Essay: Slander and Libel

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Reputation, of all human possessions, is perhaps the least tangible yet the most zealously guarded. To be known for integrity and honor, most people willingly labor a lifetime. Even a rogue may cherish the mistaken notion that he enjoys the respect of his community. As Shakespeare's foulest villain, Iago, puts it in Othello, "Good name in man and woman is the immediate jewel of their souls." That is why the concepts of slander and libel, and of the right of the aggrieved to seek redress for defamation, were introduced into English common law during the Middle Ages and why those ideas survive in U.S. law today.

But ever since the founding of this nation, lawmakers and courts have also recognized a vital competing right: for society to have free and open discussion of public issues and the performance of public officials, so that an informed people can govern themselves. To further that goal, the First Amendment guarantee of freedom was written on behalf of a press that was far more noisy, brawling and partisan than the much maligned journalism of today. As a California judge noted in his opinion in a 1979 libel case, George Washington was called a murderer, Thomas Jefferson a blackguard and a knave, Henry Clay a pimp, Andrew Johnson and Ulysses Grant drunkards. Abraham Lincoln was termed a half-witted usurper, a baboon, a gorilla and a ghoul. Yet none of the nation's early leaders even attempted to sue, although some may have shared Benjamin Franklin's professed desire to balance "the liberty of the press" with "the liberty of the cudgel."

These statesmen forbore going to court in part because they doubted the courts would, or should, be open to them. The Federalists, the party of Alexander Hamilton and John Adams, enacted in 1798 a Sedition Act that imposed criminal penalties for "false, scandalous and malicious writing" about the Government, Congress or the President. The law proved so unpopular that it contributed to the Federalists' defeat in 1800 and later disappearance; the statute expired in 1801, and has been regarded as unconstitutional.

The electorate did not mean to make some perverse endorsement of malice or falsehoods. Rather, voters realized that the motive of legislation like the Sedition Act was to silence the critics of those in power, and trusted that in time truth would conquer error. Occasionally, Government tested the principle anew. When the New York World and Indianapolis News alleged corruption in the development of the Panama Canal in 1908, President Theodore Roosevelt ordered his Attorney General to sue. The courts quashed both cases before they could come to trial.