The Case Against Expanding Defamation Laws

Yonathan A. Arbel & Murat Mungan, The Case Against Expanding Defamation Law, 71 Ala. L. Rev. 453 (2019).

Contemporary proposals and institutional projects make expansion of American defamation law a concrete rather than merely theoretical possibility

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 454–455, that renewed political attacks on “fake news,” proposals to make libel suits easier, Justice Clarence Thomas’s call to reconsider New York Times v. Sullivan, and the American Law Institute’s Restatement project make defamation expansion a live institutional question. The article therefore addresses an actual reform agenda rather than an abstract doctrinal puzzle. This is significant because changes sold as protection against misinformation can alter not only speakers’ incentives but also listeners’ beliefs. It connects to fake news, libel reform, New York Times v. Sullivan, the Restatement of Torts, press freedom, and institutional change.

The opening establishes why a new behavioral account of defamation law matters to courts, lawmakers, and reformers.

fake news
libel reform
New York Times v. Sullivan
Restatement of Torts
press freedom
institutional change

The political examples identify pressures for expansion as of 2019; they do not establish that any particular reform was adopted or remains pending.

The introduction identifies political, judicial, and ALI initiatives that could broaden exposure to defamation liability.


The conventional proposition that stronger defamation law necessarily protects reputation is an untested axiom rather than a complete account

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 455–456, that courts and scholars commonly assume a monotonic relationship: if defamation law exists to protect reputation, expanding it must produce more protection. That “virtually axiomatic” premise focuses on deterring or remedying false speech without asking how the legal regime changes what audiences infer from the speech that remains. This is significant because the supposed reputational benefit supplies the weight placed opposite free expression in constitutional balancing. It connects to doctrinal axioms, reputation, tort deterrence, constitutional balancing, law reform, and behavioral analysis.

The article’s intervention begins by identifying the hidden premise that makes expansion appear presumptively beneficial.

doctrinal axioms
reputation
tort deterrence
constitutional balancing
law reform
behavioral analysis

The authors do not deny that defamation law sometimes protects reputation; they deny that protection is automatic or unambiguous.

The introduction describes the accepted reputation-protection premise and explains that it overlooks the behavior of audiences.


Reputational injury is mediated by third-party audiences, so a speaker-victim model omits the actor whose belief converts speech into harm

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 456–457, that defamatory words do not directly reduce reputation in the way a blow directly injures a body. An audience must hear the assertion, assess its credibility, believe it, and change its behavior toward the target. A bilateral speaker-victim model therefore suppresses the causal role of the audience and treats belief as automatic. This is significant because legal rules can affect the audience’s inference even when the words and the victim are held constant. It connects to causal mediation, audience theory, reputational harm, third-party beliefs, tort models, and information processing.

Making the audience an explicit third actor changes the causal model on which defamation policy rests.

causal mediation
audience theory
reputational harm
third-party beliefs
tort models
information processing

The degree of mediation depends on whether the audience hears, understands, and acts upon the challenged statement.

The introduction contrasts direct injuries with reputational harms that arise only through audience belief and reaction.


Defamation liability can make surviving accusations more credible by increasing the expected cost of sending false signals

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 456–458, that audiences interpret speech partly through its expected cost. Stronger liability raises the price of a knowingly false factual assertion, so a speaker’s willingness to make an accusation despite that threat can signal confidence or truthfulness. This is significant because the same deterrent mechanism that suppresses some lies can cause listeners to place greater weight on undeterred lies. It connects to signaling theory, costly signals, Bayesian inference, deterrence, credibility, and the economics of information.

The signaling account supplies the mechanism by which a reputation-protecting rule can create reputational harm.

signaling theory
costly signals
Bayesian inference
deterrence
credibility
economics of information

The mechanism requires audiences to perceive some connection between the legal environment and the cost of false speech, although their perception may be vague or mistaken.

The authors apply costly-signaling logic to the expected legal price of false factual assertions and the credibility of statements that remain.


The seesaw dynamic trades a lower quantity of false statements for greater credibility and greater harm from each residual falsehood

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 457–458, that a trilateral model of speaker, target, and audience reveals a “seesaw dynamic.” Expanding liability may reduce the number of false accusations, yet that reduction improves the informational quality attributed to accusations as a class; the false accusations that survive can therefore produce more severe behavioral consequences. This is significant because counting deterred lies measures only one side of the reputational effect. It connects to quantity-quality tradeoffs, residual risk, credibility, deterrence, audience updating, and unintended consequences.

The seesaw dynamic is the article’s central theoretical proposition and organizing concept.

quantity-quality tradeoffs
residual risk
credibility
deterrence
audience updating
unintended consequences

The direction and magnitude of the net effect are context dependent; the dynamic does not imply that every increase in liability worsens reputation.

The introduction names and explains the tradeoff between fewer falsehoods and the enhanced credibility of those that remain.


Audience effects do not depend on legally expert or perfectly rational listeners and may become stronger when listeners are credulous

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 458–459, that listeners need not know doctrine or perform formal Bayesian calculations for the seesaw effect to arise. They need only form a rough belief that false accusations are riskier or less common under a stricter legal regime. If listeners are gullible, the increased assurance created by law can make residual lies especially damaging rather than defeat the theory. This is significant because the audience account is not confined to sophisticated markets or legally informed elites. It connects to bounded rationality, heuristics, legal consciousness, gullibility, Bayesian updating, and behavioral law and economics.

