Applying Tiersma’s Defamation Theory to Defamation Cases
Applying Tiersma’s Defamation Theory to Defamation Cases
Roger W. Shuy
A law professor friend once told me that lawyers practice linguistics without a license. No doubt it’s true that lawyers often have to make linguistic decisions, whether trained in the field or not. It’s equally true that linguists who work in the legal arena have a lot to learn about law. Since it’s rare that law professors are also trained linguists, we can be very grateful to Peter Tiersma for using his considerable linguistic background and knowledge to help bridge the gap between linguistics and law in his many excellent books and articles. A prime example is his work on defamation (Tiersma 1987), in which he applies his linguistic expertise in speech acts to defamation statutes, producing results that are important to both fields.
In his article Tiersma points out that defamatory statements do considerably more than cause harm to persons’ reputations and lower their esteem in the minds of the larger community. He explains that this conventional understanding of defamation sees only one side of the communicative event. It relates only to the effects of defamatory utterances but not to their causes. Looking at half the picture fails to recognize the more important substance in defamatory communication because it deals with the experience of the receiver of the message but ignores its sender. Tiersma pointed out that this important missing substance can be found in the sender’s actual language used to defame.
Tiersma also explains that while senders seldom use the performative word “accuse” in their messages, those who follow the conventional perception of defamation overlook the important illocutionary speech act of accusing, which attributes responsibility to the sender of alleged defamatory messages. He then helpfully distinguishes accusing from other speech acts such as blaming and alleging, both of which relate to judgmental claims that are not considered defamatory acts, and points out that differing community standards are addressed in the propositional content of accusations.
Even the major doctrines of defamation, including the fair report privilege that deals with language used honestly about a matter of public interest, the distinction between fact and opinion, and the standard of malice (intentional and reckless defaming), can benefit from understanding the work done by speech acts, an analytical procedure originally introduced by Austin (1962) and Searle (1969) and later expanded and developed by others. The study of speech acts is now regarded as a vital component of linguistics. Recognizing the ways that speech acts operate in language can even provide clues to a person’s intentions, which can enable the courts to better distinguish between defamatory accusations and reports that merely inform readers of a state of affairs or opinions about the author’s state of mind.