Open AccessFree Speech and Cheap Talk
Author(s) -
Daniel Jacob Hemel,
Ariel Porat
Publication year - 2019
Publication title -
the journal of legal analysis
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.797
H-Index - 11
eISSN - 2161-7201
pISSN - 1946-5319
DOI - 10.1093/jla/laz004
Subject(s) - plaintiff , liability , raising (metalworking) , deterrence theory , deterrence (psychology) , quality (philosophy) , law and economics , law , free speech , political science , business , economics , philosophy , epistemology , engineering , mechanical engineering
We present a new framework for analyzing defamation liability that serves both to clarify and complicate understandings of the law’s consequences for speakers, victims, and the marketplace of ideas. In addition to the familiar deterrence and chilling effects, we show how defamation liability can generate a “warming effect,” making statements more credible and potentially raising both the quality and quantity of speech. We also explain how a more plaintiff-friendly liability regime may exacerbate harms to defamation victims. We end by considering the possibility of “self-tailored” defamation law, with victims or speakers selecting the defamation liability regime that applies to them.