The claim broadens the theory’s applicability and answers an immediate objection about public ignorance of legal rules.

bounded rationality
heuristics
legal consciousness
gullibility
Bayesian updating
behavioral law and economics

If audiences are wholly unaware of the legal environment and never change their assessment of credibility, the audience effect may be negligible.

The introduction explains that vague beliefs and even credulous audience behavior can sustain or magnify the signaling mechanism.


Defamation reform should compare harm avoided through deterrence with harm amplified through credibility, and uncertainty should favor speech

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 459–460, that the policy question is not simply whether stronger law prevents some false speech. Courts must compare the reputational harm avoided when lies are deterred with the harm caused when the remaining lies become more believable. Because speech and press receive constitutional protection, unresolved doubt about whether expansion yields a net benefit should count against imposing the restriction. This is significant because it converts a gross-benefit rationale into a net-effects test with an explicit error rule. It connects to cost-benefit analysis, First Amendment defaults, institutional uncertainty, burden of proof, reputation, and free speech.

The article translates its behavioral mechanism into a decision rule for courts considering doctrinal expansion.

cost-benefit analysis
First Amendment defaults
institutional uncertainty
burden of proof
reputation
free speech

The authors offer a decision framework rather than a complete empirical welfare calculation for every doctrinal setting.

The introduction asks whether avoided harm exceeds amplified harm and argues that constitutional uncertainty should be resolved in favor of expression.


Expanding libel law to fight fake news can backfire by giving audiences false assurance that published allegations have survived a reliable legal filter

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on page 460, that a stricter response to fake news may induce the public to treat circulating accusations as presumptively trustworthy. Because judgment-proof, anonymous, foreign, or highly motivated speakers can remain outside effective deterrence, the legal filter is incomplete even when audiences act as though it is strong. This is significant because a reform aimed at misinformation may amplify the behavioral force of the misinformation it fails to remove. It connects to fake news, false assurance, judgment-proof speakers, online anonymity, enforcement gaps, and regulatory backfire.

The claim shows why the audience mechanism matters most when policymakers invoke highly salient misinformation as a reason for expansion.

fake news
false assurance
judgment-proof speakers
online anonymity
enforcement gaps
regulatory backfire

Backfire is a risk, not an inevitable result; the outcome depends on deterrence, enforcement gaps, and audience response.

The introduction applies the seesaw logic to contemporary fake-news proposals and persistent categories of undeterred speech.


Protection of social reputation is the dominant justification for defamation law and is analytically distinct from emotional distress or privacy

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 461–462, that defamation doctrine is conventionally organized around a person’s standing in the eyes of others. Although false accusations can also wound feelings or invade privacy, those injuries do not define the reputational interest that the tort principally protects. This is significant because evaluating whether defamation law succeeds requires measuring changes in third parties’ esteem and behavior, not merely the target’s subjective distress. It connects to dignitary torts, emotional distress, privacy, social esteem, reputational injury, and remedial classification.

The distinction fixes the outcome variable for the article’s audience-centered critique.

dignitary torts
emotional distress
privacy
social esteem
reputational injury
remedial classification

Nonreputational injuries may still justify legal remedies under other doctrines or contribute to damages in particular cases.

Part I distinguishes the law’s dominant reputational rationale from emotional and privacy harms that may accompany false speech.


Property, dignity, social-order, and economic theories converge on the importance of reputation while explaining that importance differently

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 462–464, that reputation can be understood as property-like capital, an aspect of dignity or honor, a civilized substitute for violent self-help, or a decentralized prediction of future conduct that lowers search and transaction costs. These accounts differ in moral foundation but agree that social beliefs influence access to relationships and opportunities. This is significant because the audience’s judgment is constitutive of the interest under every major theory, not a peripheral aftereffect. It connects to property theory, dignity, honor, social order, economic signaling, and transaction costs.

The synthesis shows that adding audiences is compatible with multiple normative theories of reputation.

property theory
dignity
honor
social order
economic signaling
transaction costs

The article surveys rather than resolves the normative contest among these theories.

Part I canvasses rights-based, social, and economic accounts of why reputation matters and what defamation law is thought to protect.


Defamation law is conventionally said to protect reputation through deterrence, redress, and vindication

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 464–465, that the law’s reputational work is usually divided into three functions. Liability is expected to deter false accusations before they occur, compensate victims after injury, and provide a public process through which a wrongly accused person can clear a good name. This is significant because each function seems beneficial in a bilateral model but changes once the law’s effect on audience belief is included. It connects to tort functions, deterrence, compensation, vindication, corrective justice, and public adjudication.

The taxonomy structures the later demonstration that all three rationales require an audience-effects qualification.

tort functions
deterrence
compensation
vindication
corrective justice
public adjudication

The three functions may overlap, and different theories of tort law may assign them different normative weights.

Part I identifies deterrence, redress, and vindication as the principal mechanisms by which doctrine is said to protect reputation.


Part I.B, Doctrine and Institutional Limits

Defamation law is intentionally incomplete because perfect suppression of falsehood would impose intolerable error, chilling, and administrative costs

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 465–466, that doctrine knowingly leaves some false and harmful statements without an effective remedy. Judgment-proof defendants, litigation expense, evidentiary error, jurisdictional limits, demanding proof rules, constitutional privileges, and the aversion to government-declared truth all create “breathing space” for speech. This is significant because the seesaw dynamic operates through the falsehoods that inevitably remain after feasible enforcement. It connects to legal error, chilling effects, judgment-proof defendants, access to justice, constitutional privilege, and optimal enforcement.

