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Does Libel Law Work Anymore?

Sure, an award of $83.3 million, or $148 million, or even more than a billion, is a lot of money, assuming its payable and paid. So why then are defamers unrepentant to the point of walking out of court and repeating the very defamatory statements that just cost them bigly? Why do the verdicts not “correct the public record” but rather give rise to yet further debate and accusation about the truthiness of the statements? Why is there no social disgrace to being held a lying liar telling lies?

Several examples show a stark break from the past. For most of the long history of libel law, a jury determination that material was false and defamatory settled the question, and defendants facing that liability would take every possible step not to repeat the lie — both because it would be socially reprehensible to do so and because the risk of punitive damages was a powerful deterrent unlikely to be overcome by any stronger incentive. In short, libel law used to stop the libel.

It’s hard to win a defamation case, especially when the defamed is a public figure and the burden is to prove “actual malice,” which actually isn’t malice at all. A great deal of latitude is, and should be, given to opinion and substantial truth in order to protect the right to free speech from the threat of litigation and judgment. Any award, no less an award in the millions, doesn’t come easy. So why doesn’t it seem to matter when the jury issues a decisive spanking?

What we are seeing, for the first time, is a lack of surety that the foundations upon which our libel doctrine is built remain intact. Indeed, these situations — of which the Carroll verdict is our most powerful example — seem to fly in the face of the core assumptions of defamation law: that it can remedy reputational harm, correct the public record and deter defamers from telling lies. It is a body of law centered on the belief that when all relevant and provable evidence is considered and truth is declared, it will be welcomed and accepted by the population. It assumes that the financial consequences that juries impose for lies will then move the needle. It thinks defamers will choose the truth over the prospect of further damages.

Indeed, this might be said of criminal law as well, as convictions are rejected as political or wrongful, without regard to the evidence and the service of a jury to deliberate and reach a verdict. But I digress.

Libel law imagines that we, as a people, respect the rule of law. It envisions that libel damages will protect not only plaintiffs like Ms. Carroll but all of society as we sort through what is relevant and provably accurate, band together to reject falsehoods and denounce and deter those who knowingly lie. It expects that jurors doing this work on behalf of all of us will be celebrated, not that they will have to be warned to keep their participation secret from even their families and their identities shielded even from one another. It assumes that those who have told deliberate fabrications will see their audience dry up.

Whether defamation verdicts are seen as a cost of doing business or a tool to fund raise against the injustice being held accountable, what they are no longer considered is a basis for establishing truth and falsity, and a basis for establishing who is the liar and who is not. While  a civil award may (or may not) provide compensation for the harms done, to the extent reputational harm can be remedied anymore, the verdicts are no longer universally accepted as the machinery by which society distinguishes truth teller from defamer.

As for the punitive awards, whose purpose is to deter both the defamer from defaming some more and other defamers from defaming in the first place, the numbers are huge and still not big enough to seem to make a dent, either in what’s left of the mind o the defamer or in the public at large.

Libel law assumes that we wish to share a single, objective reality. It cannot tackle the supply-and-demand problem that today leaves us wondering if tens of millions of dollars in punitive damages will stanch the flow of a lie. It presupposes that we crave truth.

All law makes that assumption, which is why we regurgitate trite phrases like “the jury has spoken” and expect the rest of the public, who weren’t in the courtroom and know nothing more about a case than what their preferred information source chooses to tell them, to accept the finding of the jury as conclusive.

There are plenty of rationalizations why this is not so, but they were there before trust in the system spiraled into the toilet, and they didn’t hinge on whether the jury gave us the outcome we wanted rather than the decision dictated by the evidence. But if the machinery of libel law, of any law, no longer works, then we’re back to the alternatives available before the legal system saved us from trial by combat. Do we really want to go back?

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