Defamation, reputation, and the myth of community

Washington Law Review

Volumn 71, Issue 1, 1996, Pages 1-48

  Lidsky, Lyrissa Barnett ^a  

^a UNIVERSITY OF FLORIDA   (United States)

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EID: 0346043314     PISSN: 00430617     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (280)

1. Watchman and Community: Myth and Institutionalization in Policing, 28 Law & Soc. Rev. 325, 336 (1994).
2. Actually, defamation is not one tort, but two: libel and slander. A libel is a written defamation or a defamation published via any media such that the harm is made to endure, persist or be disseminated in the manner of the printed word. Slander is usually published orally or in a manner that is not likely to be preserved in a physical form or broadcast widely. See generally W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 112 (5th ed. 1984);
3. Robert D. Sack, Libel, Slander, and Related Problems 43-45, 96-58 (1980).
4. 376 U.S. 254 (1964).
5. See. e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974) (describing defamation law as a struggle "to reconcile state law with a competing interest grounded in the constitutional command of the First Amendment"). Judicial descriptions of this clash often take a colorful form. See, e.g., Pullum v. Johnson, 647 So. 2d 254, 255 (1994) (describing a case as involving "a verbal collision at the intersection between the common law's protection of an individual's reputation by the law of defamation and the First Amendment's protection of open public discourse").
6. Prior to 1964, the U.S. Supreme Court refused to impose constitutional limits on private actions for defamation. In 1964, the Court recognized that defamation actions may have a chilling effect on the exercise of free speech and free press rights guaranteed by the First and Fourteenth Amendments. Sullivan, 376 U.S. at 279. To safeguard these rights, the Court invaded the traditional province of state tort law, holding that a public official may not recover for defamatory statements about his conduct while in office absent a showing that the defendant published the defamatory statements with knowledge or reckless disregard of their falsity (i.e., "actual malice"). Id. at 279-80.
7. William W. Van Alstyne, First Amendment Limitations on Recovery from the Press, 25 Wm. & Mary L. Rev. 793, 793 (1984);
8. See Bruce W. Sanford, Some Lessons in Libel: A Primer on the Danger Zones, Wash. Journalism Rev., March 1986, at 28 (arguing that libel law "came into being" with the Sullivan decision);
9. see also Robert C. Post, The Social Foundations of Defamation Law: Reputation and the Constitution, 74 Cal. L. Rev. 691 (1986);
10. Rodney A. Smolla, Let the Author Beware: The Rejuvenation of the American Law of Libel, 132 U. Pa. L. Re v. 1, 49 (1983) (observing that scholars have been preoccupied with the constitutional dimensions of defamation law to the detriment of the development of tort doctrine).
11. Van Alstyne, supra note 6, at 793.
12. Smolla, supra note 6, at 48 ("Many articles written about defamation since 1954 have tended to emphasize constitutional theory, either ignoring altogether any serious discussion about the development of common law doctrines or treating the development as secondary.").
13. Professor Smolla describes this as "doctrinal confusion" and attributes it "in large part [to the] pervasive failure to accommodate constitutional and common law values in a coherent set of standards that is responsive to the realities of modern communications." Id. at 11. Neglect of the tort aspects of defamation is not altogether unjustified. The Supreme Court's decisions in this area provide much to criticize. In the post-Sullivan era, it is impossible even to list the elements of a libel or slander action without adding numerous qualifications regarding "the identity of the plaintiff, the identity of the defendant, the character of the allegedly defamatory statement, and the jurisdiction whose law applies," such that the list becomes practically meaningless. Sack, supra note 2, at 39. In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the U.S. Supreme Court held that states may limit the constitutional privilege adopted in Sullivan in cases involving defamation of private figure plaintiffs. Id. at 351. Private figures involved in matters of public concern may recover damages upon a showing of negligence or gross negligence rather than actual malice, but to do so they must also prove "actual injury," i.e., injury that is "not limited to out-of-pocket loss" but includes "impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering." Id. at 350. However, private figures who wish to recover presumed and punitive damages may still do so upon showing the defendant's "knowledge of falsity or reckless disregard for the truth" in cases involving matters of public concern. Id. at 349. The Court has subsequently extended the protection of private figure plaintiffs even further, holding that they may recover presumed and punitive damages even in the absence of actual malice in cases not involving matters of public concern. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985) (plurality opinion). For a good analysis of the complexities involved as well as an extremely useful chart mapping the possible constellations status of plaintiff, status of speech, status of defendant, burden of proof on the issue of truth, and the minimum constitutional fault standard, see Rodney A. Smolla, Dun & Bradstreet, Hepps, and Liberty Lobby: A New Analytic Primer on the Future Course of Defamation, 75 Geo. L.J. 1519 (1987).
14. Frederick Pollock, The Law of Torts 243 (13th ed. 1929).
15. David Riesman, Democracy and Defamation: Fair Game and Fair Comment II, 42 Colum. L. Rev. 1282, 1285 (1942).
16. William Prosser, Handbook of the Law of Torts 737 (4th ed. 1971).
17. Marc A. Franklin & David A. Anderson, Mass Media Law 196 (5th ed. 1995).
18. See Don R. Pember, Mass Media Law 147 (2d ed. 1981) (listing common law elements that plaintiff was required to prove prior to 1964). In addition to these elements, the plaintiff must also satisfy constitutional requirements of proving falsity and fault in appropriate cases. At common law, defamatory material was assumed to be false until the defendant proved its truth. Keeton et al., supra note 2, § 116, at 839. However, the burden of proving falsity has, as a practical matter, generally shifted to the plaintiff in response to changes in the constitutional law. Restatement (Second) of Torts § 613 cmt. j (1977).
19. Franklin & Anderson, supra note 13, at 196.
20. An understanding of reputation and how it is harmed is particularly important today, as more and more authors and politicians are decrying the lack of civility in modern discourse generally and the lack of protection for individual reputation specifically. See Adam Gopnik, Read All About It, The New Yorker, Dec. 12, 1994, at 84-102 (criticizing modern journalism's appetite for scandal and its senseless prying into the private lives of public people).
21. Determining whether a statement is defamatory requires several distinct analytical steps. See infra part II.A. I use the term "defamatoriness inquiry" to refer to the overall process of determining whether a given statement is defamatory.
22. The defamatoriness inquiry attempts to define the interest protected by the tort harm to reputation. Reputation, in turn, is a complex sociological construct inextricably and intimately intertwined with the community and its values. See Randall P. Bezanson, The Libel Tort Today, 45 Wash. & Lee L. Rev. 535, 541-42 (1988) (arguing that reputation is "community-based").
23. Bruce W. Sanford, Libel and Privacy: The Prevention and Defense of Litigation § 4.1 (1985) (noting that the defamatoriness inquiry is certainly "no model of clarity or coherence").
