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Talkers vs. doers

Gail Heriot comments on the difference between the 19th and 20th centuries as reflected by the jurisprudence of the times:

I�ll confess that I don�t feel strongly about the strict liability vs. negligence issue. I can see arguments both ways. What I find interesting is the stark contrast between the way the two eras treat doers and the way they treat talkers. Nineteenth century judges had no special place in their hearts for talkers. Defamation, for example, was a strict liability tort, when just about every other tort required proof of the defendant�s negligence. If you opened your mouth and defamed someone, these judges were not in the least interested to know that you honestly and reasonably believed that what you said was true. In their view, you speak at your peril. If you don�t want to run the risk of liability, keep your mouth shut (or at least avoid saying defamatory things). Running one�s mouth off was evidently not in the same category as building railroads, tilling the land or even separating angry dogs.

Modern judges, on the other hand, evidently regard talk as the highest form of human activity. It needed "breathing room," they say. They held in New York Times v. Sullivan, for example, that in order for a newspaper to be liable for defaming a public figure it must have acted with "malice" (i.e. it must know of the statement�s falsity or act in reckless disregard of its truth or falsity). In particular, courts bend over backwards to protect newspapers, magazines and book authors�professional chatterers. Dilettantes received slightly less protection, instead of slightly more.

It�s certainly not obvious to me that all this talk about the need for First Amendment "breathing room" is false. What I don�t understand is why it doesn�t seem to occur to courts that other equally or more valuable human activities don�t also need "breathing room" in the form of legal standards that give them the benefit of a presumption in the actor's favor. Chattering is fine. I do it for a living myself. But it seems odd to elevate it over activities that receive no such presumption like the manufacture of life-saving pharmaceutical products. Don't they need "breathing room" too?

Read the whole thing here.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.