November 2004, Volume 90, Issue 7
A Law and Norms Critique of the Constitutional Law of Defamation
by Michael Passaportis
90 Va. L. Rev. 1985 (2004)
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This Note applies some implications of recent law and norms literature, unexplored in existent academic writing, to the constitutional law of defamation. Theories of norms conceptualize social perceptions as constraints upon selfish individual behavior. Community members experience costs when they are observed violating social norms. These costs increase the likelihood of individual conformity to a norm. When the norm corresponds to cooperation in the face of collective action problems, social judgment benefits the community by making such cooperation more likely. The maintenance of high levels of norm adherence within a community depends on the public circulation of true information regarding members’ norm adherence. False information alleging norm violation, or false negative gossip, imposes a negative externality by decreasing the expected costs of norm violation. Law and norms, therefore, suggests that dissemination of false negative gossip should be harshly punished to minimize its associated negative externality. The actual U.S. law of defamation, surprisingly, has moved in the opposite direction—relaxing the common law's harsh punishment for dissemination of false negative speech. While this shift rests upon a defensible understanding of the incentives to engage in political speech, the Supreme Court opinions overturning the common law of defamation seriously underestimate the costs of false negative gossip. As a result, negligence liability was quite likely a better replacement for strict liability common law defamation than the recklessness rule actually adopted. Worse still, the common law of defamation may have been socially optimal, making it entirely right and any Court-imposed changes entirely wrong.
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