A Status Theory of Defamation Law

Abstract

Defamation law occupies a privileged position in our constitutional order. Despite grave First Amendment concerns, courts around the country routinely muzzle speech to protect good-name interests. Yet, to a growing movement of reformers, this protection is still too weak. With calls reverberating across the political spectrum—emanating from the President, the Supreme Court, scholars, and pundits—there is a growing pressure to reshape defamation law. In all of this, one crucial question remains unanswered: what is the purpose of defamation law?

The most sustained attempts to answer this basic question vacillate between three purposes: protection of honor, dignity, or property. Helpful as they are, these attempts ultimately fail to explain the particular doctrinal architecture of defamation law or to offer a clear vision as to its future design. They leave us bereft of a general understanding in a time of great need. What these accounts lack is what sociologists such as Weber and Veblen have long understood. We care about our good name so much not because it represents our property or even dignity, but because it captures a fundamental human need: social status.

This Article demonstrates that a status theory of defamation law offers a more appealing framework—descriptively, functionally, and normatively—than our current menu of explanatory options. Descriptively, status theory is shown to untangle intricate doctrinal knots, rendering them sensible, indeed, necessary. Functionally, status theory reveals the downstream effects of decisions in particular cases: how they promote certain status norms while unraveling others. Normatively, status theory decloaks the judicial role in defamation cases, exposes it to critical scrutiny, and offers concrete guidance in hard cases.

Status theory has immediate practical importance. This is demonstrated in the context of bigoted defamation cases where the prevailing intellectual fog allowed judges to render decisions that either embraced bigoted status hierarchies or whitewashed them. Status theory exposes the faulty logic underlying these decisions. It offers modern judges a sound footing to reach the right decisions in bigoted defamation cases. And most critically, status theory furnishes judges and legislators with a tool to dismantle bigoted racial and ethnic hierarchies.

Keywords: defamation, social status, law and society, libel, slander, law reform, law and economics