Title IX Defamation 101

Student Survivor Toolkit: Download the PDF

* For California only

We believe all survivors have the right to speak out about what happened to them and share their experiences with whomever they want to. But unfortunately, the law does not always agree with us. This document will help you understand your rights and the risks that may be involved in speaking out publicly so that you can make an informed decision.

Note: This is an evolving and complicated area of law, so proceed with caution. We unfortunately cannot guarantee that you will be protected from a defamation lawsuit even if you follow this guidance. It is unlikely — but possible — that you could be sued, even if the person suing has no legal justification. In other words, just because someone is unlikely to win a defamation case against you does not mean they will not try to sue you anyway.

If you are accused of defamation for speaking out, you should contact an attorney who specializes in this area of law. Contact Equal Rights Advocates at [email protected] for a referral.

In California, the legal definition of defamation is a written (libel) or spoken (slander) communication that is false, unprivileged (“privileged” means what you said is protected from defamation), and causes reputational harm to the person who the communication is about.

If someone sues for defamation, the person suing is called the “plaintiff” and the person being sued is called the “defendant.” In order to file a defamation lawsuit, a plaintiff must be able to show 5 things:

1. the statement was framed as a statement of fact;
2. the statement was false;
3. it was ‘defamatory,” or damaging to the person’s reputation;
4. it was not privileged (i.e. not protected by one of the privileges listed below); and
5. the communication has a tendency to injure or cause special damage.

In order for the defendant to prove that the communication was not defamatory, there are four affirmative defense to the lawsuit: truth, opinion, privilege (meaning that the speech was protected by one of the privileges below), and the statute of limitations (meaning the deadline for filing a defamation lawsuit has passed). If the defendant can prove an affirmative defense, they can defeat the case and end the lawsuit.

What type of speech is privileged (protected)?

“Privileged” speech refers to written or spoken communication that is protected for some reason, usually because the court thinks it’s important (such as important commentary on issues that matter to the public) or because it is necessary for things like allowing people to file complaints about harassment.

California has particularly strong free speech protections to keep people from using defamation lawsuits as a way to silence survivors. Speech that is privileged — and thus can’t be subject to a defamation lawsuit — includes (but is not limited to):

• statements made in an official proceeding authorized by law, such as a Title IX case;
• statements made at (or in connection with) a government or legal proceeding, such as a legislative, executive, or judicial hearing;
• statements made in the public interest or “in furtherance of a common interest,” such as commentary about an important issue in society; or
• a fair and true report to a public media outlet regarding an official proceeding, such as a Title IX proceeding.

It is extremely unlikely that someone will prevail in a defamation lawsuit against you based solely on you making a Title IX report. If you make a statement to the press or a media outlet about a report you already made to a Title IX office, that statement is also likely protected by the law (under the “Fair and True Reporting” privilege) — meaning it likely cannot be used to sue you for defamation — but beware that there is no legal precedent you can rely on. There are cases where students have successfully defended defamation cases based on speech related to their Title IX report, but those cases are not binding on any court, so another court is free to make a different decision.

If you make a statement to a media outlet or in a press release, you may want to do these two things:

1. only restate what you already reported to the Title IX office, without elaborating, and
2. rather than simply stating as a fact that the sexual assault or harassment occurred, accurately report what you reported to the Title IX office. Your statement should have the same gist as your Title IX report.

Finally, statements made at certain events, such as Take Back the Night, might be protected by the “common interest privilege.” This privilege is recognized when you and the person/people listening have a common interest, and what you say is non-malicious and meant to protect or further that common interest, such as raising awareness about sexual violence at your school.

How can I use truth as a defense in a lawsuit?

Truth can be used as a defense in a defamation lawsuit, but proving the truth of sexual harassment or sexual assault allegations can be tricky, and it depends on what exactly you said in the statement you’re being sued for. Legally, there is a big difference between stating publicly that you made a Title IX complaint and sharing what you said in that complaint; versus stating what happened to you without referencing the complaint. If your statement is “I was assaulted by John Doe,” you might have to wait until trial to convince a jury that the statement is true. If, on the other hand, the statement was “I reported to my school’s Title IX office that I was assaulted by John Doe,” you would have a greater chance of being able to dismiss the lawsuit before it goes to trial.

Therefore, if you plan to speak out about your assault, you are most protected if you do so by referencing what you reported to the Title IX office.

Another possible form of protection is that legally, statements related to sexual harassment or sexual assault can sometimes be considered opinion, not fact. If you can show that what you said was an opinion and not fact, that can be used as an affirmative defense in a lawsuit. Examples of speech that can be considered opinion include saying that the assailant’s presence “made it very challenging for me to finish school.”

If I am threatened or sued for defamation, how do I respond?

You will likely first receive a demand letter or other communication urging you to stop your behavior with a threat to sue if you do not comply. If a lawsuit is filed accusing you of defamation, you have 60 days to respond. You should immediately find a lawyer to assist you in responding to the lawsuit by filing an “anti-SLAPP (Strategic Lawsuit Against Public Participation) special motion to strike.” This motion asks the court to throw out the defamation lawsuit because the speech is protected or because the plaintiff won’t be able to prove their case at trial. If you win this motion, you won’t have to go to court over the defamation case and prove to a jury that what you said was true.

Do not try to avoid being served with notice of a lawsuit, or ignore the complaint. If you don’t respond, you will receive a judgment against you. You would likely have to pay an attorney an hourly rate to represent you, but if it’s just for filing the motion mentioned above, it might not be too expensive. If you win, you can get your money back for the fees you paid.

We know that harassers are using the threat of defamation more and more to silence victims, and we know this area of law can be scary, overwhelming, and complicated. We are here to support you in speaking out about your experiences, and we welcome you to contact us to help you decide whether or not doing so is right for you. To make an appointment, email Equal Rights Advocates at [email protected] or text #ENOUGH to 40649.

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