Abstract

The ‘right’ to protect one’s name, reputation, and character from slanderous attacks or defamatory falsehoods confronts freedom of expression with a limit. First Amendment law constrains what one party may publish about a second party in the presence of or to a third party. In an effort to address the question of how to negotiate prudently the dialectical tension between protecting and yet limiting speech with respect to defamation, this essay gives primary attention to the Espionage Act cases of 1919 and to the Times v. Sullivan case of 1964. Drawing upon the work of legal scholar Francis J. Mootz, I frame the judge’s task as engaging in philosophical hermeneutics of the law and legal-judicial decision-making as generative of rhetorical knowledge. I propose that twentieth century defamation case law demonstrates the epistemic and educative functions of legal-judicial practice as an inherently hermeneutic and rhetorical endeavor.

Key words: philosophical hermeneutics, Hans-Georg Gadamer, rhetoric/rhetorical knowledge, free speech, defamation, Times v. Sullivan, Supreme Court of the United States