Libel

Freedom of speech and the press cannot be absolute, regardless of whether they are constitutional rights or not. They must be balanced against reputation and other competing individual and societal interests. The libel law of a society indicates to a large extent how the society views reputational interests in comparison with freedom of expression.

Harm to reputation is a criminal offense or a civil wrong—or both—in nearly every society. Nonetheless, reputation as a sociocultural and legal value varies from society to society. American libel law is a case in point. In the United States, freedom of the press is protected as a constitutional right, but reputation is not. In many ways, the U.S. approach to press freedom versus reputation emanates from Americans' deliberate judgments as to the special role of the news media as an institution in an open democracy.

Defamation, as a legal concept, refers to publication of material that tends to hold a person up to hatred, ridicule, contempt, or spite. In Anglo-American law, it is subdivided into libel (written defamation) and slander (oral defamation). The libel-slander dichotomy remains a factor in assessing the harmful impact of defamatory statements, but it has become all but obsolete with the recent convergence of communication technologies. Hence, the form of communication medium is rarely a decisive element in classifying a defamatory statement as libel (more harmful) or slander (less harmful).

The main purpose of libel law is to protect the reputational interests of individuals in connection with their existing and future relationships with others. Libel law also serves societal interests because it provides a civilized, nonviolent forum in which a legal dispute over reputational injury is settled in such a way as to [Page 405]compensate for economic and emotional injury. More important but less acknowledged is the social value of libel law in providing a check on media power. Libel lawsuits expose the otherwise jealously guarded newsgathering and decision-making process of the news media to public scrutiny and accountability.

As already noted, reputation is not explicitly recognized as a constitutional value in the United States, which stands in marked contrast with many other countries. Nonetheless, protection of a good name is accepted by American courts as a basic concept underlying any decent system of ordered liberty. The U.S. Supreme Court has held, “Society has a pervasive and strong interest in preventing and redressing attacks upon reputation.” Thus, reputational injury is treated as a tort, although it has yet to be repudiated as a crime.

Before libel law was constitutionalized in the United States in the mid-1960s, common law required a plaintiff to show that the defendant published a statement about the plaintiff that had a tendency to harm the plaintiff's reputation. More specifically, the plaintiff had to prove three requisite elements: identification of the plaintiff in the allegedly defamatory material, publication of the material by the defendant, and the defamatory nature of the material. But the proof requirements in a modern libel action in American law are more complicated. Especially in media libel actions, a plaintiff must establish that (1) the defamatory statement of fact concerning the plaintiff was false, (2) its publication resulted from the defendant's fault, and (3) the plaintiff suffered actual injury.

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