by Michael Dorf
In my latest Verdict column, I ask whether Donald Trump could bring successful defamation actions against the women who have accused him of kissing and groping them. I conclude that he almost certainly could not but that there is a greater likelihood that they could successfully sue him for calling them liars. In the course of the column, I discuss the First Amendment limitations on defamation suits by public officials, candidates for public office, and public figures. To protect freedom of speech and the press, the case law forbids recovery by such persons for mere falsehood for fear of chilling good faith but inaccurate speech.
As I noted in my post last week on Trump and Holocaust denial, liability for defamation is substantially easier to establish in England than in the U.S. England does not have an "actual malice" standard, and English defamation law places the burden on the defendant to prove truth rather than on the plaintiff to prove falsehood. Here I want to suggest--albeit tentatively and mostly to start a conversation rather than out of any real conviction--that perhaps even U.S. defamation law makes it too easy for defamation plaintiffs to prevail. Maybe, contrary to Trump's proposal to "open up" our libel laws, we ought to shut them down.
We might begin with the proposition, recognized by Justice Kennedy speaking for the Supreme Court in United States v. Alvarez, that there is no "general exception to the First Amendment for false statements. This comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee."
To be sure, the absence of any general exception from free speech for false statements leaves in place a number of specific exceptions, including defamation and fraud. Given the Court's recommitment in recent years to a historical approach to defining those exceptions (as per United States v. Stevens and Alvarez itself), those exceptions won't be expanded, but neither are any of the existing exceptions likely to be removed from the list. Accordingly, I would not attempt to make the argument that defamation should be removed from the list of exceptions to the general rule against content-based restrictions on speech as a matter of constitutional law.
However, it does not follow that allowing liability for defamation makes sense as a policy matter. State judges revising the common law or state legislators displacing common-law rules with statutory ones might want to think seriously about whether there is a sound basis for the general tort of defamation. (By contrast, I have no quarrel with civil and criminal liability for fraud.)
Why might policy makers wish to eliminate the torts of libel and slander? I would start from the other direction. Lots of false statements cause harm, but not all of them are actionable, and many of the ones that are not actionable seem worse than standard common-law defamation.
For example, when Donald Trump falsely stated that he saw "thousands and thousands" of people in New Jersey cheering on 9/11, he caused harm to American Muslims because the false beliefs that Trump fostered among his followers led them to see American Muslims suspiciously, which in turn increased the likelihood of harmful acts towards Muslims. When Trump said undocumented Mexican immigrants are rapists and thus falsely implied that they are more likely to be rapists than are other people, he did real harm to undocumented immigrants and to some Latino and Latina US citizens.
When news media give a platform to climate-change denialists who contend that global warming is a hoax or not due to human activity, they do real harm to the planet and thus to all of us, because the false beliefs that are fostered among a large segment of the public gets translated through our political system into weaker (or nonexistent) demand for urgent action to avert climate catastrophe.
The harms in the foregoing scenarios are at least as great as or many times greater than the harm to reputation that ordinary defamation occasions. And yet the law does not attach civil liability to them.
Take the group-libel/hate-speech examples first. The Supreme Court upheld a group-libel/hate-speech law in 1952 in Beauharnais v. Illinois, but even though that ruling has not been formally overturned, it has not been cited for its holding (as opposed to in string cites for other propositions) for decades. While hate-speech is unprotected in most other constitutional democracies, it is protected in ours.
Of course, one could say that this is precisely the problem--not that we recognize individual defamation but that we fail to recognize group defamation. Although this wasn't what Trump had in mind in proposing "opening up" our libel laws, someone looking at U.S. law from a European or other foreign perspective might suggest opening them to group libel. Whatever the merits of that suggestion, it is a non-starter given the Supreme Court's rejection of hate-speech as a category in R.A.V. v. City of St. Paul and other post-Beauharnais cases.
One might object to the global warming example on the ground that the harm runs through public policy. Yes, the objection would go, global-warming-denial is harmful, indeed more harmful than most garden-variety instances of defamation, but speech, even if false, can never be the basis for (civil or criminal) liability based on its tendency, if believed, to lead to harmful policy choices through the democratic process.
I think that's a good objection to actually allowing any kind of liability in my global-warming example, but it doesn't move the ball much in defense of the status quo with respect to defamation. Both the group-libel/hate-speech example and the global-warming example undercut the claim that defamation should be singled out as the basis for liability for false speech on the ground that it is especially harmful false speech. It isn't.
Still, one could point to another distinction with my two examples. One might say that they both involve harm to large undifferentiated groups, whereas common-law defamation affects people on an individual-by-individual basis. However, even granting that distinction, it is relatively easy to come up with other instances of false speech that affect individuals qua individuals but do not give rise to liability. Consider the following hypothetical example.
Pat joins an online dating service and, in answer to the question "Are you seeking a long-term relationship or a casual hookup?" clicks on "long-term relationship." In fact, Pat only wants a casual hookup, but Pat thinks that prospective partners will be more attracted to someone seeking a long-term relationship. Pat also thinks that people who are interested in long-term relationships are less likely to have STDs than are people seeking hookups. After getting matched by the algorithm, Pat and Chris go on a couple of dates. Chris really likes Pat and sees potential for a long-term relationship. However, after they sleep together, Pat stops returning phone calls or texts from Chris, who is deeply hurt by the experience.
Pat's lying caused serious injury to Chris, but it does not appear to be tortious. It is not rape by deception and it is not intentional infliction of emotional distress. Perhaps Chris could in theory be liable for negligent infliction of emotional distress in a jurisdiction that recognized such that tort, but such cases are very difficult to win, and it is hard to see the courts allowing such liability here without opening up a Pandora's box of claims. When couples break up, one or both parties foreseeably gets hurt. Being a thoughtless or even a deceptive romantic partner cannot be the basis for liability in a reasonably free society.
Now consider whether harm to reputation is categorically worse than the other sorts of harms that can and do arise out of falsehoods. Maybe it is, but I don't see why. I don't mean to minimize the harm that results from an unfairly damaged reputation. I'm simply saying that the assumption that such harms warrant liability while many other harms occasioned by false statements do not warrant liability may be wrong. We are familiar with the possibility of defamation liability, but familiarity is not a justification.