24. Restatement (Second) of Torts § 559 cmt. d (1977) ("To be defamatory, it is not necessary that the communication actually cause harm to another's reputation or deter third persons from associating or dealing with him. Its character depends on its general tendency to have such an effect."). The abstract nature of this inquiry is a direct result of defamation's anomalous doctrine of presumed harm. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974) (describing "the common law of defamation [as] an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss"); David A. Anderson, Reputation, Compensation, and Proof, 25 Wm. & Mary L. Rev. 747, 749-51 (1984) (discussing illogical aspects of doctrine of presumed harm). If the court finds that the statement does have the tendency to harm reputation, the plaintiff may recover substantial damages without any proof whatsoever of actual harm. See id. If not, the plaintiff recovers nothing, actual harm notwithstanding. See Sanford, supra note 19, § 4.6; see generally Keeton et al., supra note 2, § 111, at 774, 780-83; Sack, supra note 2, at 72-73. Note that damages will be presumed only in certain types of cases (although these types of cases comprise a large percentage of all defamation actions). The doctrine of presumed harm applies in most libel actions. As a general rule a communication that is libelous per se (i.e., that is defamatory on its face) does not require that the plaintiff prove special damages, which are limited to actual pecuniary losses. In contrast, a communication constitutes libel per quod when it conveys a defamatory sense only within the context of certain facts known to recipients of the publication. Libel per quod does require proof of special damages. Slander, on the other hand, also requires that the plaintiff plead and prove special damages unless the communication falls into any of four established categories of slander per se: imputation of a crime, of a loathsome disease, of practices or conditions that harm the plaintiff in his trade, profession, business or office, and of serious sexual misconduct. See Keeton et al., supra note 2, § 112. For further discussion of the doctrine of presumed harm, see infra parts II.A and IV.
25. But see Burton v. Crowell Publishing Co., 82 F.2d 154, 156 (2d Cir. 1936), in which Judge Learned Hand observed that even murder is not universally condemned: We are sensitive to the charge of murder only because our fellows deprecate it in most forms; but a head-hunter . . . or a gangster, would regard such an accusation as a distinction, and during the Great War an "ace," a man who had killed five others, was held in high regard.
26. Restatement (Second) of Torts § 559 (1977). Note, however, that the question is not whether the communication actually harmed the plaintiff's reputation but whether it is the type of communication that has the tendency to harm the plaintiff. See Anderson, supra note 20, at 751.
27. Keeton et al., supra note 2, § 111, at 771.
28. See infra part II.
29. At common law the judge decides whether the published material is susceptible of a defamatory meaning as a matter of law. See generally Keeton et al., supra note 2, § 111, at 774, 780-83; Sack, supra note 2, at 72-73; Jonathan W. Lubell & Mary K. O'Melveny, The Expert Witness in Libel Trials (PLI Patents, Copyrights, Trademarks, and Literary Property Course Handbook Series No. G4-3792, 1986);
30. Robert D. Sack, Common Law Libel and the Press: A Primer (PLI Patents, Copyrights, Trademarks, and Literary Property Course Handbook Series No. G4-3912, 1993); Sanford, supra note 19, § 4.6 (1985). If the judge decides that the statement is not susceptible of a defamatory meaning, the case will be dismissed. Id. If the judge decides that the statement is susceptible of a defamatory meaning (even if it can also reasonably be construed to have other meanings), the case goes to the jury. Id. The jury then decides whether the defamatory meaning was in fact understood by at least some of the recipients. Id. However, this formulaic traditional allocation of the roles of judge and jury belies the fact that the de facto determination of defamatoriness is often implicitly made as a matter of law by the court through the identification and selection of the community segment in whose eyes the plaintiff has suffered reputational harm. This implicit determination is often made unconsciously, but it is frequently outcome-determinative. Note,
31. The Community Segment in Defamation Actions, A Dissenting Essay, 58 Yale L.J. 1387 (1949) [hereinafter Note, Community Segment].
32. See Robert D. Sack & Sandra S. Baron, Libel Slander and Related Problems 48-49 (2d ed. 1994).
33. Keeton et al., supra note 2, § 111, at 777 ("American courts have taken a more realistic view [than English courts have], recognizing that the plaintiff may suffer real damage if he is lowered in the esteem of any substantial and respectable group, even though it may be quite a small minority." (footnotes omitted)).
34. Kimmerle v. New York Evening Journal, 186 N.E. 217, 218 (N.Y. 1930).
35. Restatement (Second) of Torts § 559 cmt. e (1977).
36. See infra note 131 and accompanying text.
37. See infra part II.A.
38. Note, Community Segment, supra note 25, at 1387.
39. id.
40. Riesman, supra note 11, at 1301.
41. Sweeney v. Schenectady Union Publishing Co., 122 F.2d 288, 290 (2d Cir. 1941), aff'd, 316 U.S. 605 (1942). See also Layne v. Tribune Co., 146 So. 234, 236 (Fla. 1933) ("[J]udicial decisions . of the past are . . . apt to vary with the social and moral views of the different jurisdictions . . . ."); Coburn v. Harwood, Minor 93, 95 (Ala. 1822) (noting that decisions are apt to vary with the mores, social conditions and views of different communities).
42. Although Fred may be allowed to argue about who constitutes the relevant community, most jurisdictions will ignore these arguments if his community is not a "substantial and respectable" one. See infra part III.
43. See infra part III.
44. See infra part II.D.
45. See infra notes 181-200 and accompanying text.
46. See infra notes 166-200 and accompanying text Even the change in terminology from "Negro" to "black" to "African-American" is a hallmark of the changing social attitudes.
47. Post, supra note 6, at 710-11.
48. See Richard L. Abel, A Critique of Torts, in Perspectives on Tort Law 322 (Robert L. Rabin ed., 1995).
49. Note, Community Segment, supra note 25, at 1389.
50. Very few scholars have systematically addressed the community segment problem. Those who have addressed it have dealt mainly with cases involving a false allegation that the plaintiff was an informant. Daniel More, Informers Defamation and Public Policy, 19 Ga. J. Int'l & Comp. L. 503 (1989); Riesman, supra note 11; Note, Community Segment, supra note 25. This Article views the community segment problem from a broader perspective, and it is unique in conceptualizing the subcommunity cases and the social change cases as representing related aspects of an overarching dilemma: the necessity of selecting the relevant community in which the plaintiff's reputation was harmed.
51. See, e.g., Romaine v. Kallinger, 537 A.2d 284 (N.J. 1988).
52. Franklin & Anderson, supra note 13, at 200.
53. Id. See also Marc A. Franklin & Daniel J. Bussel, The Plaintiff's Burden in Defamation: Awareness and Falsity, 25 Wm. & Mary L. Rev. 825, 828 (1984). Although this Article primarily argues that the second step of the defamatoriness inquiry allows judges to make policy decisions under the guise of gauging the tendencies of statements to harm reputation, this same critique might be leveled at the interpretive stage of the analysis.
54. See generally Stanley Fish, Is There a Text in This Class? The Authority of Interpretive Communities (1980);
55. Clare Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 Yale L.J. 997, 1017 (1985)
56. (demonstrating that in traditional contract doctrine "words . . . are inconclusive until they are shaped by a judicial reading of the context in which they are uttered"); Sanford Levinson, Law as Literature, 60 Tex. L. Rev. 373 (1982).
57. Franklin & Anderson, supra note 13, at 201, 203.
58. Defamation usually involves verbal communications, whether spoken or written. However, photos, drawings and other nonverbal forms of communications may also be defamatory. See, e.g., Burton v. Crowell Publishing Co., 82 F.2d 154 (2d Cir. 1936) (photo created unseemly visual illusion).
59. Restatement (Second) of Torts § 559 (1977).
60. Franklin & Bussel, supra note 47, at 828.
61. In his seminal article, The Social Foundations of Defamation Law, Professor Robert C. Post has demonstrated that defamation has protected at least three different and potentially conflicting conceptions of reputation: reputation as property, reputation as honor, and reputation as dignity. Post, supra note 6, at 693. Reputation may be akin to a property interest because harm to reputation decreases an individual's ability to cash in on her good name. Id. at 693-99. Or, harm to reputation may affect honor by impairing the individual's social station or status. Id. at 699-707. Finally, reputational harm may lead to loss of dignity by violating social norms defining the rules of deference and demeanor that an individual has come to expect and by disturbing the complex interdependent relationship between the individual and her community. Id. at 707-19.
