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14 Cardozo L. Rev. 351 (1992 - 1993)
The Development of Common Law Defamation Privileges: From Communitarian Society to Market Society

handle is hein.journals/cdozo14 and id is 369 raw text is: THE DEVELOPMENT OF COMMON LAW DEFAMATION PRIVILEGES: FROM COMMUNITARIAN SOCIETY TO MARKET SOCIETY M. M. Slaughter* In 1606, Sir Edward Coke claimed that a good name was more precious than ... life.' The view that reputation was a matter of life and death was played out literally in the duel. Reputation was seen as an essential part of identity, which is why its loss could mean the loss of the only kind of life worth living. For the less literal and less vio- lent, the defamation action was instituted. By the beginning of the nineteenth century, social estimation of reputation had changed. Not only was reputation no longer invalua- ble, but courts had fashioned various privileges that immunized cer- tain kinds of defamation. It was, for example, defamatory to disparage a person's trade or profession or to call a merchant's sol- vency into question. But by the nineteenth century, false reports about an employee's or tradesman's work were privileged, as were false reports concerning a merchant's credit. This Article explores how and why these privileges developed. Part I argues that the development of privilege reflects a change in the characterization of reputation and defamation-to use Profes- sor Robert Post's distinction-from reputation as honor and dignity to reputation as property.2 These two views of reputation reflect two Associate Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University. I want to thank David Gray Carlson, Elizabeth Clark, Arthur J. Jacobson, Robert Post, David Rudenstine, Katherine Stone, and Charles Yablon for their helpful commentary. Thanks also to Susan Jacquemot for her painstaking work on the footnotes. Errors, mistakes, and faults are, of course, my own. 1 De Libellis Famosis, 77 Eng. Rep. 250, 251 (K.B. 1605). 2 See Robert C. Post, The Social Foundations of Defamation Law: Reputation and the Constitution, 74 CAL. L. REV. 691 (1986). Post distinguishes between honor and dignity as representing the communitarian selves found in two different kinds of society. This Article will collapse the distinction between them and refer to the combination of the two as status dignity. Reputation as honor was prevalent in the seventeenth and eighteenth centuries. As Post defines it, reputation as honor reflects the social regard that is due because of one's ascribed social status; it is associated with a social hierarchy-so much so that it is not clear that all classes have honor. Id. at 699-701. When libel law addresses reputation as honor, it functions to provide vindication for insulted honor. It does this through the process of declar- ing the defamer the wrongdoer and, more importantly, the loser. As a result, the defamed person is vindicated as he is in a duel or battle. A conception of reputation as honor is impor- tant because it helps to explain the action for criminal libel that existed under the common