Nat Stern


Part I of the Article traces the route to the Court's decision to add the public/private concern inquiry to the complex4 body of defamation doctrine, as well as the potential impact of this distinction beyond the context in which it was first promulgated. Part II reviews courts' efforts to categorize defamatory speech in a rational way, seeking to demonstrate that this goal has inevitably eluded them. From a broader perspective, Part III examines the Court's longstanding ambivalence toward elevating speech of a presumably public nature over other expression. Against this backdrop, the Court's decision to distinguish between public and private concerns in defamation amounts to an avoidable choice, not an obligatory standard. At the same time, as Part IV shows, withdrawal of this element from defamation doctrine would not require wholesale abolition of the public/private distinction in free speech jurisprudence. The Article concludes that restoration of the regime that prevailed prior to the public/private concern criterion would restore a more defensible balance to the constitutional law of defamation.

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