Persistent enforcement gaps make residual lies a structural feature of any realistic regime rather than an anomalous exception.

legal error
chilling effects
judgment-proof defendants
access to justice
constitutional privilege
optimal enforcement

The claim does not celebrate every remedial gap; it explains why eliminating all false speech is neither feasible nor normatively costless.

Part I lists doctrinal, practical, and constitutional reasons that defamation law permits some harmful falsehoods to circulate.


New York Times v. Sullivan constitutionalized defamation law by balancing reputation against the breathing space required for protected expression

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 465–466, that New York Times v. Sullivan transformed a largely common-law tort into a constitutional field. Actual-malice and related protections tolerate some falsehood because speakers need room to discuss public affairs without ruinous exposure to mistaken adjudication. This is significant because the weight assigned to “protecting reputation” determines how much expressive breathing space courts will preserve. It connects to New York Times v. Sullivan, actual malice, First Amendment doctrine, chilling effects, public officials, and constitutional tort law.

The constitutional frame makes an overstatement of reputational benefit capable of changing case outcomes.

New York Times v. Sullivan
actual malice
First Amendment doctrine
chilling effects
public officials
constitutional tort law

The article does not provide a complete history of post-Sullivan doctrine and focuses primarily on how its balance should be conceptualized.

Part I describes Sullivan’s constitutionalization of defamation and the deliberate tolerance of error to protect speech.


Modern defamation doctrine combines private reputation protection with historical remnants of social control and seditious libel

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 466–467, that controls on harmful speech developed through moral exhortation, early compensation systems, separate English actions for slander and libel, and the politically charged law of seditious libel. Those strands eventually merged into a private tort, but doctrinal remnants of the older institutions remain. This is significant because present rules are not the product of a single coherent theory of reputation. It connects to legal history, slander, libel, seditious libel, common-law evolution, and institutional path dependence.

The historical account cautions against treating the contemporary tort as a perfectly designed response to reputational injury.

legal history
slander
libel
seditious libel
common-law evolution
institutional path dependence

The compressed history is used to orient the doctrinal analysis rather than to offer a comprehensive genealogy of defamation law.

Part I traces several historical modes of controlling false and reputation-damaging speech before describing their merger into modern doctrine.


Publication, falsity, and defamatory meaning encode the audience’s role within the formal elements of the tort

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on page 467, that a prima facie defamation claim requires a false, defamatory communication published to at least one third person. “Publication” is satisfied by transmission to an audience, while “defamatory” asks whether the communication is capable of lowering the plaintiff in social estimation. This is significant because audience mediation is already implicit in the elements even though conventional policy analysis treats the dispute as bilateral. It connects to publication, falsity, defamatory meaning, third-party communication, prima facie tort elements, and social esteem.

The doctrinal elements themselves support treating audience belief as central to injury rather than external to it.

publication
falsity
defamatory meaning
third-party communication
prima facie tort elements
social esteem

Jurisdictions formulate the elements and fault requirements differently, and constitutional rules can add further conditions.

Part I describes the basic requirements of publication to a third party, falsity, and capacity to damage social standing.


Defamation adjudication produces legally authoritative truth under fallible procedures rather than direct access to ontological truth

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 467–468, that truth has shifted from a historically defendant-borne defense toward a constitutional limit on liability, especially after Sullivan and its progeny. Yet a court can determine only “legal truth” through burdens of proof, admissible evidence, and fallible factfinding; its judgment need not perfectly correspond to reality. This is significant because audiences may treat a lawsuit’s outcome as a highly credible public signal even when the adjudicative process errs. It connects to burdens of proof, actual malice, legal truth, epistemic limits, judicial error, and constitutional falsity rules.

The gap between legal and actual truth is crucial to the entrenchment risk created by public adjudication.

burdens of proof
actual malice
legal truth
epistemic limits
judicial error
constitutional falsity rules

The authors do not claim courts are generally unreliable; they emphasize that nonzero error matters when judgments shape reputation.

Part I reviews changing burdens concerning truth and explains that courts produce a procedurally bounded legal determination rather than infallible truth.


Part I.B, Defamatory Meaning and the Audience

Courts evaluate defamatory meaning through an imagined respectable audience rather than direct proof of every listener’s actual reaction

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 468–469, that defamatory capacity is generally tested against the reaction of a normatively constructed, respectable segment of the community. Patent absurdity or unbelievability can defeat a claim, although actual disbelief may sometimes go only to damages. This is significant because doctrine embeds assumptions about audience cognition while rarely modeling how real listeners update their beliefs under different legal regimes. It connects to reasonable-person standards, community norms, judicial notice, credibility, damages, and audience construction.

The doctrinal use of an imagined audience exposes the need for a more explicit account of actual audience behavior.

reasonable-person standards
community norms
judicial notice
credibility
damages
audience construction

Courts differ on whether unbelievability defeats liability or merely mitigates damages, and actual audience evidence may be relevant in some cases.

Part I explains the normative audience used to assess defamatory capacity and the doctrinal treatment of implausible or disbelieved accusations.


