In the past few years, a number of prominent voices—including then-candidate Donald Trump, Justice Clarence Thomas, Justice Neil Gorsuch, federal appeals court judge Lawrence Silberman, top Democratic election lawyer Marc Elias, and others—have called for the Supreme Court to reconsider its constitutionalization of defamation law that began with New York Times v. Sullivan. At first these voices seemed quixotic. But there is a growing debate among legal analysts about whether the constitutional parameters of defamation should be altered to strike a better balance between society’s interests in protecting individual reputation, safeguarding freedom of expression, and anchoring our public discourse in truth. Christina Tilley’s new article, (Re)Categorizing Defamation, enters this debate firmly on the side of tilting the playing field back toward plaintiffs, in the expectation that doing so will also help restore media credibility and provide United States citizens with the factual information we need to engage in democratic self-governance.
Although she expresses her prescription somewhat tentatively as merely a call for “reconsideration” of existing law, Tilley urges that defamation law should abandon fault-based liability in favor of a default regime of strict liability. Her rationales for this revolutionary call to return to the defamation law regime that existed prior to 1964 hinge crucially on her accounts of the role of agency in tort law, and the diminished level of “control” mainstream media have (or choose to exert) over their news product today. As she writes, “As publishers have ceded control over content production to in-house bot journalists and independent, amateur reporters, and have ceded control over content publication to platform algorithms, they no longer exercise the kind of control that justifies the use of a fault-based liability standard.” (P. 516.)
Whether one is persuaded that her solution is the correct one depends on whether one accepts her account of tort theory and doctrinal evolution and her evaluation of the weight that should be given to a limited set of mainstream media practices. It depends, too, on whether there are other considerations, such as the inevitability of journalistic error and the threats posed by defamation suits against non-media defendants, that should be brought to bear. But even if one does not accept that her solution is the best answer to the problem, her provocative discussion is well worth reading. I learned things about defamation law from Professor Tilley that I didn’t know despite studying it for 28 years.
The first contribution Tilley makes is to situate her analysis squarely within tort law. As she asserts, ever since the Supreme Court began constitutionalizing the tort of defamation, which encompasses the twin torts of libel and slander, in 1964, many scholars have preferred to examine defamation law through a First Amendment lens rather than a torts lens, and the Supreme Court’s continued intervention from 1964 until roughly the early 1990s stymied common-law developments. My own first “tenure article” in the mid-1990s, which was greatly influenced by the work of scholars Robert Post and David Anderson, also dealt with the relative neglect of tort law in defamation scholarship. I thus find it very encouraging to see a new scholar join us on this insufficiently trodden path—or at least insufficiently trodden in recent years.
Tilley undertakes to explain the anomalous status of the tort of defamation as a strict liability tort until 1964. This, in itself, is a noteworthy undertaking. In their seminal treatise on tort law, scholars Paige Keeton and William Prosser wrote: “Libel and slander have always been anomalies in the law of torts.” Professor Tilley adds to the standard explanations primarily by examining the history and evolving nature of the news publishing industry and drawing a parallel to the general evolution of tort law.
According to standard but contested accounts of the history of tort law, courts moved away from strict liability in the mid-nineteenth century, and fault-based liability became the “default basis for liability in a culture that was changing to value action and innovation rather than passivity and obedience.” (P. 444.) Yet courts continued to apply strict liability in libel and slander cases, pushing the tort of defamation farther outside the mainstream and leaving it alongside strict liability for ultrahazardous (or abnormally dangerous) activities and the keeping of wild animals.
Why did defamation law persist as a strict-liability tort even after tort law shifted toward fault-based liability? To answer this question and justify the approach, Tilley develops an extended analogy between news publication and engaging in abnormally dangerous activities. She centers the rationale for strict liability around the “wrongfulness . . . aris[ing] from a conscious, self-interested forfeiture of human agency.” (P. 446.) The strict liability torts “all involve a choice by the defendant to recruit for his own purposes an instrumentality, substance, or process that is volatile and not responsive to human control.” (P. 446.) The instrumentality, in defamation cases, is words, which are an “ultrahazard” by virtue of the fact that they may escape from the bounded meaning intended by their author and thus do injury when received and interpreted by a reader or listener.
Tilley argues that the degree of agency—that is, control over the content and dissemination of information—the news industry exercises has varied over its history. More specifically, she writes that “the degree of human agency operating to produce words for mass dissemination was at its lowest point in the early years of the Republic, reached a zenith fifty years ago, and has been in steady decline ever since.” (P. 439.) She contends that as the degree of control varies, so should the standards of tort liability imposed. Negligence may be an appropriate regime for defendants who exercise a high degree of control over a harm-causing instrumentality and attempt to restrict its “mischief,” but strict liability is appropriate where defendants have chosen to forego that control.
Her historical analysis of the news industry convincingly demonstrates that the Supreme Court decided New York Times v. Sullivan at an anomalous time. The mainstream press then constituted a “highly centralized, elite, and regular group of institutions following a conventional business model to deliver information to the public.” According to Tilley, the high degree of control over news content exercised by what she terms the “professional press” at the time the Supreme Court decided New York Times v. Sullivan in 1964 may have justified the move toward a fault-based regime. The business model of the news industry enabled plaintiffs to identify “wrongful” behavior by the journalist, editor, and publisher according to professional standards. She shows how the common law had already adopted doctrines to ameliorate the harshness of strict liability to protect defendants who were furthering the goal of citizen education about public matters.
