Roger W. Shuy
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780195391329
- eISBN:
- 9780199866274
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195391329.001.0001
- Subject:
- Linguistics, Sociolinguistics / Anthropological Linguistics
This book shows how linguistic analysis can be useful to lawyers on either sides of defamation lawsuits. It gives a brief overview of the parts of defamation law that linguistics can address, and ...
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This book shows how linguistic analysis can be useful to lawyers on either sides of defamation lawsuits. It gives a brief overview of the parts of defamation law that linguistics can address, and then illustrates how phonetics, grammar, semantics, speech acts, pragmatics, conveyed meaning, and lexical choices were used in eleven defamation cases. The book also assesses what progress has been made from the early days in which language disputes were settled by bloody duels to the modern days of their replacement by libel and slander lawsuits.Less
This book shows how linguistic analysis can be useful to lawyers on either sides of defamation lawsuits. It gives a brief overview of the parts of defamation law that linguistics can address, and then illustrates how phonetics, grammar, semantics, speech acts, pragmatics, conveyed meaning, and lexical choices were used in eleven defamation cases. The book also assesses what progress has been made from the early days in which language disputes were settled by bloody duels to the modern days of their replacement by libel and slander lawsuits.
Lawrence McNamara
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199231454
- eISBN:
- 9780191710858
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199231454.001.0001
- Subject:
- Law, Law of Obligations
The first study of what reputation is, how it functions, and how it is and should be protected under the law, Reputation and Defamation addresses the inconsistencies and failures of the common law ...
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The first study of what reputation is, how it functions, and how it is and should be protected under the law, Reputation and Defamation addresses the inconsistencies and failures of the common law that have been observed for over a century. It develops a theory of reputation and uses it to analyse, evaluate and propose a revision of the law. Using the concept of reputation as the vehicle for a study of the history and theory of libel, slander and honour it becomes apparent that, contrary to the legal orthodoxy, defamation law did not aim and function to protect reputation until the early 19th century. Consequently, the historically derived tests for what is defamatory do not always protect reputation adequately or appropriately. The ‘shun and avoid’ and ‘ridicule’ tests should be discarded. The principal ‘lowering the estimation’ test is more appropriate but needs re-working. Christian tradition and Victorian moralism are embedded in the idea of ‘the right-thinking person’ that provides the test's conceptual foundations, but these are problematic in an era of moral diversity. Instead, ‘the right-thinking person’ should be associated with an inclusive liberal premise of equal moral worth and a shared commitment to moral diversity; any departure from this must be justified on sound, expressly stated ethical grounds. That demand serves to protect reputation appropriately and effectively in an age of moral diversity.Less
The first study of what reputation is, how it functions, and how it is and should be protected under the law, Reputation and Defamation addresses the inconsistencies and failures of the common law that have been observed for over a century. It develops a theory of reputation and uses it to analyse, evaluate and propose a revision of the law. Using the concept of reputation as the vehicle for a study of the history and theory of libel, slander and honour it becomes apparent that, contrary to the legal orthodoxy, defamation law did not aim and function to protect reputation until the early 19th century. Consequently, the historically derived tests for what is defamatory do not always protect reputation adequately or appropriately. The ‘shun and avoid’ and ‘ridicule’ tests should be discarded. The principal ‘lowering the estimation’ test is more appropriate but needs re-working. Christian tradition and Victorian moralism are embedded in the idea of ‘the right-thinking person’ that provides the test's conceptual foundations, but these are problematic in an era of moral diversity. Instead, ‘the right-thinking person’ should be associated with an inclusive liberal premise of equal moral worth and a shared commitment to moral diversity; any departure from this must be justified on sound, expressly stated ethical grounds. That demand serves to protect reputation appropriately and effectively in an age of moral diversity.
Lawrence McNamara
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199231454
- eISBN:
- 9780191710858
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199231454.003.0010
- Subject:
- Law, Law of Obligations
The question this study set out to answer was: if reputation is the interest to be protected by defamation law then what should be the test(s) for what is defamatory? The stated aim was to fill a gap ...
