Reviving Slander

Abstract

Roman law treated differently speech restricted to small, closed communities and speech within or among large, permeable communities. Intracommunity speech was subject to unlimited tort consequences, while intercommunity speech was subject to central government regulation. As English speech law evolved, slander rules governing spoken speech became a convenient proxy for intracommunity speech regulation, while libel rules governing written speech became a convenient proxy for intercommunity speech. In American law, the conceptual collapse of slander and libel meant that constitutional limits designed to lift central government regulation of intercommunity speech perhaps inadvertently vitiated tort consequences for intracommunity speech. The Supreme Court's current "public figure" test for identifying the type of speech that is uniquely immune from central government regulation is growing obsolete as growing numbers of Americans participate in social media that arguably expels them from the private figure category within which tort recovery is easier. A more feasible test for distinguishing between constitutionally protected and constitutionally unprotected speech would focus on the community within which the complained-of speech was circulated. Reviving the historical concept of slander -- as a community-based remedy for injurious intracommunity speech -- would allow plaintiffs injured via modern electronic intracommunity speech such as text group chats and closed Facebook pages -- to seek compensation without constitutional constraint.

Keywords: defamation, First Amendment, Roman law, electronic speech