No Place in the Law: The Ignominy of Criminal Libel in American Jurisprudence

The application of the Sullivan standard to the crime of libel was a mistake. There is no common law affiliation with or legal justification for the existence of criminal libel in a democracy. Its existence is antithetical to the First Amendment's guarantees of equality of speech, as well as to the broader constitutional guarantees of equality of speaker. The crime has become almost completely indistinguishable from the tort of libel, both in form and function, as a result of its evolution in America-from the importance of truth as a defense to the audience's responsibility for its own reaction to the speech, violent or not. And the American experience demonstrates clearly and ignominiously that the abuse of prosecutorial discretion, and even the mere threat of prosecution, results in the suppression of constitutionally protected speech.