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The question this study set out to answer was: if reputation is the interest to be protected by defamation law then what should be the test(s) for what is defamatory? The stated aim was to fill a gap in the common law by providing a principled, theoretically coherent statement of law regarding what is defamatory. This chapter proposes a new legal framework that aims to meet that goal. Only the principal test for what is defamatory should be retained because it is the only one that meaningfully protects reputation. However, the common law should dispose of the traditional, exclusive presumptions that form the content of ‘the right-thinking person’ and instead use inclusive presumptions that are premised upon an acceptance of equal moral worth. Any displacement of these presumptions should be controversial. A departure from the commitment to equal moral worth should be made only with great care and caution.Less
The question this study set out to answer was: if reputation is the interest to be protected by defamation law then what should be the test(s) for what is defamatory? The stated aim was to fill a gap in the common law by providing a principled, theoretically coherent statement of law regarding what is defamatory. This chapter proposes a new legal framework that aims to meet that goal. Only the principal test for what is defamatory should be retained because it is the only one that meaningfully protects reputation. However, the common law should dispose of the traditional, exclusive presumptions that form the content of ‘the right-thinking person’ and instead use inclusive presumptions that are premised upon an acceptance of equal moral worth. Any displacement of these presumptions should be controversial. A departure from the commitment to equal moral worth should be made only with great care and caution.
Kenneth H. Craik
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195330922
- eISBN:
- 9780199868292
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195330922.003.0008
- Subject:
- Psychology, Social Psychology
Chapter 8 mobilizes the network interpretation to analyze in detail a classic venue for taking action in defense of one’s reputation—the libel courts. A network interpretation is implicit in key ...
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Chapter 8 mobilizes the network interpretation to analyze in detail a classic venue for taking action in defense of one’s reputation—the libel courts. A network interpretation is implicit in key elements of the rationale and structure of common-law actions for defamation. Anywhere throughout the members and linkages of one’s reputational network, an assertion potentially damaging to reputation can enter and circulate narrowly or broadly and in ways difficult to predict or track. Psychological research indicates that attributions of disreputable acts appear to be much more difficult to disconfirm than attributions of virtuous and socially desirable acts, thereby presenting a challenge for rehabilitating the reputation of vindicated plaintiffs. This chapter reviews the changing and expanding concepts of reputation within the common-law tradition of libel from the fifteenth century to the contemporary era of Internet defamation.Less
Chapter 8 mobilizes the network interpretation to analyze in detail a classic venue for taking action in defense of one’s reputation—the libel courts. A network interpretation is implicit in key elements of the rationale and structure of common-law actions for defamation. Anywhere throughout the members and linkages of one’s reputational network, an assertion potentially damaging to reputation can enter and circulate narrowly or broadly and in ways difficult to predict or track. Psychological research indicates that attributions of disreputable acts appear to be much more difficult to disconfirm than attributions of virtuous and socially desirable acts, thereby presenting a challenge for rehabilitating the reputation of vindicated plaintiffs. This chapter reviews the changing and expanding concepts of reputation within the common-law tradition of libel from the fifteenth century to the contemporary era of Internet defamation.
Paul Marshall and Nina Shea
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199812264
- eISBN:
- 9780199919383
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199812264.003.0011
- Subject:
- Religion, Islam
Chapter Eleven describes formal efforts to legislate anti-blasphemy laws through international fora. For two decades, the Organization of the Islamic conference has sought to use the UN to win ...
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Chapter Eleven describes formal efforts to legislate anti-blasphemy laws through international fora. For two decades, the Organization of the Islamic conference has sought to use the UN to win official endorsement for a global ban on blasphemy against Islam. The campaign includes the promotion of the 1990 “Cairo Declaration on Human Right. OIC members also targeted Special Rapporteur on Sudan Gaspar Biro and Special Rapporteur on Racism Maurice Glele-Ahanhanzo. For over a decade, the OIC has introduced resolutions first calling for banning “defamation of Islam,” then re-titled “defamation of religions” at the insistence of other delegations,. This effort is ongoing but has been losing support. It is being replaced with an initiative, which has some Western support, to establish an international religious hate speech standard, relying on undefined terms such as “incitement to hostility,” and “negative stereotyping.” Today, OIC countries are demanding that the West curb the intertwined individual freedoms of religion and expression, and the West has often been dilatory and confused in its response to the these demands, not least because its lacks clarity about what dangers they entail and what lies behind them.Less
Chapter Eleven describes formal efforts to legislate anti-blasphemy laws through international fora. For two decades, the Organization of the Islamic conference has sought to use the UN to win official endorsement for a global ban on blasphemy against Islam. The campaign includes the promotion of the 1990 “Cairo Declaration on Human Right. OIC members also targeted Special Rapporteur on Sudan Gaspar Biro and Special Rapporteur on Racism Maurice Glele-Ahanhanzo. For over a decade, the OIC has introduced resolutions first calling for banning “defamation of Islam,” then re-titled “defamation of religions” at the insistence of other delegations,. This effort is ongoing but has been losing support. It is being replaced with an initiative, which has some Western support, to establish an international religious hate speech standard, relying on undefined terms such as “incitement to hostility,” and “negative stereotyping.” Today, OIC countries are demanding that the West curb the intertwined individual freedoms of religion and expression, and the West has often been dilatory and confused in its response to the these demands, not least because its lacks clarity about what dangers they entail and what lies behind them.
