Legal Question in Constitutional Law in Kansas

Re: Freedom of Speech

I disagree with Mr. Aspinwall's analysis. An essential element of defamation is falsity, so as long as what you say is true it is not defamatory. Many people who are not convicted of fraud actually did commit fraud, and saying they did does not imply that they were convicted of it.

Even if this person has not been convicted of fraud you can say that he committed it -- as long as your statement is true. Falsely saying he was convicted would be defamation, but truthfully saying he actually committed fraudulent acts would not. This doesn't mean he won't be able to sue you for it, but it should mean that he will lose.

Also, most states recognize a "common interest" privilege which makes statements between persons who share a common interest in the subject matter immune from defamation claims. Depending upon the specific facts of your case and on what Kansas law says about this particular point, this could be a valid defense against a defamation lawsuit.

Many states also recognize what are colloquially known as SLAPP suits -- strategic lawsuits against public participation. These are suits designed to intimidate people exercising their First Amendment rights, and it sounds like that is what he is threatening here. In California (where I practice) there is a special procedure to have such a case dismissed quickly -- and to force the plaintiff to pay the defendant's legal fees. I don't know whether Kansas law allows for a similar procedure, but if it does you might well be able to use it to defend yourself against any suit this individual brings.

Finally, keep in mind that the plaintiff in a defamation case has the burden of proof, so he will have to prove that what you said about him is false. If you can show that it is true, you will prevail. Unfortunately, unless there is an anti-SLAPP statute in Kansas, you might have to pay a hefty legal bill along the way. You might then be able to sue him for malicious prosecution, but that is beyond the scope of this answer.

Re: Freedom of Speech

If the person was convicted of fraud in a criminal court and has a record, that is public information which may be diseminated by anyone with a legitimate purpose in so doing. To state that one has committed fraud who has not been convicted of that crime, is defamation and slander for which one may be held liable in a civil court. You do not have the right to accuse someone of fraud who has not been found guilty of fraud. The words are important.