62. Robert H. Phelps & E. Douglas Hamilton, Libel 6 (1966). But as Robert Sack and Sandra Baron have observed, "variations among definitions of defamation have little apparent effect on the actual outcome of cases." Sack & Baron, supra note 26, at 74. Instead, variations in outcome are "far more likely to reflect different social circumstances than the language" of the definition. Id.
63. Anderson, supra note 20, at 751.
64. Restatement (Second) of Torts § 559 cmt. d (1977). See also Anderson, supra note 20, at 751.
65. See Anderson, supra note 20, at 749-51 (discussing illogical aspects of doctrine of presumed harm).
66. David W. Robertson et al., Cases and Materials on Torts 714-15 (1989). Harm to reputation may be difficult to show because the plaintiff may be unable to identify those community members who would think less of him as a result of the defamatory statement Also, witnesses may be reluctant to testify that they think less of the plaintiff on the basis of the defamatory statement.
67. See 1 Fowler V. Harper & Fleming James, Jr., The Law of Torts § 5.30, at 468 (1956).
68. See supra note 21 and accompanying text.
69. Post, supra note 6, at 692.
70. Id.
71. Defamation is not unique in this respect. Intentional interference with business relations (including the tort of inducing breach of contract and interference with a prospective economic relationship) is another tort based on the reactions of others to the defendant's words or actions. Restatement (Second) of Torts §§ 766-74 (1977).
72. Keeton et al., supra note 2, § 111, at 771 (noting that at common law, defamation is "not concerned with the plaintiff's own humiliation, wrath or sorrow, except as an element of 'parasitic' damages attached to an independent cause of action.") But see Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974) (finding that plaintiffs may prove "actual injury" by proving harm to reputation, embarrassment, or humiliation); Anderson, supra note 20, at 756 (arguing that development of constitutional doctrines have allowed plaintiffs to recover for mental anguish and suffering under the guise of defamation law); Bezanson, supra note 18, at 539 n.20, 541-42 (stating that although the common law was designed to protect reputation interests, the constitutional privileges have expanded the reputational interest "from that in outward-looking, or extrinsic, community-based reputation to an inward-looking, or intrinsic, freedom from psychic or emotional harm to the individual").
73. Keeton et al., supra note 2, § 1, at 6. See, however, discussion infra part III (describing the revolution in tort law that has shifted the focus of most torts from wrong to injury - a revolution that came and went and left defamation behind).
74. Paul T. Hayden, Religiously Motivated "Outrageous" Conduct: Intentional Infliction of Emotional Distress as a Weapon Against "Other People's Faiths", 34 Wm. & Mary L. Rev. 579, 584 (1993) (noting that tort law's flexibility is reflected in "the development of new causes of action . . . to accommodate majoritarian notions of right and wrong; in the open-endedness of the elements that comprise a number of tort causes of action . . . and in the recoverability of substantial damages for intangible affronts to dignity").
75. Keeton et al., supra note 2, § 1, at 6.
76. See, e.g., Ghassemieh v. Schafer, 447 A.2d 84 (Md. Ct. Spec. App. 1982); Garratt v. Dailey, 46 Wash. 2d 197, 279 P.2d 1091 (1955); Restatement (Second) of Torts § 19 (1977).
77. Sack, supra note 2, at 1.
78. Defamation is not the only tort defined by an indirect relational harm, however. Restatement (Second) of Torts §§ 766-74 (1977) (explaining intentional interference with business relations).
79. Peter M. Tiersma, The Language of Defamation, 66 Tex. L. Rev. 303, 307 (1987) ("[D]efamation is traditionally defined primarily by the effect that it has on the victim, with relatively little emphasis on the act of the tortfeasor.").
80. But see Anderson, supra note 20, at 756-57 (describing how the constitutionalization of the tort, in particular the actual injury rule, has resulted in compensating plaintiffs for emotional injury).
81. Smolla, supra note 6, at 18 (citing Leon Green, Cases on Injuries to Relations 193-276 (1940)).
82. Von Vechten Veeder, The History and Theory of the Law of Defamation II, 4 Colum. L. Rev. 33, 33 (1904) ("It is to be observed that it is reputation, not character, which the law aims to protect. Character is what a person really is; reputation is what he seems to be.").
83. Keeton et al., supra note 2, § 111, at 771.
84. Walter Probert, Defamation, A Camouflage of Psychic Interests: The Beginning of a Behavioral Analysis, 15 Vand. L. Rev. 1173, 1177 (1962) (arguing that the common law's concept of reputation fails to adequately comprehend and protect the psychic injuries that result from defamatory communications). Cf. Anderson, supra note 20 (criticizing the broadening of the defamation action to protect interests other than pure reputation); Tiersma, supra note 69, at 309 ("The focus of defamation, however, should remain on reputation, not on the unpleasant but usually temporary effects that communication has on the victim himself; these effects are better addressed by the tort of infliction of emotional distress.").
85. Probert, supra note 74, at 1174.
86. See generally Rodney A. Smolla, Suing the Press (1986).
87. Smolla, supra note 6, at 19.
88. See, e.g., Time, Inc. v. Firestone, 424 U.S. 448, 460-61 (1977). See also Anderson, supra note 20, at 756-58; Hayden, supra note 64, at 587-88.
89. Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974).
90. Time, 424 U.S. at 460. Arguably, however, the fact that a plaintiff may recover damages for emotional injury does not mean that defamation law no longer protects reputation but merely that it provides for additional remedies.
91. Bezanson, supra note 18, at 541 ("Issues of reputational harm and defamatory interpretation, if addressed, increasingly are considered matters of law for the judge . . . .").
92. This standard originated in Parmiter v. Coupland and Another, 151 Eng. Rep. 340, 342 (1840). See Sir Robert McEwen & Philip Lewis, Gately On Libel And Slander § 41 (7th ed. 1974). For a good discussion of the approaches taken by other countries (particularly Israel) to the community segment problem, see More, supra note 44.
93. Restatement (Second) of Torts § 559 cmt. e (1977).
94. E.g., Peck v. Tribune Co., 214 U.S. 185, 190 (1909). See infra text accompanying note 92.
95. Anderson, supra note 20, at 751.
96. See. e.g., Kimmerle v. New York Evening Journal, 186 N.E. 217, 218 (N.Y. 1930). A few courts have recognized that a plaintiff may value his reputation even amongst those who are "wrong-thinking." See Grant v. Reader's Digest Ass'n, 151 F.2d 733, 734 (2d Cir. 1945), cert. denied, 326 U.S. 797 (1946) ("A man may value his reputation even among those who do not embrace the prevailing moral standards; and it would seem that the jury should be allowed to appraise how far he should be indemnified for the disesteem of such persons."); Van Wiginton v. Pulitzer Publishing Co., 218 F. 795, 796-97 (8th Cir. 1914) ("In determining whether the false imputation tends to impair the social standing of a person, or to affect injuriously his opportunities of social intercourse, the customs and standards of society are to be regarded. In other words, society is to be taken as it is, with its recognized prejudices, without determining whether they are well founded in reason or justice."); Herrmann v. Newark Morning Ledger Co., 140 A.2d 529, 531-32 (N.J. Super. Ct. App. Div. 1958) (ostensibly collapsing the "respectable" prong of the inquiry in favor of a standard based on "society taken as it is"). Even taking society as it is, however, requires the decision-maker to identify precisely what the values of the community are.
97. Restatement (Second) of Torts § 559 (1977).
98. 214 U.S. 185, 190 (1909).