William Cornish
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199239757
- eISBN:
- 9780191705151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199239757.003.0030
- Subject:
- Law, Legal History
In 1890 there appeared in the young Harvard Law Review an article by Samuel Warren and Louis Brandeis that was to become one of most enduring pieces of scholarly enthusiasm in the common law ...
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In 1890 there appeared in the young Harvard Law Review an article by Samuel Warren and Louis Brandeis that was to become one of most enduring pieces of scholarly enthusiasm in the common law tradition. The writers advocated the recognition through case law of a ‘right to privacy’, which they posited as wholly appropriate to the state of development that advanced society had reached. This chapter traces the evolution of various legal ingredients from which Warren and Brandeis sought to concoct their privacy recipe. Topics discussed include defamation of character, libel as against slander, secondary liability, and limits to liability.Less
In 1890 there appeared in the young Harvard Law Review an article by Samuel Warren and Louis Brandeis that was to become one of most enduring pieces of scholarly enthusiasm in the common law tradition. The writers advocated the recognition through case law of a ‘right to privacy’, which they posited as wholly appropriate to the state of development that advanced society had reached. This chapter traces the evolution of various legal ingredients from which Warren and Brandeis sought to concoct their privacy recipe. Topics discussed include defamation of character, libel as against slander, secondary liability, and limits to liability.
Bernard Capp
- Published in print:
- 2003
- Published Online:
- January 2010
- ISBN:
- 9780199255986
- eISBN:
- 9780191719592
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199255986.003.0005
- Subject:
- History, British and Irish Early Modern History, Social History
This chapter explores disputes between women in early modern England. Topics discussed include quarrels, confrontations in public places, the politics of defamation, and physical violence. It shows ...
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This chapter explores disputes between women in early modern England. Topics discussed include quarrels, confrontations in public places, the politics of defamation, and physical violence. It shows that the law played a key role in the pursuit and resolution of female disputes, through defamation suits, binding-over, and prosecutions in lower courts. However, for the most part, it remained a secondary means of conflict resolution.Less
This chapter explores disputes between women in early modern England. Topics discussed include quarrels, confrontations in public places, the politics of defamation, and physical violence. It shows that the law played a key role in the pursuit and resolution of female disputes, through defamation suits, binding-over, and prosecutions in lower courts. However, for the most part, it remained a secondary means of conflict resolution.
Jerome Neu
- Published in print:
- 2007
- Published Online:
- January 2008
- ISBN:
- 9780195314311
- eISBN:
- 9780199871780
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195314311.001.0001
- Subject:
- Philosophy, Philosophy of Language
The schoolyard wisdom about “sticks and stones” does not take one very far: insults do not take the form only of words, in truth even words have effects, and in the end the popular as well as the ...
