Did O’Reilly “slander” Reagan?

The law of defamation protects the profound interest each of us has in our reputation. It has long roots in the common law of England. The English attitude to reputation can be seen in Cassio’s lament to Iago in Othello: “Reputation, reputation, reputation! O, I have lost my reputation! I have lost the immortal part of myself, and what remains is bestial.” The foul Iago seeks to persuade Cassio that his intact body matters more than his intangible reputation.

The law of defamation comprises slander and libel. What’s the difference? Slander is spoken; libel is written. Libel was considered the more serious of the two offenses. Under the common law, slander was actionable without more if it fell into one of four categories that together were deemed to constitute slander per se:

• imputations of criminal conduct
• allegations injurious to another in his trade, business, or profession
• imputations of loathsome disease
• imputations of unchastity in a woman

You can see the important interests protected in slander per se. Don’t you have to love the concept, even if one or other of the categories has the tint of obsolescence about it? (I’m not sayin’ which.) Absent one of these categories, a victim of slander one was required to prove up “special damages” to bring a claim of slander. (I haven’t studied this aspect of the law since law school and I may be slightly off in my summary here. It’s incidental to my point.)

In the age of radio and television, the more protective law of libel should certainly be extended to slander that is broadcast. Defamation by these means should be actionable without the limitations of slander, but this is simply a modernization consistent with the underlying sense of the law.

Defamation is a matter of state law and is accordingly subject to variations among the states in the details. The United States Supreme Court, however, has constitutionalized the law of defamation in New York Times v. Sullivan and Gertz v. Welch. In these cases and their progeny the Court has virtually abrogated the the law of defamation for public figures. Claiming to interpret the First Amendment protection of speech, the Court has elevated the public interest in robust expression over the personal interest public figures have in their reputation.

In common usage, the distinction between libel and slander has almost been erased. In his excellent column on Bill O’Reilly’s bad new book, or new bad book, George Will asserts that “Bill O’Reilly slanders Ronald Reagan.” I second that emotion. Properly speaking, however, O’Reilly “libels” (or “defames”) Reagan (even if Reagan can’t assert such a claim). Libel is a more grave offense than slander and it is the offense O’Reilly commits in his new book.

I think it makes sense to preserve the distinction between libel and slander. It should be honored and preserved. Shouldn’t it?

O’Reilly’s next book should be Killing History. As it happens, Keith Windschuttle has actually written a devastating book on the topic. Published by Encounter Books, it’s The Killing of History. Perhaps Windschuttle can be induced to update a new edition of the book with a chapter on O’Reilly’s Killing factory.