66 Pages Posted: 19 May 2020 Last revised: 22 May 2020
Date Written: May 21, 2020
This Article makes a tort-based argument for reassessing modern defamation law. It opens by considering the role that defendant agency plays in the search for wrongfulness throughout the intentional torts, negligence, and strict liability. While a defendant’s control over his behavior is a crucial precondition for intentional tort or negligence liability, the piece suggests that it is the knowing and purposeful forfeiture of control over risk-insensitive instrumentalities that justifies the assignment of liability on a strict basis for select undertakings. Building on this insight, the piece suggests that the original media defamation defendants, job printers, were subject to strict liability because they duplicated for mass consumption, by remote readers, words whose capacity to harm they could not control. However, as the media evolved throughout the nineteenth and early twentieth centuries, publishers exercised increasingly greater control over the words they distributed and the audiences who would read them. Consequently, when the Supreme Court decided in 1964 to treat tort law as an instrument of speech policy, publisher control made it convenient and theoretically attractive to incentivize bold coverage of government and society by shifting away from strict liability and requiring plaintiffs to prove some media fault. Ironically, almost immediately after the Court shifted the basis for holding media defendants liable for defamation, publisher control over financial decisions, distribution technology, and content generation began to recede. Most notably, the modern media increasingly uses algorithms to produce news stories that are posted directly to the Internet with no human oversight. In other words, the theoretical justification for the Court’s modern fault requirement no longer exists. Moreover, the instrumental self-governance benefits of the modern fault requirement that the Court envisioned have not come to fruition. In fact, absent the quasi-warranty function performed by a strict rule that assigned liability for even inadvertent errors, and the introduction of a regime that excuses errors not arising from intent or negligence, consumers no longer equate “news” with “truth.” This disconnect has arguably contributed to public despair about the possibility of self-educating and self-governing by consuming news. The piece concludes by asking whether, for both theoretical and instrumental reasons, it is worth reconsidering a default rule of strict liability for the defamation tort.
Keywords: defamation, tort theory, media law, constitutional law, legal history, media history, strict liability, legal theory, bot journalism, First Amendment
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