Eugene Volokh: The Future of Libel Law
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Eugene Volokh: The Future of Libel Law


From the 1960s to the about 1990 the Supreme
Court handed down a bunch of decisions, uh, that set forth the substantive rules of libel
law. We know this, for example, this famous actual
malice test for lawsuits brought by public figures But since then the Supreme Court has largely avoided libel law, and what’s happening is that lower
courts are now, first of all, trying to apply those decisions, but second, dealing with
procedural questions. Things like, can you get injunctions in libel
cases? Things like, uh, uh, how you deal with criminal
libel prosecutions, uh, uh, and also questions like, who does count as a public figure, when
we know that there’s a different rule for public figures than for private figures. How do you draw that line? Uh, and it turns out that there are a lot
of really important and interesting issues that the Supreme Court just has not been dealing
with and that most people don’t really know are even out there. The traditional law of libel, uh, is primarily
about damages, about defendants, usually large media organizations, having to pay for having
wrongly injured somebody’s reputation. Uh, uh, so it’s about civil liability, not
criminal punishment, not injunctions, civil damages liability. Well, that makes sense when there are lawsuits
against media outlets that either have money or have insurance policies. What happens when the internet allows people
who don’t have any assets to say things that are posted online on sites that are then
very easily accessible to the public. When somebody searches for the plaintiff’s
name on Google, they see these posts, they’re potentially defamatory, but the, the plaintiff
sues the defendant for damages, there’s nothing to be had. The defendant doesn’t have any money. The defendant often is anonymous. It’s very hard to track down. The defendant might be outside the jurisdiction. What do you do then? And it turns out that courts, prosecutors,
are coming up with new approaches. Sometimes it’s criminal libel prosecution.
We thought that was long in the past. No, it turns out it happens, probably about
20 criminal libel prosecutions a year in the country. There are injunctions are actually are now
commonplace against libel, and then there’s this public/private enforcement partnership,
where people go to court to get injunctions, not to get them enforced in court, but to
get Google to de-index, uh, uh, materials from the internet in response to those injunctions. Uh, and each of those, uh, kinds of remedies
actually has its own pluses, but also have potential minuses.

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