99. Id. at 188.
100. The alleged endorsement read as follows: "'After years of constant use of your Pure Malt Whisky, both by myself and as given to patients in my capacity as nurse, I have no hesitation in recommending it as the very best tonic and stimulant of all local and run-down conditions.'" Id.
101. Id. at 188-89. The plaintiff appears to have been concerned not only that her picture was used for a whiskey advertisement, but that it was used in an advertisement at all.
102. Id. at 189.
103. Id.
104. Id. at 190.
105. Id.
106. Id.
107. Id.
108. See Riesman, supra note 11, at 1304-08 (contending that courts should consider public opinion data in order to determine what types of statements are defamatory).
109. But see Jackson v. Record Publishing Co., 178 S.E. 833 (S.C. 1935).
110. Peck, 214 U.S. at 190.
111. Note, Community Segment, supra note 25, at 1389.
112. The court in Herrmann v. Newark Morning Ledger Co., 140 A.2d 529 (N.J. Super. Ct. App. Div. 1958) was explicit in its reliance on common knowledge as the basis for assessing public opinion. Herrmann involved a newspaper story insinuating that the plaintiff had communist leanings. Id. at 529. The court found that this insinuation would harm the plaintiff in the eyes of a substantial portion of the community, explicitly grounding this decision on "aspects of current public opinion so commonly held by some segments of the general public as to be a matter of common knowledge to the well informed." Id. at 530. The court refused to cede the community segment determination to a jury because jurors would be swayed by the "currents and eddies" of public opinion, "their own private predilections," or "the sparse evidence of . . . a bare sprinkling of the public as witnesses." Id. at 531. Perhaps because of judges' presumed superiority in gauging matters of "common knowledge," the court found it unnecessary to even hear evidence on the community segment issue. Id. at 530. Why, the court asked, should it submit to the jury "for a possible contrary conclusion" what it "knows to be a fact"? Id. at 531-32. This case presents a telling example of the decision-making process undergirding the community segment determination.
113. More, supra note 44, at 513 (arguing that judges' failure to apply "actual community norms" results in imposition of "their own value judgments" in determining the relevant community segment). 104. Richard H. Hiers, Normative Analysis in Judicial Determination of Public Policy, 3 J.L. & Religion 77, 80 (1985). See also More, supra note 44, at 510 (arguing that the "right-thinking" persons standard "appears to relate to the world of objective or factual reality, . . . but, in fact, serves to mask a subjective, normative evaluation").
114. More, supra note 44, at 516 (noting that the substantial and respectable minority standard involves both quantitative and normative considerations).
115. Id. at 517.
116. Id. ("If the statement lowers the plaintiff in the eyes of a relatively few recipients, but if their opinion is highly important to him his defamation action should not be denied on the basis of the small size of this index group."). See also Michael J. Tommaney, Comment, Community Standards of Defamation, 34 Alb. L. Rev. 634, 641 (1970) (arguing that recovery should be allowed where the plaintiff is "defamed in the eyes of a group that is important or substantial quantitatively").
117. See, e.g., Ben-Oliel v. Press Publishing Co., 167 N.E. 432 (N.Y. Ct. App. 1929) (finding statement defamatory even though plaintiff's reputation would only be harmed amongst experts on Palestinian history and customs).
118. See Riesman, supra note 11, at 1300 ("[T]he courts have introduced into the factual question of what is defamatory both their notions as to what ought to be defamatory and their judgments as to what ought to be done in the entire situation before them.").
119. 382 A.2d 257 (Del. Super. Ct. 1978).
120. Id. at 258.
121. Id.
122. Id. at 259.
123. Id. (quoting Lawlor v. Gallagher Presidents' Report, Inc., 394 F. Supp. 721 (S.D.N.Y. 1975)).
124. Id. (quoting Connelly v. McKay, 28 N.Y.S.2d 327, 329 (Sup. Ct. 1941)).
125. Id. Initially the Court noted that a statement alleging that an individual is an informant "does not label [him] with unlawful or improper conduct." Id. While this may be true, it is not entirely relevant for defamation purposes. For example, the allegations that one is an anarchist or a Communist do not allege unlawful conduct, but all have at one time or another been denoted as defamatory statements. See, e.g., Spanel v. Pegler, 70 F. Supp. 926 (D. Conn. 1946) (holding allegation of being Communist or Communist-sympathizer was libelous); Cahill v. Hawaiian Paradise Park Club, 543 P.2d 1356 (Haw. 1975) (holding accusation that family favored anarchist objectives was libelous). See also Kenneth L. Karst, Paths To Belonging: The Constitution And Cultural Identity, 64 N.C. L. Rev. 303, 305 n.7 (1986).
126. See, e.g., John Irwin & Donald R. Cressey, Thieves, Convicts and the Inmate Culture, in The Sociology of Subcultures, 64, 67 (David O. Arnold ed., 1970) (arguing that although informants are condemned in the criminal subculture, such values are not even peculiarly criminal, "for policemen, prison guards, college professors, students, and almost any other category of persons evaluate behavior in terms of in-group loyalties").
127. In the words of Michael Kinsley, the court appears uncertain whether its task is "to bring reality into line with appearances [or] to bring appearances into line with reality" See Gopnik, supra note 16, at 102 (attributing this phrase to Kinsley).
128. Id.
129. Id. Whether one sees this as a problem depends on what one sees as the purpose of defamation law. As this Article argues in part III, defamation plays both an instrumental role in redressing harm to reputation and a symbolic role in defining the boundary of community.
130. See generally Irwin & Cressey, supra note 117, at 65 (examining the dynamics of prison culture); see also Karst, supra note 116, at 309 (explaining the importance of cultural groups).
131. See Note, Community Segment, supra note 25, at 1391 ("So dangerous would be the impact that the factually injured plaintiff must be sent away without redress, and the spreader of the injurious false rumor be dismissed scot-free.").
132. 28 N.Y.S.2d 327 (Sup. Ct. 1941).
133. Id. at 328.
134. Id.
135. Id. at 329.
136. Id.
137. Id.
138. See id.
139. Id.
140. See id.
141. Id.
142. Id.
143. Compare this approach to the one employed by the court in Herrmann v. Newark Morning Ledger Co., 138 A.2d 61, opinion adhered to on reh'g, 140 A.2d 529 (N.J. Super. Ct. App. Div. 1958), which is perhaps better reasoned, if still problematic. In Herrmann, the plaintiff alleged that he had been defamed by a newspaper story accusing him of opposing a city policy of discharging "teachers and other city employees who pleaded the Fifth Amendment to investigations of Communism." Id. at 66. The jury awarded plaintiff $3000, and defendants appealed. Id. at 64. The appellate court reversed. Id. at 77. On rehearing, the appellate court reiterated its prior holding that the article published by defendants imputed Communist sympathies to the plaintiff and was therefore defamatory per se. Herrmann, 140 A.2d at 530. The court applied what it called the "prevailing American rule" that a statement need only defame the plaintiff in the eyes of a "substantial number of respectable people" in order to be actionable. Id. at 530-31. According to the court, no factual evidence was necessary to determine that a "substantial number of people would infer from the article . . . that the plaintiff had Communistic leanings." Id. at 530. Rather, basing its finding on "aspects of current public opinion so commonly held by some segments of the general public as to be a matter of common knowledge to the well-informed," the court determined that the statement that plaintiff opposed the City's anti-communism policy would brand him as "sympathetic with Communists," and therefore cause members of the community to hold him "in disrepute." Id. The court refused to find that the community segment that would think less of plaintiff was "disrespectable or negligible." Id. at 530-34. Distinguishing the "substantial and respectable minority" standard from the "right-thinking persons" standard applied by some jurisdictions, the court attempted to free the "respectableness" prong of the standard from its normative underpinnings, at least for purposes of the instant case. Id. Instead, the court explicitly realized that whether a statement is defamatory is "dependent upon the mental habits or political or social views or biases of the public or some of its members." Id. at 530. In other words, defamation is a function of societal prejudices. Therefore, the court should abjure the task of determining the tightness of these prejudices because "the false writing, realistically, is as hurtful to plaintiff as though the harmful imputation were drawn only by paragons of fair, unbiased and logical judgment." Id. at 531. Thus, what matters is whether the plaintiff was harmed in the eyes of "people whose good opinion was important to him," regardless of the fact that these people held irrational or unreasonable views. Id. at 532. Consistent with this notion, the court refused to pass judgment on the views held by the community segment. According to the court's view, the determination of defamatoriness is an exercise of realpolitik: The determination of a point of libel law is not an exercise in social or political philosophy or in pure logic . . . . We must take public opinion and mental reactions as we find them in living society, not as one might visualize them in a Utopia. For this purpose "society is to be taken as it is, with its recognized prejudices, without determining whether they are well founded in reason or justice." Id. (quoting Van Wiginton v. Pulitzer Publishing Co., 218 F. 795, 796 (8th Cir. 1914)). Hence, the court's own views on the matter are simply irrelevant.