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The schoolyard wisdom about “sticks and stones” does not take one very far: insults do not take the form only of words, in truth even words have effects, and in the end the popular as well as the standard legal distinctions between speech and conduct are at least as problematic as they are helpful. To think clearly about how much we should put up with those who would put us down, it is necessary to explore the nature and place of insult in our lives. What kind of injury is an insult? Is its infliction determined by the insulter or the insulted? What does it reveal of the character of each and of the character of society and its conventions? What is its role in social and legal life (from play to jokes to ritual to war and from blasphemy to defamation to hate speech)? Philosophical, anthropological, psychoanalytic, and legal approaches to the questions are emphasized. Whether intentional or unintentional, the assertions and assumptions of dominance in insults make them a serious and essential form of power play. Is to understand all to forgive all?Less
The schoolyard wisdom about “sticks and stones” does not take one very far: insults do not take the form only of words, in truth even words have effects, and in the end the popular as well as the standard legal distinctions between speech and conduct are at least as problematic as they are helpful. To think clearly about how much we should put up with those who would put us down, it is necessary to explore the nature and place of insult in our lives. What kind of injury is an insult? Is its infliction determined by the insulter or the insulted? What does it reveal of the character of each and of the character of society and its conventions? What is its role in social and legal life (from play to jokes to ritual to war and from blasphemy to defamation to hate speech)? Philosophical, anthropological, psychoanalytic, and legal approaches to the questions are emphasized. Whether intentional or unintentional, the assertions and assumptions of dominance in insults make them a serious and essential form of power play. Is to understand all to forgive all?
Dario Milo
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199204922
- eISBN:
- 9780191709449
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199204922.003.0008
- Subject:
- Law, Law of Obligations, Human Rights and Immigration
This chapter considers alternative remedies in defamation cases with emphasis on remedies that courts should consider in holding the balance between freedom of expression and reputation. The chapter ...
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This chapter considers alternative remedies in defamation cases with emphasis on remedies that courts should consider in holding the balance between freedom of expression and reputation. The chapter proceeds as follows. Part B considers the remedies that are available in England, South Africa and the United States. Part C makes the case for the inadequacies of damages and for defamation law remedies to reflect the issue of falsity. Part D discusses the remedies of injunctions, rights of reply, apologies, corrections and retractions, and declarations of falsity. Part E concludes the analysis.Less
This chapter considers alternative remedies in defamation cases with emphasis on remedies that courts should consider in holding the balance between freedom of expression and reputation. The chapter proceeds as follows. Part B considers the remedies that are available in England, South Africa and the United States. Part C makes the case for the inadequacies of damages and for defamation law remedies to reflect the issue of falsity. Part D discusses the remedies of injunctions, rights of reply, apologies, corrections and retractions, and declarations of falsity. Part E concludes the analysis.
Jerome Neu
- Published in print:
- 2007
- Published Online:
- January 2008
- ISBN:
- 9780195314311
- eISBN:
- 9780199871780
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195314311.003.0007
- Subject:
- Philosophy, Philosophy of Language
The law of defamation seeks to provide remedies for some of the harms in insult, in particular damage to reputation. New York Times Co. v. Sullivan limits those remedies with respect to public ...
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The law of defamation seeks to provide remedies for some of the harms in insult, in particular damage to reputation. New York Times Co. v. Sullivan limits those remedies with respect to public figures, and this chapter considers some of the distinctions and principles involved in providing remedies, including the nature of reasonable expectations.Less
The law of defamation seeks to provide remedies for some of the harms in insult, in particular damage to reputation. New York Times Co. v. Sullivan limits those remedies with respect to public figures, and this chapter considers some of the distinctions and principles involved in providing remedies, including the nature of reasonable expectations.
ALEXANDRA SHEPARD
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199299348
- eISBN:
- 9780191716614
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199299348.003.0007
- Subject:
- History, British and Irish Early Modern History
This chapter revisits debates about the gendered components of reputation in early modern England in order to question the extent to which male and female honour was incommensurable in line with the ...
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This chapter revisits debates about the gendered components of reputation in early modern England in order to question the extent to which male and female honour was incommensurable in line with the sexual double standard. The defamation litigation heard by the Cambridge University courts provides a good case study, since their jurisdiction was far broader than that of the church courts, which have been the previous focus of historians' debates on this issue. While the insults alleged in defamation suits suggest that reputation was more multifaceted for men than for women, there was nonetheless a considerable degree of overlap in their respective concerns, with the substance of suits depending on age and status as well as gender. It is also clear that male litigants were less concerned with proving their honesty in either sexual or economic terms than with disputing their social standing through various points of comparison with other men.Less
This chapter revisits debates about the gendered components of reputation in early modern England in order to question the extent to which male and female honour was incommensurable in line with the sexual double standard. The defamation litigation heard by the Cambridge University courts provides a good case study, since their jurisdiction was far broader than that of the church courts, which have been the previous focus of historians' debates on this issue. While the insults alleged in defamation suits suggest that reputation was more multifaceted for men than for women, there was nonetheless a considerable degree of overlap in their respective concerns, with the substance of suits depending on age and status as well as gender. It is also clear that male litigants were less concerned with proving their honesty in either sexual or economic terms than with disputing their social standing through various points of comparison with other men.
