Criminal Libel

Unlike criminal law, which involves the expression of societal passion, the Bill of Rights of the United States Constitution is a document by which the populace, fearing the tyranny of a temporary majority, institutionalized a barrier to fulfillment of momentary whims. No document, constitutional or otherwise, can save liberty once it has been abandoned by the people, but it can retard the process of abandonment long enough to allow a deliberate, dispassionate reconsideration.

The First Amendment plays such a role. It is based on the premise that the individual and the community, rather than the government, should make the vital political, moral, and aesthetic decisions. Censorship, on the contrary, demands a difficult, if not impossible, decision on what the public should not know. If truth is viewed not as a fixed concept but as a transient one, any reduction of communication, no matter how abhorrent the communication, is detrimental to society. Even if some speech is in fact worthless, the risks involved in censoring even offensive and obnoxious expression would significantly endanger uninhibited public debate, for there may be no principled stopping place.

First Amendment evaluations involve a tension between the values of free expression and those of public safety, morality, comfort, and convenience. This tension involves interests of society in general, and society bears the impact of the decision to sacrifice either. Traditionally, the societal benefits of a system of free expression are thought to outweigh the temporary societal dangers of false statements, at least so long as sufficient time exists for corrective discussion to take place.

In limiting civil suits for defamation, however, the impact of the First Amendment is not shared generally by the populace. Rather, it falls directly and immediately upon the defamed individual. If he is unable to obtain redress through the legal system because of First Amendment interests, the value of free speech is subsidized by the injured party rather than by the general populace that benefits from a system of free expression. Tort law, consequently, with its focus on individual injury reduction and impact minimization, is more solicitous of the defamation victim than is criminal law, with its focus on societal impact. This emphasis on individual over societal harm suggests that civil law, rather than criminal law, responses to libel should be the norm.