Large doctrinal and practical domains of reputation-affecting speech remain outside effective defamation liability

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 469–470, that opinions, much speech about public officials, group defamation, platform-hosted third-party content, and numerous practically unenforceable statements circulate without ordinary liability. Litigation cost, inaccurate adjudication, foreign speakers, anonymity, and collection problems widen those gaps. This is significant because audiences already encounter environments in which they must discount accusations rather than rely on a complete legal screen. It connects to opinion doctrine, public-figure rules, group libel, platform immunity, anonymity, and enforcement limits.

Existing liability gaps provide real-world settings against which the audience model can be evaluated.

opinion doctrine
public-figure rules
group libel
platform immunity
anonymity
enforcement limits

Being outside effective liability does not mean that all speech in these domains is false, harmless, or legally protected for the same reason.

Part I catalogs doctrinal exclusions and practical obstacles that leave substantial categories of defamatory speech unregulated or unenforced.


The accepted protection of opinion rests partly on the audience’s capacity to recognize and discount speech that lacks verifiable factual content

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 470–471, that opinion receives protection for reasons including liberty, democratic value, administrative manageability, and listeners’ ability to distinguish evaluation from verifiable fact. Audiences do not treat every epithet or subjective judgment as an authoritative factual report. This is significant because a major boundary of current doctrine already relies on decentralized skepticism rather than legal suppression. It connects to opinion privilege, fact-opinion distinctions, democratic discourse, audience competence, administrability, and counterspeech.

The opinion boundary demonstrates that selective nonregulation can coexist with rational audience discounting.

opinion privilege
fact-opinion distinctions
democratic discourse
audience competence
administrability
counterspeech

An opinion that implies undisclosed defamatory facts may remain actionable, so labels alone do not determine protection.

Part I explains several rationales for protecting opinion, including the audience’s ability to discount nonfactual assertions.


Part II, Audiences as Active Interpreters

Audiences are imperfect but active evaluators who use source identity and context to screen information rather than believing speech automatically

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 471–472, that the ordinary tort narrative wrongly treats listeners as deterministic conduits. Democratic and commercial-speech doctrine assumes some public capacity to sort claims, and empirical studies show that people discount anonymous sources and screen unfamiliar online information. This is significant because reputational harm depends on a variable act of belief rather than an invariant response to publication. It connects to rational-audience theory, source credibility, anonymous speech, commercial speech, democratic competence, and media literacy.

The article grounds its trilateral model in both legal commitments and observed source-screening behavior.

rational-audience theory
source credibility
anonymous speech
commercial speech
democratic competence
media literacy

Audience competence varies, and the authors do not assume perfect reasoning or immunity to deception.

Part II contrasts the bilateral model with legal and empirical evidence that audiences evaluate source credibility and context.


The restaurant example models reputation as valuable information about hidden quality under a tolerable baseline risk

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on page 473, that reputation matters when important quality differences cannot be observed cheaply. Their stylized market contains one hundred restaurants, eighty high quality and twenty low quality, and patrons willing to dine so long as perceived low-quality risk does not exceed forty percent. Before hearing a review, the twenty-percent baseline risk is acceptable. This is significant because the example makes audience behavior depend on how speech changes a decision-relevant probability. It connects to hidden quality, credence attributes, risk thresholds, consumer choice, Bayesian updating, and market reputation.

The baseline converts an abstract reputational injury into an observable decision to patronize or avoid a business.

hidden quality
credence attributes
risk thresholds
consumer choice
Bayesian updating
market reputation

The numerical shares and forty-percent threshold are simplifying assumptions chosen to illustrate a general mechanism, not empirical estimates of restaurant markets.

The basic example defines restaurant quality, patrons’ prior beliefs, and the risk threshold governing attendance.


Heterogeneous motives allow liability to deter marginal liars while leaving truthful and highly motivated speakers comparatively unchanged

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 473–475, that informed ex-employees can give positive or negative factual reviews and differ in the private value they receive from disparaging a former employer. The model assigns sixty no-motive “honest” speakers, twenty low-motive dishonest speakers, and twenty high-motive dishonest speakers. This is significant because an increase in legal cost changes the behavior of speakers near the deterrence margin while leaving some residual falsehoods. It connects to heterogeneous preferences, marginal deterrence, speaker motivation, strategic communication, selection effects, and residual misconduct.

Speaker heterogeneity is the structural reason stricter law changes the composition as well as the quantity of negative speech.

heterogeneous preferences
marginal deterrence
speaker motivation
strategic communication
selection effects
residual misconduct

The three discrete groups simplify what could be a continuous distribution of motives, and the model tables favorable false statements.

The hypothetical defines informed speakers and divides them by the value they derive from disparagement before introducing legal costs.


Without effective defamation recourse, honest speakers report quality accurately while motivated speakers disparage regardless of quality

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 475–477, that in the lax-law world D0, owners cannot credibly answer false accusations through suit, honest ex-employees truthfully match their reviews to quality, and all motivated ex-employees give negative reviews. Under the model’s uniform matching, this produces forty-eight positive reviews and fifty-two negative reviews, of which thirty-two are false. This is significant because weak legal screening creates a noisy pool of negative speech that listeners have reason to distrust. It connects to cheap talk, strategic disparagement, noisy signals, legal remedies, speaker selection, and reputational markets.

The D0 equilibrium establishes the low-credibility baseline against which strict law changes audience inference.

cheap talk
strategic disparagement
noisy signals
legal remedies
speaker selection
reputational markets

The uniform matching and deterministic behavior simplify real speaker choices, and owners may possess nonlegal methods of rebuttal.

