Defamation is the body of law governing legal redress for false statements that injure a person’s reputation. In the episodes excerpted here, the topic arises less as a doctrine to be expounded than as a remedy whose practical reach has shrunk — in the courts, in the market for reputation, and on the internet.
The decline of the defamation remedy
Richard Epstein, in a discussion of sexual harassment with Bob Zadek, described the law of defamation as having once been more available: there used to be a day when a person who made a false charge — accusing someone of tampering with an election or of committing adultery — could be held responsible even without knowing the charge was false, provided it was made with sufficient particularity. That remedy, Epstein said, is now “about as useless as one could imagine” where an established public figure is concerned, because the rules for recovery have become very narrow. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
Epstein identified two elements. The first is the doctrine known in Latin as mitior sensus, or the doctrine of innocent construction: if a charge can be read, however fancifully, as non-defamatory, the innocent meaning is always given. Lawyers, he said, read such charges in a way often diametrically opposed to how ordinary citizens read them, making cases extremely difficult to win. The second is the New York Times rule, which Epstein traced to a defamation case involving advertisements associated with the civil rights movement protesting what went on in Alabama in the early 1960s. Under that rule, even false statements must be made with actual malice — knowledge of falsity or reckless disregard of the truth — before they are actionable. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
Epstein offered the makers of Alar as an illustration: they were falsely accused in a well-publicized story of creating a dangerous product, the product was put out of business long before the defamation suit was brought, and the defamation suits failed. He added that if one looks at the literature on defamation, there is no important defamation case since about 1990 or 1991, precisely because such actions have been beaten back, whereas before that time a huge number of defamation cases were brought, mainly in federal court, and were causes célèbres. Once the ability to hold people accountable for the charges they make is removed, Epstein argued, the mix of charges changes: more wrong charges and more reckless charges, given the difficulties of proof associated with this line of lawsuit. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
Reputation, market retribution and proportionality
Bob Zadek framed the surrounding problem through the Harvey Weinstein case. When Weinstein’s behavior came to public attention, Zadek said, Weinstein lost everything — his company failed, the Weinstein Company failed, Miramax failed or went into financial difficulty — and none of that was the result of litigation or governmental action. It failed in the marketplace. Zadek asked whether the marketplace was more effective than litigation or government would have been at punishing the wrongdoer, albeit without the due process of a courtroom. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
Epstein agreed that reputation is the single most valuable asset a corporation has for doing business, and that once the Weinstein allegations were clear, the reaction was relentless. But he stressed that reputation can be fickle and can be used against people for whom the charges are much less clear. He contrasted Weinstein with Garrison Keillor, whose show was also off the air because Minnesota Public Radio decided it would no longer broadcast new editions or any of the old editions, saying it was clear as a first approximation that what Weinstein did bore no relation to what was said Keillor did. Epstein’s concern was proportionality: any sense of proportionality tying punishment to the severity of the offense tends to get lost in reputational situations, and someone falsely charged would want some mode of exonerating himself or at least explaining that the case involved a relatively minor offense rather than successive and ugly encounters. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
Epstein drew on his earlier writing about products liability to make the point that litigation over known bad products was relatively slow and weak, while reputational losses were what really killed companies — but in those cases the public nature of the events was so clear there could be no dispute. He gave the example of Bon Vivant, which made vichyssoise; one day it put out a load contaminated with botulism that killed a dozen people or so, and the company was out of business within a week, because nobody could doubt it was its vichyssoise that had done this. By contrast, he knew of a woman who had been a caterer and lost her business because somebody died of food poisoning at one of the events she had put together; only after she had gone out of business was it discovered that the host of the party had taken his day-old salad and put it out with the other food, and that nothing she had done had anything to do with the death. That, Epstein said, is the kind of reputation you cannot get back. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
Zadek observed that controlling the dramatic effect of loss of reputation is impossible because it is a free speech function. Epstein’s response was that what one would really like is a way to slow down public condemnation until the person charged has a chance, even in the public arena, to defend himself or herself, because even later exoneration leaves damage that is extremely difficult to undo. He added that it is not at all clear how anyone could put the boat together again, and that it would take a change in public sensibilities. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