Hazel Carty
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199546749
- eISBN:
- 9780191594946
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546749.003.0010
- Subject:
- Law, Intellectual Property, IT, and Media Law
This chapter explores the history and ingredients of the tort of malicious falsehood. It would appear that the tort though developed from a group of related torts should now be viewed as unified in ...
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This chapter explores the history and ingredients of the tort of malicious falsehood. It would appear that the tort though developed from a group of related torts should now be viewed as unified in principle and application. The key ingredient is malice and the chapter explores the different meanings of this concept, though noting that the typical case will involve denigration or disparagement. This tort is of limited use and is largely overshadowed by statutory provisions relating to ‘threats’ and comparative advertising. The important issue of free speech has shaped this tort and confined its application is also debated. Finally, the relationship of this tort to the unlawful means tort and the torts of defamation and passing off is analysed.Less
This chapter explores the history and ingredients of the tort of malicious falsehood. It would appear that the tort though developed from a group of related torts should now be viewed as unified in principle and application. The key ingredient is malice and the chapter explores the different meanings of this concept, though noting that the typical case will involve denigration or disparagement. This tort is of limited use and is largely overshadowed by statutory provisions relating to ‘threats’ and comparative advertising. The important issue of free speech has shaped this tort and confined its application is also debated. Finally, the relationship of this tort to the unlawful means tort and the torts of defamation and passing off is analysed.
Eleanor Hubbard
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199609345
- eISBN:
- 9780191739088
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199609345.003.0001
- Subject:
- History, British and Irish Early Modern History
This chapter lays out the aim of this book: reconstructing the lives of ordinary early modern London women from their own points of view, as individuals who moved from household to household across ...
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This chapter lays out the aim of this book: reconstructing the lives of ordinary early modern London women from their own points of view, as individuals who moved from household to household across the life cycle. It suggests that women actively pursued advancement via the means available to them, which included migration to London, where the marriage market was favorable to women. While women's lives were shaped by strong and widespread social anxieties about their gender, these sexual anxieties were sometimes countered by even stronger worries about economic stability; these competing priorities could open up moments of opportunity for women. This chapter also discusses the main archival sources for the book: the deposition books of the London consistory court, which include the depositions of roughly 2,500 women for the period 1570–1640.Less
This chapter lays out the aim of this book: reconstructing the lives of ordinary early modern London women from their own points of view, as individuals who moved from household to household across the life cycle. It suggests that women actively pursued advancement via the means available to them, which included migration to London, where the marriage market was favorable to women. While women's lives were shaped by strong and widespread social anxieties about their gender, these sexual anxieties were sometimes countered by even stronger worries about economic stability; these competing priorities could open up moments of opportunity for women. This chapter also discusses the main archival sources for the book: the deposition books of the London consistory court, which include the depositions of roughly 2,500 women for the period 1570–1640.
Sarah K. Fields
- Published in print:
- 2016
- Published Online:
- April 2017
- ISBN:
- 9780252040283
- eISBN:
- 9780252098543
- Item type:
- book
- Publisher:
- University of Illinois Press
- DOI:
- 10.5406/illinois/9780252040283.001.0001
- Subject:
- Sociology, Sport and Leisure
Sports figures cope with a level of celebrity once reserved for the stars of stage and screen. This book looks at the legal ramifications of the cases brought by six of them—golfer Tiger Woods, ...
