Defamation as Speech Act: A Theory that Works


Defamation as Speech Act


John M. Conley

Peter Tiersma’s 1987 Texas Law Review article, “The Language of Defamation,” is one of his earliest law-and-language pieces and, to me, still one of his most interesting. Remarkably, he wrote it (and a related piece (Tiersma 1986) on “The Language of Offer and Acceptance”) when just out of law school and working as a law clerk for the California Supreme Court and then a litigation associate in a law firm. I say “remarkably” because survival as a new associate depends very heavily on how many hours one can bill, and I doubt Tiersma’s firm had a billing code for linguistics.

“The Language of Defamation” reflects Tiersma’s early and perspicacious realization that while many significant problems that lawyers and judges confront are fundamentally linguistic, their approaches to these problems usually ignore linguistic learning that might be helpful. Here, Tiersma chooses defamation—a civil tort that consists of an utterance and its consequences—as an example of how the law might be made both more predictable and more just by the application of linguistic sensibility. This is not an easy task; as his longtime collaborator Lawrence Solan (1993: 186) wrote a few years later when analyzing judicial opinions, “Interpretive principles do not make good legal principles.” But Tiersma overcomes this inherent difficulty and largely succeeds in adding value through linguistics.

As Tiersma recounts, early Anglo-American cases defined defamation (written libel and oral slander) primarily in terms of its effect on the victim, in particular its capacity to diminish the victim’s reputation. In some cases simply ridiculing the victim was enough. The defendant’s intent had little or no relevance, as long as the defendant was in some sense responsible for the utterance. Contemporary law further requires that the statement itself be “false and defamatory,” which means that it must “lower [the victim] in the estimation of the community,” and specifically “in the eyes of a ‘substantial and reputable minority’ ” (Tiersma 1987: 311 [quoting Restatement (Second) of Torts § 559]). But while the newer formulation sharpens the definition of the requisite effect, it still “sheds little light on the nature of the communication itself” (Tiersma 1987: 311).

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