71 Pages Posted: 27 Jan 2012
Date Written: January 26, 2012
This Article offers a novel justification for why those who are prominent public officials or public figures should be subject to a higher threshold to claim damages for intentional infliction of emotional distress due to offensive speech. Since 1988, in Hustler v. Falwell, the Supreme Court has justified such a higher threshold by arguing that offensive speech regarding public officials and public figures would help the audience in its search for truth.
I will show, however, that the Court’s reliance on the search for truth is unpersuasive on its own terms as well as logically incoherent. I will argue that the Court should adopt a better justification, one that seeks to cultivate an ethos of partial hostility on the part of the people against public officials and public figures. To offer this justification is not to make an exotic bid for anarchy nor to take up the fashionable banner of the Tea Party. It is to return to the Constitution’s most basic logic, which is rooted not chiefly in the search for truth, but in popular sovereignty, the idea that the people, not their leaders, should have political authority. To that end, the ethos of partial hostility, I will argue, is a natural outcome of popular sovereignty and works to preempt conditions in which leaders can command excessive deference.
Keywords: antiauthoritarianism, emotional distress, libel, defamation, public figures, popular sovereignty, profanity
Suggested Citation: Suggested Citation
Kang, John M., In Praise of Hostility: Antiauthoritarianism as Free Speech Principle (January 26, 2012). Harvard Journal of Law and Public Policy, Vol. 35, No. 1, p. 351, 2012. Available at SSRN: https://ssrn.com/abstract=1992592