable one. The plaintiff must plead and prove injury from the alleged defamatory words, whether their defamatory meaning be obvious or not.”[v] So, a successful defamation plaintiff in Tennessee must plead and prove harm or injury to this intangible, amorphous, hard to define thing – the reputation.

            Recent renewed interest in defamation law. For the last several decades, many lawyers have avoided litigating defamation claims for various reasons, including the afore-mentioned difficulties in defining and proving harm or injury to reputation. In addition, recoveries in defamation cases are hard to predict, even in what appear to be clear cases of liability, building a case is often time-consuming and difficult, and frequently there are questions about collectability of damages. However, several recent high-profile cases have spurred new interest for possible defamation plaintiffs and lawyers who might consider representing them.

            Take, for instance, the defamation claims and counterclaims litigated in Virginia in 2022 between movie stars Johnny Depp and Amber Heard. Depp claimed that Heard defamed him when she wrote an “op-ed” article which strongly implied he had physically abused her, and Heard claimed that Depp had defamed her by saying that one of his arrests was a hoax and a set-up initiated by Heard. The jury awarded Depp $10 Million in compensatory damages and $5 Million in punitive damages (reduced to $350,000 because of a Virginia statutory cap), and it awarded Heard $2 Million in compensatory damages.[vi]

            Another recent high-profile defamation case involved the parents of children who were slain in the Sandy Hook school shooting in Connecticut, who sued alt-right radio host Alex Jones and his companies in connection with conspiracy theories he repeatedly discussed on air in connection with the shooting, including challenging whether it had actually taken place and whether “actors” were involved. The group of parents sued Jones for defamation, invasion of privacy, and intentional infliction of emotional distress. After the trial court entered a default judgment against Jones in connection with discovery abuses, a jury returned verdicts in excess of $1.5 Billion against Jones and his companies.[vii]

            Two recent high-profile defamation cases arise out of disputes related to the 2020 Presidential election.  Dominion Voting sued Fox News and Fox Corporation based upon repeated news reports by Fox’s media personalities, who had claimed on air that Dominion’s voting machines were utilized in connection with election fraud of various sorts. After the trial court granted summary judgment to Dominion as to Fox’s liability for defamation, and shortly before a jury trial was scheduled to consider damages, Fox and Dominion settled the case for more than $787 Million in April, 2023.[viii]  Rudy Giuliani was sued by two election workers from Atlanta for defamation after he repeatedly accused them, on national media, of engaging in fraud in the counting of ballots. After the trial court entered a default judgment against Giuliani for repeated discovery abuses, including failure to preserve and produce electronically stored information, a jury heard the case for determination of damages, and it awarded the election workers more than $148 Million in compensatory and punitive damages.[ix]

            Finally, former President Donald Trump was sued by E. Jean Carroll for alleged sexual assault, as well as for defamation in connection with his repeated statements to the media about Carroll, including that he had not met her, he had not assaulted her, and that her claims were a “hoax” designed to increase sales for her book. Former President Trump repeated these statements even after the trial court had adjudicated that he had committed the alleged assault on Carroll. In 2023, a jury awarded Carroll more than $5 Million for the assault and defamation claims, and when the former President repeated his assertions after that trial, Carroll sued him again for defamation. In 2024, a jury awarded Carroll an additional judgment for more than $83 Million. (The case is currently on appeal).[x] 

            So, naturally, with these recent high-profile cases and sizeable jury awards, there is renewed interest in defamation claims and cases.

            Different rules for public figures and additional hurdles for claims involving public matters. As most lawyers are aware, there are “different rules” when the defamation plaintiff is a “public figure,” either for all purposes or for limited purposes, or when the defamation defendant claims his or her statements are protected by free speech rights because they involve “matters of public concern” (which includes statements concerning public figures, matters of health or safety, goods or services in the marketplace, or critiques of artistic or political works) or religious expressions.

            Since the 1964 U.S. Supreme Court decision in New York Times v. Sullivan,[xi] a defamation plaintiff who is a public figure must meet a heighted burden of establishing that the defendant acted with “actual malice,” which is a legal term of art imposing specific requirements as to proof of the defendant’s subjective beliefs concerning the truthfulness of his or her statements and whether the defendant acted with something more than negligence.  Moreover, since the Tennessee legislature enacted the Tennessee Public Participation Act (TPPA) in 2019,[xii] when a defamation plaintiff files suit regarding statements affecting “matters of public concern” which implicate the defendant’s free speech rights, a new procedure is available to the defendant to seek an expedited determination whether the plaintiff’s case should be dismissed, and if the case is dismissed, the defamation plaintiff may be ordered to pay the defendant’s legal fees. The TPPA is designed to permit a quick determination of “SLAPP” lawsuits (“strategic lawsuits against public participation”), which are lawsuits disguised as defamation claims, when the actual purpose is instead to silence free speech about matters of public concern.

