From: GA.CJJ@forsythe.stanford.edu (Clifford Johnson)
Subject: Defamation action a federal right?
Organization: Stanford University, California, USA
Date: Tue, 28 Jul 1992 22:16:16 GMT

> From mnemonic@eff.org (Mike Godwin)
> Subject Defamation cause of action a federal right?

To recapitulate: Mike and I have been defaming, I mean flaming,
each other as to whether a state may ABOLISH a cause of action
for defamations.  He thinks so, I don't.  He's been pointing me to
a line of cases all of which uphold the basic cause of action for
defamation re any pair of people whatsoever, if malicious, known lies
are braodcast with the intent to damage.  He seems to think that
because a state may not enlarge this to include merely reckless
lies against a public official, that a state may abolish the
cause of action for defamation altogether.  A non-sequitur, IMHO.

> > GA.CJJ@forsythe.stanford.edu (Clifford Johnson) writes:
>
> >On the point at issue (whether repuational interest is a property
> >right) Truax is not overturned either explicitly or implicity --
> >it's a standard part of defemation law.
>
> It's so standard that no one doing defamation law ever cites it or
> relies on it.

It's so standard that no-one would cite this case who didn't have
another reason for citing it.

The point I'm trying to make is that it's *inconceivable* that the
basic cause of action to recover for malicious defamation (untrue
statements known to be false made with intent to harm).  Now, being
inconceivable, no-one cites anyone, or hardly ever, to support this.
(If one did want support for it in general, I wouldn't cite Truax--
the only reason I chose Truax is because it had the advantage of
stating this truism in the context of contentious termination of
employment, so the opposition couldn't bleat that employment law is
an exception.)

> I notice that Anthony Lewis disagrees with Clifford Johnson on the
> issue of whether Gertz v. Robert Welch affected the law for
> private-figure plaintiffs. See pages 194-195 of MAKE NO LAW. The
> change in libel law wrought by Gertz eliminated many potential
> state-based libel actions by private figures.

He agrees with me, and the pages at issue reprove my point:

"In 1969, a magazine published an article critical of a Chicago
lawyer, who sued for libel . . . In order to appeal, the magazine had
to pledge its headquarters building.  When it finally lost, it had to
sell the building."

That's not a case upholding that a state may abolish a cause
of action for defamation!

But, the book continues:

"But now look at it from the viewpoint of the Plaintiff ... The
article called Gertz a 'Leninist' and a 'Communist-fronter' and
said the police file on him took 'a big Irish cop to lift.'  Those
statements were all false, and the editor of the American Opinion
had done nothing to check them.  He testified that he had relied on
the writer..."

I lost my copy of the next page, but it appears that the writer is
saying, gosh, of course *this* is libel, how awful -- proving my
point about the actionability of lies -- and then saying that because
of this abominable language and lies the case bore no comparison
to other cases.

Mike, what's your actual point here?  Do you really find support in
this for your contention that a state can abolish a cause of action
for defamation?
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