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Hastings Constitutional Law Quarterly

Abstract

Defamation suits against scholars have rarely been successful in the United States because of First Amendment protections, but the prospect of spending a hefty sum to defend a defamation suit has a chilling effect on what scholars research or write. Compared to the publications of media giants, a defamation claim is more likely to inhibit scholarly ideas from scholars such as scientists, psychologists, economists, mathematicians, law professors, and book reviewers.

The U.S. Supreme Court has refused to significantly alter its defamation framework promulgated almost half a century ago. Lower courts have worked within this constitutional framework to protect scholars by concluding that plaintiffs who sue scholar defendants must prove "actual malice," statements are not reasonably capable of defamatory meaning, and statements are protected opinion. Although these efforts are admirable, this framework usually forces courts to engage in extensive analysis and can lead to unpredictable results. A more protective approach stems from state statutes that recognize a common interest privilege, which will likely help scholars avoid defamation suits to begin with.

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