Politics"Cheap Speech and the Gordian Knot of Defamation Reform,"...

“Cheap Speech and the Gordian Knot of Defamation Reform,” by Prof. Lyrissa Lidsky

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.

Original Source Link

Latest News

Hedge funds are betting against these stocks the most in this sell-off

Some stocks are sticking out more than others amid a broader market sell-off. Wall Street has felt pressure...

German inflation falls to two-year low

Receive free German economy updatesWe’ll send you a myFT Daily Digest email rounding up the latest German economy...

7 Best Deals: Outdoor Apparel, Camping, and Climbing Gear

Few seasons excite me as much as autumn. The evil tag-team duo of sweltering heat and thick humidity...

Republicans Embarrass America With Disgraceful Trainwreck Debate

The second Republican presidential debate at the Reagan Library was a disgraceful embarrassment of a trainwreck that may...

Alien life may evolve from radically different elements than human life did

Self-sustaining chemical reactions that could support biology radically different from life as we know it might exist on...

Must Read

- Advertisement -

You might also likeRELATED
Recommended to you