            Because the focus of this article is upon harm or injury to reputation, rather than the subjects of the defamatory statements or burdens to be met in establishing liability, no detailed analysis will be included here regarding the actual malice standard or the TPPA. However, a lawyer considering taking a defamation case must be mindful of these considerations, separate and apart from issues involving proof of reputational harm.  

            “Actual injury” and the reputational harm dilemma of the “private plaintiff.” Frequently the defamation victim/plaintiff is a private individual, not a public figure, and the subject of the defamatory statement is not a matter of public concern. After all, in this age of social media, it is incredibly easy for an angry or nefarious person to spread lies to a wide audience.[xiii] For example, consider a situation where a parent with a grudge makes repeated posts in a social media group setting falsely claiming that a plaintiff has stolen money from the bank account of a youth sports association. As a private person, the potential plaintiff need not show that the disgruntled parent acted with “actual malice,” and the subject is not likely to be considered a matter of public concern. The U.S. Supreme Court in the Gertz decision of 1974 declined to extend the “actual malice” rules to defamation lawsuits brought by private individuals (as opposed to public figures), and it held that the private individual need only prove that the defendant was negligent in failing to determine whether his or her statements about the plaintiff were true.[xiv]

            However, in that same Gertz opinion, the Supreme Court held that, when liability for defamation is imposed based upon this negligence standard, rather than an “actual malice” standard, states may not permit recovery of either “presumed” damages (i.e., based upon “per se” defamation) or punitive damages, but rather, the private plaintiff would need to prove “actual injury.” One problem is that the Court did not further define “actual injury.” Rather, it noted: “We need not define 'actual injury,' as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.”[xv]

            In 1978, the Tennessee Supreme Court adopted and applied this standard articulated in Gertz to Tennessee defamation cases, effectively ruling that Tennessee no longer recognizes defamation per se, but rather, the defamation plaintiff must prove “actual injury.”[xvi] But as for what constitutes “actual injury,” this remained undefined and subject to the general guidance of Gertz.

            Returning to the example of the private figure accused of stealing from a youth sports association bank account, above, the private plaintiff would not have to prove “actual malice,” but he would have to prove “actual injury.” What if that private plaintiff was unable to prove that his “reputation” had been affected (perhaps because he had no particular reputation before these events), as no one could be located to come forward and say they “thought of him differently” after the defamatory statements were made, but he did suffer serious humiliation and emotional distress? Given the requirement to prove “actual injury” and the pronouncement that “it is reputation which is defamed, reputation which is injured, and reputation which is protected by the law of defamation,”[xvii] as well as that “the basis for an action for defamation, whether it be slander or libel, is that the defamation has resulted in an injury to the person’s character and reputation,”[xviii] could that private person successfully prove a defamation claim?

            In 1997, the Tennessee Court of Appeals considered Myers v. Pickering Firm, a case wherein the plaintiffs sued for defamation (together with other claims), and while they could not prove “pecuniary losses,” lost revenues, lost business opportunities, or anything more than minimal out-of-pocket losses resulting from the defamatory statements, they did prove significant emotional distress, humiliation and resulting depression.[xix] The Court affirmed the jury’s award for emotional distress and punitive damages, while reversing the jury’s awards for pecuniary losses and general “injuries to reputation,” since those elements had not been supported by any evidence. The Court quoted the U.S. Supreme Court in Gertz for the proposition that “the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering,” and it cited a 1979 Tennessee Court of Appeals opinion for the propositions that “the failure to prove special damages or out-of-pocket losses is not necessarily determinative,” and “the issue is whether the record contains any material evidence of impairment of reputation and standing in the community, personal humiliation, or mental anguish and suffering.”[xx] So, the plaintiffs in Myers v. Pickering Firm did recover under Tennessee defamation law for emotional distress and humiliation, even though they did not recover separately for “injuries to reputation.”

