Robert Post, The Social Foundations of Defamation Law: Reputation and the Constitution


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Robert Post, The Social Foundations of Defamation Law: Reputation and the Constitution
   Yale Law School  Yale Law School Legal Scholarship Repository  Faculty Scholarship Series Yale Law School Faculty Scholarship1-1-1986 The Social Foundations of Defamation Law:Reputation and the Constitution Robert C. Post Yale Law School This Article is brought to you for free and open access by the Yale Law School Faculty Scholarship at Yale Law School Legal Scholarship Repository. Ithas been accepted for inclusion in Faculty Scholarship Series by an authorized administrator of Yale Law School Legal Scholarship Repository. Formore information, please Recommended Citation Post, Robert C., The Social Foundations of Defamation Law: Reputation and the Constitution (1986). Faculty Scholarship Series. Paper 217.  The Social Foundations of Defamation Law: Reputation and the Constitution Robert C. Postt The common law of defamation has long been viewed as an intellec- tual wasteland, perplexed with minute and barren distinctions. ' DeanProsser, 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. 2 It was with considerable relief, therefore, that in 1964 legal commentators turned their attention to the difficult and fascinating con- stitutional questions raised by New York Times Co. v Sullivan 3 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 domi- nated 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 prevent- ing and redressing attacks upon reputation. 5 The trick is then to bal-ance the State's interest in compensating private individuals for injury to their reputation against the First Amendment interest in protecting this t Acting Professor of Law, Boalt Hall School of Law, University of California, Berkeley. This article would not have been possible without the advice and encouragement of Jerome Skolnick. Many of the ideas it contains emerged from a seminar that we taught together on the sociology of libel, and during the dark hours of composition Jerry was a constant source of assistance, insight, and wise counsel. No one could have been a kinder, more selfless, or moresupportive colleague. I am also grateful for the comments and assistance of Paul Mishkin, JanVetter, Franklin Zimring, Melvin Eisenberg, Sheldon Messinger, Sanford Levinson, David Lieberman, and Jeremy Waldron. Thanks are also due to Mark Ryland, Marty Slaughter, and Jerry Friedberg for their help and research, and to the Center for the Study of Law and Society for its financial support. 1 F. POLLOCK, THE LAW OF TORTS 243 (13th ed. 1929). 2. W. PROSSER, HANDBOOK OF THE LAW OF TORTS 737 (4th ed. 1971). 3 376 U.S. 254 (1964). 4. See e.g. R SACK, LIBEL, SLANDER ND RELATED PROBLEMS 1 1980). This tendencyperhaps reached its zenith in a recent article which began: American libel law came into being only 22 years ago, with the Supreme Court's 1964 decision in the New York Times Co. v Sullivan case. Sanford, Some Lessons in Libel: Primer on the Danger Zones WASH. J REV., March 1986, at 28. 5. Rosenblatt v. Baer, 383 U.S. 75, 86 1966). HeinOnline -- 74 Cal. L. Rev. 691 1986  CALIFORNIA LAW REVIEW type of expression. 6 The image of balancing, however, implies that the characteristics of each of the competing interests have been assessed and evaluated. Although there has been considerable scholarly attention directed to the definition and articulation of the First Amendment interest in protect- ing expression, there has been relatively little discussion of the nature and importance of the State's interest in protecting reputation. The latterinquiry, of course, requires an exploration into the obscure purposes and functions of common law defamation, which is not a journey that many modem commentators have been willing to undertake, especially given the attractive and well-travelled alternative routes of constitutional anal- ysis. It is all too easy to assume that everyone knows the value of reputa-tion, and to let the matter drop with the obligatory reference to Shakespeare's characterization of a good name as the immediate jewel of the soul. 7 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 charac- ter or other qualities. 