Free Speech and Cheap Talk

58 Pages Posted: 7 Feb 2019 Last revised: 23 Feb 2020

See all articles by Daniel J. Hemel

Daniel J. Hemel

New York University School of Law

Ariel Porat

Tel Aviv University; University of Chicago - Law School

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

Hemel, Daniel J. and Porat, Ariel, Free Speech and Cheap Talk (June 1, 2019). 11 Journal of Legal Analysis 46 (2019), University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 872, U of Chicago, Public Law Working Paper No. 700, Available at SSRN: or

Daniel J. Hemel (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States


Ariel Porat

Tel Aviv University ( email )

Ramat Aviv
Tel Aviv, 69978
972-3-6408283 (Phone)
972-3-6407260 (Fax)


University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States


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