The Case Against Strict Defamation Laws

50 Pages Posted: 17 Jan 2019 Last revised: 20 Jan 2019

See all articles by Yonathan A. Arbel

Yonathan A. Arbel

University of Alabama - School of Law

Murat C. Mungan

George Mason University - Antonin Scalia Law School, Faculty

Date Written: January 7, 2019

Abstract

It is axiomatic that defamation law protects reputation. This proposition—common sensical, pervasive, and influential—is wrong. But it is wrong in a very instructive way, and a careful examination of its mistaken assumptions carries deep lessons for First Amendment jurisprudence, defamation law, and the regulation of falsehoods across legal fields.

The key fallacy is the failure to recognize that laws not only affect how individuals behave, but also how they think. Whenever an allegation is made, individuals decide whether and how much to trust it based on myriad factors. One such factor is the strictness of defamation laws. To the extent strict defamation laws deter purveyors of falsehoods, they also make statements appear more trustworthy, as individuals will reason that few would brave a falsity in the face of strong financial sanctions. Thus, strict defamation laws have the unintended consequence of making individuals more susceptible to believe those statements that are actually false.

This heretofore unrecognized complexity of defamation law has the potential of tipping the scales in First Amendment jurisprudence towards greater protection of free speech and free press. Most urgently, these findings give pause to the presidential calls to fight ‘fake news’ by expanding libel laws, by showing that such laws may well backfire and exaggerate the effect of fake news.

Keywords: defamation, libel, first amendment, rational audience, free speech, free press, torts

JEL Classification: D82, D00, K13, K39

Suggested Citation

Arbel, Yonathan A. and Mungan, Murat C., The Case Against Strict Defamation Laws (January 7, 2019). U of Alabama Legal Studies Research Paper No. 3311527. Available at SSRN: https://ssrn.com/abstract=3311527

Yonathan A. Arbel (Contact Author)

University of Alabama - School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

Murat C. Mungan

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
45
Abstract Views
288
PlumX Metrics