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Sports figures cope with a level of celebrity once reserved for the stars of stage and screen. This book looks at the legal ramifications of the cases brought by six of them—golfer Tiger Woods, quarterback Joe Montana, college football coach Wally Butts, baseball pitchers Warren Spahn and Don Newcombe, and hockey enforcer Tony Twist—when faced with what they considered attacks on their privacy and image. Placing each case in its historical and legal context, the book examines how sports figures in the United States have used the law to regain control of their image. As the book shows, decisions in the cases significantly affected the evolution of laws related to privacy, defamation, and publicity—areas pertinent to the lives of the famous sports figure and the non-famous consumer alike. It also tells the stories of why the plaintiffs sought relief in the courts, uncovering motives that delved into the heart of issues separating individual rights from the public's perceived right to know. A fascinating exploration of a still-evolving phenomenon, this book is an essential look at the legal playing fields that influence our enjoyment of sports.Less
Sports figures cope with a level of celebrity once reserved for the stars of stage and screen. This book looks at the legal ramifications of the cases brought by six of them—golfer Tiger Woods, quarterback Joe Montana, college football coach Wally Butts, baseball pitchers Warren Spahn and Don Newcombe, and hockey enforcer Tony Twist—when faced with what they considered attacks on their privacy and image. Placing each case in its historical and legal context, the book examines how sports figures in the United States have used the law to regain control of their image. As the book shows, decisions in the cases significantly affected the evolution of laws related to privacy, defamation, and publicity—areas pertinent to the lives of the famous sports figure and the non-famous consumer alike. It also tells the stories of why the plaintiffs sought relief in the courts, uncovering motives that delved into the heart of issues separating individual rights from the public's perceived right to know. A fascinating exploration of a still-evolving phenomenon, this book is an essential look at the legal playing fields that influence our enjoyment of sports.
James Weinstein
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199548781
- eISBN:
- 9780191720673
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199548781.003.0005
- Subject:
- Law, Human Rights and Immigration
This chapter describes the basic features of the American free speech doctrine and then considers its application to various forms of extreme speech. This analysis reveals that most of the speech ...
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This chapter describes the basic features of the American free speech doctrine and then considers its application to various forms of extreme speech. This analysis reveals that most of the speech restrictions considered in this book, while consistent with the constitutional norms of other democracies, would be unconstitutional in the U.S. The leitmotif of contemporary American free speech doctrine is its intense hostility to content regulation of public discourse, particularly viewpoint regulation. In addition, Brandenburg v. Ohio narrowly confines governmental power to punish the advocacy of law violation. Hate speech bans, whether in the form of public order regulations, prohibitions against group defamation, or bans on Holocaust denial, would be deemed unconstitutional. Under Brandenburg, laws that prohibit mere advocacy of terrorism would also be held to violate the First Amendment. The chapter concludes that much of the explanation for American free speech exceptionalism lies in the U.S. Supreme Court's extensive experience with free speech issues, particularly the lessons it learned from its failure to protect adequately dissent in the early part of the 20th century.Less
This chapter describes the basic features of the American free speech doctrine and then considers its application to various forms of extreme speech. This analysis reveals that most of the speech restrictions considered in this book, while consistent with the constitutional norms of other democracies, would be unconstitutional in the U.S. The leitmotif of contemporary American free speech doctrine is its intense hostility to content regulation of public discourse, particularly viewpoint regulation. In addition, Brandenburg v. Ohio narrowly confines governmental power to punish the advocacy of law violation. Hate speech bans, whether in the form of public order regulations, prohibitions against group defamation, or bans on Holocaust denial, would be deemed unconstitutional. Under Brandenburg, laws that prohibit mere advocacy of terrorism would also be held to violate the First Amendment. The chapter concludes that much of the explanation for American free speech exceptionalism lies in the U.S. Supreme Court's extensive experience with free speech issues, particularly the lessons it learned from its failure to protect adequately dissent in the early part of the 20th century.
Alcuin Blamires
- Published in print:
- 2006
- Published Online:
- September 2007
- ISBN:
- 9780199248674
- eISBN:
- 9780191714696
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199248674.003.0002
- Subject:
- Literature, Early and Medieval Literature
The chapter links the primary role of friendship and fellowship in inherited ethics with the prominence of fellowship as a fragile ideal in the General Prologue, where it is announced only to be ...
