Proposal for reinstituting group libel law

[Eric Claeys]

It's not necessary to ground group-libel claims on the reputation of the 
group.  If a slur is repeated often enough, it diminishes the reputation 
and therefore free action of all individuals who might fit the slur.  
The principle is the same as that by which public-nuisance law and 
environmental clean-air rules can be understood as public actions 
attacking a series of significant but still low-level individual 
nuisances against a lot of land owners.

If so, then, on one hand, the constitutional case for group libel is 
stronger, along the analogy that Frankfurter made in Beauharnais to 
individual libel.  On the other hand, at the level of legislation, one 
needs to decide how best to protect those reputational interests.  
Individual lawsuits probably aren't administratively cost-effective, and 
there's too much of a likelihood that the only plaintiffs will be 
gadflies.  I'd stick with criminal prosecution.  Even acknowledging the 
risk of partisan prosecutions, I'd still bet that prosecutions would be 
rare, because they're time intensive, and they're a distraction from 
ordinary life & property crimes unless the libel is really serious.  And 
the public nature of the lawsuit would exert a teaching function 
countering the slur.

Eric Claeys
Saint Louis University


Harry Pohlman wrote:
> i've enjoyed this thread on group libel, but i still am very skeptical 
> about basing civil liability on false historical claims, partly for 
> the reasons that Eugene has so ably argued, but also because, unless i 
> am mistaken, statements have to be defamatory before they can 
> constitute libel, that is, they have to be injurious to reputation.  
> does a racial or ethnic group have a reputation in the sense that an 
> individual has one?  which groups are legally entitled to claim 
> "reputations?"  and even if some groups are legally entitled to 
> reputations, could they prove compensatory harm if some crazy person 
> makes a wild historical allegation?  (i'm assuming that Bernard Lewis 
> would be protected on other grounds.)   how would one go about proving 
> that such denials of the holocaust have hurt the reputation of Jews?  
> would juries decide these questions?  in any case, perhaps i missed 
> this along the way, but wouldn't a proposal for group libel have to 
> address these questions, especially post-SULLIVAN.
>
> Harry Pohlman
>
>
>