Defamation Law, Sullivan, and the Shape of Free Speech

Abstract

This chapter examines how free speech interacts with defamation law. When thinking about defamation law and free speech, it can be difficult not to consider the classic US case of New York Times v Sullivan. The decision substantially changed how US defamation law treats political speech, and has resonated widely in other jurisdictions. It increased the burdens facing public officials who sue in defamation, making it far more difficult for them to succeed. The chapter draws out two broad issues from Sullivan and subsequent decisions which have relevance for understanding defamation and free speech more generally, especially democratic aspects of freedom of expression. It also highlights three ways in which the reform of defamation law could better protect free speech. First, legal doctrine could be reformed. Second, remedies could be altered to reduce the chill of defamation law. Third, and perhaps less often recognized, the effective degree of freedom of speech provided under any given defamation law depends greatly on litigation practice. Reforming defamation litigation has been tried in many jurisdictions and there have long been proposals for larger reforms, such as developing alternative dispute resolution methods and venues for defamation claims.