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The chapter links the primary role of friendship and fellowship in inherited ethics with the prominence of fellowship as a fragile ideal in the General Prologue, where it is announced only to be subjected to systematic strain in the subsequent evolution of the Canterbury Tales. Fellowship is immediately threatened within the Knight’s Tale and in the pilgrim frame by masculine animosities that make ethical suppositions about ideal friendship look sentimental. Anger and defamation are key drivers in the Tales. Eruptions of both, right through to the penultimate tale, often require conciliatory intervention. Chaucer acknowledges a tradition of female conciliation, but also draws inspiration from Seneca’s essay on anger management. Eventually, when competitive instincts have all but ‘un-sewn’ the seams of friendship, it is the Parson’s ambition to ‘knit up’ the pilgrims’ unravelling project.Less
The chapter links the primary role of friendship and fellowship in inherited ethics with the prominence of fellowship as a fragile ideal in the General Prologue, where it is announced only to be subjected to systematic strain in the subsequent evolution of the Canterbury Tales. Fellowship is immediately threatened within the Knight’s Tale and in the pilgrim frame by masculine animosities that make ethical suppositions about ideal friendship look sentimental. Anger and defamation are key drivers in the Tales. Eruptions of both, right through to the penultimate tale, often require conciliatory intervention. Chaucer acknowledges a tradition of female conciliation, but also draws inspiration from Seneca’s essay on anger management. Eventually, when competitive instincts have all but ‘un-sewn’ the seams of friendship, it is the Parson’s ambition to ‘knit up’ the pilgrims’ unravelling project.
Don Herzog
- Published in print:
- 2017
- Published Online:
- September 2017
- ISBN:
- 9780300221541
- eISBN:
- 9780300227710
- Item type:
- book
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300221541.001.0001
- Subject:
- Law, Philosophy of Law
If you defame the dead, even someone who recently died, tort law does not think that’s an injury: not to the grieving survivors and not to the dead person. This book argues that defamation is an ...
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If you defame the dead, even someone who recently died, tort law does not think that’s an injury: not to the grieving survivors and not to the dead person. This book argues that defamation is an injury to the recently dead. It explores history, including the shaping of the common law, and offers an account of posthumous harm and wrong. Along the way, it offers a sustained exploration of how we and the law think about corpse desecration.Less
If you defame the dead, even someone who recently died, tort law does not think that’s an injury: not to the grieving survivors and not to the dead person. This book argues that defamation is an injury to the recently dead. It explores history, including the shaping of the common law, and offers an account of posthumous harm and wrong. Along the way, it offers a sustained exploration of how we and the law think about corpse desecration.
Sean Latham
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195379990
- eISBN:
- 9780199869053
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195379990.003.0004
- Subject:
- Literature, 20th-century Literature and Modernism
Despite the often heroic narratives of modernism’s campaign against antiobscenity laws, writers in the period were much more likely to run afoul of libel suits sometimes brought successfully by ...
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Despite the often heroic narratives of modernism’s campaign against antiobscenity laws, writers in the period were much more likely to run afoul of libel suits sometimes brought successfully by plaintiffs entirely unknown to them. This chapter surveys the surprisingly rich yet almost entirely unexplored intersection between literature and libel in the period by providing a broad overview of key cases and legal decisions. As writers increasingly experimented with the roman à clef, judges, juries, and eventually legislators in Great Britain struggled to maintain a clear legal conception of fiction—and the consequences were broad and far-reaching. Publishers demanded sometimes vast changes to manuscripts and the inherent conservatism of libel law became, in the words of one commentator, a “terror to authorship.” Following the particularly far-reaching case of E. Hulton & Co. v. Jones in 1909, the novel itself seemed to teeter on the edge of illegality as the courts proved almost incapable of meeting both the legal and aesthetic challenged posed by the roman à clef’s ability to broach the public sphere. The chapter concludes with a short digest of key acts and legal decisions in Britain and Ireland.Less
Despite the often heroic narratives of modernism’s campaign against antiobscenity laws, writers in the period were much more likely to run afoul of libel suits sometimes brought successfully by plaintiffs entirely unknown to them. This chapter surveys the surprisingly rich yet almost entirely unexplored intersection between literature and libel in the period by providing a broad overview of key cases and legal decisions. As writers increasingly experimented with the roman à clef, judges, juries, and eventually legislators in Great Britain struggled to maintain a clear legal conception of fiction—and the consequences were broad and far-reaching. Publishers demanded sometimes vast changes to manuscripts and the inherent conservatism of libel law became, in the words of one commentator, a “terror to authorship.” Following the particularly far-reaching case of E. Hulton & Co. v. Jones in 1909, the novel itself seemed to teeter on the edge of illegality as the courts proved almost incapable of meeting both the legal and aesthetic challenged posed by the roman à clef’s ability to broach the public sphere. The chapter concludes with a short digest of key acts and legal decisions in Britain and Ireland.
