The Case for Defamatory Opinion

Abstract

The law should not allow revenge porn in the name of the First Amendment, just as it should not allow private citizens to purchase AK-47’s in the name of the Second Amendment. Citizens can abuse fundamental rights just as governments can infringe them. At some point, courts have to acknowledge that the First Amendment was not intended to give people a fundamental right to trash an individual’s reputation while seeking cover under the self-serving blanket of opinion and taste. It is one thing to stroll into a courthouse with a shirt that says Fuck the Draft, but quite another to calls someone a Nazi War Criminal. Statements like this poison the marketplace of ideas with the vitriol of immodest jackasses and can, in some circumstances, cause reputational harm.

For too long, courts and commentators have reacted in knee-jerk fashion to any attempts to regulate or provide remedies for speech that causes severe and lasting injury. At the same time, however, the courts have founds ways, such as through the “secondary effects” doctrine, to uphold statutes that, as a practical matter, restrict speech. The courts need not go through such legal gymnastics to restrict in one breath what should be regulated in the next.

Justice Anthony Kennedy has stated that “[t]he remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.” Truth is not considered a remedy when courts classify a statement as pure opinion, and pure opinions involving private issues and citizens should not receive the First Amendment’s blessing. Simply put, where truth cannot provide a remedy, the law should.

Keywords: First Amendment, New York Times v. Sullivan, fact opinion distinction, online speech, defamation, public figure, satire

JEL Classification: K13, K40