New APPS: Art, Politics, Philosophy, Science

Privacy and “Injury in Fact,” Part 6: Defamation

As a final installment of reviewing some older “injury in fact” cases, I’d like to look at a few older state libel cases, because the distinction emerges especially clearly in them.  A North Carolina case, for example, noted that “he who publishes slanderous words even as those of a third person with the intent, (to be collected from the mode, extent and circumstances of the publication,) that the charges should be believed, does an injury in fact to the person slandered and ought to answer for it” (Hampton v. Wilson, 15 N.C. 468, 470 (1834).  Here’s a few cases in more detail.  The 19c gender politics is really helpful in seeing how their minds worked on defamation per se.

 

(a) Chastity in Iowa

A pair of Iowa cases are particularly clear.  In Abrams v. Foshee, the Court was asked to rule whether accusing a woman of having an abortion was actionable as slander.  The Court lays out its reasoning particularly clearly:

“To maintain an action of slander, the consequence of the words spoken, must be to occasion some injury or loss to the plaintiff, either in law or fact. As the declaration in this case, claims no special damages, or a loss or injury, in fact, we are left to inquire whether the charges referred to in the instructions refused, was of such a character as to amount to an injury in law. To determine this, it becomes material to ascertain in what cases this action may be maintained, without proof of special damages. Starkie, in his work on Slander, page 9, lays down the rule, that such action may be maintained "when a person is charged with the commission of a crime; when an infectious disorder is imputed; and when the imputation affects the plaintiff in his office, profession, or business." In this case, we only need examine the rule so far as it relates to the charge of a crime. And what is that rule? In Cox and wife v. Bunker and wife, Morris, 269, the Supreme Court of this territory, recognized the rule laid down in Miller v. Parish, 25 Mass. 384, 8 Pick. 384, as the proper one. And in that case it is said, that " whenever an offense is charged, which if proved, may subject the party to a punishment, though not ignominious, but which brings disgrace upon the party falsely accused, such an accusation is actionable. And this is, perhaps, as correct, and at the same time as brief a statement of the general rule, as has been given. For while the rule is variously stated, by different authors and judges, yet in all of them, it is laid down as necessary that the charge shall impute a punishable offense.” (Abrams v. Foshee, 3 Iowa 274, 277-8 (1856)).

That is, if the false statement would have subjected the victim to legal punishment if true, it was considered libel per se – actionable as an act, independent of any damages sustained.  In 1843, “willful killing of an unborn quick child, by an injury, etc., was made manslaughter” (278).  This statute was repealed in 1851. So abortion was not a crime. Plaintiffs urged that the fetus was a “human being” and thus subject to murder.  The Court, at length, disagreed, citing both statute and common law precedents (including Coke and Blackstone) to the effect that abortion was not “murder” even if it were a misdemeanor or otherwise bad.

Tariff policy by chatbot?

I desperately and truly wish that I'd made this up.  Alas, the Verge reports:

"Economist James Surowiecki quickly reverse-engineered a possible explanation for the tariff pricing. He found you could recreate each of the White House’s numbers by simply taking a given country’s trade deficit with the US and dividing it by their total exports to the US. Halve that number, and you get a ready-to-use “discounted reciprocal tariff.” The White House objected to this claim and published the formula it says that it used, but as Politico points out, the formula looks like a dressed-up version of Surowiecki’s method. In case you weren’t sure, Surowiecki calls this approach “extraordinary nonsense.” So why did Trump’s team use it? Well, like plenty of people who’ve realized their homework is due in three hours’ time, it seems like they may have been tempted by AI."

Wait, what?

"A number of X users have realized that if you ask ChatGPT, Gemini, Claude, or Grok for an “easy” way to solve trade deficits and put the US on “an even playing field”, they’ll give you a version of this “deficit divided by exports” formula with remarkable consistency. The Verge tested this with the phrasing used in those posts, as well as a question based more closely on the government’s language, asking chatbots for “an easy way for the US to calculate tariffs that should be imposed on other countries to balance bilateral trade deficits between the US and each of its trading partners, with the goal of driving bilateral trade deficits to zero.” All four platforms gave us the same fundamental suggestion.

There is some variation. Grok and Claude specifically suggested halving the tariff figure to generate what Grok calls a “reasonable” result, much like Trump’s “discount” idea. Ask for a 10 percent baseline tariff and the systems also disagree on whether that should be added to the total tariff rate or not. But answers from across the four chatbots have more similarities than differences.

As I write this, the Dow Jones is down 3.98%.