Document Type

Working Paper

Publication Date

1-17-2019

SSRN Discipline

LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Management Research Network; Legal Scholarship Network; PRN Subject Matter eJournals; Philosophy Research Network; Law School Research Papers - Legal Studies; Corporate Governance Network; Law & Society eJournals; Law & Society: Private Law eJournals; Law & Society: Public Law eJournals; Humanities Network; Information Systems & eBusiness Network; Political Science Network

Abstract

It is axiomatic that defamation law protects reputation This proposition"”common sensical pervasive and influential"”is wrong But it is wrong in a very instructive way and a careful examination of its mistaken assumptions carries deep lessons for First Amendment jurisprudence defamation law and the regulation of falsehoods across legal fields brbrThe key fallacy is the failure to recognize that laws not only affect how individuals behave but also how they think Whenever an allegation is made individuals decide whether and how much to trust it based on myriad factors One such factor is the strictness of defamation laws To the extent strict defamation laws deter purveyors of falsehoods they also make statements appear more trustworthy as individuals will reason that few would brave a falsity in the face of strong financial sanctions Thus strict defamation laws have the unintended consequence of making individuals more susceptible to believe those statements that are actually false brbrThis heretofore unrecognized complexity of defamation law has the potential of tipping the scales in First Amendment jurisprudence towards greater protection of free speech and free press Most urgently these findings give pause to the presidential calls to fight "˜fake news' by expanding libel laws by showing that such laws may well backfire and exaggerate the effect of fake news

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