The Impact of the Tort of Defamation on Public Discourse About Racism

Supreme Court Law Review, Vol. 44, No. 2(d), 2009

13 Pages Posted: 26 Apr 2010 Last revised: 27 Apr 2010

See all articles by Kate Sutherland

Kate Sutherland

York University - Osgoode Hall Law School

Date Written: 2009

Abstract

Where once ascriptions of race gave rise to defamation suits, now it is allegations of racism that are apt to prompt legal action. On the one hand, it is gratifying to see validated in tort law the notion that allegations of racism lower individuals in the estimation of ordinary members of the public. On the other, the content, structure, and practical dynamics of defamation law give rise to concerns about the potential of such suits to suppress public discourse about racism. Defamation is an easy claim to make and a difficult one to refute. This should be of concern to anyone who values freedom of expression, particularly so when the statements sought to be suppressed through a defamation suit involve allegations of racism leveled against powerful individuals and organizations. When a doctrinal tilt in favor of plaintiffs is combined with unequal race relations, defamation law becomes a very effective means by which to intimidate equality seekers into silence. If, as a society, we are committed to rooting out racism, we must first have the freedom to name it. At present, the tort of defamation operates to compromise that freedom. Reform is required to better balance the important values that defamation law protects against the value of freedom of expression so as to encourage rather than suppress public discussion of racism.

Keywords: Defamation, Libel, Tort Law, Freedom of Expression, Freedom of Speech, Racism, Equality

Suggested Citation

Sutherland, Kate, The Impact of the Tort of Defamation on Public Discourse About Racism (2009). Supreme Court Law Review, Vol. 44, No. 2(d), 2009, Available at SSRN: https://ssrn.com/abstract=1594293

Kate Sutherland (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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