Defamation and Other Torts

• Pages: 89-110
• Author: Daniel A. Farber

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Chapter 5

DEFAMATION AND OTHER TORTS

Recall Justice Holmes’s assertion that the First Amendment did

not protect the person who falsely yelled “fire” in a crowded theater.

Indeed, the traditional view was that the First Amendment generally

did not protect false stateme nts of fact. For centurie s, the common

law has provided a genero us cause of action to individuals whose

reputations have been harmed by false statements, especially

published statement s. Constitutional lawyers simply took for

granted that this remedy raised no First Amendment co ncerns. If

questioned, they might have said either that the right to free spe ech

did not preclude compensation for those injured by abuses, or more

simply that slander and libel had never been considered part of the

“freedom of speech” protected by the First Amendment.

Today, the situation is quite different. Public officials can file

defamation actions only under very limited circumstances. Even

ordinary private individuals must bring their defamation actions

within the boundaries established by the Supreme Court. Other

causes of action for injurious speech are similarly hampered, and in

some cases eliminated. For example, it is nearly impossible for a

public official to sue for outrage ous speech designed to cause severe

emotional distress.

This chapter tells the story of this remarkable legal change. It

also explores some themes that are directly relevant to current

debates about free speech —in particular, how the c ourts have made

the protection of vigorous public debate an overwhelming priority,

compared with protection of injured individual reputations and

psyches.

I. The New York Times Case

More than most areas of the law, constitutional defamation law

stems from a single dramatic case. Until that case was decided,

lawyers specializing in defamation law could safely ignore the

possibility o f any con stitutional issues; afterwards, the entire field

became part of within constitutional law. We begin with a careful

examination of that case and its background.

A. Background

The common law provided a generous remedy for plaintiffs

whose reputations were harmed by false accusations, whether verbal

(slander) or written (libel). It was unnecessary for the plaintiff to

show that the falsehood was negligent or delibera te, and the rules

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Pt. II

about damages were unusually favorable to the plaintiff. Thus, to

make a negative statement abou t a well-known fig ure was to take a

legal gamble.

Prior to New York Times v. Sullivan, defamation law had only

fitfully receiv ed attention as a possible constitutional problem.

Undoubtedly, the most important historical controversy related to

the Sedition Act of 179 8, which made it a crime to print “fa lse,

scandalous, and malicious writing” about the government. The great

disputes at common law had been over whether truth was a def ense

or whether the jury was limited to deciding the mere fact of

publication. The Sedition Act resolved both issues in favo r of the

defendant, which made it a somewhat progressive piece of legislation

compared with the English common law.

Nevertheless, the Sedition Act served as a powe rful tool for the

Federalist Party to attack its enemies, and in return the law was

vigorously attacked as a violation of the First Amendment. In the

Virginia Resolutions of 1798, which were drafted by James Madison,

the Virg inia legisl ature criticized the statute as a violation “of the

right of freely examining public characters and measures, and of free

communications among the people thereon, which has ever bee n

justly deemed the only effectual guardian of eve ry other right.” The

constitutionality of the Act never reached the Supreme Court, though

it might well have been upheld. But the political verdict was that the

Act violated basic constitutional norms. When the Federalists lost

the White House, President Jefferson pardoned the offenders, and

their fines were refunded by a federal statute.

When the First Amendment began to receive serious judicial

attention in the first half of the Twentieth Century, the issue of libel

was not at the forefront. Instead, in what became known as the “two

tier” theory, libel was placed below the plane of constitutionally

protected speech (along with some other types of expression), so that

it could be freely regulated.

In Beauharnais v. Illinois,

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the Court went so far as to uphold a

statute prohibiting public exhibition of any publication portraying

“depravity, criminality, unchastity, or lack of virtue of a class of

citizens, of any race, co lor, creed o r religion.” The defendant h ad

organized distribution of a leaflet calling upon the city government

to halt the flow of blacks into white Chicago neighborhoods, referring

to the “rapes, robberies, knives, guns, and marijuana of the negro.”

The Court observed that libel is one of the “well-defined and narrowly

limited classes of speech, the prevention and punishment of which

have nev er been thought to raise any constitutional problem.” The

Court concluded that if th e state had the power to punish lies about

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343 U.S. 250 (1952).