How to Do Surgery on the Constitutional Law of Libel

Abstract

The constitutional law of libel has, unfortunately, focused crucially on distracting and misguided inquiries into the various distinctions among public figure and private figure libel plaintiffs. Equally unfortunately, attempts to reform and reconfigure the constitutional law of libel have often focused on public versus private figure libel plaintiff distinctions. The logic of free speech law itself suggests, instead, a judicial abandonment of this misconceived category. Attention instead to the distinction between defamatory speech that addresses, and that does not address, a matter of public interest and concern, however reasonably defined, actually tracks the basic reasons for protecting, and for limiting, freedom of speech in the first place. And this is where the constitutional law of libel should primarily focus.