Guess Who? Reducing the Role of Juries in Determining Libel Plaintiffs' Identities

Abstract

A fundamental requirement of actionable defamation is that the statement in question be “of and concerning” the plaintiff—that is, the allegedly false speech is understood as referring to the party bringing suit. Though not ordinarily difficult to establish, this element can become contentious when the expression does not purport to be about that individual. Two settings in which this issue commonly arises are works that are represented as fiction and statements about a group to which the plaintiff belongs. This Article argues that the law should expressly recognize a more dominant role for courts in resolving the issue of plaintiff identity. This could be accomplished by raising the burden on plaintiffs to demonstrate that alleged defamation not ostensibly about them will be understood as singling them out. This change would reduce the chill to speech caused by uncertainty as to whether expression that does not mention an individual will nevertheless give rise to a suit by that person. In particular, it would give courts more latitude to dismiss suits on the pleadings or at summary judgment. This effect would reduce the specter of both litigation costs and misapplication of plaintiff identity doctrine by juries through insufficient understanding or bias.