You’ve probably heard the term statute of limitations before, and you might even know what it is — the time limit for filing a lawsuit, which is established by a state legislature or Congress, and defines the absolute deadline that a suit can be filed after the occurrence of the event that gave rise to the lawsuit in the first place. Statutes of limitation vary greatly from state to state, and also vary depending on the type of lawsuit at issue. For example, in Pennsylvania, you have only two years to file any lawsuit for personal injury, medical malpractice, products liability, or wrongful death; these limits are the same in New Jersey, but in New Jersey, you have six years to bring a claim for breach of a contract, while in Pennsylvania the limit is only four years. Ohio shares NJ’s limitation periods for personal injury, products liability, wrongful death, and oral contracts, but allows additional time to file suit on a written contract; Ohio also allows only one year to file a medical malpractice claim. All three states, however (along with a host of others) share the same one-year limitation period for claims of defamation. There are a few states, such as Florida, Missouri, and Indiana, which have a two-year limitation period for defamation cases, and Massachusetts is known for having the longest statute of limitations — three years.
It’s fair to say, thus, that defamation has one of the strictest statute of limitations of all, since the majority of states require that defamation claims be filed in court within one year, which begins to run from the time the allegedly defamatory statement is “published.” This applies to both forms of defamation — libel, which is written, and slander, which is spoken; for slander, publication occurs when the allegedly defamatory statement is communicated to a third person. As if one year wasn’t onerous enough, most states have also adopted something called the “single publication rule,” which provides that the statute of limitations begins to run when the defamatory statement is published the first time.
If a magazine is distributed to thousands of news stands, only “one publication” is deemed to have occurred for purposes of the statute of limitations. As a result, the limitations period begins when the magazine was initially made available, not when an extra copy of it left over on the news stand is sold two weeks later.
Although most states have adopted the single publication rule, not all states have, but of the states that have not formally adopted the rule, most of them haven’t rejected the rule either (e.g., Indiana, North Carolina, Ohio, and Virginia). Even in states that have adopted the single publication rule, most of them recognize that if the allegedly defamatory material is republished, then a new limitation period begins to run from the date of republication. This is good if you missed your opportunity the first time, but it’s not so good for free speech. Perhaps a sign of the changing times (or at least an acknowledgement there0f), last fall, a New Jersey appellate court issued a decision to limit the application of the republication exception to the single publication rule. And now, the New Jersey Supreme Court has agreed to review the Appellate Division’s decision in Petro-Lubricant Testing Laboratories, Inc. v. Asher Adelman. The way that case is decided could have a significant impact on defamation law as it applies to the internet.
The point of this post isn’t to debate the advantages/disadvantages of the statutes of limitation for defamation cases, but rather, as a reminder that if you think you might have a claim for defamation, that is something about which you should consult with a defamation attorney sooner, not later. It should come as no surprise that the law is a minefield of deadlines and other procedural barriers, but almost none of them are as onerous as statutes of limitation. A lot of court deadlines, as strict as they are, can be overcome if you have a legitimate reason for missing the deadline — missing a statute of limitation is not one of them. That is probably why lawyers don’t even refer to that kind of missed deadline as even missed at all. If a lawyer fails to file a client’s case within the applicable statute of limitations, we call it a blown statute; blown being the past participle of blow, as in blow up, because when the statute is blown, it’s as if there were a ticking bomb inside the client’s case, and the passing of the statute of limitations is the detonation of that bomb (and the entire case).