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.

Comments

[ReaderY]

There seems to me to be a conceptually (at least) straightforward resolution. At common law, truth is not a defensee to libel. But the First Amendment limits libel law, and one of its limitations is that it generally protects true statements.

So rather than regarding the truth defense as something that organically developed within the common law itself, it might be better to characterize it as the result of the influence of the external First Amendment.

The practical result of the difference in approaches is that there would have to be two conceptually distinct analyses. First, there needs to be an analysis of libel law itself, which would have to be based on principles of common law analysis. In the common law analysis, for all I know truth might still be no defense to libel. Second, there needs to be an analysis of constitutional law, based on the principles of constitutional analysis, to address the constraints the First Amendment imposes on libel law.

Combining the two into a single analysis doesn’t strike me as a sound way to proceed.

[ReaderY]

In particular, if Professor Helmreich wants to argue for relaxing the constitutional constraint that truth is no defense to libel, it seems to me a constitutional analysis is required. Perhaps he could make such an analysis. For example, proceeding from some sort of originalist principles, he might argue that libel as it was understood in 1789 ought to be the basis for determining the scope of the libel exception to the First Amendment, and that libel as it was understood in 1789 did not protect true but reputation-damaging statements.

[Stephen Lathrop]

What follows is the conclusion of the conclusion from the linked article. In its entirety the article offers a thoughtful basis to begin discussion of libel law in the age of the internet:

Instead, the legal and conceptual shifts regarding “defamation”—in effect discouraging and disapproving only of the false variety—took place largely under the moral radar, so to speak, for reasons that have little to do with how defamation should be understood. Once true defamation is scrutinized, I have tried to show, it emerges inescapably as part of the wrong of defamation in general. Indeed, it is often indisputably monstrous. Moreover, there are advantages to retaining true defamation as the name of a wrong, or part of the wrong of defamation as it is publicly
understood. To that end, the dominant, tort law distortion of defamation needs to be re-examined in public discussion. That is what I hope to have begun here.

Let's begin that discussion.

The modern emergence of acute problems with so-called, "true-defamation," is largely a post-internet phenomenon. It is a problem which the internet greatly encouraged, but which need never have happened.

As with so much else wrong with the online public square, an upsurge in true defamation problems followed disappearance of an erstwhile legal requirement to use private editing to vet content prior to publication. When everything published got private editing first, with an eye to preventing false defamation, it created opportunity to leverage that private editing to enable business competition on the basis of content quality. And content quality more-often-than-not declines with publication of true-defamation.

Private editors in most instances expected few business advantages, and a great many disadvantages, if they chose to publish true defamation, even though it long ago became legal to do so. So in that modern-but-preinternet legal regime, private human judgement practiced with an eye to community norms screened out a great deal of would-be content which was true-hence-legal, but also defamatory and bad for business.

On the plus side, the flexibility to apply human judgment offered opportunity to get socially valuable defamatory information published in cases where it was also true information. At the same time, it enabled private— not government—means to vet and remove true-but-defamatory-and-scurrilous content which was bad for business, and bad for public comity.

That was a high-payback return created as a byproduct of the otherwise virtuous legal requirement to avoid false-and-defamatory publications, or risk civil damages. The benefits accrued both to the publishers and to the public at large.

That was a big advantage the pre-internet publishing regime, with its legal near-mandate to practice private editing, enjoyed in comparison to today's no-editing legal regime.