The Doubtful Validity of Victim-Specific Libel Laws

Abstract

Laws that single out for penalty defamation of certain individuals undermine the principle that government may not discriminate within a category of expression. The Supreme Court affirmed in R.A.V. v. City of St. Paul that this principle applies even to categories of speech that are otherwise unprotected under the First Amendment. In striking down an ordinance that prohibited fighting words addressed to certain topics, the R.A.V. Court also recognized that subject matter discrimination can sometimes amount to viewpoint discrimination. This article contends that victim-specific libel laws should trigger R.A.V.'s close scrutiny of content discrimination within proscribable categories, and that some such laws effect the tacit viewpoint discrimination that evoked the Court's particular skepticism in that case. Furthermore, this type of law does not presumptively meet any of the three exceptions that the R.A.V. opinion carved out from its general bar to selective limitations on proscribable speech.