Document Type
Article
Publication Date
12-2019
Journal Title
Alabama Law Review
ISSN
0002-4279
Abstract
It is considered axiomatic that defamation law protects reputation. This proposition—commonsensical, pervasive, and influential—is faulty. Underlying this fallacy is the failure to appreciate audience effects: the interaction between defamation law and members of the audience.
Defamation law seeks to affect the behavior of speakers by making them bear a cost for spreading untruthful information. Invariably, however, the law will also affect members of the audience, as statements made in a highly regulated environment tend to appear more reliable than statements made without accountability. Strict defamation law would tend to increase the perceived reliability of statements, which in some cases can have harmful effects on the reputation of the targets of the speech.
This unrecognized complexity of defamation law has the potential to tip the scales in First Amendment jurisprudence towards greater protection of free speech and free press. Audience effects should also be considered within the newly announced Restatement project on defamation law. Most urgently, the consequences of audience effects should give pause to the recent calls to expand libel laws to fight fake news by showing that such laws may well backfire and exaggerate the consequences of falsehoods.
First Page
453
Last Page
497
Num Pages
45
Volume Number
71
Issue Number
2
Publisher
University of Alabama School of Law
Recommended Citation
Yonathan A. Arbel & Murat C. Mungan,
The Case against Expanding Defamation Law,
71
Ala. L. Rev.
453
(2019).
Available at:
https://scholarship.law.tamu.edu/facscholar/1852