Section 230 and the platform/publisher line
A later episode, with John Samples, approached defamation from the side of the internet intermediaries that carry other people’s speech. Samples recounted two cases predating the passage of Section 230 in 1996, which was written by Ron Wyden of Oregon and Chris Cox, a former representative from California. CompuServe, one of the first computer companies, hosted bulletin boards; when somebody came onto a discussion group and defamed another person — libeled them, a tort for which one can get legal relief and money from the person — the defamed person sued CompuServe as well as the poster. CompuServe was held not liable, Samples said, because it simply said people could come and post their thoughts and it would not edit them. Why Government Regulation of Tech Censorship is Undesirable (2020)
Prodigy, by contrast, had discussion forums including a popular one on money matters, and someone got on there and defamed an entire company about finances. Prodigy had filtered the discussion board for decency and enforced standards to some degree, and the court said that doing so made Prodigy partially liable for what appeared on the platform, so it too could be sued for defamation. Samples described the result as contrary court cases: one said the new companies were legally responsible for everything that appeared on the site, the other said they were not. Section 230, he said, is a fairly straightforward law of 26 words that takes the issue away from the courts and says these companies and the social media that come out of them are not liable for what people say on the site. At the same time, Congress wanted to empower the companies to do content moderation and remove things, including speech protected by the First Amendment, without liability for doing so. Why Government Regulation of Tech Censorship is Undesirable (2020)
Zadek drew out the distinction between a publisher, which exercises editorial control over what appears and therefore owns the content, and a platform, which provides an open forum. If content is subject to an attack for defamation, he said, that is a death knell — if you are liable for defamation lawsuits, the business model fails. A common carrier such as a telephone line could not control what people said and therefore could not be liable for defamation if somebody on a call said something that violated the law. Zadek said the question for the rest of the show would be whether Facebook and other social media are closer to publisher or to platform. Why Government Regulation of Tech Censorship is Undesirable (2020)
Anonymity and defamation suits
In a third episode, Jeff Kosseff described how defamation suits have become the most common route to unmasking anonymous internet speakers. Over the past two decades, he said, someone posts something online anonymously and then gets sued — most often by a company criticized by an anonymous person on an online bulletin board, with the company usually thinking it is an employee who had the gall to say something bad about executives who can do no wrong. The company files what is usually a pretty weak lawsuit for defamation or breach of a confidentiality agreement. Thanks to groups like Public Citizen and the Electronic Frontier Foundation, Kosseff said, courts have developed rigorous standards: subpoenas are not barred outright, but the plaintiff must have a very strong case and must actually show some evidence of defamation rather than filing suit to unmask, fire and perhaps ruin the life of a critical employee. The balance varies by jurisdiction but is overall pretty good. The United States of Anonymous (2022)
Kosseff identified two areas of concern. In copyright, where courts have set a lower standard because they see less First Amendment value in the expression, companies owning the copyrights to pornography have filed suits against anonymous file sharers to obtain identities and extract very large settlements out of fear. In the criminal context, he said people should be unmasked where there is strong evidence they are committing crimes, but many subpoenas come as grand jury subpoenas with often no attempt to test the First Amendment strength of the request, and the few opinions on grand jury subpoenas apply a pretty low standard. He added that any attempt to impose something like China’s requirement that people register under their real names to post on social media would never pass constitutional muster in the United States. The United States of Anonymous (2022)
Across episodes: no development
The excerpts show no development across episodes: defamation is treated as a narrowed public-figure remedy in the 2018 Epstein conversation, as the backdrop to Section 230’s platform protections in the 2020 Samples conversation, and as the usual vehicle for unmasking anonymous speakers in the 2022 Kosseff conversation.
What the sources do not cover
The excerpts do not state the elements of a defamation claim beyond the innocent-construction doctrine and the actual-malice rule, nor do they name the New York Times case or say which amendment the New York Times rule turned on. They do not give the text of Section 230 or the name of any bill, and they do not report the outcome of any case beyond the CompuServe and Prodigy rulings as Samples describes them. The Epstein excerpt breaks off before the discussion of Title VII enforcement and the Office of Civil Rights resumes, and the Samples excerpt ends mid-exchange on advertising granularity.