Defamation, Reputation, and the Myth of Community

Abstract:     
The complex interaction between defamation, reputation, and community values defines the tort of defamation. A defamatory communication tends to harm a plaintiff's reputation in the eyes of the plaintiff's community. Thus, to determine whether a given statement is defamatory, courts must first identify the plaintiff's community and its norms – an inquiry that presents both theoretical and doctrinal difficulties in a heterogeneous and pluralistic society. Current approaches to identifying the plaintiff's community are particularly inadequate in two common types of cases: (1) cases in which the plaintiff belongs to a subcommunity espousing different values than those prevailing generally; and (2) cases in which social mores are in a state of flux. In these cases, courts often construct by fiat a "substantial and respectable community" that shares little or nothing with the actual community in which the plaintiff's reputation was harmed. This Article critiques the process by which judges construct an idealized community characterized by consensus, cohesion, and conformity, and demonstrates that the invocation of this idealized community cloaks the imposition of social policy choices. The Article then proposes ways to strengthen both defamation law's instrumental role in redressing actual injuries to reputation and its symbolic role in defining and affirming the myth of community in America.

Number of Pages in PDF File: 50

Keywords: defamation, First Amendment, substantial and respectable, subcommunity, public policy, reputation, libel, slander

JEL Classification: K13, K30, K40

Accepted Paper Series