American Constitutionalism in Historical Perspective (packet)

Unprotected Speech: Libel and Privacy (pp. 1091-1109)

1. 
   Libel is written, slander is oral.
   
2. 
   Group libel is problematic: group interests not given much wt in US. Skeptical of group libel b/c any serious claim that controverts dominant American values can be called libel. Groups can organize to rebut these stereotypes in their own voice. (Jefferson).
   
   1. 
      Beauharnais: (1952) 5/4 decision to allow for protection against group libel which are insults to group identity. Remedy is compensatory damages. Obscenity is also a form of group libel. No longer good law, dissents below are the law. Laws would have been used against civil rts demonstrators b/c upset race relations. Serious anti-censorship concern.
      
      1. 
         Can rebut group libel thru political action. State can get involved in prohibiting discrimination in action not speech. Brandeis: groups themselves should protest
         
      2. 
         Greater likelihood of partisan abuse in group libel than individual libel: state is imposing views of stereotypes while individual libel deals w/ false facts. Meiklejohn: group libel is intrinsically political. Group libel s/n be allowed based on utilitarian view: does more harm than good to allow these actions.
         
      3. 
         Group libel can be rebutted more easily than individual libel. More difficult for individual to preserve reputation, groups can do it thru political action
         
      4. 
         Is group libel law merely symbolic? Have countries using group libel laws had less racism
         
3. 
   Libel defamation: the right not to have false facts said about you. Interests of personal dignity conflicts with free speech. Subject to high constitutional scrutiny to ensure the proper balance maintained.
   
   1. 
      Prior law
      
      1. 
         Elements of defamation: (in all states prior NYT v. Sullivan)
         

1. 
   Publication to a 3rd party
   
2. 
   False info (strict liability)
   
3. 
   Tendency to disparage in the esteem of the relevant reference grp (those we respect) 2 ways:
   
   1. 
      on the face of the libel; OR
      
   2. 
      Inferentially (innuendo/extrinsic facts)
      
4. 
   About an individual not group:
   
   1. 
      It could say your name on its face OR
      
   2. 
      It could be inferential (colloquium, show by extrinsic facts that your reference group would believe this to be about you.)
      
5. 
   Causation (a tort)
   
1.