parent nodes: Amendment I | content restriction | fighting words | hate speech | invasion of privacy | libel | low-value speech

libel

Amendment I

Libel, either as a tort or as a criminal statute, punishes false statements of fact.

"Seditious libel," or false statements of fact against the government, has been long understood to be within Amendment I's protections, given the context of the Amendment's creation and the history of seditious libel as a means to oppress opponents of the government. Note, of course, that the Congress very early passed (and not long after repealed) an act criminalizing seditious libel.

Libel against public figures

False statements of fact against private citizens, on the other hand, were traditionally understood to be outside the meaning of "speech" in the Amendment, so that government could regulate false statements without restriction. However, in [NYT v Sullivan], the Court held not only that seditious libel was "central" to the meaning of Amendment I, but that Amendment I protects false statements generally from content restrictions. [NYT v Sullivan] (reversing damages judgment for libel by southern officials against Times for mistakes made in reporting desegregation stories). The Court held that for libel against a public figure to be punished, the speaker must have (1) said something untrue with (2) reckless disregard for its consequences. The Court recognized that the well-established common law tort of liable could be used as a form of seditious libel through a deterrent "chilling effect" on legitimate political speech, given that libel is a strict liability tort. Compare the facts of [NYT v Sullivan], where southern officials were using minor factual errors to get large, possibly bankrupting damage judgments against the Times from hostile Southern juries. The Court argued that the Times and similar actors should be protected against strict liability for publishing false statements against a public figure, not because the false statement of fact is itself valuable, but because open political discourse requires that speakers need to have a reasonable degree of confidence that they can speak legitimately without punishment.

[NYT v Sullivan] has been criticized as both over-protective and under-protective of speech. On one hand, the argument goes, false statements should be given absolute protection; the harm causd to individuals by false statements is, unlike incitement leading to a "clear and present" danger, perfectly subject to counterspeech. Damages for libel can be wildly uncertain, given that they are measured by presumed damages and damages for pain and suffering. On the other hand, protecting libel may undervalue the individual interest in reputation; furthermore, unlike the unsavory damage judgments in [NYT v Sullivan], all the plaintiff wants is a declaration of falsehood. While the pre-Sullivan law discouraged some true statements, it also discourged many possible false statements; allowing false statements may drive people unnecessarily away from the public sphere, and it makes little sense to make the victim of libel bear the loss he imposees on others.

Note that later decisions, Butts and Walker, extend [NYT v Sullivan] to public figures who aren't public officials. But Butts and Walker undermine the argument of Sullivan that seditious libel is "central" to Amendment I's meaning, given that they focus instead on the ability of the individual to protect himself and the ability of the marketplace of ideas to produce truth. Generally, in deciding whether to describe a person as a "public figure" and thus prevented from suing for libel, the (1) status of the plaintiff and the (2) subject of speech are relevant. "Public figures" have intentionally injected themselves into the public sphere, so that they are a subject of public attention; furthermore, public figures are more likely to have access to media so that they can use self-help counterspeech against libel. In contrast, "nonpublic figures" do not have as much access to counterspeech remedies, and are still allowed the ex post remedy of libel for false statements.

Standard of intent for libel

Through Sullivan, Butts, and Walker, the Court has adopted a three-category test for what mental state is required of a defendant for that defendant to be open to libel liability. These categories turn on the status of the speech's subject, and attempt to balance the harm caused to the plaintiff, the ability of the plaintiff to protect himself, and the value of the speech being restricted.
Note generally the risk that prosecutorial discretion can be abused if criminal libel statutes are allowed. Generally, the "marketplace of ideas" is considered a superior method to the judicial system for proving what is a "fact" as opposed to "opinion" and "true" as opposed to "false."





[alias: false statements of fact]