A Dangerous Distinction: The Deconstitutionalization of Private Speech

Abstract

In the mid-1960s the U.S. Supreme Court began applying a Meiklejohnian approach to certain First Amendment claims, using a self-government rationale to justify enhanced protection for freedom of expression on matters of public concern in cases involving defamation, false light invasion of privacy, government employees’ speech, and intentional infliction of emotional distress, as well as others. The Court, however, refrained from acknowledging the remainder of Meiklejohn’s argument — that private speech is outside the purview of the First Amendment and protected only by the Due Process Clause of the Fifth Amendment. In the wake of Supreme Court defamation rulings in the 1980s, some lower courts have begun “deconstitutionalizing” private defamatory speech, holding such speech is not entitled to constitutional protection. Further complicating matters is the question of whether the First Amendment applies differently to nonmedia defendants. This study explores these developments, finding that in defamation cases involving private plaintiffs and matters of private concern, some lower federal courts and state appellate courts have 1) refused to declare that the First Amendment prohibits liability for true defamatory speech, 2) held that the Constitution does not require any proof of fault, and 3) ruled there is no constitutional protection for opinion. The article concludes that removing First Amendment protection for private speech is normatively unjustified and practically dangerous and recommends a solution to halt the deconstitutionalization of private speech.