Defamation

What is defamation?

As with other torts,defamation has evolved through common-law developments as a matter of state law.Unlike the torts,however,the law of defamation has been enormously influenced and reshaped by constitutional considerations of freedom of speech and press.Since 1964,the Supreme Court has become involved in continuing efforts to establish the boundaries between freedom of communication and protection of reputation.

In tracing the developments in this complex area,we must begin with the common law regime.The constitutional developments have not created a totally new legal area;rather,they have altered some of the pre-existing state rules and left others in place.As a result,despite the great impact of the Supreme Court,state law retains great significance in suits for defamation.It is often possible,for example,for a case to be decided under the traditional state rules without any invocation of the First Amendment.

Defamation has a venerable and still influential history.Early in the sixteenth century the common law courts began to recognize a claim for defamation that had previously been within the exclusive jurisdiction of the ecclesiastical courts.Since the common law remedy was framed as an action on the case,with its traditional focus on damages rather than ecclesiastical sanctions,the common law action became extremely popular.In another development during the same period,the Star Chamber assumed jurisdiction over all aspects of the press,and printed defamations came to be treated as crimes.Attacks on officials were seditious libels,and libels against private persons contributed to breaches of the peace.After the Restoration both concepts were preserved: the Star Chamber’s view of libel as a crime,and the antecedent common law view of slander as a tort.

Although the English defamation law crossed the Atlantic,it seems never to have been enforced as vigorously in the United States as it was in England.This was true long before any constitutional questions were raised explicitly.Action in Libel,and First Amendment Defense

The common law action of libel is to guard against injury by verbal attack on a person’s reputation.Usually,if the statement is false,the attack is “libelous per se,” and general damages are presumed (meaning: it need not be proven).This type of action evolved,once in history,to a criminal offense of “sedition,” or seditious libel – a criminal offense against public officials,especially the crown,because “the King can do no wrong” – which was partly the cause leading to American Revolution.(https://www.daowen.com)

In a republican form of government,that is,“government of the people,by the people,for the people,” to borrow Lincoln’s words,it must always be maintained that any repression of public comment,criticism or even sharp attack on the daily conduct of the government broods abuse of power,and that it is the fundamental principle of a democratic society to restrict and supervise the execution of government powers by the people.This principle has been guaranteed in the U.S.Constitution:

Congress shall make no law respecting an establishment of religion,or prohibiting the free exercise thereof;or abridging the freedom of speech,or of the press;or the right of the people peaceably to assemble,and to petition the Government for a redress of grievances.The First Amendment to the United States Constitution

and

All persons born or naturalized in the United States,and subject to the jurisdiction thereof,are citizens of the United States and of the State wherein they reside.No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;nor shall any State deprive any person of life,liberty,or property,without due process of law;nor deny to any person within its jurisdiction the equal protection of the laws.The Fourteenth Amendment,para.1,to the United States Constitution.