144. Note, Community Segment, supra note 25, at 1391-94. See also More, supra note 44, at 517-18 (criticizing courts for basing judgments of defamatoriness on public policy).
145. Note, Community Segment, supra note 25, at 1391-94.
146. See, e.g., Burrascano v. Levi, 452 F. Supp. 1066 (D. Md. 1978), aff'd, 612 F.2d 1306 (4th Cir. 1979); Westby v. Madison Newspapers, Inc., 259 N.W.2d 691 (Wis. 1977).
147. Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457 (1897).
148. Id. at 457-58. See also Post, supra note 6, at 703 (defamation law "speaks with the full force of public power").
149. 376 U.S. 254 (1964).
150. Id. at 268-92. Sullivan, however, rested on a public policy choice arguably dictated by the First Amendment. See id. at 268-70 ("[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open . . . .").
151. But see Stanley Ingber, Rethinking Intangible Injuries, 73 Cal. L. Rev. 772, 823 (1985). Ingber observed that the burden that results from limiting suits for defamation to advance first amendment values is not "shared generally by the populace" but "falls directly and immediately upon the injured individual." Id. at 823. "When this occurs, the value of free speech is subsidized by the injured individuals rather than by the populace that benefits from a system of free expression." Id.
152. Paul J. Magnarella, Justice in a Culturally Pluralistic Society: The Cultural Defense on Trial, 19 J. Ethnic Stud. 65, 66 (1991) (observing that "politically dominant" groups may "delegitimize conflicting subcultural practices" by "imposing a single moral code on all societal members"); Post, supra note 6, at 715.
153. 209 N.E.2d 412 (Ohio 1965), cert. denied, 382 U.S. 978 (1966).
154. Id. at 412-13.
155. Id. at 413. According to the newspaper accounts, the Governor suggested that Moore was an "Uncle Tom" who was "detrimental to the progress of [her minority] group" because her job as license plate registrar was a political sinecure awarded for her role in the Democratic party. Id.
156. Id. at 414.
157. Id. at 414, 416.
158. Id. at 415.
159. Id.
160. Id.
161. See James Boyle, Anatomy of a Torts Class, 34 Am. U. L. Rev. 1003, 1052 (1985) ("To make a formalist argument, explain the meaning of the word by taking it out of context and without considering the purpose behind the rule. Having defined the word in question in the same way that a dictionary might, apply it to the fact situation.").
162. Indeed, the Oxford English Dictionary appears to refute the interpretation given to the Webster definition by the court. Oxford Eng. Dictionary 910-11 (2d ed. 1989). The Oxford dictionary defines "Uncle Tom" as "used allusively for a Black man who is submissively loyal or servile to White men." Id. at 910.
163. Moore, 209 N.E.2d at 415.
164. See id. at 415-16.
165. Id.
166. Id. at 416.
167. Id.
168. See id.
169. See Van Wiginton v. Pulitzer Publishing Co., 218 F. 795, 796 (8th Cir. 1914) (observing that the defamatoriness determination hinges on the prejudices of society, whether "well founded in reason or justice" or not).
170. See, e.g., Wardlaw v. Peck, 318 S.E.2d 270, 272 (S.C. Ct. App. 1984) (involving a professor who stated during a speech that plaintiff and another male student were "breeding under his sink").
171. See, e.g., Nazeri v. Missouri Valley College, 860 S.W.2d 303, 311 (Mo. 1993) (en banc) (finding false accusation of adultery is libelous).
172. See, e.g., id. at 312 (holding that false imputation of homosexuality is defamatory).
173. See, e.g., City of Brownsville v. Pena, 716 S.W.2d 677 (Tex. Ct. App. 1986) (finding statement accusing employee of racism is libelous).
174. See, e.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951) (finding publication of unfounded designations of organizations as Communist was damaging to reputation and sufficient for defamation action).
175. See, e.g., Luotto v. Field, 49 N.Y.S.2d 785, 789 (Sup. Ct. 1944), aff'd, 63 N.E.2d 58 (N.Y. 1945) (holding that accusation of being supporter of fascism or nazism would be libelous per se). There are many more types of characterizations involving anything from religiosity, sexuality, political orientation, and morality that have been found defamatory by the courts. See generally Gregory G. Samo, Annotation, Imputation of Allegedly Objectionable Political or Social Beliefs, or Principles as Defamation, 62 A.L.R. 4th 314 (1988).
176. There are numerous cases holding that it is defamatory to state that a white person is black. See, e.g., May v. Shreveport Traction Co., 53 So. 671 (La. 1910). Interestingly there is no case law expressly overruling these past cases.
177. 96 S.E.2d 564 (S.C. 1957).
178. 347 U.S. 483 (1954).
179. Id. at 495.
180. Bowen, 96 S.E.2d at 564.
181. Id. at 564-66.
182. Id. at 565.
183. Id.
184. Id. at 566.
185. Professor Post has described the cases holding that it is defamatory to say that a white person is black as a means by which "defamation law enforced the values of the dominant white culture." Robert C. Post, Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment, 76 Cal. L. Rev. 297, 300 n.18 (1988). These cases thus exemplify an insidious form of "assimilationist law" because they place "the force of the state behind the cultural perspective of a particular, dominant group." Id. at 299.
186. Magnarella, supra note 141, at 67.
187. Cf. Wolfe v. Georgia Ry. & Elec. Co., 58 S.E. 899, 901-02 (Ga. App. Ct. 1907) (holding defamatory a statement that a white person was black because "from a social standpoint, the negro race is in mind and morals inferior to the Caucasian").
188. See, e.g., Stulz v. Cousins, 242 F. 794 (6th Cir. 1917); Jones v. R.L. Polk & Co., 67 So. 577 (Ala. 1915); Morris v. State, 160 S.W. 387 (Ark. 1913); Wolfe, 58 S.E. 899; May v. Shreveport Traction Co., 53 So. 671 (La. 1910); Upton v. Times-Democrat Pub. Co., 28 So. 970 (La. 1900); Spotorno v. Fourichon, 4 So. 71 (La. 1888); Hargrove v. Oklahoma Press Publishing Co., 265 P. 635 (Okla. 1928); Flood v. News & Courier Co., 50 S.E. 637 (S.C. 1905); Mopsikov v. Cook, 95 S.E. 426 (Va. 1918); Spencer v. Looney, 82 S.E. 745 (Va. 1914).