            Therefore, under the example of the private plaintiff who was accused of theft from a youth sports association, he should be able to recover under a defamation claim for his humiliation and emotional distress, even if he is unable to prove specific changes to his general reputation. Under the reasoning of the 1997 Myers case and the 1979 Handley case, both of which cited and relied upon the U.S. Supreme Court Gertz case, the use of the conjunction “or” in the listing of types of common types of injuries (impairment of reputation and standing in the community, personal humiliation, or mental anguish and suffering) means that proof of any of the examples of “actual injuries” should suffice, and it is not necessary to prove specific harm to reputation or standing in the community as a type of “actual injury.”[xxi] This is also reflected in the Tennessee Pattern Jury Instructions, which provide that a defamation plaintiff must prove that “the plaintiff was injured by” the defamatory statement, without specifying that the harm or injury is limited to reputation.[xxii]

            More on “mere annoyance,” character and reputation, and the “libel-proof plaintiff.”

What if, instead of having “no particular reputation,” our fictional private figure plaintiff accused of stealing from the youth sports bank account instead had a horrible reputation, such as a lengthy criminal record? Even if he suffered great humiliation and emotional distress on account of the social media posts, would that make a difference in his pursuit of a defamation claim?

            Under Tennessee law, yes, that would likely make a difference, and he might be precluded from pursuing a defamation claim as a “libel-proof” plaintiff. In the 2001 case of Davis v. Tennesseean,[xxiii] the Tennessee Court of Appeals applied the “libel-proof doctrine” to affirm the dismissal of a defamation plaintiff’s case. In that case, Davis was an inmate convicted of aiding and abetting second degree murder, sentenced to ninety-nine years in prison. The defendant newspaper had published an article which said Davis had shot the decedent crime victim, which was incorrect. When Davis sued the newspaper for defamation, his claim was dismissed by the trial court under the “libel-proof doctrine,” based upon a finding that, since Davis was convicted of felony murder, he was “a notorious person without a ‘good name,’” that is, he had no good reputation which could be injured. The Court of Appeals affirmed the dismissal, and in so doing it stated that “the gravamen of a libel claim is injury to reputation,” and it discussed the concepts of “character” and “reputation,” noting: “Clearly, the words ‘character and reputation’ were intended to mean ‘reputation in respect to character,’ for character may only be shown by reputation.”[xxiv] While Davis alleged that he suffered “unjustified humiliation” on account of the article, he did not allege that his “public reputation [had] been injured,” so his lawsuit was dismissed.

            Tennessee courts have also clarified that the “actual injury” of a defamation plaintiff must be more than “mere annoyance or loss of peace of mind,” and if the plaintiff suffers “anger rather than anguish,” that is not sufficient as “actual injury” to support a defamation claim.[xxv] In Handley v. May, the plaintiff had claimed she was upset and “unable to concentrate on her business” upon hearing the defendant’s statement that she was “a member of organized crime” and “connected with the Mafia,” but the Court held that her “anger” did not suffice as emotional distress and that she presented no evidence of impairment to her reputation or standing in the community.

            So, if our fictional private plaintiff accused on social media of theft from a youth sports group already had a bad reputation, or if his level of emotional distress was more akin to anger and difficulty concentrating, in all likelihood his defamation claim would not prevail. To say the application of these rules is “nuanced” is an understatement.

            So how might a defamation plaintiff prove actual injury to reputation? In some cases, actual injury to reputation may be apparent, but in many cases it may be difficult to garner evidence of harm to something as nebulous as “reputation.” Some people have such a minimal community presence that they may not have a specific reputation. So, if a defamation plaintiff has difficulty establishing a requisite level of emotional distress, and if he or she must instead rely on proof of actual injury to reputation, how might the plaintiff go about that?

            There is no articulated formula for marshalling evidence of actual harm to reputation, but the following questions and concepts may be considered: (1) Has there been interference with existing relations with third persons, such as, being ostracized by family, shunned by friends, ridiculed by acquaintances, deserted by customers, fired by an employer, and the like? (2) Has there been interference with future relations? In particular, a plaintiff’s friends, family, and business associates may stand by him, but people who do not know him may be less skeptical of the defamation and may decide not to associate with him. This plaintiff loses the benefit of future business and social relationships. (3) Has a negative public image been created for a person who previously had no public image at all? (4) Defamation often does its harm by sowing seeds of doubt, rather than by completely destroying relationships. Therefore, it is not necessary to prove that a particular relationship has been destroyed.

            Conclusion. In this age of social media, where it is so easy to “put things out there” potentially to be seen by a large number of people, it is not just celebrities and politicians who may end up being harmed by defamatory statements. Those harms may come in various shapes and forms, and if “actual injury” can be proved, then the affected person may justifiably consider filing a defamation action. Defamation law is complex and filled with subtle distinctions. Tennessee practitioners should be prepared to walk through the analysis of these issues if called upon by a client with a potential defamation claim.  

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