In 1923, the American movie star Dorothy Davenport lost her husband, the actor and director Wallace Reid, to an early death resulting from complications of morphine addiction. After the tragedy, Davenport took up the job—an unusual one for a woman in Hollywood in that era—of film producer. Starting with Human Wreckage, a movie about the dangers of drug addiction that appeared just months after Reid’s death, Mrs. Wallace Reid, as she now called herself, oversaw a series of films on pressing social issues. For instance, the third one she produced, and which she personally introduced in a prologue, The Red Kimono (1925), portrays the dark personal and social consequences of prostitution.11xThroughout this section of the present essay, I draw on Lawrence Friedman’s Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy (Stanford, CA: Stanford University Press, 2007), especially chapter 9.
All of Davenport’s moral-crusading films were popular, but also controversial: Some were banned by the British Board of Film Censors and by the guardians of public morals in many American cities. The Red Kimono had other problems, though, problems related to one Gabrielle Darley. Darley was a young woman who in the second decade of the twentieth century had worked as a prostitute in Arizona for a pimp named Leonard Tropp. She fell in love with him and they moved to Los Angeles, where she gave him money to buy a wedding ring—for herself, she thought, but in fact Tropp planned to marry another woman. When Darley discovered this, she shot Tropp dead. In 1918, she was put on trial for murder, but had the great good fortune of being represented by an exceptionally eloquent defense attorney named Earl Rogers—a close friend of William Randolph Hearst—who presented her as having been, before meeting Tropp, “as pure as the snow atop Mount Wilson.” The jury couldn’t get enough of this kind of thing and enthusiastically acquitted Darley.
One of the journalists covering the trial was Rogers’s daughter, Adela Rogers St. Johns, who was already well on her way to earning her unofficial title as “World’s Greatest Girl Reporter.” (For many years she worked for Hearst newspapers, and may have reached the height of her fame in her reporting on the 1935 trial of Bruno Richard Hauptmann for kidnapping and murdering the young son of Charles and Anne Morrow Lindbergh.) She wrote a short story, based on the trial, called “The Red Kimono.” It caught the attention of Dorothy Davenport, who immediately commissioned a screenplay and started filming. The name she chose for the film’s protagonist? Gabrielle Darley.
But by this point Gabrielle Darley had abandoned prostitution, married a man named Bernard Melvin, and become known as “a lady of culture and refinement”—or so she claimed. As Lawrence Friedman shows in his book Guarding Life’s Dark Secrets, it’s not clear whether there was much truth in her self-presentation, but the California Supreme Court believed her wholly, and in Melvin v. Reid (1931) ruled for her in her lawsuit against Mrs. Wallace Reid. “We must therefore conclude,” the court wrote,
that eight years before the production of “The Red Kimono,” appellant had abandoned her life of shame, had rehabilitated herself and had taken her place as a respected and honored member of society. This change having occurred in her life, she should have been permitted to continue its course without having her reputation and social standing destroyed by the publication of the story of her former depravity with no other excuse than the expectation of private gain by the publishers.22xMelvin v. Reid, 112 Cal.App. 285, 297 P. 91 (1931).
The key principle involved, the court affirmed, was that “[a]ny person living a life of rectitude has that right to happiness which includes a freedom from unnecessary attacks on his character, social standing or reputation.”
But this was not the whole of the court’s reasoning. The opinion continues, “The use of appellant’s true name in connection with the incidents of her former life in the plot and advertisements was unnecessary and indelicate and a willful and wanton disregard of that charity which should actuate us in our social intercourse and which should keep us from unnecessarily holding another up to the scorn and contempt of upright members of society.”
One may well ask: What’s charity got to do with it? How does the imperative of charity become a factor in a court’s decision in a defamation case? An answer carries us into the long history of legal and social ideas about reputation and fame, about the joys and sorrows of being observed and judged by our social peers. And that evidence from the distant past turns out to be quite relevant to the question of what social standing means, what social standing is, in the age of social media.
