Disinformation and the Defamation Renaissance: A Misleading Promise of “Truth”

48 Pages Posted: 31 Oct 2022

See all articles by Lili Levi

Lili Levi

University of Miami - School of Law

Date Written: September 18, 2022

Abstract

Today, defamation litigation is experiencing a renaissance, with progressives and conservatives, public officials and celebrities, corporations and high school students heading to the courthouse to use libel lawsuits as a social and political fix. Many of these suits reflect a powerful new rhetoric—reframing the goal of defamation law as fighting disinformation. Appeals to the need to combat falsity in public discourse have fueled efforts to reverse the Supreme Court’s press-protective constitutional limits on defamation law under the New York Times v. Sullivan framework. The anti-disinformation frame could tip the scales and generate a majority on the Court to dismantle almost 60 years of constitutionalized defamation law. The new anti-disinformation frame brings with it serious democratic costs without clear corresponding benefits. Defamation lawsuits cannot credibly stem the systemic tide of disinformation or predictably correct reputational harm, but they do threaten powerful chilling effects for the press, super-sized by our current socio-historical context. Especially as claims of disinformation drift away from political speech to economic and social matters, this as a distinct justification increasingly evaporates. Lest progressives too quickly rejoice over the apparent success of their disinformation claims against right-wing media, anti-disinformation defamation litigation presents an equal opportunity invitation—and conservative cases are already on track. The new disinformation frame for defamation suits offers an illusory distraction and further politicizes defamation. Instead, the Article suggests a shift of focus to the audience in order to advance the anti-disinformation project while returning defamation law to its traditional concern with individual reputation.

Keywords: defamation, First Amendment, disinformation, election fraud, New York Times v. Sullivan

Suggested Citation

Levi, Lili, Disinformation and the Defamation Renaissance: A Misleading Promise of “Truth” (September 18, 2022). 57 U. Rich. L. Rev. ___ (2023), University of Miami Legal Studies Research Paper No. 4254372, Available at SSRN: https://ssrn.com/abstract=4254372

Lili Levi (Contact Author)

University of Miami - School of Law ( email )

P.O. Box 248087
Coral Gables, FL 33146
United States

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