Presumably the courts might have continued to adapt the law to changing circumstances, as they have in other common law countries, had the Supreme Court not stymied tort law’s evolution when it constitutionally converted defamation from a strict liability tort to one in which a case may “sit within strict, intentional, or negligent tort, contingent on a court’s assessment of fact-intensive litigate [and speech] characteristics in any given case.” (P. 488.) Tilley laments the obstacles Sullivan and its progeny imposed on defamation reform in light of dramatic changes in the news industry since 1964, particularly in its exercise of “agency.” As she writes, “The ascent of the electronic speech distribution platforms, the disaggregation of the content production function from the content publication function, and the increasing use of artificial intelligence to both produce and individualize the delivery of content have all diluted the editorial control that was the unspoken linchpin for the fault regime introduced decades ago.” (P. 507, emphasis added.)
Professor Tilley contends that the law must adapt to these changes in the news industry lest defamation law become even more toothless in protecting reputation. Without defamation law reform, plaintiffs will increasingly find it difficult “to locate and prove human fault in the circulation of defamatory information.” (P. 507.) The result will be to “increasingly immunize from liability publishers of untrue and harmful information.” (Id.) She argues that the current structure of defamation law may have already undermined public trust in the mainstream media as purveyors of truthful information, and predicts this undermining of public confidence will accelerate under the influence of the developments she describes unless defamation law undergoes a recalibration.
The recalibration she recommends is a return to strict liability. According to her analysis, the reimposition of strict liability (in all cases?) would better safeguard individual dignity and would set “an expectation of careful speech even in an electronic environment.” (P. 508.) Moreover, it would reduce the “increasingly arbitrary” and complex constitutional categories into which the Supreme Court has sliced defamation doctrine: public official, public figure, private figure, media defendant, non-media defendant, matter of public concern, and so on. The result of “subjecting all speakers to the same liability scheme” would be “greater predictability” for both plaintiffs and defendants, a reduction of litigation costs, and, perhaps, a reduction in jury awards. (Id.) Moreover, it just might enhance our democracy by refocusing the tort on the falsity of the speech rather than the defendant’s intent. Free expression values would still receive protection. Tort law could adapt to protect the media from catastrophic liability when engaged in efforts to perform its watchdog role and provide us with the information necessary for democratic self-governance.
(Re)Categorizing Defamation makes an original contribution to the scholarly debate over whether defamation law currently strikes the wrong balance between protecting individual reputation, safeguarding free expression, and anchoring our public discourse in truth. Even if other scholars may dispute that a return to strict liability is the solution rather than, say, a more selective abrogation or modification of constitutional doctrines and/or a doctrine-by-doctrine rebalancing through tort law, Professor Tilley’s work must be reckoned with.
For example, her work might spur further engagement with the history of defamation law’s status as an outlier in the development of tort law. Arguably, this status stems as much from the tort’s origins in the ecclesiastical courts and subsequent developments within seigneurial courts and the Court of Star Chamber as it does from its evolution in U.S. common law.
Second, her extended analogy between words and ultrahazardous activities might spur further debate as well. While words may, as she suggests, have unpredictable consequences when unleashed on the world, query whether those consequences manifest the same level of dangerousness to the community as explosives or other ultrahazardous activities. The justification for strict liability has often been explained in terms of non-reciprocal risk. The defendant, by choosing to appropriate to her use something that is especially dangerous and uncontrollable, poses a risk to other community members disproportionate to the risks they impose upon her through “ordinary” activities such as driving a car or playing a sport. Given that we all wield words about others in our daily lives, I find implausible the analogy of words to instrumentalities that are abnormally dangerous or inherently unsafe. Furthermore, the equation of physical harm and reputational harm in her extended analogy is one that requires further justification. The analogy trucks on the idea of words as a threat to community “safety,” a construct I fear would justify far more censorship than we have at present. But, of course, this argument is precisely the kind that provocative and original scholarship is meant to engender.
A third fruitful debate that this article might inspire concerns the changing practices of the news business, and particularly the reliance on algorithms to write news stories. She contends that the forfeiture of agency by the news media justifies a return to strict liability, presumably across the board. Before joining her in this conclusion, scholars should really engage with this topic to discover exactly what percentage of stories are written by algorithm. Even if strict liability would be appropriate for algorithm-written stories, why is it justified as a broad prescription for defamation law? What about news stories written by human actors and vetted by editors before publication? Surely some news outlets engage in traditional journalistic processes and do in fact choose to exercise a high degree of agency before publication. According to her logic, strict liability might not be justified in these cases, but altering her liability regime to account for these cases would produce a defamation law regime every bit as complicated as the one we have now.
Fourth, and most significantly, Tilley’s analysis points toward areas that she or others might engage to round out the picture she draws. Her article largely ignores defamation cases involving non-media defendants, though she suggests that strict liability will apply equally to them. I speculate that she would not view a defendant posting on social media as exercising a high degree of agency in the way she is using the term. Although the user of social media certainly has a high degree of control over her words and whether to publish them or not, she does not ordinarily investigate their truth using professional standards, vet her words through an editor, nor control the breadth of their dissemination once posted on social media. Is strict liability the appropriate regime by which to evaluate this speech, no matter who the user criticizes or what topic she addresses? What effect might a strict liability regime, with the current potential for multi-billion-dollar lawsuits such as those in the Smartmatic and Dominion Voting Systems cases, have on those of us non-media actors who use social media to participate in public discourse? This topic is worth exploring, and I am eager to see what Professor Tilley does if she chooses to undertake it.