Free Speech and Cheap Talk
11 Journal of Legal Analysis 46 (2019)
58 Pages Posted: 7 Feb 2019 Last revised: 23 Feb 2020
Date Written: June 1, 2019
We present a new framework for analyzing defamation liability that serves both to clarify and complicate understandings of the law’s consequences for speakers, victims, and the marketplace of ideas. In addition to the familiar deterrence and chilling effects, we show how defamation liability can generate a “warming effect,” making statements more credible and potentially raising both the quality and quantity of speech. We also explain how a more plaintiff-friendly liability regime may exacerbate harms to defamation victims. We end by considering the possibility of “self-tailored” defamation law, with victims or speakers selecting the defamation liability regime that applies to them.
Keywords: defamation, libel, slander, torts, tort law, signaling, free speech, First Amendment
JEL Classification: K13, K15
Suggested Citation: Suggested Citation