The Incivility Epidemic
How the Supreme Court's defamation decisions coarsened our public life
Dec 7, 2009, Vol. 15, No. 12 • By ROBERT F. NAGEL
And then there is plain old self-interest. Journalists, law professors, and political commentators are in the business of publishing and thus stand to benefit from the protections created by the Court. Whatever the causes, the result has been an underappreciation for the degree to which the Supreme Court's efforts have been based on a limited and distorted understanding of the nature of a healthy system of political debate.
Beginning with Sullivan, the Court's decisions have been premised on a clear but false dichotomy. The interests thought to be at stake are, on the one hand, the individual's personal interest in reputation and, on the other, the public's interest in a robust system of free expression. Once the relevant interests are identified in this way, the logic behind constitutional protections for defamation is simple: Forcing people to pay for damage they have caused to someone's reputation acts as a disincentive to vigorous expression.
The argument goes on to claim that it is not only false and harmful messages that are discouraged but also--because of the need to stay clear of the risk of litigation and liability--some truthful messages. Traditional defamation rules, then, have a generally inhibiting effect on free-wheeling debate. In fact, the Sullivan Court declared that the possibility of large monetary awards will create a "pall of fear and timidity . . . in which the First Amendment freedoms cannot survive."
That Sullivan's logic was based on an oversimplification is suggested by this ahistorical conclusion. If the kinds of defamation rules that had existed throughout American history threatened to create a pall of fear and timidity, where was the evidence that up until 1964 political criticisms had been inhibited or timid? Apparently satisfied that its economic analysis was sufficiently persuasive in itself, the Court offered no historical support for its dire conclusion.
Supported or not by the facts of American history, the Supreme Court widened its campaign for robust public debate in the years after Sullivan. That initial case had been about the defamation of a public official and thus involved the special place that the right to criticize the government has in First Amendment law. The Court soon expanded the same protections to defamations of individuals who, while outside of government, had entered "the vortex of public debate."
Next the justices constructed an elaborate set of privileges for messages that relate to a private person but on "a matter of public concern." These new privileges are less protective of a speaker or writer than those that apply to the defamation of public officials and public figures but are more protective than had commonly been applied to the defamation of private individuals. In the Court's view, this intermediate level of protection appropriately balances the same two interests that underlay the logic of Sullivan--the individual's interest in reputation and the public's interest in robust discussion.
The Court's campaign to protect defamatory speech has now drastically altered the law in virtually every state. Only defamation relating to a private individual on a matter of private concern is subject to traditional penalties. Constitutional protections have also been announced to limit the right to recover for invasion of privacy and intentional infliction of emotional distress.
To the many individuals complaining about the prevalence of careless and ugly untruths in our public discourse, those convinced by the logic of the Court's decisions have a stock reply: "This is the price we must pay for a vigorous system of free expression." But that answer is as simplistic as the justices' decisions, because it assumes that traditional protections from defamation and other harmful speech served only private interests.
As Justice Byron White fruitlessly argued, the defamation rules in place throughout most of our history helped to create a healthy system of public debate. That is one reason why American political debate had been reasonably vigorous during all those decades prior to Sullivan when, according to the Court's suppositions, it should have been characterized by a pall of fear and timidity. What the Court missed in its eagerness to limit protections for reputation is the fact that those protections serve both private interests and free speech interests.