Toward an Understanding of Defamation Law
Protecting the Best Men began its own history more than a few years ago.1 The complexity, if not the sheer irrationality, of libel doctrines presents numerous problems for the lawyer who has to "try" a case; it can throw up many more for the historian "trying" an article or a book. Even William Prosser, a legal-writer who could generally create at least the illusion of doctrinal order out of a mass of chaotic precedents, admitted the impossibility of ordering defamation law. "A great deal of the law of defamation . . . makes no sense," he confessed.2
Most people know something about the law of libel. Although trials for libel seldom attract as much attention as cases involving murder or sex, legal conflicts over reputation (which can, sometimes, include questions of sex and violence) often receive extensive publicity. In fact, law professor Leon Green once complained that "the highly publicized libel action today is a sort of show piece to attract attention to the court house and dress an ordinary personal injury action in ' Million Dollar Old Lace' for the advertisement of the lawyers and of the party plaintiff."3 Although some libel suits do become "legal circuses," action inside the center ring has also required careful attention to numerous rules and doctrines, many of ancient origin.
Defamatory statements or publications--oral defamation is called slander and written or printed called libel--are ones that, according to an often-cited definition, "tend to expose one to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace, or to induce an evil opinion of one in the minds of right-thinking persons, and to deprive one of their confidence and friendly intercourse in society."4 Although the common-sense view may be that defamatory statements are false ones, at common law (a term, some critics have contended, that is the antonym of common sense) falsity has not been the "essense of the action."5 This has been particularly true in criminal prosecutions for libel.
The common law crime of libel can claim a long and broad--if, in the view of libertarians, disreputable--ancestry. It bears some relationship to "constructive treason," an offense that could be stretched to apply to any comment critical of the state or of governmental officials. Legal genealogists also can trace it back to the Middle Ages when the political implications of defamation led the king's courts to intervene in verbal tussles between men of great wealth