Are Libel Laws Constraints on Free Speech?

Pam asks this question here, in response to a story about a restaurant owner who is suing a food critic for libel over his/her alleged mischaracterization of a piece of meat as a strip steak.

Now this seems to me a pretty ridiculous case, and I certainly don't expect the restaurant owner to win. The bad review that the critic gave his restaurant may have financial consequences, but the basis of the suit is an alleged misstatement of a minor fact, which no reasonable person could believe itself resulted in losses in addition to or independent of those that resulted from the bad review.

Despite the abuse of the libel statutes by plaintiffs like the restaurant owner, I don't think that current libel (or slander) laws are a serious concern for those of us interested in protecting free speech (though if the restaurant owner wins his suit, I may have to reconsider to some extent).

In my three previous posts on free speech I emphasize that we ought to care about free speech for largely instrumental reasons, though I don't deny that there is an intrinsic value to our having the freedom. I do, however, deny that the intrinsic value of our having the freedom means that there's nothing wrong with using its legal protections in certain ways, in particular ways that undermine the instrumental values that free speech is supposed to promote, such as helping us to get at the truth. Therefore, I've been critical of those, including many whose political aims I share (the immigrants' rights protesters at Columbia are the example that I have used), who engage in tactics that stifle debate on important issues rather than promoting it. This is not a legal issue, but it does, I think, highlight the fact that we need to have non-legal limits, that is, social norms, regarding the appropriate exercise of free speech rights. Let me be clear that I am not endorsing any norms that would limit the range of opinions that it is appropriate to express; this is how conservatives tend to think that social norms should regulate free speech, and I abhor such views. For me it's not about what one says, but about whether in saying whatever it is that one wants to say one respects the fact that free speech is valuable when and mainly because it facilitates the exchange of ideas, and not just the expression of them. The exchange of ideas is valuable, in a way that the mere expression of them is very often not, because when it occurs in an atmosphere of open-mindedness and mutual respect it can lead us closer to the truth (of course it doesn't always do so, but it's far superior to the alternatives). The extra-legal conception of free speech that I argue for, then, is one that respects the fact that free speech serves certain social aims that we all ought to share. Free speech does us little good, as a society, when everyone considers it to be nothing more than a contest to see who can scream the loudest and silence all opposing voices.

Now, what does all of this mean for laws against libel and slander. Well, if a significant part of the value of free speech is that it facilitates the exchange of ideas, and the exchange of ideas is valuable because it helps us get at the truth, then we have reason to reject the view that all speech, including deliberate lies aimed at harming people, is equally valuable and equally deserving of legal protections (this argument was much too quick, but hopefully it's clear enough what I'm getting at). So allowing civil judgments to be levied against those who deliberately libel or slander someone seems justified, since far from productively contributing to the exchange of ideas, such people willfully inject falsehoods into the public sphere.

But of course the malicious intent standard is only applied when the plaintiff is a public figure. When the plaintiff is a private figure, she must only prove that the defendant was negligent in making the remarks in question, and that she suffered substantive harms as a result of the remarks; whether the defendant intended that she suffer any harm is irrelevant. It is more difficult, I think, to determine whether this much lower standard might amount to an unjustified restriction on free speech. After all, it's fairly easy to make innocent mistakes (as the food critic mentioned above may have), and if individuals can be sued for making such mistakes, the result may be a chilling effect on speech. On the other hand, it does not seem unreasonable for individuals to be subject to suit when they fail to exercise some minimal degree of caution in making factual claims about others, so it does not seem objectionable that, in principle, one might be subject to suit on the basis of negligence.

I don't think there's an easy answer to the question whether the standard for private figure libel conflicts with free speech in a way that we should be concerned about, since the standard itself is fairly vague (as indeed it must be, as far as I can tell). We should be expected to exercise a minimal degree of caution when making factual claims, but we should not be subject to suit if we simply make a mistake, since that could easily stifle free speech. This is, I think, one of those issues on which our civil courts must simply exercise some common sense in their rulings.