UC Irvine Law Review

Despite deep inequality in social status and social capital in American society, legal scholarship has done relatively little to understand the structures that produce status and maintain its distribution. The Article argues that defamation law plays such a role.

The orthodox view is that defamation law’s goal is to protect dignity. This view was expressed in a famous Supreme Court holding in 1966, which held that defamation law is necessary to protect “the essential dignity” of “every human being.” The later seminal work of Robert Post cemented it. Seemingly unrelated, scholars of defamation law have found its structure mystifying, claiming for decades that it is “full of anomalies and absurdities.” This Article argues that the two positions are connected. The problem lies not so much in the law but in our perspective.

Dignity, while truly important to human flourishing, cannot function as defamation’s linchpin because it is, at bottom, an individualistic concept, while defamation is a social tort through and through. Defamation law cares not just about the harm to the individual but also about the value of speech, its publication, and its effects on the opinions of members of the public. The discontent with doctrine is but one symptom of the problem. The dignity turn has also had unintended harmful consequences, mystifying and perpetuating the use of defamation law to enact racial and sexist social hierarchies.

In contrast, this Article argues that defamation law protects the legitimate pursuit of status. Drawing on rich sociological theory dating back to Weber and Veblen, the Article constructs an understanding of status as it applies to the law. This interpretation has a surprisingly tight explanatory fit with defamation doctrine, offering clarity in an area notorious for its opaqueness. Such clarity is urgent given the strong calls for reform that reverberate across the entire political spectrum. This thesis also provides a firm normative perch from which to reevaluate defamation law. A status understanding decloaks the judicial role, exposes what judges truly do when they decide cases, and unveils a normative outlook for future decision-making.