The D0 analysis derives speaker behavior and the resulting totals of positive, truthful negative, and false negative reviews.


A rational patron discounts a negative review in the lax-law world because only twenty of fifty-two negative reviews are true

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 477–478, that a positive review in D0 is fully informative in the stylized model, but a negative review raises the perceived probability of low quality only from twenty percent to twenty out of fifty-two, or about thirty-eight percent. Because that posterior remains below the patron’s forty-percent avoidance threshold, the patron still visits even a negatively reviewed restaurant. This is significant because an increase in negative information need not cause reputational loss when the signal pool is known to contain many lies. It connects to Bayesian updating, posterior probability, decision thresholds, skepticism, diagnosticity, and consumer behavior.

The calculation shows how prevalent falsehoods can blunt the practical effect of each individual accusation.

Bayesian updating
posterior probability
decision thresholds
skepticism
diagnosticity
consumer behavior

The precise posterior depends on the stipulated distributions and audience knowledge; the example illustrates direction rather than estimating real consumers.

The article calculates the truth rate of negative reviews in D0 and compares the resulting thirty-eight-percent risk with the patron’s threshold.


An expansion of defamation law can occur through damages, burdens, privileges, enforcement, or litigation access rather than a binary switch

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 478–479, that the strict-law world D1 represents a family of gradual legal changes: higher damages, lower proof burdens, stricter enforcement, narrower privileges, or more practical access to suit. The example assumes a high-quality owner finds it worthwhile to sue over a false negative statement while truthful negative speech ordinarily remains protected. This is significant because the audience mechanism applies across procedural and remedial reforms, not only to a new substantive cause of action. It connects to damages, burdens of proof, privileges, enforcement intensity, litigation access, and comparative statics.

The formulation generalizes “expansion” into several doctrinal and institutional levers that raise expected liability.

damages
burdens of proof
privileges
enforcement intensity
litigation access
comparative statics

The initial D1 assumption favors defamation law by bracketing strategic suits and erroneous liability for truthful speakers; later analysis restores imperfect enforcement.

The article defines D1, identifies multiple dimensions of expansion, and states the litigation assumptions used to isolate audience effects.


Strict law deters low-motive false speakers but leaves high-motive false speakers, making the remaining negative pool more selected for truth

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 479–480, that honest speakers do not change under D1, truthful negative reviews remain protected, and the expected cost of suit deters some but not all dishonest speakers paired with high-quality restaurants. Low-motive speakers switch to positive truth or silence, while high-motive speakers continue to disparage. This is significant because selective deterrence changes the composition of observable speech: a negative statement increasingly comes from either a truthful source or a liar with unusually strong motives. It connects to marginal deterrence, adverse selection, residual offenders, chilling effects, speaker silence, and signal composition.

Selective rather than perfect deterrence is the bridge between a stronger rule and more credible residual accusations.

marginal deterrence
adverse selection
residual offenders
chilling effects
speaker silence
signal composition

The model assumes specific behavioral responses; actual speakers may substitute among wording, anonymity, silence, and litigation-resistant channels.

The D1 analysis explains why low-motive dishonest speakers are deterred but high-motive speakers remain, while honest speech is held constant.


The model’s strict-law equilibrium raises the reported probability that a negative review is true from thirty-eight percent to fifty-five percent and crosses the avoidance threshold

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on page 480, that D1 produces thirty-six negative reviews, twenty concerning low-quality restaurants, so a patron assigns a negatively reviewed restaurant a fifty-five-percent probability of low quality. That posterior exceeds the stipulated forty-percent risk threshold, causing patrons to avoid all negatively reviewed restaurants. This is significant because a reform can cause new harm to falsely accused high-quality firms even while suppressing some false reviews. It connects to Bayesian updating, diagnosticity, threshold effects, selective deterrence, reputational loss, and false positives.

The strict-law calculation demonstrates the behavioral consequence that the seesaw theory seeks to explain.

Bayesian updating
diagnosticity
threshold effects
selective deterrence
reputational loss
false positives

The model’s later numerical recap on page 488 reports twenty-four rather than sixteen residual lies, which is internally inconsistent with the thirty-six-negative-review and fifty-five-percent figures on page 480; the qualitative tradeoff is unchanged, but the exact illustration should be read with that discrepancy in mind.

Page 480 reports sixty-four positive and thirty-six negative reviews, with twenty true negatives and a fifty-five-percent posterior that triggers avoidance.


Strict defamation law can harm high-quality firms because suppressing false reviews makes each remaining negative review sufficiently credible to change patron behavior

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on page 481, that high-quality restaurants suffer no lost visits in the baseline or D0 because patrons discount noisy negative reviews. After the move to D1, there are fewer negative statements, but patrons trust them enough to avoid every negatively reviewed restaurant, including falsely accused high-quality ones. This is significant because the legal intervention, not merely the liar, becomes a contributing cause of reputational and commercial loss. It connects to causal attribution, regulatory effects, honest firms, false accusations, consumer avoidance, and reputation markets.

The example directly refutes the proposition that stronger liability can affect reputation only beneficially.

causal attribution
regulatory effects
honest firms
false accusations
consumer avoidance
reputation markets

The result depends on the audience’s decision threshold and the relative change in signal reliability; other parameter values can yield no behavioral switch.

