RECKLESS DISREGARD

Do our media-friendly defamation rules hurt our democracy?

- JEANNIE SUK GERSEN

In the early years of our country, public men who felt maligned could end up killing over it. The duel that resulted in Alexander Hamilton’s death was prompted by a letter, in the Albany Register, by someone claiming that Hamilton had called Aaron Burr “a dangerous man, and one who ought not to be trusted with the reins of the government,” and had expressed a “still more despicable opinion” (without further specifics). Instead of redressing an insult to honor through violence, Burr could have tried to sue under the law of defamation— the legal system’s attempt to channel retaliation into a court process. He was certainly familiar with it; as a lawyer, he had used it to go after critics. One probable reason he didn’t was that it was undignified for a gentleman to take a social equal to court.

In the decades that followed, putative defamers became more likely to pay for their words with money than with their lives. Only in the past sixty years, though, did the legal balance shift strongly in their favor: wrecking reputations has, under civil law, become much less risky. The media, for the most part, have been free to publish about public figures without great fear of legal repercussions. That protection derives from New York Times v. Sullivan, a 1964 Supreme Court decision that made it harder to win defamation suits against the media. The Court had argued that the press in a democracy must be able to criticize government officials, and the landmark decision is widely seen as indispensable to a free press.