189. See generally J.H. Crabb, Annotation, Libel and Slander: Statements Respecting Race, Color, or Nationality as Actionable, 46 A.L.R.2d 1287-1308 (1956); supra note 167.
190. Thomason v. Times-Journal, Inc., 379 S.E.2d 551 (Ga. Ct. App. 1989), is a modern case dealing tangentially with the issue of whether it is defamatory to suggest that a white person is black. There, the plaintiff sued over the publication of a false obituary. Id. at 552. In seeking to establish the "special circumstances" necessary to establish her libel claim, the plaintiff alleged that the funeral home listed in the obituary catered to a primarily "black clientel [sic]." Id. at 553. Because she is white, she contended, this statement caused her to suffer ridicule and humiliation. Id. The court swiftly rejected this claim by simply noting that the alleged conduct - selecting a funeral home - was lawful and could not therefore be considered libelous. Id. In any event, the court declared, "[p]eculiarities of taste found in eccentric groups cannot form [a] basis for a finding of libelous inferences." Id. The court refused to concede that the plaintiff might have suffered from the social prejudice of others, and there is no discussion in the decision of any public policy implications. Rather, the court merely rejected plaintiff's claim out of hand as absurd. Ledsinger v. Burmeister, 318 N.W.2d 558 (Mich. Ct. App. 1982) is also suggestive of the change in courts' attitudes. In that case the plaintiff, who was black, sued a retail merchant for slander after the merchant called him a "nigger" and told him to get his "black ass" out of the store. Id. at 560. Although the appellate court allowed the plaintiff to proceed with his actions for intentional infliction of emotional distress and violations of his civil rights, the court refused to find that the epithet "nigger" was defamatory. Id. at 562-63. While the term "may be offensive, its natural and ordinary import is as a slang term referring to members of the Negro race, a meaning that is not defamatory." Id. at 563. Thus, the trial court properly granted summary judgment on the slander action because there was no "actual defamation." Id. at 563. There is no other reasoning or explanation in the case. Presumably the court considered it so obvious that to call someone a "nigger" is not defamatory that it needed no further explanation.
191. 216 Cal. Rptr. 252 (Ct. App. 1985).
192. Id. at 253.
193. Id. (quoting plaintiff's complaint).
194. Id.
195. Id.
196. Id.
197. Id. at 256.
198. Id. at 261.
199. Id. (plaintiff further alleged that African-Americans "harbor obviously unsophisticated tastes in wines").
200. Id.
201. Id. at 262.
202. Id. (citing Palmore v. Sidoti, 466 U.S. 429 (1984) (holding that state may not deny custody to white mother who married black man because child would be stigmatized by private racial biases) and Shelley v. Kraemer, 334 U.S. 1 (1948) (holding that state may not lend enforcement to restrictive covenants based on race)).
203. The issue of what constitutes state action has been dealt with extensively elsewhere. See, e.g., Georgia v. McCollum, 509 U.S. 42 (1992) (holding that use of peremptory challenges amounted to state action); West v. Atkins, 487 U.S. 42 (1988) (finding that doctor contracting with state to provide medical services to inmates was acting under color of state law); Palmore, 466 U.S. 429 (holding that use of state courts and judicial officers in their official capacity is state action); Shelley, 334 U.S. 1 (holding that actions of state courts and officers in their official capacity is state action); Ex parte Virginia, 100 U.S. 339 (1880) (finding that racial discrimination injury selection amounted to state action).
204. 466 U.S. 429 (1984).
205. Id. at 430.
206. Id. at 431-32.
207. Id. at 433. (observing that "[i]t would ignore reality to suggest that racial and ethnic prejudices do not exist or that all manifestations of those prejudices have been eliminated").
208. Id.
209. Id.
210. Richard Epstein has criticized employment discrimination laws for enforcing a regime of "forced association" in order to pursue the largely symbolic gain of eliminating racism and sexism in society. Richard A. Epstein, Forbidden Grounds 505, 497 (1992). Epstein contends that the legal system should abjure pursuit of symbolic goals because there is no equation to trade off symbolic gains with economic losses and that it is a violation of individual liberty to impose "whatever conduct is thought to be wise or enlightened . . . on society by the public speaking with one voice." Id. at 505. Epstein, however, presumes at the outset of his analysis that the status quo serves as a neutral baseline for judicial analysis and that deviations from the status quo constitute illegitimate policy-making. Thus, from Epstein's point of view, alteration's from the status quo are justified only to achieve economic goals. Yet Epstein fails to see that his proposal, too, involves the pursuit of symbolic goals.
211. See. e.g., Schorner v. Smidt, 170 Cal. Rptr. 662 (Ct. App. 1980); Moricoli v. Schwartz, 361 N.E.2d 74 (III. Ct. App. 1977); Nazeri v. Missouri Valley College, 860 S.W.2d 303 (Mo. 1993) (en banc); Rejent v. Liberation Publishing, Inc., 611 N.Y.S.2d 866 (App. Div. 1994); Head v. Newton, 596 S.W.2d 209 (Tex. Ct. App. 1980); Buck v. Savage, 323 S.W.2d 363 (Tex. Ct. App. 1959).
212. See cases cited in supra note 202.
213. Compare Matherson v. Marcello, 473 N.V.S.2d 998, 1005 (App. Div. 1984) (rejecting defendant's argument that allegation of homosexuality results in no "social stigma" despite changing mores and finding courts to be "constrained" to find such an allegation defamatory) with Hayes v. Smith, 832 P.2d 1022 (Colo. Ct. App. 1991) (holding that allegation of homosexuality is not slander per se and questioning in dicta whether such allegation should even be defamatory at all).
214. See cases cited in supra note 202.
215. I am indebted to Professor Diane Mazur for this insight.
216. For laws criminalizing sodomy between same sex partners, see Ark. Code Ann. § 5-14-122 (Michie 1993); Kan. Crim. Code Ann. § 21-3505 (Vernon 1988); Mo. Rev. Stat. § 566.090 (1986); Mont. Code Ann. § 45-5-505 (1995); Nev. Rev. Stat. § 201.190 (1991); Tenn. Code Ann. § 39-13-510 (1991); Tex. Penal Code Ann. § 21.06 (West 1994). For laws criminalizing both heterosexual and homosexual sodomy, see Ala. Code § 13A-6-64 (1994); Ga. Code Ann. § 16-6-2 (1992); Idaho Code § 18-6605 (1987); Miss. Code Ann. § 97-29-59 (1994); N.M. Stat. Ann. § 20-12-57 (Michie 1978); N.C. Gen. Stat. § 14-177 (1993); N.D. Cent. Code § 12.1-20-12 (1985); Ohio Rev. Code Ann. § 5924.125 (Anderson 1994); R.I. Gen. Laws § 11-10-1 (1994); S.C. Code Ann. § 16-15-120 (Law. Co-op. 1985); Va. Code Ann. § 18.2-361 (Michie 1988). Oklahoma's sodomy statute, Okla. Stat. Ann. tit. 21, § 886 (West 1993), ostensibly applies to heterosexual partners but is enforced only against homosexuals. See Post v. Oklahoma, 715 P.2d 1105 (Okla. Crim. App.), cert. denied, 479 U.S. 890 (1986). For a more extended discussion of these issues, see generally Kenneth Williams, Gays in the Military: The Legal Issues, 28 U.S.F. L. Rev. 919, n.167 (1994);
217. Evan Wolfson & Robert S. Mower, When the Police Are in Our Bedrooms, Shouldn't Courts Go in After Them?: An Update on the Fight Against "Sodomy" Laws, 21 Fordham Urb. L.J. 997, 997 (1994) (stating that "[s]o-called 'sodomy' laws - criminal sanctions on consensual oral or anal sex even in private - remain in force in nearly half the states.")
