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

File Type

PDF

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