9 Reputation thus inheres in the social apprehen-sion 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 6. Dunn Bradstreet, Inc. v. Greenmoss Builders, Inc., 105 S.Ct 2939, 2944-45 (1985) (opinion of Powell, J.). 7 W. SHAKESPEARE, OTHELLO, act III, scene iii, 11 155-61: Good name in man and woman, dear my lord,Is the immediate jewel of their souls: Who steals my purse steals trash; 'tis something, nothing, 'Twas mine 'tis his, and has been slave to thousands; But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed. See e.g. Pierce v. Capital Cities Communications, Inc., 576 F 2d 495, 505 n.33 3d Cir. 1978); Maheu v. Hughes Tool Co., 569 F.2d 459, 480 n.14 (9th Cir. 1977); Embrey v. Holly, 293 Md. 128, 130 n.2, 442 A.2d 966, 967 n.2 (1982); Jadwin v. Minneapolis Star and Tribune Co., 367 N.W.2d 476, 491 n.20 (Minn. 1985); Onassis v. Christian Dior New York, Inc., 122 Misc.2d 603, 610, 472 N.Y.S.2d 254, 260 (1984); Adamson v. Bonesteele, 295 Or. 815 821 n.4, 671 P.2d 693, 696 n.4  1983); Kemick v. Dardanell Press, 428 Pa. 288, 292, 236 A.2d 191, 193 (1967); Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70, 76 n.2 (W. Va. 1984); Denny v. Mertz, 106 Wis.2d 636, 658 n.33, 318 N.W.2d 141, 152 n.33 1982); P.F. CARTER-RUCK, LIBEL SLANDER 19 1972); Note, The Interest in Limiting the Disclosure of Personal nformation: A Constitutional Analysis 36 VAND. L. REv. 139, 160-61 (1983); f Z. CHATEE, GOVERNMENT AND MASS COMMUNICATIONS 96 (1965). 8 Developments in the Law-Defamation 69 HARV. L. REV. 875, 877 (1956). 9. 8 OXFORD ENGLISH DICTIONARY 496 (James Murray ed. 1910). 10. 3 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGL ND 123 [Vol. 74:691 HeinOnline -- 74 Cal. L. Rev. 692 1986  THE SOCIOLOGY OF LIBEL social apprehension that defamation law considers normal, or desira- ble, 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 reputa- tion 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 varioustimes 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 cor- responds to an implicit and discrete image of the good and well-ordered society. Each is an ideal or pure type in the Weberian sense; 1 ' that is, they are as types analytically distinct, although in actuality there may be, and indeed must be, some overlap. 2 Each has exercised a significant influence on common law doctrine, pushing that doctrine in diverse anddivergent directions. And each weighs very differently in the balance against our constitutional interest in freedom of expression. I THREE CONCEPTS OF REPUTATION A Reputation as Property The concept of reputation that is most easily available to contempo- rary observers is that of reputation in the marketplace. This concept of reputation can be understood as a form of intangible property akin to goodwill.' It is this concept of reputation that underlies our image of the merchant who works hard to become known as creditworthy or of the carpenter who strives to achieve a name for quality workmanship. Such a reputation is capable of being earned, in the sense that it can be acquired as a result of an individual's efforts and labor. Thomas Starkie 11 1 M. WEBER ECONOMY ND SOCIETY 217 G. Roth & C. Wittich eds. 1968). 12. The historical relationship among these three concepts raises complex questions that will require further investigation. This Article will attempt simply to identify and analyze the concepts, and to demonstrate their influence on common law defamation. 13. For a discussion of the concept of goodwill as a property right enforceable in law and in equity, see I A. DEWING TH FINANCIAL POLICY OF CORPORATIONS 285 n.j (1953). For adiscussion of the history of the concept of goodwill, see G.R. CATLETT & N.O. OLSON, ACCOUNTING FOR GOODWILL 9-21 (1968). An economic analysis of the concept of reputation may be found in Holmstrom, The Provision of ervices in a Market Economy in M N GING THE SERVICE E ONOMY 197-207 (R. Inman ed. 1985). 1986] HeinOnline -- 74 Cal. L. Rev. 693 1986
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