ABSTRACT
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.
Zipursky, Benjamin C, Presumed Damages and Reputational Injury (December 15, 2023), Fordham Law Legal Studies Research Paper No 4687688.
Leave a Reply