16 Stan. L. Rev. 789 (1963-1964)
The Origins and Constitutionality of Limitations on Truth as a Defense in Tort Law

handle is hein.journals/stflr16 and id is 823 raw text is: The Origins and Constitutionality of
Limitations on Truth as a Defense in
Tort Law
MARc A. FRANxiN*
It is an evil that a person should be injured even by truthful statements
as to his character. It is a still greater evil that freedom of speech and
freedom of discussion, on which ultimately depends the ascertainment
of truth, should be checked.t
Conveying information by true statement is an activity worthy
of much greater protection than many courts have given it when
determining tort liability for the use of words. In substantiating
this proposition, though this Article is concerned with tort law gen-
erally, primary emphasis will be placed on defamation for three
reasons: First, it is the most venerable of the verbal torts;' secondly,
it is the most commonly encountered; and thirdly, it is an area in
which the importance of truth has been directly challenged. Al-
though the vast majority of our states provide that truth is an
absolute defense to civil defamation, a few require that a defendant
show something more than truth before he is protected from civil
liability for libel Some of these states require good motives in
* A.B. 1953, LL.B. 1956, Cornell University. Associate Professor of Law, Stanford
University.
The author acknowledges with appreciation the research assistance rendered during
this year by Gary C. Borchard and Charles R. Keller of the Stanford Law School class of
1965.
t 3 L.Q. REv. 106, 107 (1887).
1. The defamation action is centuries old. See Holdsworth, Defamation in the Six-
teenth and Seventeenth Centuries, 40 L.Q. Rav. 397 (1924). The tortious aspects of other
verbal conduct did not become separately recognized until much later. See Wilkinson
v. Downton, [1897] 2 Q.B.D. 57 (intentional infliction of emotional distress); Mogul S.S.
Co. v. McGregor Gow & Co., [1889] L.R. 23 Q.B.D. 598, af'd, [1892] A.C. 25 (prima
facie tort); Lumley v. Gye, 2 El. & Bl. 216, 118 Eng. Rep. 749 (Q.B. 1853) (interference
with contract); Warren & Brandeis, The Right to Privacy, 4 HsAv. L. RFv. 193 (1890)
(right to privacy). Even deliberate misrepresentations did not give rise to tort actions
against a noncontracting party until Pasley v. Freeman, 3 Term. R. 51, 100 Eng. Rep. 450
(K.B. 1789).
2. 1 HmaspR & JA mrs, ToRs 415-16 (1956); PRossat, ToRrs 631 (2d ed. 1955). Dis-
crepancies between these two works as to the rule's origin in specific states may be resolved
by referring to the Appendix of this Article, which is a state-by-state discussion covering
the following states: Maine, Massachusetts, Rhode Island, West Virginia, Nebraska, Illinois,
Wyoming, North Dakota, South Dakota, Florida, Nevada, Delaware, Pennsylvania, New
Hampshsire, Oklahoma, Kansas, District of Columbia, Tennessee, and Mississippi. See also
RESTrATEmENT, ToRTs § 582 (1939).

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