[deogeo]

What about calling someone a pedophile? Should that also not be libel?

And before you claim it's different because being a pedophile is a crime - it's not a crime. Acting on it is. Just how being racist isn't a crime, but refusing to serve customers based on race is.

[elicash]

What about "jerk?" Should that be libel if there's no evidence the person is a jerk?

[tptacek]

There can't be, because "jerk" is a subjective assessment, and defamation requires a statement of fact. The "falsifiability" rubric Rayiner has been using is helpful. I'm not a lawyer, but I read lots of defamation lawyers, and note that you can further extend the requirements for defamation:

* It's (apparently, in many circumstances, consult lawyer) not defamation to relate your interpretation of facts already on the record. In other words, it's often not defamation if you're simply wrong about something, so long as you're not relating your wrongness in a manner that would lead a reasonable person to think you're authoritative for your claim. "Based on a bunch of stuff I read in the paper, Gibson's has a history of racial profiling" might be a much safer thing to say than "as faculty and administrators of Oberlin College I'm informing you that Gibson's has a history of racial profiling".

* If the injured party is a "public figure", you have to do more than prove a falsifiable false statement that causes actual injury; you also have to prove malicious intent, meaning that the speaker knows that what they're saying is false, and is saying it specifically in order to harm someone.

[hundt]

> you also have to prove malicious intent, meaning that the speaker knows that what they're saying is false, and is saying it specifically in order to harm someone.

I think you're talking about "actual malice" which as I understand it does not require a particular intent. It is just that you know the statement is false (or have reckless disregard for whether it is false or not). It doesn't matter why you said it.

[tptacek]

See this is why people call out "not a lawyer" on message board threads; you're right, "actual malice" is apparently knowledge of falsehood or reckless disregard for the truth.

[deogeo]

That's a good point. The difference is that 'jerk' is on its face a subjective assessment, an opinion, while 'racist' is less so. I have a feeling there's supreme court precedent drawing a more exact line.

Of course, devoid of context, 'racist' is pretty subjective as well. I'm guessing if the statements had been left sufficiently ambiguous, they might have gotten away with it. But they weren't - they accused them of a very specific racism, and demonstrated a reckless disregard for the truth.

From a quick search, looks like in cases such as these, the standard would be that the statements are made with 'actual malice' [1].

Edit: I noticed you asked what the law should be, not what it is. I guess I'm not so sure of the answer, but I'd venture that statements made with 'actual malice' should be included in libel.

[1] https://en.wikipedia.org/wiki/False_statements_of_fact#Priva...