Zipursky on Presumed Damages and Reputational Injury

Ben Zipursky has posted to SSRN Presumed Damages and Reputational Injury.  The abstract provides:

Controversy swirls around the adjective “presumed” in the phrase “presumed damages,” which are commonly available in defamation claims. Critics ask why defamation plaintiffs are entitled to have their damages presumed and need not prove them, and they are naturally drawn to the concern that if the need for compensation is not actually proven but only presumed, then liability is really punishment for uncivil speech even where it does no harm. This unsurprisingly leads to the conclusion that presumed damages are repugnant to free speech values, and should not be permitted. Because damages in tort law are overwhelmingly linked to a plaintiff’s right to redress injury, it is reasonable to suppose that clarity on what damages ought to be available to a defamation plaintiff will not be available until we have greater clarity on what sorts of wrongful injuries defamation law is designed to redress. Utilizing a methodology that is philosophical, dialectical, and doctrinal, this article undertakes the search for such clarity.

The first, more basic half, of the article advances what I call an “ideational theory of reputational injury,” contending that a reputational injury to a person is a diminution in the beliefs, attitudes, and feelings that third parties have about that person. Because changes in third-party ideas commonly have intrinsic (as well as instrumental) value or disvalue to a person, I argue, the availability of what are commonly called “general damages” is in principle warranted. For reasons pertaining to the distinctive history and peculiar structure of the law of defamation, the label “presumed damages” turns out to be, principally, an unduly provocative name for what are denominated “general damages” and regarded as unproblematic in most dignitary torts, such as assault or false imprisonment.

The second half of the article, while accepting an ideational theory or reputation in principle and the defense of the availability of general damages in intentional tort claims, nonetheless mounts a sustained and elaborate critique of the relatively open and unrestricted form of ideational theory adopted in the first half. The “restrictive ideational theory of reputational injury” I construct as a dialectical foil in the second half encapsulates a bundle of challenges. The article concludes with a sustained rebuttal of these challenges, while acknowledging further concerns about the doctrine of presumed damages that will need to be addressed.