The evaluation compares attendance in the baseline, D0, and D1 and identifies falsely disparaged high-quality owners as the losers from increased credibility.


The generalized seesaw dynamic follows from costly signaling: fewer false signals increase average reliability and magnify the effect of any false signal that remains

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 481–482, that expansion raises the cost of false signals and reduces their frequency. Audiences learn from experience or legal norms that statements are more reliable, place greater trust in them, and become more vulnerable when a residual statement is false. Put memorably, lies that once drowned in their own noise become more harmful because they are rare. This is significant because the result is not tied to restaurants or to the example’s exact arithmetic. It connects to costly signaling, information quality, endogenous trust, rarity effects, legal norms, and general equilibrium.

The passage converts the numerical example into a portable causal theory of speech regulation.

costly signaling
information quality
endogenous trust
rarity effects
legal norms
general equilibrium

Stronger law may also deter statements that are likely true but insufficiently documented, adding a chilling effect not fully modeled in the example.

The authors restate the example through signaling theory and formally name the tradeoff the seesaw dynamic.


The trilateral model rejects categorical protection claims without asserting that stricter defamation law always harms reputation

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 483–484, that stricter law can protect reputation in some settings and undermine it in others. Their target is the categorical axiom that more liability unambiguously produces more reputational protection, not the mirror-image claim that liability is invariably destructive. This is significant because the framework demands domain-specific analysis rather than a universal deregulatory conclusion. It connects to model qualification, heterogeneous effects, contextual analysis, causal inference, legal design, and anti-categorical reasoning.

The qualification prevents the seesaw result from being overread and states the article’s actual burden of proof.

model qualification
heterogeneous effects
contextual analysis
causal inference
legal design
anti-categorical reasoning

The article does not estimate how often the beneficial or harmful effect dominates across all defamation settings.

The qualifications section expressly rejects both the conventional unambiguous-protection axiom and any claim of inevitable reputational harm.


Part II.D, Welfare and Reliability Qualifications

The article models behavioral reputation effects rather than full welfare, and enhanced credibility can itself be socially valuable when audiences are excessively skeptical

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 483–484, that a complete welfare analysis would include speakers, victims, listeners, investment, prices, truthful-speech supply, and other ex ante responses beyond the model. They also recognize that stricter law’s reliability effect can be beneficial when excessive public skepticism prevents people from acting on valuable truthful information. This is significant because credibility is neither intrinsically harmful nor a complete proxy for social welfare. It connects to welfare analysis, ex ante incentives, truthful-speech supply, public skepticism, information reliability, and stakeholder analysis.

The qualification separates the article’s demonstrated behavioral mechanism from broader normative judgments it does not purport to complete.

welfare analysis
ex ante incentives
truthful-speech supply
public skepticism
information reliability
stakeholder analysis

The article offers only a preliminary welfare sketch and does not quantify the many offsetting costs and benefits it identifies.

The authors enumerate omitted welfare considerations and explain when increasing the perceived reliability of speech could help rather than harm.


A vague and even erroneous public belief that defamation law changed is enough to generate audience effects

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 484–485, that listeners may misunderstand which statements are protected and know little about doctrinal detail. The seesaw mechanism nevertheless requires only a rough perception that law has become stricter or looser, a perception that salient cases and political campaigns can create. This is significant because both proponents and opponents of expansion already assume that legal reform changes ordinary speakers’ behavior; the authors extend that insight to ordinary listeners. It connects to legal ignorance, legal consciousness, salience, behavioral response, public campaigns, and listener inference.

The minimal-information condition makes the theory plausible outside expert audiences.

legal ignorance
legal consciousness
salience
behavioral response
public campaigns
listener inference

When listeners are completely unaware of a legal change, or do not connect it to speech reliability, the audience effect from that change will be small.

The section argues that imprecise public beliefs can trigger listener updating and identifies total unawareness as an empirical limiting case.


Part II.D.2, Audience Rationality and Sticky Falsehoods

The more completely falsehoods stick regardless of context, the stronger the case for quantity reduction; otherwise credibility effects remain relevant

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 485–486, that anchoring and other departures from perfect rationality can make dubious claims “sticky.” If audiences believed every accusation regardless of its source or legal context, controlling quantity would dominate because credibility could not change. But ordinary life requires people to discount hyperbole, advertising, political claims, and social dissembling, so stickiness is normally a matter of degree. This is significant because the proper legal response turns on whether a class of lies is hard to dislodge or readily dismissed. It connects to anchoring, bounded rationality, misinformation persistence, puffery, behavioral evidence, and tailored regulation.

The qualification identifies an empirical dimension along which different speech domains may justify different liability rules.

anchoring
bounded rationality
misinformation persistence
puffery
behavioral evidence
tailored regulation

The article does not supply domain-specific measurements of stickiness, and especially sticky high-stakes falsehoods may support stronger intervention.

The authors analyze complete and partial stickiness, cite behavioral phenomena, and derive opposite priorities for hard-to-refute and easily discounted lies.


Every feasible improvement in enforcement can produce fewer but more harmful residual falsehoods because perfect deterrence is unattainable

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 486–487, that litigation is costly, slow, uncertain, emotionally draining, and difficult to execute, so some victims will not sue and some liars will remain. Cheaper procedures, larger or punitive judgments, fee shifting, plaintiff subsidies, lower proof thresholds, and faster adjudication all raise expected enforcement and can reproduce the same seesaw dynamic. This is significant because procedural access reforms alter the informational environment even if substantive liability is unchanged. It connects to enforcement theory, litigation costs, fee shifting, punitive damages, judgment collection, and procedural reform.

