Supreme Court Nominee Elena Kagan: Defamation and the First Amendment

Edward C. Liu
Legislative Attorney

Defamation is the publication of a false statement of fact that injures another person's reputation. Modern defamation law incorporates First Amendment protections in the form of imposing a higher burden on plaintiffs who challenge statements about public officials, public figures, or matters of public concern. The modern framework of defamation stems from the Supreme Court's decision in New York Times v. Sullivan, in which the Court overturned a libel judgment against civil rights activists for their criticism of actions and policies by government officials in Birmingham, Alabama. Because the allegedly defamatory speech was critical of a government official or policy, the Court required the plaintiffs to prove by clear and convincing evidence that the defendant had acted with actual malice. Since then, the Court has extended similar protections to speech about public figures and speech concerning matters of public concern. 

In articles published in 1993 and 2000, then-assistant law professor Elena Kagan argued that, while Sullivan was rightly decided, it is not clear that its extension beyond attacks on official conduct or policy provides significant protection of core First Amendment values to justify the cost to individuals that have suffered reputational injury. Kagan noted that the scope of public figures or matters of public concern is expansive and has grown to include cases of celebrity gossip, and she argued that protection of these statements is far removed from the central meaning of the First Amendment, namely "to protect against all infringements the right of a sovereign people to criticize the government policy and public officials." Additionally, the increased complexity of defamation litigation detracts from the speech-promoting effects of the actual malice standard.


Date of Report: June 10, 2010
Number of Pages: 8
Order Number: R41281
Price: $19.95

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