This Note applies some implications of recent law and norms literature, unexplored in existent academic writing, to the constitutional law of defamation. Theories of norms conceptualize social perceptions as constraints upon selfish individual behavior. Community members experience costs when they are observed violating social norms. These costs increase the likelihood of individual conformity to a norm. When the norm corresponds to cooperation in the face of collective action problems, social judgment benefits the community by making such cooperation more likely. The maintenance of high levels of norm adherence within a community depends on the public circulation of true information regarding members’ norm adherence. False information alleging norm violation, or false negative gossip, imposes a negative externality by decreasing the expected costs of norm violation. Law and norms, therefore, suggests that dissemination of false negative gossip should be harshly punished to minimize its associated negative externality. The actual U.S. law of defamation, surprisingly, has moved in the opposite direction—relaxing the common law’s harsh punishment for dissemination of false negative speech. While this shift rests upon a defensible understanding of the incentives to engage in political speech, the Supreme Court opinions overturning the common law of defamation seriously underestimate the costs of false negative gossip. As a result, negligence liability was quite likely a better replacement for strict liability common law defamation than the recklessness rule actually adopted. Worse still, the common law of defamation may have been socially optimal, making it entirely right and any Court-imposed changes entirely wrong.
Issue 7
Crime Severity and Constitutional Line-Drawing
Some speech risks inciting or aiding serious crimes. Other speech risks causing only minor crimes. Some searches and seizures are aimed at catching kidnappers, others at catching bookies.
Should constitutional doctrine draw lines that turn on crime severity? And if it should, how should these lines be drawn? Commentators and judges have often urged that the first question be answered yes. And yet the trouble with a yes answer is that it requires courts to answer the second question – which isn’t easy, given how bitterly people often disagree about the severity of various crimes (for instance, white-collar crimes, drug crimes, copyright infringement, or even burglary).
Surprisingly, this matter has rarely been discussed broadly, cutting across various constitutional provisions, such as free speech, the Fourth Amendment, the right to jury trial, and the Eighth Amendment. This Essay tries do so. It identifies four possible approaches to judging crime severity in constitutional doctrine. It discusses the pluses and minuses of each approach. And it concludes that two simple answers—that such severity distinctions are always improper, and that they are unproblematic—are mistaken.
The Limited Domain of the Law
There are social norms, or otherwise valid sources of decision, that the law refuses to accept; as such, law really is a limited domain. Despite the claims of reputable philosophers that “law is process,” “law is politics,” or “law is everything,” there remain certain sources of knowledge and argument that remain out of bounds in the legal world. Further, many of the great jurisprudential debates of the last century have really been debates over the question of what is and is not in bounds.