Awareness of Meaning in Libel Law: An Interdisciplinary Communication & Law Critique

This article critiques, from a communication and law perspective, a proposal to add another element to the already complex calculus of constitutional libel law. The element--a subjective state of mind hurdle closely akin to the actual malice standard--requires libel plaintiffs to prove that defendants were aware of the defamatory meaning conveyed by their messages at the time of publication. The article suggests that while free speech and press interests under the First Amendment may militate in favor of courts adopting this element, it: 1) conflicts with tie reality of communication processes inherent in meaning determination; 2) denigrates the pivotal roles of the audience and message recipient in common law defamation; and 3) allows defendants who plead ignorance of meaning to escape liability despite causing real reputational harm to plaintiffs, jeopardizing the traditional goal of defamation law.