Peter M. Tiersma
This Article has argued that defamation should be defined not only in terms of the effect on the target or his reputation, but also in terms of the act of the speaker. Defamatory language requires—or ought to require—that the speaker perform the illocutionary act of accusing. An utterance has the force of an accusation when it attributes responsibility to someone for an act or state of affairs. An accusation’s force is most explicit when a speaker states, “I accuse P of A,” using a performative phrase in the first person, present tense. In addition to having this particular force, an accusation must have a specific propositional content; it must attribute responsibility to a specific person for a discreditable or blameworthy act or state of affairs.1
Support for the notion that defamatory language is accusatory can be found in judicial opinions. Not infrequently, judges use words such as “accuser” and “accusation” in describing libelous or slanderous communications. In dissenting from a denial of certiorari in Dun & Bradstreet, Inc. v. Grove, Justice Douglas stated that the libeled may rebut “their accusers.”2 In Gertz v. Robert Welch, Inc., the Court referred to the “accusations” made in the offending article.3 Other instances of the use of “accuse” (and its morphological variants) in describing defamatory language are not unusual.4
While judges and others often use the verb “accuse” to describe charges made against another, accusers seldom overtly state this word in their accusations. Unlike a judge, who often takes pains to preface explicitly the holding of an opinion with “we hold,” an accuser does not normally announce the force of an accusation with “I accuse.” For this reason, it is necessary to inquire into the speaker’s intent in making the utterance: whether she is attempting to attach responsibility to someone for a discreditable act or state of affairs. For example, suppose a store manager says to a police officer, “That fellow took a radio without paying for it.” This utterance is not a casual statement or report, but an accusation of theft. It is equivalent to “I accuse that fellow of taking a radio without paying for it.” In a recent case, an insurance agent asked a woman whose house had burned down, “How did you set the fire?” The true force of his utterance was not a question, but an accusation of arson.5 The essential question is whether an utterance is expressible with an explicit performative phrase (“I accuse”) or its semantic equivalent.6
The illocutionary act of accusing is closely related to confession and blame. When a person confesses, she essentially attributes responsibility for a bad act to herself. Like accusing, the act of confession is done publicly—one must confess before witnesses.7 In contrast, blaming usually entails an uncommunicated attribution of responsibility. I can blame myself or someone else for a reprehensible act, but this attribution is primarily a mental process (although I could, of course, make it public by announcing my mental state of blaming someone). Also similar to accusing is alleging, at least in the popular use of the word. The main distinction between them is that allegations do not refer exclusively to reprehensible acts, but rather to factual or legal claims that do not necessarily involve blameworthy conduct. In addition, the claims of an allegation remain to be proved, thus its force is weaker than that of an accusation.
More distantly related to accusation is insult. An insult is usually directed at the victim. An accusation, on the other hand, is often addressed to someone else, although its ultimate target is the reputation of the victim. Both insults and accusations involve negative characterizations of a person’s actions, character, or physical attributes. But accusations, along with blame and confession, are appropriate only when the act is blameworthy or discreditable—a person cannot accuse someone of having a big nose, though this is a perfectly acceptable insult and might well subject the victim to painful ridicule.
The Propositional Content: Blameworthy Conduct or State of Affairs
Every illocutionary act such as accusing also has a proposition. For example, I can explicitly indicate the force of a promise by beginning my utterance with “I hereby promise.” But then I must promise something to someone. This is the proposition. With a promise, the proposition must be an act that I will perform or cause someone else to perform in the future. I obviously cannot commit myself to do something that is already done.8
In an accusation, the proposition is that someone has done or is doing something blameworthy or discreditable. This proposition requires moral judgment and presupposes a community with a shared set of values. The law will not provide a remedy if the accusation relates to moral standards that are considered antisocial9 or are held by too small a group of people,10 even if the harm to the victim is very real. This limit is obviously an artificial one. For a drug dealer, the worst possible accusation would be that he is an undercover narcotics agent. It could ruin his business and cause his friends and acquaintances to shun him or even kill him. On the other hand, a newspaper article reporting that he is the largest drug dealer in the state might, if inaccurate, lead to a large damage award even though in the eyes of the victim’s community it was not reprehensible, but enhanced his reputation.11
One reason that the definition of defamatory language has been so elusive is that community standards often vary widely according to time, geography, and social status.12 Community moral standards, of course, may differ depending upon the target of the accusation. One might not accuse a sailor or steel mill worker of having been drunk or kissing the barmaid the night before, but one might well accuse a priest of the very same act.13 And although driving five miles over the speed limit is not especially blameworthy, it might be for the chief of police to do so while off duty. In this case, we could properly accuse the chief, not for driving too fast per se, but for being a hypocrite by disobeying the very rules he enforces against others.
Additionally, an utterance has the propositional content of an accusation only if the audience, according to the values of the community, would find the conduct discreditable. Prevailing values, however, often differ from one community to another. Homosexuality is apparently still morally reprehensible in many areas,14 and to impute this to someone would be an accusation.15 It is less likely that one can accuse someone of being gay in certain districts of San Francisco. Whether the utterance “Bill is gay” is an accusation depends on the standards of his community.
We can categorize defamation cases by the propositional content of the accusations. Any conduct that violates community moral standards can form the propositional content for an accusation. Because moral standards often correlate to the criminal law, serious violations of the law generally constitute blameworthy conduct sufficient for an accusation. Sexual misconduct and business impropriety also frequently serve as the propositional content of an accusation.16 Imputation of a loathsome disease describes another traditional category of accusations in defamation cases.17 The unifying element for all categories is a violation of community norms: the accuser must charge his target with violating community norms to make a true accusation.
To charge someone with the commission of a crime is one of the most damaging forms of accusation.18 This characterization is particularly appropriate when the charge is the commission of a significant crime, but less so when the infraction is minor. Driving five miles over the speed limit is unlikely to be the proposition of an accusation because the conduct probably does not violate community moral standards. When the infraction is more serious, a perpetrator may be subject to community censure, and attributing responsibility for the infraction may indeed be an accusation. Interestingly, although imputation of a crime is one of the categories of slander per se, courts generally hold that only crimes involving “moral turpitude” will qualify.19 In a legal setting a prosecutor might formally accuse someone of lesser crimes, but the speech community would probably not speak of an accusation in such cases. Limiting defamatory language to accusations, as defined here, accommodates the law’s refusal to treat imputations of crimes without moral turpitude as the bases of defamation actions.
Another common type of defamation is a charge of unchastity. This imputation fulfills the requirement of the propositional content rule—an accuser attributes responsibility for a blameworthy or discreditable act. For instance, in Time, Inc. v. Firestone, the Supreme Court quoted a Time article that stated that the plaintiff’s divorce was granted “on grounds of extreme cruelty and adultery … The 17-month intermittent trial produced enough testimony of extramarital adventures on both sides, said the judge, ‘to make Dr. Freud’s hair curl.’ ”20 The plaintiff based her libel claim on the implicit accusations in the article.21
As a general principle, it appears that one can accuse only a woman of mundane varieties of unchastity;22 charges of unchastity regarding men must often be more serious or even criminal to be defamatory.23