The Volokh Conspiracy

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Free Speech

Journal of Free Speech Law: "True Defamation," by Prof. Jeffrey S. Helmreich

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:

Until the late 18th century, defamation was often treated as an actionable wrong even when the defamer's claims were undeniably true (indeed, sometimes especially when true, as reflected in the slogan, "the greater the truth, the greater the libel"). In the following centuries, however, truth became a complete defense to defamation lawsuits. Even outside the law, falsity became an essential element of the common understanding of "defamation," to the point that today most English dictionaries and many extralegal discussions of the defamatory treat it as necessarily untrue.

Here I challenge the new understanding of the wrong of defamation that took flight under the law's wing, arguing that it is unduly narrow. Accurate defamation is a serious wrong and current understandings—and tort practice, in particular—harmfully hide this fact. Privacy law, moreover, does not provide adequate redress for it either, for reasons I set out.