Speech and the Social Good
In a dazzlingly learned book called Censorship and Cultural Sensibility, Debora Shuger traces the emergence of a distinctive means of addressing claims of defamation, slander, and libel.33xAlmost everything I know about early modern legal history I learned from Shuger’s book, Censorship and Cultural Sensibility: The Regulation of Language in Tudor-Stuart England (Philadelphia, PA: University of Pennsylvania Press, 2006). In what follows, I am especially indebted to chapter 4, “The Christian Transmission of Roman Law Iniuria.” On the continent of Europe such matters were dealt with in ways that derived from medieval heresy law, but in England a legal framework was developed that drew more directly on Roman laws concerning iniuria—“a concept,” writes Shuger, “for which there is no equivalent in U.S. law, since it treats as a single category offenses that would now be classified under such disparate headings as assault, battery, libel, invasion of privacy, annoying and accosting, criminal harassment, defamation, infliction of undue emotional distress, and vexatious litigation.”44xShuger, Censorship and Cultural Sensibility, 9. There are many ways to be injured, in body, mind, and spirit.
Late medieval and early modern understandings of these matters, in England and on the Continent alike, differed in important ways from our modern understandings. For instance, today we tend to call speech defamatory only if it’s false, but to be “defamed” is to have one’s reputation besmirched or destroyed, and that can happen when people speak truthfully about us as well as when they speak falsely.
To begin with falsehood: When an accusation against another person was revealed to be false, three actions typically ensued, at least when the system was functioning properly. These had distinct names in German—Abbitte, Widerruf, and Ehrenerklärung—though the practices themselves were more widespread. Abbitte is apology, often accompanied by a request for forgiveness; Widerruf is a formal and public retraction of the defamatory claim. The most interesting of the three is Ehrenerklärung, literally “honor declaration,” in which the society as a whole declares to the injured party that it acknowledges the accusation as false and sees that person as a fully honorable member of society. It was widely believed that wrongly defamed persons need to be assured that they have not in fact been defamed—in other words, that their “fame” (i.e., reputation) has been fully restored.
This is interesting enough in itself, but more dramatic and noteworthy is the attitude, in early modern English law, toward defamatory speech that is true. In our legal and social contexts, we may find it axiomatic that truth is an iron-clad defense against libel, but while that concept was not unknown in the early modern context, it was not considered universally dispositive. Other factors had to be considered, and Shuger argues that these other factors emerged largely from Christian teaching.
Largely, but not wholly. For instance, in the era of the Tudors and Stuarts, speech that tended to “breach the peace”—whether that speech was true or false—was often deprecated, especially at moments when there were concerns over foreign invasion and the succession to the throne. Today, we often (and I think rightly) disparage the “heckler’s veto”—the ability of certain parties to shut down an occasion of speech by threatening violence against the speaker or others—but it’s worth remembering that in times of great social instability societies tend to constrict permissible speech in order to avoid an overheating of the public square. In any given case such constriction may or may not be justifiable, but it doesn’t arise from Christian concerns.
Other legal issues may draw us a little closer to religious sensibilities. In William Hudson’s 1621 book The Treatise of the Court of Star Chamber—“the court” of the book’s title being one where Hudson had himself argued cases—one sees that it was considered legally relevant that people can be upset, can suffer iniuria, when something true but socially damaging is said about them. When Hudson writes that “libeling against a common strumpet is as great an offense as against an honest woman,” you can see that for him “libel” refers to any speech or writing that defames, not just to lies. Indeed, people can become more upset at—more injured by—true accusations than false ones, because, as Hudson notes with awkward jocularity, “as the woman said, she would never grieve to have been told of her red nose if she had not one indeed.”55xWilliam Hudson, “A Treatise of the Court of Star Chamber,” 1621, Collectanea Juridica, ed. Francis Hargrave, 2 vols (London, England: 1791–1792), https://www.google.com/books/edition/Collectanea_Juridica/vrE8AAAAYAAJ?hl=en&gbpv=0. Beneath the jocularity is a kind of compassion for people who are wounded by mockery or belittlement.
Further, Hudson notes that this anger that we feel when someone says something truthful but defamatory about us is “more dangerous to the breach of the peace” than mere lies—which is to say that when defamatory speech is uttered, defamer and defamed are not the only parties affected. A dispute between two members of a community affects the community as a whole, and those effects need to be assessed and included in our judgments about the conflict. What are the social goods and ills that arise from our speech? This is a question Hudson and his contemporaries felt we had an obligation to ask.