Dario Milo
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199204922
- eISBN:
- 9780191709449
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199204922.001.0001
- Subject:
- Law, Law of Obligations, Human Rights and Immigration
The law of defamation contemplates the clash of two fundamental rights: the right to freedom of expression and the right to reputation. The rules of defamation law are designed to mediate between ...
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The law of defamation contemplates the clash of two fundamental rights: the right to freedom of expression and the right to reputation. The rules of defamation law are designed to mediate between these two rights. The central proposition that this book makes is that defamation law needs to be reformed to balance the conflicting rights. This discussion flows from a theoretical analysis of the rights in issue; the value underlying the right to reputation that has most resonance is human dignity, while the value that is most apposite to freedom of expression in this context is the argument that free speech is integral to democracy. The argument from democracy emphasizes that speech on matters of public interest should receive greater protection than private speech. This book argues that fundamental rules of defamation law need to be reformed to take into account the dual importance of public interest speech on the one hand, and the right to human dignity on the other. In particular, the presumptions that defamatory allegations are false and have caused damage, the principle of strict liability to primary publishers and negligence liability to secondary publishers, and the availability of punitive damages, should not survive constitutional scrutiny. The quantum of damages and costs rules, and the remedies available in defamation cases, should also be reformed to reflect the importance of dignity to the claimant, and the free speech interest of the public in receiving accurate information on matters of public interest.Less
The law of defamation contemplates the clash of two fundamental rights: the right to freedom of expression and the right to reputation. The rules of defamation law are designed to mediate between these two rights. The central proposition that this book makes is that defamation law needs to be reformed to balance the conflicting rights. This discussion flows from a theoretical analysis of the rights in issue; the value underlying the right to reputation that has most resonance is human dignity, while the value that is most apposite to freedom of expression in this context is the argument that free speech is integral to democracy. The argument from democracy emphasizes that speech on matters of public interest should receive greater protection than private speech. This book argues that fundamental rules of defamation law need to be reformed to take into account the dual importance of public interest speech on the one hand, and the right to human dignity on the other. In particular, the presumptions that defamatory allegations are false and have caused damage, the principle of strict liability to primary publishers and negligence liability to secondary publishers, and the availability of punitive damages, should not survive constitutional scrutiny. The quantum of damages and costs rules, and the remedies available in defamation cases, should also be reformed to reflect the importance of dignity to the claimant, and the free speech interest of the public in receiving accurate information on matters of public interest.
Charles W. Collier
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780195388978
- eISBN:
- 9780199855421
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195388978.003.004
- Subject:
- Law, Constitutional and Administrative Law
For an analysis of the “legal context” in which speech is at issue, one might most naturally turn to the development of judicial doctrine. But the history of attempts to demarcate the legal ...
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For an analysis of the “legal context” in which speech is at issue, one might most naturally turn to the development of judicial doctrine. But the history of attempts to demarcate the legal boundaries of speech is mostly a history of failed and inconclusive efforts, as even a brief review will show. Nevertheless, a few helpful clues also emerge. This chapter examines three legal doctrines that have been used to set boundaries on what counts as speech for constitutional purposes: prior restraints, obscenity, and defamation. Briefly, these doctrines start off by claiming that prior restraints, obscenity, or defamation define what is not speech; but, as this chapter, that claim has been unraveled by subsequent judicial decisions in all three areas. So these doctrines do not serve, even negatively, as a definition of speech for legal or constitutional purposes. They do not set the “outer boundaries” of speech.Less
For an analysis of the “legal context” in which speech is at issue, one might most naturally turn to the development of judicial doctrine. But the history of attempts to demarcate the legal boundaries of speech is mostly a history of failed and inconclusive efforts, as even a brief review will show. Nevertheless, a few helpful clues also emerge. This chapter examines three legal doctrines that have been used to set boundaries on what counts as speech for constitutional purposes: prior restraints, obscenity, and defamation. Briefly, these doctrines start off by claiming that prior restraints, obscenity, or defamation define what is not speech; but, as this chapter, that claim has been unraveled by subsequent judicial decisions in all three areas. So these doctrines do not serve, even negatively, as a definition of speech for legal or constitutional purposes. They do not set the “outer boundaries” of speech.