The claim extends the audience effect from formal doctrine to the practical institutions that determine expected liability.

enforcement theory
litigation costs
fee shifting
punitive damages
judgment collection
procedural reform

A hypothetical regime that eliminated all lies could remove the tradeoff, but the authors regard such complete deterrence as neither plausible nor advisable.

The enforcement section explains why residual lies persist and applies the seesaw logic to multiple reforms that reduce practical obstacles to suit.


Anti-lying norms set the baseline credibility of speech, while defamation law changes reliability only relative to that background

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 487–488, that internal morality and social norms increase the share of people who tell the truth without legal compulsion. A larger honest population makes statements more credible before any doctrinal change; expansion then modifies reliability relative to that baseline. This is significant because attributing all truthful behavior and reputational protection to law ignores the informal institutions already disciplining speech. It connects to social norms, moral internalization, baseline credibility, informal enforcement, legal crowding, and institutional substitution.

The norm account prevents policymakers from confusing background honesty with the marginal effect of defamation liability.

social norms
moral internalization
baseline credibility
informal enforcement
legal crowding
institutional substitution

If norms eliminated all lying, defamation law would be unnecessary; the analysis assumes that some false speech persists despite norms.

The section incorporates honest speakers into the trilateral model and distinguishes norm-generated baseline credibility from law’s marginal contribution.


The deterrence rationale is incomplete because reducing lies also raises the diagnostic value and social harm of undeterred lies

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on page 488, that deterrence works in the narrow sense advertised—some false negative reviews disappear—but the improved truth-to-lie ratio makes every remaining negative statement more credible. Listeners are consequently more likely to trust and act on the residual falsehoods. This is significant because a count of statements prevented is not a measure of total reputational protection. It connects to deterrence theory, diagnosticity, harm per offense, residual lies, policy evaluation, and reputational externalities.

The authors use their central mechanism to qualify the first conventional function of defamation law.

deterrence theory
diagnosticity
harm per offense
residual lies
policy evaluation
reputational externalities

Page 488’s recap says lies fall from thirty-two to twenty-four, while the earlier D1 calculation on pages 479–480 implies sixteen residual false negatives and thirty-six total negatives; this internal numerical inconsistency counsels reliance on the qualitative conclusion rather than the recap’s exact figures.

The deterrence subsection compares the quantity and credibility of false reviews across regimes and concludes that deterrence can undermine reputation.


A redress justification must account for harm that the availability of defamation remedies itself helps create

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 489–490, that compensation cannot be evaluated as though reputational injury arose independently of the remedial regime. In the restaurant model, strict law increases the credibility that causes some losses; in the Musk–Unsworth episode, the absence of an immediate suit was invoked as evidence that a grave accusation was true. This is significant because a compensation mechanism can be used as a sword: nonsuit may signal guilt, and the remedy may exacerbate the injury it later seeks to repair. It connects to corrective justice, endogenous harm, litigation signaling, Elon Musk, Vernon Unsworth, and reputational cascades.

The redress critique reveals that remedy availability can alter both the creation and interpretation of harm.

corrective justice
endogenous harm
litigation signaling
Elon Musk
Vernon Unsworth
reputational cascades

Falsehoods can cause harm without defamation law, and damages can compensate some victims; the authors require those benefits to be weighed against audience effects rather than dismissed.

The redress section uses the model and the Musk–Unsworth tweets to show how law or failure to invoke it can become reputational evidence.


Vindication is limited by circularity, entrenchment, and antivindication

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 490–491, that adjudication can restore a good name but suffers three underrecognized defects. Circularity arises when law first increases an accusation’s credibility and then offers vindication; entrenchment arises when an erroneous loss judicially solidifies the allegation; and “antivindication” arises when failure to sue is rationally interpreted as evidence of guilt. This is significant because stronger law can force innocent people into risky litigation merely to avoid an adverse public inference. It connects to vindication, judicial error, reputational signaling, access to justice, litigation pressure, and self-fulfilling institutions.

The three-part critique shows why a public truth-finding forum does not unambiguously protect reputation.

vindication
judicial error
reputational signaling
access to justice
litigation pressure
self-fulfilling institutions

Vindication can still justify expansion in some domains, but courts are fallible and many innocent targets lack money, time, or evidence to litigate.

The vindication subsection defines circularity, entrenchment, and antivindication and relates them to audience interpretation of suit outcomes and nonsuit.


The desirable scope of defamation law must be chosen domain by domain according to audience stakes, credibility, and response thresholds

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on page 491, that the trilateral model is constructive as well as critical: it asks how speakers, targets, and listeners interact in a particular domain before liability is widened or narrowed. The relevant comparison depends on how damaging even a low-probability allegation is, how much audiences discount speech, and how legal rules change both supply and belief. This is significant because a single transsubstantive presumption about reputation cannot fit employment, consumer reviews, and political debate equally well. It connects to contextual regulation, domain specificity, audience thresholds, legal tailoring, institutional design, and welfare analysis.

The framework turns the seesaw insight into a method for evaluating particular doctrinal settings.

contextual regulation
domain specificity
audience thresholds
legal tailoring
institutional design
welfare analysis

The ensuing applications are preliminary illustrations rather than complete empirical social-welfare analyses.

