First Amendment | Privacy Law | Torts
Underlying the development of the law of defamation is a tension between two broad societal interests: protecting the reputation of individuals and safeguarding the free flow of discussion and information. The common law heavily favored the protection of reputation, offering only limited concessions to the competing interest. In recent years, however, the Supreme Court has refashioned the law of defamation to conform to a first amendment mandate that "debate on public issues should be uninhibited, robust and wide-open." In New York Times Co. v. Sullivan and subsequent cases, the Court established that public officials and public figures may not recover in defamation unless the defendant knew the published statement was false and defamatory or was reckless with regard to these matters. In Gertz v. Robert Welch, Inc., it held that private figures, or public figures defamed in their private capacity, could recover only upon a showing that the plaintiff was at "fault."
Levin, Leslie, "Constitutional Privilege to Republish Defamation" (1977). Faculty Articles and Papers. 314.