How to Do Surgery on the Constitutional Law of Libel

Of late, the constitutional law of libel has become the focus of increasing dissatisfaction. This dissatisfaction has taken various forms. The argument below, however, is that the most crucial defect of constitutional libel law lies in the Court’s continuing attempts to draw and utilize distinctions among public figure and private figure libel plaintiffs. The Court should abandon these attempts. Instead, the Court should attend, broadly and fundamentally, to the constitutionally vital distinction between libelous speech that does or does not address some matter of public interest and concern. The argument below first emphasizes the constitutional logic underlying the Court’s initial imposition of First Amendment limitations on the state tort law of libel. The argument then critiques the Court’s initial embrace of a supposedly fundamental but actually distracting distinction between public and private figure libel plaintiffs. Interestingly, for a brief time, a divided Court returned to a focus on the underlying logic of putting First Amendment limits on the tort of libel, only to then re-distract itself with a renewed focus on questions of public and private figure status. Perhaps inevitably though, the Court’s emphasis on public versus private figure status has been qualified, in limited ways, by recourse to the genuinely basic and more valuable distinction between speech that does or does not address some matter of public interest and concern. The argument then catalogs some additional problems inherent in the Court’s public versus private figure libel plaintiff distinction. The argument then defends the essential priority of a focus on the public interest versus merely private interest nature of the subject matter of the libel defendant’s speech. A brief, but comprehensive, conclusion then follows.