Private Law Theory

ABSTRACT
Defamation law exposes a jurisdiction’s deepest constitutional instincts. In the US, First Amendment doctrine reflects a belief that truth best emerges from unrestrained speech. The US model, reflecting historical antecedents, is designed to prevent government suppression of dissent, even at the cost of corrosive falsehoods being spread, In Germany, in contrast, post-authoritarian constitutionalism following in the wake of the Nazi regime demands dignity-first protections to prevent marginalization through speech. Germany prioritizes dignity and truth as constitutional values to such an extent that it routinely justifies proactive intervention.

This Article compares these competing models of democratic resilience and argues that an increasingly digital information ecosystem requires both legal systems to reassess, and begin to borrow from, the other’s core commitments.

Funk, T Markus, Freedom vs Dignity: What US and German Defamation Law Protect (and What They Sacrifice) (December 7, 2025).