If someone files a defamation lawsuit against you in Oregon, do not panic. Both Oregon and Federal law provide a great deal of protection for your free speech rights.
On the other hand, this area of law is complicated and nuanced, and even experienced attorneys occasionally take a wrong turn while defending these cases. If you are seeking advice, please complete the intake form here. It is particularly important to seek counsel if you are being sued for other claims in addition to defamation.
Procedural Defenses to Defamation
Many defamation cases can be dismissed well before trial. A defendant may seek dismissal on motions if the case has any of the following defects:
- Lack of jurisdiction - In some cases, particularly where the defendant does not reside in or regularly conduct business with Oregon, the courts here will not have jurisdiction to hear the case.
- Defects in service - Failure to follow the formalities of service of process may result in dismissal.
- Failure to file on time - Oregon's statute of limitation on defamation is one year.
- Failure to state a claim - The complaint may have defective language, resulting in dismissal.
- Other defects as recognized in the ORCP.
The Anti-SLAPP Special Motion to Strike
Not only does this motion have a very cool-sounding name, it is deadly to many seemingly-viable defamation claims. Defendants who win under this provision can send the bill for their attorney fees and costs to the Plaintiff because the court will order the Plaintiff to pay for a successful defense under this statute.
The original intent of this statute was to protect individuals speaking out against corporate interests. The latter would sometimes sue the former in an effort to muzzle them, and it would often work. The statute does not limit itself to that specific scenario, however, and a surprising breadth of defamation falls within its ambit.
Generally, the statute requires the defendant (the person who made the allegedly defamatory statement) to establish that the defamatory statements at issue fall within the class of statements that the Anti-SLAPP statute protects. This is not usually an insurmountable hurdle. Once that is accomplished, the plaintiff then must persuade the court that the case has sufficient merit to proceed. This is an unusual burden to place on a plaintiff in such an early stage of the lawsuit, and it can be difficult to prevail.
This motion comes with some gotchas and caveats, so it is generally a good idea to obtain the assistance of competent counsel.
Substantive Defenses to Defamation
The number of issues that can be raised against the substance and circumstances of a defamation claim are numerous, and most of them are rooted in the First Amendment of the United States Constitution. Public figures and public officials who are defamed have little recourse against statements that criticize their public roles. The press is similarly insulated from defamation claims.
There are also less-known defenses, such as:
- Absolute privilege - statements made concerning court proceedings are absolutely protected from defamation claims
- Conditional / Qualified privilege - many statements involving matters of mutual concern to the speaker and the listener are not actionable, even if defamatory
- Truth - defamatory statements that are true are not defamatory; truth is an absolute defense, though establishing it can be tricky
- Consent - if the defamed party consented to the defamation, they cannot come back and complain about it in court later
These defenses are much more complex and nuanced than the one-liner summaries provided above. If you would like to consult with an attorney, please consider us.