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4.2.12
WC: 191694

Chapter 10: Speech that Conflicts with Reputational and Privacy Rights

Defamation: “He that filches from me my good name:”

Whenever a Holocaust denier or defamer of the Jews spews out his poison, I get calls and emails demanding that I sue them for defaming the Jewish people or committing a “blood libel.” But under our First Amendment only an individual can be defamed. There is no such thing as group libel. In other words you can say all you want about “the Jews,” “the Democratic Party,” “the Blacks,” “the Gays,” and “the women”—obnoxious as these generalizations might be. An anti-Semite is constitutionally free to spread the blood libel against the Jewish people or the Jewish religion, so long as he is careful not to accuse a specific individual of killing Christian children for their blood. This is not true in other countries that do have group libel laws and other rules prohibiting racist statements. Not so under our First Amendment.

In addition to the defamatory statement being directed against a specific individual, it must also cast him in a negative light. That used to be easier to define than it is today. For example, when a newspaper in the segregated Deep South made a typographical error and described a white man as a “colored gentleman,” instead of a “cultured gentleman,” that error was defamatory, since describing a white person as colored clearly could damage his career and hurt his position. Today, no court would consider it defamatory to mistakenly report on someone’s race. It’s a little more complicated when it comes to sexual preference. If a newspaper were to characterize a heterosexual politician as gay, that might well hurt his electoral chances, but courts would be reluctant today to rule that being called “gay” is an insult. The same is true of other former words of opprobrium that have lost or decreased their negative connotations over the years.

In addition to being damaging, a defamation must also be untrue. This wasn’t always the case, and Thomas Jefferson successfully fought to limit defamations to untruthful statements about an individual.54

If the individual defamed is a public figure, such as a politician, celebrity or anyone else who has sought the limelight, yet another hurdle must now be overcome. Since the Supreme Court’s 1964 decision in New York Times v. Sullivan, a defamation action can be brought by a public figure only if the false statement was made with “actual malice—that is knowledge that it was false or with reckless disregard of whether it was false or not.”

I was Justice Goldberg’s law clerk when the Supreme Court rendered that precedent-shattering decision. Goldberg told me that he was concerned that the daunting requirements of the case would make it open season on public figures and would lower the standards of journalistic ethics. He himself, as a public figure, had been defamed on several occasions and it had stung him. Nonetheless, he concurred in the decision and wrote the following stirring words about the freedom to criticize:

“The theory of our Constitution is that every citizen may speak his mind and every newspaper express its view on matters of public concern, and may not be barred from speaking or publishing because those in control of government think that what is said or

54 See Finding Jefferson

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