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.

Comments

[Longtobefree]

Just bring back dueling.

[Sarcastr0]

I suppose it's good someone with as much of a yen for political violence as this guy is held back by not wanting to be a murderer.

[Toranth]

If dueling were legal, then it wouldn't be murder, would it?

[Stephen Lathrop]

“Cheap Speech,” is a term which seems to be gaining traction in the legal community, where it is used to refer to internet platforms. It is not a particularly accurate term. For instance, the U.S. operating expenses of the New York Times in 2022 were ~$2.1 billion. The comparable figure for Facebook (Meta) U.S. was ~$21.4 billion, about ten times as much. The un-comparable figure for Facebook (Meta) worldwide was ~$89.7 billion.

I mention those facts to draw attention to a point I have repeated previously. Too many lawyers suppose the only knowledge necessary to make them legal policy experts with regard to this topic or that topic is knowledge of the law pertaining to this topic or that topic. It is not so. To be a legal policy expert a lawyer must understand not only the law which pertains to the topic, but also understand the characteristic topical activities the law purports to govern. To leave the subject matter expertise out of the equation is to court legal policy blunders.

For literally years this blog has featured self-assured commentary from lawyers about legal policies to govern internet expressive activity. Almost none of those comments has been from a well-qualified source. None of the lawyers commenting show any expertise with regard to publishing activities. It is because of that sort of limitation that we get a misnomer such as, “cheap speech,” to describe activities which cost literally tens of billions of dollars per year to conduct.

A misnomer of that sort matters considerably. It encourages the lawyers to think of internet expressive capacity in exactly the way that internet contributors think of it—as a natural resource, bestowed by a providential technology, which appeared magically, and bestowed anonymous, cost-free, publishing capacity to say anything, world-wide, without prior editing, for anyone. Someone who is a legal policy expert on internet expressive activity ought at least to understand that for the utopian nonsense it actually is.

No one in the history of the world has ever enjoyed any such power. Not even the infamous, “gatekeepers,” have ever enjoyed such power.

Obviously, a would-be internet contributor who does not even know what a publisher is, or how the bills which fund his internet contributions get paid, or even that such bills exist, does not have that kind of power either. Shouldn’t a legal policy expert on internet expressive activity know enough about what happens out of sight of the contributors to take into account the submerged part of that iceberg?

Where do purported internet legal policy experts stand, if all they are prepared to talk about are policies governing activities of contributors who suppose they are publishers, but are not publishers? What do internet legal policy experts whose summary insight into internet publishing is, “cheap speech,” have to offer on behalf of the notion of press freedom?

Do such internet legal policy experts even understand that unlike speech freedom, press freedom will never be cost-free? Do they understand that means that the only safe harbor for press freedom is public policy to enable private publishers to use publishing activities to mobilize funds from commerce, lest the whole notion and enterprise of press freedom fall apart?

Do these legal policy experts suppose that trusted communication is optional, or that untrusted communication can both raise money to pay for itself, and serve the public life of the nation? Do experts on the legal policy of internet publishing think there is any such thing as press freedom, if it is paid for by government, or by private sponsorship? What do these internet legal policy experts know about the means and activities typically practiced to keep publishing activities going on, somewhere out of sight of the would-be internet contributors—whose concerns seem the only topics which ever get legal policy consideration?

[Dilan Esper]

I think they understand a lot more than you do, which is why Prof. Lidsky is a famous law professor and you are an unrecognized blog commenter with no publications.