William K. Jones, the Charles Evans Hughes Profess

William K. Jones, the Charles Evans Hughes Professor Emeritus of Law,  reviews the seminal U.S. Supreme Court decisions that restrict the First Amendment in order to protect persons against defamatory falsehoods, invasions of privacy, and related psychic harm. Covering cases ranging from a restaurant owner driven out of business over a veal chop to a University of Georgia football coach accused of sharing plays with an opponent before a game, Prof. Jones examines the many subtleties of the law, its interpretation, and its restrictions.  While accommodations struck by the courts are appropriate, Prof. Jones nevertheless argues that serious deficiencies exist in the complex legal edifice that has been erected.  He recommends a comprehensive new framework for dealing with the problem of defamatory falsehoods—a framework designed to afford greater protection for expressions on public issues while also providing more meaningful relief to the victims of harmful speech.   Insult to Injury, which also contains material covering the impact of the Internet and related electronic means of expression, is of vital interest to lawyers, law students, and journalists.

The interaction between the Constitution and the common law is pervasive. At common law a statement is defamatory if it exposes a person to hatred, contempt or ridicule, or causes him to be shunned by his fellows, or tends to injure him in his trade or occupation. In its landmark decision in New York Times Co. v. Sullivan, (3) the Supreme Court ruled that the common law did not afford sufficient protection for speech about public figures and public affairs. Additional safeguards were adopted in that case and in subsequent opinions. But these decisions did not start from scratch. Every measure of additional protection was grounded on common law antecedents, extending them where necessary to provide adequate "breathing room" for speech of public concern.

When, however, speech relates neither to a public figure nor a public issue, it gains no special protection under the First Amendment. But the common law is not indifferent to the need for free expression. To be actionable a defamatory statement must surmount a number of barriers:

1. It must have a core of factual content capable of being proved true or false. Nonactionable "opinions" have included statements that a firm published a newspaper "by paranoids for paranoids"; that an athlete's agent was a "sleaze-bag" who had "slimed his way from the bayou;" and that an author was "Guilty of Misleading the American Public."

2. The statement must identify its target with specificity: an individual or one or more of a small group. Defamation actions will not lie for derogatory comments about gun-owners in general, or about Moslems, or about any other ethnic, religious or occupational group (lawyers are favorite targets). The common law does not recognize a cause of action for "group libel."

3. The statement must be unprivileged. The common law recognizes a wide array of privileges.  Some are absolute (such as statements made in the course of a judicial proceeding); others are qualified (such as those made in job recommendations, credit reports and the like). As its name indicates, absolute privilege affords indefeasible protection. To invoke a qualified privilege, the speaker must show either good faith or due care, depending on the particular privilege. Interestingly, the "constitutional privilege" that is the cornerstone of First Amendment protection under New York Times v. Sullivan is a qualified privilege: the privilege is defeasible if the speaker acts in bad faith in attacking a public figure (e.g., use of deliberate fabrications), or proceeds negligently in impugning the reputation of a private person in the course of a discussion of a public issue.

4. To be actionable, a defamatory statement must be false. Truth is always a defense no matter how devastating the disclosure to the target's reputation. Furthermore, "substantial truth" will suffice. Errors are ignored if they do not exacerbate the "sting" of a defamatory comment. If a union treasurer is accused of embezzling $45,000, the defense of truth is unaffected if the sum happens to be $15,000 or $65,000.

In every instance both common law and constitutional aspects must be considered. In many cases the Constitution is unavailable (as in "purely private libels"); and in other cases the common law may afford greater protection for the speaker (an absolute privilege in lieu of the qualified constitutional privilege).

The plaintiff's theory is not critical. The interaction between Constitution and common law runs through all the cases in which speech is challenged because of its offensive and injurious character. One example is the clash between Jerry Falwell, the outspoken leader of the "Moral Majority," and Larry Flynt, publisher of Hustler magazine.

Hustler carried a fictitious advertisement entitled "Jerry Falwell talks about his first time." It was modeled on a well-known Campari ad and carried the legend "Ad parody - not to be taken seriously." In the spoof Jerry Falwell was depicted as having sex with his mother in an outhouse with his first drink of Campari. The ad concluded with Falwell saying, "I always get sloshed before I go out to the pulpit. You don't think I could lay down all that bullshit sober, do you?"

Falwell sued Hustler on a number of theories. His defamation action aborted when the jury found that the parody could not be understood as describing "actual facts about [Falwell] or actual events in which he participated." The parody was mere "opinion" not actionable under the law of defamation. But Falwell also invoked a claim of intentional infliction of emotional distress. In its 1988 opinion in Hustler Magazine v. Falwell, (4) the Supreme Court rejected this theory as applied to comments about public figures such as Jerry Falwell. Absent the utterance of facts known to be false or made with reckless disregard for the truth, public figures must endure criticism no matter how outrageous or extreme. The ruling has had a particularly devastating impact on female public figures, who can be portrayed in pornographic caricatures or in obviously false pictures combining the public figure's face with models engaged in pornographic acts or poses.

But private persons are not barred from suing for intentional infliction of emotional distress under circumstances paralleling the Hustler case and its pornographic counterparts. But even at common law, a challenge to speech based on emotional distress must meet demanding requirements. First, the speaker must act intentionally or recklessly to inflict harm on another. Second, the speech must be "extreme or outrageous," exceeding the most liberal boundaries of acceptable conduct. Third, the speech must be capable of inflicting "severe emotional distress" upon a reasonable person (unless the speaker acts with knowledge of a victim's peculiar vulnerability). Finally, the speech in fact must inflict severe distress on the complaining party.