Bench Memos

The Supreme Court’s Degradation of Political Discourse?

The cover essay in the new issue of the Weekly Standard is University of Colorado law professor Robert F. Nagel’s very interesting piece titled “The Incivility Epidemic:  How the Supreme Court’s defamation decisions coarsened our public life.”  Nagel argues that the line of modern defamation cases beginning with the Supreme Court’s 1964 decision in New York Times v. Sullivan rests on a “clear but false dichotomy” between the “individual’s personal interest in reputation” and the “public’s interest in a robust system of free expression”:

What the Court missed in its eagerness to limit protections for reputation is the fact that those protections serve both private interests and free speech interests.

Consider, for example, the incentives that traditional protections against defamation created for active participation in public life. Because those protections were not diminished when a person held governmental office or became active in public debate, people who sought that kind of prominence paid no special reputational price. In its defamation decisions, the Court saw that traditional defamation law discouraged certain kinds of criticisms of people in public roles, but it did not see how this very fact encouraged active engagement in political affairs.

Further, whereas traditional defamation law “encouraged the kind of careful research and fact-gathering that could provide a defense to a defamation claim,” the Sullivan scheme provides very different incentives:

That scheme protects defamatory statements unless the speaker acted with “knowing or reckless disregard for the truth.” In many situations this means, perversely, that the more the speaker knows, the more he risks liability. So the Sullivan standard contains its own disincentives to speech. It can discourage the impulse to investigate further and thus to write more fully and more accurately.

There’s much more as well.  As his subtitle indicates, Nagel’s bottom line is that the Court’s invention of modern defamation law has sacrificed “quality, deliberation, and responsibility” in favor of “volume, speed, and audacity” and thereby degraded American political discourse.

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