Office Gossip: Slander or Free Speech?

Office Gossip: Slander or Free Speech?

by Corie Lynn Rosen, December 2009

Anyone who has worked in an office has experienced the old "gossip around the water cooler." While a little chatter in the kitchen and elevator is inevitable, it's when that chatter turns into hostile gossip that the well-being of departments, and sometimes even entire companies, is jeopardized. What begins as innocent office small talk has the potential to develop into slander.

Slander has been a recognizable offense since the days of Roman law. Conceptually, making slander illegal was intended to protect men from unnecessary insult. In a society without internet and telephones, slandered people faced a long and laborious process to clear a clouded name.

Today our information gathering resources far outpace those of the Romans, but the illegality of slander remains. In modern terms, slander is simply defined:slander occurs when a false statement of fact has been made such that the reputation of the person discussed is injured. That injured person may sue the speaker for slander. It is important to note that the statement need not be derogatory in order to be slander.

How can you recognize slander? It can be tricky to identify, in part because in order to prove a claim for slander, some courts will require a showing of malice. This means that the defendant made the statement knowing that the injurious fact was false or at least disregarded the possibility of falsity to the point of recklessness. This is a somewhat complex standard requiring individual analysis of each set of facts in order to determine whether or not an element of malice was present.

At times, cases answer the malice question without much investigation. Some statements are so injurious that courts tend to find them slanderous in and of themselves. Such statements include claiming that someone has a serious disease, has committed a crime, is bad at their business or unfit to conduct their business, or in some places, even claiming that the person is reprehensibly unchaste.

Overall, any statement that seriously damages the reputation of the individual is probably slander. Of course, if the statement is true, a court will recognize that. Keep in mind, however, that it may be extremely difficult to prove the truthfulness of a subjective statement, like a claim that someone is unfit to run his or her business.

Some people often wonder whether or not office gossip is protected under the First Amendment, which guarantees the right to free speech. Most constitutional scholars interpret the First Amendment as being largely protective of political speech. Office gossip, while perhaps "political" in one sense, likely has little or no relevance to how we govern ourselves as a republic. Also, the courts have been unwilling to protect speech that injures others. The First Amendment has never protected slander, in which the words themselves are actually punishable.

In addition to posing serious legal problems, slander and office gossip can seriously damage a workplace. Gossip can impair morale and take up time that might otherwise be spent furthering the goals of the company. Additionally, gossip ridden environments have a tendency to foster distrust and insecurity, neither of which enhance productivity or worker satisfaction.

No work environment is ideal, but human resources and those in positions of power can take steps to encourage a cooperative, friendly environment in the office. A little chatter around the proverbial, and often actual, water cooler may be inevitable. But with the appropriate measures, it is likely that the office can escape serious hostility and that dangerous slander can be avoided by everyone.