Part III introduces a context-sensitive inquiry into the proper reach of defamation rules before applying it to three domains.


Stricter defamation protection may be justified in employment because even a weak allegation of serious misconduct can destroy future opportunity

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 492–493, that prospective employers may rationally reject an applicant upon even a small risk of embezzlement, abuse, insubordination, or another costly trait. In that high-stakes setting, the mere supply of allegations matters more than fine changes in their credibility, which helps explain defamation per se for statements injuring profession or calling and analogous treatment of crime or loathsome disease. This is significant because it identifies a domain in which stronger deterrence can outweigh the usual credibility concern. It connects to employment references, defamation per se, risk aversion, labor-market exclusion, false allegations, and domain-specific rules.

The employment application demonstrates that the article’s framework can support stricter protection rather than only contraction.

employment references
defamation per se
risk aversion
labor-market exclusion
false allegations
domain-specific rules

The argument is strongest where employers react to very low probabilities of grave misconduct; it does not establish that every workplace statement should receive expanded liability.

The authors connect employment’s special per se rule to the severe consequences of even minimally credible allegations for future hiring.


Consumer reviews should carry a presumption against expanded defamation liability because other information and error mechanisms reduce its expected value

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 493–494, that consumer-review markets present a comparatively weak case for expansion. Review distributions are often J-shaped, so numerous positive reports can swamp isolated false negatives; courts struggle to verify intimate product and service experiences; and litigation risk may chill consumers from producing a valuable public good. This is significant because stronger liability may reduce information supply while adding little protection against a small mass of negative reviews. It connects to online reviews, J-shaped distributions, consumer activism, judicial accuracy, public goods, and review privilege.

The consumer-market analysis supports at least a presumption against liability expansion and is consistent with a consumer-review privilege.

online reviews
J-shaped distributions
consumer activism
judicial accuracy
public goods
review privilege

The analysis is preliminary and assumes many positive reviews are honest; coordinated manipulation or unusually sticky negative claims could alter the balance.

The consumer section combines review distributions, adjudicative difficulty, low plaintiff success, and chilling of review production to argue against expansion.


Public awareness that political information may be fake or biased can mitigate its harm, making broad libel expansion especially dangerous

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on page 494, that the salience of the fake-news problem can itself prompt audiences to discount political reports. A bilateral model sees a deluge of falsehood as a reason for stronger liability, but the trilateral model recognizes public education and skepticism as protective responses. This is significant because government truth-policing can both chill essential debate and remove the caution with which listeners approach partisan claims. It connects to political speech, fake news, media literacy, public skepticism, government truth determination, and freedom of the press.

The political application shows how an apparently severe misinformation environment can strengthen the case for speech-protective rules.

political speech
fake news
media literacy
public skepticism
government truth determination
freedom of the press

Public awareness mitigates only some harm, and the argument does not assume all listeners correctly identify biased or fabricated reporting.

The political-speech section argues that awareness of fake news changes audience beliefs and supports a default of free expression.


Part III.B, Constitutional Ramifications

First Amendment balancing must use the net reputational effect of defamation law rather than treating its gross deterrent benefit as the opposing interest

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 495–496, that post-Sullivan doctrine conventionally balances expression against an assumed reputational benefit. The seesaw dynamic reveals an internal reputational tradeoff between more low-credibility lies and fewer high-credibility lies, while media liability also increases report credibility, chills information, and has mixed effects on subjects. Courts should expand or contract doctrine only after asking whether the benefit of fewer falsehoods outweighs the harm of more potent residual falsehoods. This is significant because using gross rather than net benefit overweights reputation and can reverse supposedly close constitutional cases. It connects to First Amendment balancing, media liability, net effects, chilling, reputation, and New York Times v. Sullivan.

The article’s behavioral analysis changes the quantity placed on the reputation side of constitutional doctrine’s central balance.

First Amendment balancing
media liability
net effects
chilling
reputation
New York Times v. Sullivan

The authors do not complete a separate model of institutional media, source protection, or reporter uncertainty; they identify audience effects that such an analysis must include.

Part III applies the seesaw to constitutional doctrine, media reporting, and the difference between gross and net reputational protection.


When the net benefit of expansion is uncertain, constitutional protection requires courts to err toward speech and explicitly consider audience effects

Professors Yonathan A. Arbel and Murat Mungan claim, in “The Case Against Expanding Defamation Law” on pages 496–497, that uncertainty about the net reputational benefit of restricting speech is not neutral because speech and press are constitutionally protected. In a low-liability world audiences tend toward caution; under stronger liability they may infer that unknown claims have survived deterrence, making residual falsehoods more pernicious. The authors call for empirical testing, extensions to privacy and advertising, and renewed scrutiny of a costly institution in an age of anonymous, untraceable online speech. This is significant because the article ends with both an epistemic presumption and a research agenda rather than a categorical abolition claim. It connects to constitutional uncertainty, anonymous speech, empirical legal studies, privacy, advertising law, and institutional humility.

The conclusion states the operational default for courts and identifies the empirical work needed to refine it.

constitutional uncertainty
anonymous speech
empirical legal studies
privacy
advertising law
institutional humility

The article calls for empirical validation and doctrinal extension; it does not establish the magnitude of audience effects in contemporary online environments.

The conclusion restates the skepticism-versus-credulity mechanism, adopts a speech-protective default under uncertainty, and proposes future research.