Libel

Development

Libel is an ancient concept, tied to basic elements of society like public communication, reputation, and community standing. Defamation was a punishable crime under Roman law and was considered a sin by the Christian church. Libel law was partly developed as a civilized alternative to violence—like duels—for people seeking to avenge an injury to their honor. English law was especially concerned with seditious libel—publications that threatened government sovereignty or power. Such pernicious printed matter could come in the form of criticism of the government, its laws, or its leaders, so criminal prosecutions and civil lawsuits were used to limit libel and its presumptive “bad [Page 936]tendency” to sow dissent and discord among common people.

Libel law in the United States developed out of English common law principles of the colonial era, but the Americans also deviated in key ways. Perhaps the most important split was colonists’ insistence that the truth of a statement should be a defense in a libel suit. Traditionally, because a libelous statement was presumed to undermine public order—particularly in the context of criticizing official authority—its truthfulness was considered irrelevant, if not an exacerbating factor. “The greater the truth, the greater the libel,” was a common understanding of the legal standard, under which a judge determined whether a statement was libelous before submitting the case to a jury to decide simply whether the accused was responsible for its publication. But libertarian minded colonists, most notably in the 1735 acquittal of John Peter Zenger for seditious libel, argued that whether a statement was true or not, and therefore libelous or not, was a factual question for a jury to consider, especially in cases of political criticism. Subsequently, in the early republic, courts recognized a narrow privilege for truth plus “good motives and justifiable ends,” which could include commentary about the official conduct of elected leaders, based in the democratic value of a well-informed public. However, lawmakers were reluctant to altogether abandon prosecution for criticizing the government, and laws against sedition were enacted, selectively enforced, and retracted off and on amid national security crises from the late 1700s to the 1940s.

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