“Slanderous in Whose Eyes?”, by Prof. Kenneth W. Simons

The article is here; the abstract:

Defamation is a moral and legal wrong distinct from the wrong of insulting or insulting a person, lying to a person, or unjustifiably causing emotional distress. Defamation essentially involves harm or damage to a person’s reputation. And reputation is a social concept: it refers to a person’s position in a relevant audience, that is, the group or community outside the speaker and the person.

But from whose perspective should a statement be defamatory? This question has several dimensions. Is it our only interest whether the person’s status is lowered in the eyes of the community? Or should we also consider the perspective of the person who claims to have been defamed? Should that person subjectively view the statement as a threat to his or her own reputation? Are we also interested in the speaker’s perspective?

The perspective of the person’s group or community is undoubtedly critical, but this raises additional questions. If only a minority, or even a very small portion, of the community would lower their opinion of the person, while the majority would not, is that enough? Moreover, these further questions are descriptive surveys of how (most, some, or some) people would respond, or instead normative evaluations of how (most, some, or a few) people should Reply? Or is the most defensible analysis a hybrid or combination of descriptive and normative features?

A possible approach to these questions about the defamatory character of an expression is the question whether the expression could give rise to a reasonable person to lower their appreciation of the person. But the reasonable person test is inadequate: it obscures critical questions, including the relative weight we should give to descriptive rather than normative perspectives, to subcommunities as opposed to larger communities, or to the different perspectives of the claimant, the speaker, and the relevant person. community.

The most plausible approach, I will argue, is a largely one descriptive perspective that focuses on the actual responses of both the claimant and the sub-community with which the claimant identifies. Defamation law should reject a purely normative perspective that considers only whether members of the community would have the right to lower their regard for the plaintiff if the false statement were true. People often criticize and exclude others for lame, irrational, or unlawful reasons. Yet the resulting reputational damage is real, and the behavior that causes this damage is often largely unjustifiable. However, courts should recognize a limited normative exception and exclude liability when providing a remedy for defamation would conflict with important public policies, such as legal principles condemning discrimination on the basis of race or sexual orientation.