Freedom of Speech Resources

EXPLORE THE HISTORY, LAW, AND THEORY OF FREE SPEECH

Libel & Defamation

Published 1765-1769
William Blackstone 1723-1780

William Blackstone: Commentaries on the Laws of England

Blackstone's Commentaries on the Laws of England was a hugely influential treatise on English law that methodically rendered that massive body of statutes and legal decisions called the "common law" into a coherent system of legal principles intelligible to the lay-person. The Commentaries was the paramount authority on the common-law in the eyes of the American Founders. Its articulation of the logic of the common law was one of the reasons that they chose to establish the American legal system on its basis. Blackstone is still cited today by lawyers and judges in their efforts to articulate the meaning of American laws and the Constitution. The common-law view of freedom of the press found in the Commentaries is more or less what that freedom was understood to mean when it was included in the American Bill of Rights. Blackstone understood the freedom of the press to mean little more than protection against "previous restraint" (now usually called "prior restraint"). In other words, the state could not prevent anyone from publishing anything, but could legitimately punish the publication of nearly anything it perceived dangerous.

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3 Johns. Cas. 337 (N.Y. 1804)
Alexander Hamilton, defense counsel

People v. Croswell (1804)

Despite their complaints over the Federalists' use of the Alien and Sedition Acts to prosecute the opposition, Republicans did not hesitate to prosecute Federalist opposition for libel at the state level once they won the presidency with the election of Thomas Jefferson in 1800. Croswell published a small paper called The Wasp, which aggressively criticized Thomas Jefferson and other Republican public officials. When he was a arrested and convicted on charges of libel and sedition by the State of New York, Croswell appealed to the Supreme Court of New York, where he was defended by Alexander Hamilton and James Kent. Though the judges were evenly split and the conviction stood, the case gave a high-profile occasional for Hamilton and Kent to make a case for permitting truth as a defense against libel charges.

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343 U.S. 250 (1952)
Vinson Court

Beauharnais v. Illinois (1952)

In Beauharnais, the Supreme Court upheld an Illinois law outlawing any publication or exhibition depicting "depravity, criminality, unchastity, or lack of virtue of a class of citizens of any race, color, creed or religion." Joseph Beauharnais was convicted under this law for distributing leaflets protesting the encroachment of blacks into white Chicago neighborhoods. In his majority opinion Frankfurter argued that Beauharnais's leaflets were libelous, and therefore were not protected by First and Fourteenth Amendments. Justice Black's dissent argues that the law in question was overbroad and permitted regulation far beyond the narrow criteria of criminal libel. In this case, Black argues, Beauharnais's speech, however objectionable, was "a genuine effort to petition [his] elected representatives" and therefore ought to have the protection of the First and Fourteenth Amendments.

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376 U.S. 254 (1964)
Warren Court

New York Times v. Sullivan (1964)

This landmark case established the "actual malice" standard used by the Court to distinguish defamation from protected speech under the First Amendment. It was also the case that put an end to southern states' practice of using defamation suits to prevent the press from reporting on their oppression of black citizens. Sullivan concerned an advertisement published in the New York Times seeking financial support for "The Committee to Defend Martin Luther King and the Struggle for Freedom in the South." Sullivan, the Montgomery Public Safety Officer, sued the New York Times for what he perceived as a negative portrayal of his performance (though he was not named in the article). On appeal, the Supreme Court ruled against Sullivan on the grounds that his counsel failed to prove that the New York Times published the statements in question with "actual malice" toward Sullivan and that it is insufficient to argue simply that the statement happened to be wrong and happened to harm Sullivan.

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472 US 749 (1985)
Burger Court

Dun & Bradstreet v. Greenmoss Builders (1985)

In this case, the Supreme Court qualified the "actual malice" test from New York Times v. Sullivan by a distinction between public and private speech. The Court ruled that in cases where the speech in question is communicated privately and serves purely economic aims, there is less First Amendment protection than in cases where the speech is open to the public and has a political or social function. Dun & Bradsteet was a credit reporting agency that, due to the carelessness of a teenage intern, falsely reported to some of its subscribers that Greenmoss Builders, Inc. had filed for bankruptcy. Greenmoss successfully sued for $350,000 despite the lack of "actual malice" in the report. The Supreme Court's decision was by a narrow margin (5-4), and included a powerful dissent that took issue with the majority opinion's attempt to distinguish economic and political or social speech.

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485 US 46 (1988)
Rehnquist Court

Hustler Magazine v. Falwell (1988)

In this famous case, the Supreme Court ruled that the First Amendment does not permit public figures to sue for damages for "emotional distress" when the speech causing the distress is obviously satirical and fictitious. Evangelist Jerry Falwell sued Hustler magazine in 1983 when it published a fake advertisement for a liqueur, in which Falwell was depicted recounting a sexual encounter with his own mother under the drink's influence. The Supreme Court rejected Falwell's suit in a unanimous decision.

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