Journal of Free Speech Law: "Defamation, Presumed Damages, and Reputational Injury: A Legal and Philosophical Inquiry," by Prof. Benjamin C. Zipursky

An article from the Defamation: Philosophical and Legal Perspectives symposium, sponsored by the Center for Legal Philosophy at UC Irvine.

The article is here; the abstract:

Achieving a sound analysis of reputation and reputational injury is important for understanding the law of defamation. This goal has, however, received surprisingly little attention. In light of the burst of renewed attention given to defamation law in the courts and the media, now is a good moment to try to make progress on this topic.

Although this article is principally theoretical, the project of writing it was undertaken with legal controversies in mind. Amongst the many issues in defamation law that continue to foster debate, some pertain to damages and would thus seem to call for a theory of reputational injury. Controversy swirls around the adjective "presumed" in the phrase "presumed damages." Critics ask why defamation plaintiffs are entitled to have their damages presumed and need not prove them, and they are naturally drawn to the concern that if the need for compensation is not actually proven, then liability is really punishment for uncivil speech even where it does no harm. This unsurprisingly leads to the conclusion that presumed damages are repugnant to free speech values, and should no longer be permitted by common law courts (even if the Supreme Court has decided to lay low on the issue).

Damages in tort law are overwhelmingly linked to a plaintiff's right to redress injury, and it is therefore reasonable to suppose that clarity on what damages ought to be available to a defamation plaintiff will be lacking until we have greater clarity on what sorts of wrongful injuries defamation law is designed to redress. This brings us to the topic of the paper, reputational injury.

Part I of the paper presents Justice Lewis Powell's famous attack on presumed damages in Gertz v. Robert Welch, Inc. After responding to some parts of that attack, I isolate a more general concern underlying his critique: that no coherent conception of intrinsic reputational injury can be formulated. Much of the paper is devoted to sketching such an account and subjecting it to challenges.

Part II of the paper sets forth a rather basic theory of reputational injury, which I call "the ideational conception of reputational injury" or "the unrestricted ideational conception of reputational injury." Part III presents a series of challenges to the basic account, and, in response to those challenges, Part IV counterposes a different, and markedly narrower theory based on what I call the "restricted ideational conception of reputational injury." Strikingly, if the restricted conception of reputational injury lies at the core of defamation law, then the doctrine of presumed damages really is problematic.

Part V takes up the question of which conception of reputational injury provides the better interpretive account of the common law of defamation, and answers that it is the unrestricted ideational conception, not the restricted one. In this way, it defends the coherence and viability of presumed damages doctrine in the common law of defamation.