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34 Tex. L. Rev. 984 (1955-1956)
Social Utility of the Criminal Law of Defamation

handle is hein.journals/tlr34 and id is 1010 raw text is: The Social Utility of the Criminal Law
of Defamation
The crime of defamation as defined in the penal statutes and common
law of the American states is one that is ostensibly committed in this
country a thousand times, and possibly ten or twenty thousand times,
daily. The definition of the crime in most states is broad enough to in-
dude most libels that are civilly actionable and a few others besides, and
in some states slander is made a crime also. Defamations are the stock-
in-trade of loose talk, both oral and written, and few indeed are the loose
talkers who go through a week without making a statement which if
legally tested would satisfy the law's definition of defamatory crime.
Carefully edited indeed is the issue of a newspaper, be it country weekly
or city daily, that does not contain some item which on its face might be
made the subject of a libel suit. Yet prosecutions for defamation, either
libel or slander, are so rare as to be almost nonexistent in our criminal
courts. A third of a century ago there were but few such prosecutions;
today there are almost none. Why?
When so many violations of the law produce so few prosecutions, and
still fewer convictions that stand up on appeal, what function does the
law serve? Are violations prosecuted only in the most outrageous cases,
or how otherwise are the few cases selected that are tried? Is there other
written law, or unwritten, which largely nullifies the criminal law of
defamation? Is the law somehow so poorly framed that its legitimate
social ends are defeated by wily scofflaws whose ingenuity enables them
to avoid technical violation of it? Or is it law in the books that is not law
in action-not really law at all? Does its presence on the books serve a
socially useful purpose? Is it useless but harmless? Is it useless and bad?
Like many questions, these are more easily asked than answered. Al-
most the only place in which the answers may be sought is the appellate
cases, since these are the only ones for which comprehensive reports are
nationally available. However incomplete a study of the formally re-
ported cases alone must of necessity be, it is nevertheless revealing. This
* Former Dean of the University of Arkansas Law School and Associate Justice of
the Arkansas Supreme Court, now Distinguished Professor of Law at the University
of Arkansas. This article is part of a larger study of the law of libel and slander in
which the author is being aided by a grant from the Fund for the Republic.

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