218. Section 571 (a)(1) of the National Defense Authorization Act provides: (b) Policy - A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations: (1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts . . . . National Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, 10 U.S.C. § 654(b)(1) (1994). See also Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989) (holding that the Army's refusal to reenlist a lesbian does not violate equal protection), cert. denied, 494 U.S. 1004 (1990); Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989) (holding that Navy's refusal to induct a gay man does not violate equal protection), cert. denied, 494 U.S. 1003 (1990); Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) (holding that FBI's decision not to hire a lesbian does not violate equal protection). For extended discussion, see generally Diane Mazur, The Unknown Soldier: A Critique of "Gays in the Military" Scholarship and Litigation, 29 U.C. Davis L. Rev. 229 (1996).
219. See High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) (holding that the refusal to allow homosexuals security clearance does not violate equal protection standards). See generally Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of "Sex," "Gender," and "Sexual Orientation", in Euro-American Law and Society, 83 Cal. L. Rev. 1, 22 n.54 (1995). Indeed, federal agencies that dismiss gay or lesbian employees often cite "the existence of state sodomy statutes . . . as a justification for the denial of employment or special security clearances for gay men and lesbians." Wolfson & Mower, supra note 207, at 1035-36.
220. "There is no federal law prohibiting discrimination on the basis of sexual orientation . . . . Lesbian and gay plaintiffs have attempted to seek protection from the existing federal employment laws, without success." James D. Wilets, International Human Rights Law and Sexual Orientation, 18 Hastings Int'l & Comp. L. Rev. 1, 114 n.568 (1994)
221. (quoting William B. Rubenstein, Lesbians and Gay Men in the Workplace, in Lesbians, Gay Men, and the Law 262 (William B. Rubenstein, ed., 1993). See also Gay Law Students Ass'n v. Pacific Tel. and Tel. Co., 595 P.2d 592 (Cal. 1979) (finding that neither state nor federal anti-discrimination laws forbid discrimination against homosexuals).
222. As Professor Stanton Krauss has observed, the social science literature indicates that individuals "tend to project [their] own views onto others," and laymen, in particular "'tend . . . to see their own behavioral choices and judgments as relatively common and appropriate to existing circumstances while viewing alternative responses as uncommon, deviant, or inappropriate.'" Stanton D. Krauss, Representing the Community: A Look at the Selection Process in Obscenity Cases and Capital Sentencing, 64 Ind. L.J. 617, 637
223. (quoting Lee Ross et al., The "False Consensus Effect": An Egocentric Bias in Social Perception and Attribution Processes, 13 J. Experimental Soc. Psychol. 279, 280 (1977)).
224. As Guido Calabresi has explained, we often resort to "subterfuges and wishful thinking" to avoid facing the fact that "some groups in our flawed society may have attributes which are undesirable and even dangerous" - attributes for which "we are in a deep sense responsible." Guido Calabresi, Ideals, Beliefs, Attitudes, and the Law 42-43 (1985).
225. This attempt to enforce community values and make pronouncements on "wrongs" is inherent in defamation's structure as a tort. Libel was originally a crime, an offense against the state. Keeton et al., supra note 2, § 112, at 785. Once defamation became a private cause action, it retained as one of its central functions deterring wrongful behavior. Anderson, supra note 20, at 748. As tort law's focus shifted primarily to compensation, however, defamation law was left behind. Id. Despite constitutional constraints, defamation law's refusal to focus on actual harm to reputation (which would in turn, shift its focus to compensation) has left it with a stronger moral vision than other torts. Post, supra note 6, at 699-707.
226. See Keeton et al., supra note 2, § 1, at 6.
227. Post, supra note 6, at 710-11.
228. See Tiersma, supra note 69, at 304 (describing defamation law as regulating the relationship between the individual and the community).
229. Post, supra note 6, at 716.
230. Id. ("Th[e] image of 'society as a whole' is made possible by general diffusion of rules of civility."). See also Emile Durkheim, The Division of Labor in Society 96-103 (Free Press of Glencoe, Ill 1964) (George Simpson trans., 1933) (stressing the importance of enforcing rules and norms to preservation of community identity).
231. Post, supra note 6, at 693 ("[D]efamation law presupposes an image of how people are tied together, or should be tied together, in a social setting.").
232. In the words of Joseph Gusfield, this conceptualization of the community requires "a great leap beyond the complex of divergent and conflicting groups which make up modern communities." Joseph R. Gusfield, On Legislating Morals: The Symbolic Process of Designating Deviance, 56 Cal. L. Rev. 54, 55 (1968).
233. See supra notes 161-62.
234. See supra notes 109-18 and accompanying text.
235. Bowen v. Independent Publishing Co., 96 S.E.2d 564, 566 (S.C. 1957).
236. Crank, supra note 1, at 325.
237. See generally Kai T. Erikson, Wayward Puritans: A Study in the Sociology of Deviance 8-19 (1966) (describing the defining of deviance as a way in which communities maintain their boundaries and their identity).
238. See supra notes 109-42 and accompanying text.
239. Gusfield, supra note 220, at 57.
240. See More, supra note 44; Note, Community Segment, supra note 25.
241. Gusfield, supra note 220, at 57 (quoting P. Wheelwright, The Burning Fountain 23 (1954)).
242. Post describes society's rules of civility as a "means by which the society distinguishes members from nonmembers." Post, supra note 6, at 711. Civility rules therefore play an important role in preserving "'the stability of social life'" and "maintaining the contours of [the] social constitution." Id. (quoting Erikson, supra note 225, at 116).
243. See Post, supra note 6.
244. See Erikson, supra note 225, at 11.
245. Id.
246. Anderson, supra note 20, at 748. ("Today, defamation is the only tort that allows substantial recovery without proof of injury.").
247. Gusfield, supra note 220, at 58-59. The modern defamation action might be likened to the institution of the duel in the antebellum South. Kenneth Greenberg has described the duel as a "ritual drama" - a "theatrical display that attempt[s] to resolve conflict and reaffirm the political values of the dominant group in the society." Kenneth S. Greenberg, Masters and Statesmen: The Political Culture of American Slavery 23-41 (1985) (footnote omitted). The duel was a "structured, formal context" for conflict that served important functions for both participants and observers by confirming the boundaries of the community of "gentlemen" and affirming its vision of social order. Id. The same might be said of the defamation action's symbolic attempt to define the boundaries of the community, to symbolically pronounce the values of one or both of the litigants as worthy of the law's attention and respect.
248. Gusfield, supra note 220, at 55 ("To assume a common culture or normative consensus in American society, as in most modern societies, is to ignore the deep and divisive role of class, ethnic, religious, status, and regional culture conflicts which often produce widely opposing definitions of goodness, truth, and moral virtue.")
249. See Crank, supra note 1, at 336.
250. Arnold W. Green, Sociological Analysis of Horney and Fromm, Amer. J. of Sociology 533, 534 (May 1946).
251. Id. See Karst, supra note 116, at 303-04 ("Throughout the nation's history, differences in race, language, religion, and ethnicity have produced waves of nativist hostility to the members of cultural minorities."). The recent spate of articles calling for a return to the Golden Era of "family values" and "civility in public discourse" are token to perceived cracks in the facade of social order and to the increasing fragmentation of the American polity. See, e.g., David S. Broder, Civic Life and Civility, Wash. Post, Jan. 1, 1995, at C7 ("Nothing would make 1995 a better year in America than a strengthening of civic life and the return of civility in our public discourse."); Meg Greenfield, It's Time for Some Civility, Wash. Post, May 29, 1995, at A15 (describing the decline of public debate as "a result of our political, social and ethnic fragmentation, the abandonment by so many of the idea of a common purpose and our voluntary self-recreation as a collection of mutually resentful groups"). These rhetorical paeans to civility have a certain attraction. After all, most people at one time or another have wondered why we can't just all get along. However, attempts to enforce civility may mask a desire to suppress dialogue that seems threatening to the established social order. Thus, the call for civility may simply be an attempt to silence one's critics.
