If the absolute privilege applies (see 6/21 blog: Have You Been Defamed? Part IV), you can say anything you want about someone else for any reason and you cannot be held legally accountable for defaming that person’s character. Perhaps the most common absolute privilege is the “litigation” or “judicial” privileges. Under this privilege, anything stated in court, in a deposition, or in a pleading relating to litigation or any court action is absolutely privileged. You can say anything you want for any reason and you cannot be sued. You can intentionally lie about a person simply to maliciously harm that person’s reputation, and they cannot sue you. Depending upon the circumstances, you may be subject to court or other sanctions, but a defamation suit will not be one of them. However, this privilege frequently does not apply in situations ancillary to litigation. For example, statements made about a case or about a litigant in press conferences or in a judge’s chambers have been held in some cases to be actionable and unprotected under the judicial privilege. It pays to be careful what you say outside of court about a pending suit.
Other absolute privileges exist. These include, for example, the legislative and executive privileges. The legislative privilege applies to protect legislators, who are permitted to say whatever they want while on the floor while the legislature is in session. The executive privilege applies only to high level executives such as the President of the United States or Governors of the various states. However, unless you are in a high level government position, you are obviously unlikely to ever come across issues involving these privileges.
Michael L. Kitchen
Disclaimer: This blog is for information purposes only. Legal advice is provided only through a formal, written attorney/client agreement.