Journal of Free Speech Law: "Cheap Speech and the Gordian Knot of Defamation Reform," by Prof. Lyrissa Lidsky

Just published as part of the symposium on Media and Society After Technological Disruption, edited by Profs. Justin "Gus" Hurwitz & Kyle Langvardt.

The article is here; here is the Introduction:

Dean John Wade, who replaced the great torts scholar William Prosser on the Restatement (Second) of Torts, put the finishing touches on the defamation sections in 1977. Apple Computer had been founded a year before, and Microsoft two, but relatively few people owned computers yet. The 24-hour news cycle was not yet a thing, and most Americans still trusted the press.

A lot has changed since 1977. Billions of people now publish their most profound, trivial, or scurrilous thoughts—unexpurgated—to mass audiences. Trying to compete with "cheap speech" has economically devastated large swaths of the news industry, stripping talent and expertise from newsrooms. Meanwhile, and perhaps unsurprisingly, public trust in news media has eroded dramatically. These developments pose the biggest challenge for defamation law since the invention of the printing press. Yet they have not inspired dramatic reform to the common law of defamation. Or at least not yet. As the American Law Institute begins a new Restatement of Defamation Law, it is important to consider what a successful program of reform might look like.

In this chapter, I examine some of the most important "reforms" to defamation law since 1977 and speculate about why those reforms have been predominantly constitutional and statutory, with common-law developments playing a less important role. I then evaluate recent critiques of defamation law's constitutional dimensions by two U.S. Supreme Court Justices, paying special attention to Justice Neil Gorsuch's argument that changed circumstances related to cheap speech justify reconsidering and perhaps eliminating some First Amendment constraints on the common law of defamation. I tally defamation law's scorecard in vindicating reputation and deterring disinformation, which leads me to concur with some of Justice Gorsuch's critiques. I nonetheless question his prescription. Merely rolling back constitutional protections will not deliver the proper balance between protecting individual reputation and safeguarding the types of speech that contribute to informed democratic decision-making, because powerful people will increasingly use defamation law to punish their critics. To achieve a proper balance, a more comprehensive approach to reform is needed. I offer the outlines of such an approach for untangling (rather than cutting) the inseverable interweaving of tort, constitutional, and statutory law.