252. See Amy R. Mashburn, Professionalism As Class Ideology: Civility Codes and Bar Hierarchy. 29 Val. U. L. Rev. 657, 663 (1994) (demonstrating that lawyer civility codes often codify the "skewed perceptions of a privileged few" and that such codes "may express flawed values, promote a false community and constitute potentially dangerous exercises of hierarchical power" by imposing the norms of one powerful segment on the whole).
253. See generally Robert H. Wiebe, The Segmented Society: An Introduction to the Meaning of America (1975).
254. Consider the case of Oliver Sipple, who deflected Sara Jane Moore's attempted assassination of President Gerald Ford. Sipple v. Chronicle Publishing Co., 201 Cal. Rptr. 665 (Ct. App. 1984). Media reports of the event included the fact that Sipple was gay. Id. at 667. Sipple was very open about his sexuality in his primary community in San Francisco, even marching in gay pride parades. Id. at 669. This did not mean, however, that he wanted his family and his relatives throughout the country to know this information about him. Id. at 667.
255. George J. Church, And Then There Were Six, Time, Oct. 5, 1987, at 24;
256. Paul Taylor, Biden Admits Plagiarizing in Law School, Wash. Post, Sept. 1, 1987, at A1.
257. I am indebted to Professor David A. Anderson for his insights about the degree to which a national community does still exist.
258. Krauss, supra note 211, at 638.
259. The third objection to this vision is that it is potentially inconsistent with first amendment values. See Robert C. Post, The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell, 103 Harv. L. Rev. 601, 604 (1990). Professor Post has shown how the common law torts of defamation and intentional infliction of emotional distress regulate the realm of civil discourse by reference to community norms. Id. Conversely, first amendment theory attempts to create a realm of discourse that is neutral with respect to community norms. Id. Hence, the tort law and first amendment law rest on conflicting paradigms of community life. Id.
260. See, e.g., Van Wiginton v. Pulitzer Publishing Co., 218 F. 795 (8th Cir. 1914) ("society is to be taken as it is"); Hermann v. Newark Morning Ledger Co., 140 A.2d 529, 532 (N.J. Super. Ct. App. Div. 1958) ("society is to be taken as it is").
261. Herrmann, 140 A.2d at 532.
262. See Anderson, supra note 20.
263. Perhaps the evolution of the tort aspects of defamation has been stunted due to the preoccupation (previously mentioned) of scholars and judges with the constitutional aspects of defamation law. See supra notes 3-9.
264. Courts originally granted tort damages only as an adjunct to a criminal proceeding. Pollock, supra note 14, at 150.
265. See Anderson, supra note 20, at 747.
266. Id. at 748.
267. Actual harm as defined here is to be distinguished from the constitutional standard of "actual injury," which includes damages for emotional suffering. See Time, Inc. v. Firestone, 424 U.S. 448, 460 (1976) (allowing plaintiff to establish actual injury by demonstrating emotional distress). It is also to be distinguished from special damages. See Pember, supra note 14, at 200 (defining special damages as "specific items of pecuniary loss caused by published defamatory statements.").
268. See Anderson, supra note 20, at 765. Anderson also suggests that a plaintiff might establish actual reputational harm by showing interference with "future business and social relationships," destruction of a "favorable public image" or creation of a "negative public image for a person who previously had no public image at all." Id. at 765-66. Obviously, it would be impossible to hold the plaintiff to a rigid standard of proof in establishing these types of injuries.
269. See supra notes 73-79 and accompanying text.
270. See Anderson, supra note 20, at 752.
271. This type of defense was employed by the defendant in People v. Helen Wu, 286 Cal. Rptr. 868 (Ct. App. 1992). The defendant was a Chinese woman who, upon learning of her husband's infidelity, strangled her son and unsuccessfully attempted to kill herself. Id. The California Court of Appeal reversed the defendant's conviction for murder, holding that the trial court erred in denying an instruction to the jury regarding the defendant's cultural background and its impact on her state of mind at the time of the murder. Id. See generally Taryn F. Goldstein, Cultural Conflicts in Court: Should the American Criminal Justice System Formally Recognize a "Cultural Defense", 99 Dick. L. Rev. 141 (1994) (discussing the history of and debate surrounding the cultural defense and concluding that it is both "impractical and inherently unfair to the very groups it purports to protect");
272. Note, The Cultural Defense in the Criminal Law, 99 Harv. L. Rev. 1293 (1986) (discussing the current debate regarding the cultural defense, its implications for the criminal justice system, and factors defining the scope of the defense).
273. Alan McConagha, Nation, Inside Politics, Wash. Times, Oct. 29, 1993, at A8 (describing the accusation that a Cuban-born City Commissioner was a communist as "the ultimate insult among Miami's Cuban exiles").
274. See Marc A. Franklin, Winners and Losers and Why: A Study of Defamation Litigation, 1980 Am. B. Found. Res. J., 455 (discussing the results of an empirical study of defamation actions and concluding that plaintiffs prevail only in a tiny fraction of defamation actions);
275. David A. Anderson, Is Libel Law Worth Reforming?, 140 U. Pa. L. Rev. 487 (1991) (describing the layer of constitutional complexity that stands in the way of plaintiffs' recoveries in defamation actions).
276. See supra note 14 and accompanying text. It is unclear whether requiring additional testimony to establish reputational harm would make it more or less likely that a case would go to a jury. On one hand, juries are more likely to be necessary to make credibility determinations. On the other hand, judges may more readily weed out cases at a preliminary stage due to plaintiff's failure to plead sufficient evidence of actual harm. Certainly judges in defamation actions have shown no hesitation in wielding the potent weapons in their summary judgment arsenal. See Anderson, supra note 259, at 498-99 (explaining judges' tendency to use summary judgment to resolve defamation cases in favor of media defendants at an early stage).
277. Cf. Riesman, supra note 11, at 1306-07 (advocating the use of opinion research to identify the community segment).
278. Post, supra note 6, at 711 ("Rules of civility are the means by which society defines and maintains this dignity. Conversely, rules of civility are also the means by which society distinguishes members from nonmembers.").
279. Despite the seemingly modest nature of this proposal, forcing judges to analyze and articulate unstated assumptions about the nature of community constructed by defamation law would be no mean feat. A primary function of law is "to create the image of order even if this image masks the truth." Jeffrey L. Harrison & Amy R. Mashburn, Jean-Luc Codard and Critical Legal Studies (Because We Need the Eggs), 87 Mich. L. Rev. 1924, 1943 (1989) (arguing that without a "sense of order and principle we simply could not function"). In a sense, therefore, law plays a role in suppressing discussions that would tear the community apart.
280. See Walter O. Weyrauch, Law as Mask - Legal Ritual and Relevance, 66 Cal. L. Rev. 699, 718 (1978) (arguing that the "masks of objectivity, neutrality, and fairness give the legal process an independent power so that it is not [perceived to be] merely the tool of dominant social forces"). Although law's role in transforming the disparate elements in American life into an ordered and cohesive community may represent the triumph of hope over experience, it may nonetheless be important to continue to hope.