The Fact-Conjecture Framework in U.S. Libel Law: Four Problems

A requirement of U.S. defamation law is that an actionable statement be factual in nature, but courts since Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), have had considerable difficulty in distinguishing factual from non-factual statements and in articulating the value of non-factual public discourse in all its diversity. This Article reviews four topics - intent, context, conjecture, and hyperbole - that have been particularly troublesome to courts. It argues for a fresh appraisal of Justice Brennan\u27s dissenting opinion in Milkovich and brings into the conversation the works of several current political theorists on the contributions of passionate political rhetoric. Noting a tendency by some courts to make unfounded assumptions about the good or bad faith of speakers, the Article advocates Justice Brennan\u27s formulation: that courts emphasize the reasonable reader\u27s understanding of the meaning intended by the speaker. The Article next argues that such an approach may have clarified the treatment of social context in Moldea v. New York Times Co. and provided a framework for analyzing conjecture in the recent Hatfill litigation. Finally, the Article stresses the need for courts not to downplay but to affirm the value of hyperbolic speech as a component of democratic discourse on public issues of vital concern

Treating Physicians as Expert Witnesses in Compensation Systems: The Public Health Connection

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Treating Physicians as Expert Witnesses in Compensation Systems: The Public Health Connection

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Due Process, Black Lung, and the Shaping of Administrative Justice

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The Concept of Independence in Public Law

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Law, Belief, and Bildung: The Education of Harry Edwards

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Misrepresentation and the FCC

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Sullivan\u27s Paradox: The Emergence of Judicial Standards of Journalism

In this article, the authors examine the development of libel law in America since the Supreme Court\u27s watershed decision in New York Times Co. v. Sullivan and suggest that Sullivan affords members of the press less protection than many think. Sullivan\u27s actual malice standard invites judges to create norms of acceptable journalistic conduct for news gathering, which members of the press and their lawyers use as maps to navigate around libel liability. The authors examine a large number of these judicial decisions and note the types of journalistic conduct at issue and what conduct the courts view positively. The authors also examine the modes of decision making that courts employ and suggest that judges may take a more restrictive approach in cases concerning research than in cases concerning writing and editing. The considerable leeway that judges have in deciding libel cases presents a serious threat to press freedom. The authors urge law reformers to abandon Sullivan\u27s actual malice standard and adopt alternative forms of First Amendment protection