The Social Foundations of Defamation Law: Reputation and the Constitution

Abstract

The common law of defamation has long been viewed as an intellectual wasteland, "perplexed with minute and barren distinctions." Dean Prosser, for example, began his discussion of the law of defamation with the proposition, which he took to be incontestable, that "there is a great deal of the law of defamation which makes no sense," in that it contains "anomalies and absurdities for which no legal writer ever has had a kind word." It was with considerable relief, therefore, that in 1964 legal commentators turned their attention to the difficult and fascinating constitutional questions raised by New York Times Co. v. Sullivan, which for the first time subjected the law of defamation to the regulation of the first amendment. Discussion of the law of defamation has been dominated ever since by the constitutional perspective. From this elevated perspective the purpose of defamation law looks, paradoxically, simple enough. The common law of slander and libel is designed to effectuate society's "pervasive and strong interest in preventing and redressing attacks upon reputation." The trick is then to "balance the State's interest in compensating private individuals for injury to their reputation against the First Amendment interest in protecting this type of expression." Reputation, however, is a mysterious thing. The common law, as a rule, has "not attempted to define reputation." The dictionary describes it as the "common or general estimate of a person with respect to character or other qualities." Reputation thus inheres in the social apprehension that we have of each other. In one sense, of course, virtually all of our social relationships consist of such apprehension, and it is not clear what it would mean for them all to be "protected" by defamation law. But by looking carefully at the nature of the "injuries affecting a man's reputation or good name" defamation law is actually designed to redress, one can uncover a more focused image of the exact kinds of social apprehension that defamation law considers "normal," or "desirable," or deserving of the law's protection. In this sense defamation law presupposes an image of how people are tied together, or should be tied together, in a social setting. As this image varies, so will the nature of the reputation that the law of defamation seeks to protect. This suggests that an evaluation of the state's interest in reputation can have no single outcome, for the meaning and significance of reputation will depend upon the kinds of social relationships that defamation law is designed to uphold. In this Article I will sketch three distinct concepts of reputation that the common law of defamation has at various times in its history attempted to protect: reputation as property, as honor, and as dignity. These three concepts are not the only possible concepts of reputation, but they have had by far the most important impact on the development of the common law of defamation. Each corresponds to an implicit and discrete image of the good and well-ordered society. Each is an ideal or pure type in the Weberian sense; that is, they are as types analytically distinct, although in actuality there may be, and indeed must be, some overlap. Each has exercised a significant influence on common law doctrine, pushing that doctrine in diverse and divergent directions. And each weighs very differently in the balance against our constitutional interest in freedom of expression.