Another form of this question, or another conceptual frame for this question, directly invokes Christian ethics—and reminds us of the case of Gabrielle Darley: Do our words build up or diminish charity? This is a question with enormous implications both for individuals and for society as a whole.
In 1515, Martin Luther—then still an Augustinian monk—preached to his fellow monks gathered at Gotha a sermon contra vitium detractionis—against slander, against backbiting. (That this subject appears rather ironic in light of Luther’s later career as a controversialist: duly noted.) At one point he declaimed,
The law of Moses is thus: thou shalt not reveal the disgrace and deformity of your mother, sister, brother, etc. Hence, the truth [of an allegation] does not excuse it—nor its falsehood, for that matter—but the simple fact is that whoever defames, sins. And defamation takes place, first, by putting out something false; second, by making public something true but previously hidden…. Do you not love your neighbor as yourself? And yet you think his failings…should be exposed, and yours shouldn’t?66xQuoted in Shuger, Censorship and Cultural Sensibility, 144. By “the law of Moses,” Luther meant Leviticus 20:19, which in the Vulgate reads “turpitudinem materterae tuae et amitae tuae non discoperies qui hoc fecerit ignominiam carnis suae nudavit portabunt ambo iniquitatem suam.” This is often now translated to mean that a man should not have sex with his female relations, but Luther understood turpitudinem and iniquitatem in much broader terms.
“Whoever defames, sins”—one can scarcely put it more concisely than that. And in this matter Luther was no innovator: As Shuger notes, Aquinas had expressed similar concerns.
So, to summarize this early modern understanding: The primary considerations of that era are quite different from ours. We think of rights, and especially of the right to free speech, and so focus our attention on the speaker; but the early modern legal context was much more closely focused on the effects of speech on the speaker, the addressee, and the community. And within that consideration of effects, particular emphasis is placed on actual or potential harm, iniuria: the damage that hurtful speech can inflict on the object of that speech, who may suffer reputational harm; on the community, whose peace may be breached; and even on the speaker, who through uncharity injures his or her own soul. The “harm principle,” then, was not the invention of John Stuart Mill, even if it may be partly through Mill’s argument, and its legal descendants, that the California Supreme Court found the criteria that impelled it to shine the light of its charity on Gabrielle Darley Melvin.
Protestant Pamphlets and Popish Plots
I have focused so far on the personal and communal aspects of speech, and the potential need to constrain speech, but Shuger points out that there were also significant political concerns at work. Throughout the early 1640s, a period when no effective scheme of censorship existed in England, countless pamphlets were produced claiming that Protestants in Ireland were being slaughtered in the hundreds of thousands by Catholics, and moreover that King Charles I had given his royal permission for the Catholics to do so. All of this was utterly fabricated. But partly in response to these pamphlets and the social unrest they fomented, Oliver Cromwell went to Ireland to put down an ineffectual rebellion with shocking fierceness and cruelty. As the Puritan cleric Richard Baxter would later note in his memoirs, he and many others supported the overthrow and eventual execution of Charles precisely because they believed what these pamphlets affirmed about the king’s role in the murder of Irish Protestants. Indeed, Baxter trusted those pamphlets to the end of his days, a point that adds a tincture of bitter irony to his solemn caution, elsewhere in his memoirs, that “the prodigious lies which have been published in this age…doth call men to take heed what history they believe.”77xRichard Baxter, The Autobiography of Richard Baxter, or Reliquiae Baxterianae, was published in 1696, five years after his death. The quoted passages appear in chapter 11, https://quod.lib.umich.edu/e/eebo/A27006.0001.001?view=toc.
Shuger pursues this point: “One reason for insisting that the alleged popish plots, large and small, were almost without exception illusory is to drive home the extent to which the oppositional discourses of the period were what we now call hate speech. They are often, in fact, either implicit or direct incitements to violence.” And those who would praise John Milton’s “Areopagitica” (1644), his celebrated defense of limited government interference in printing, should, Shuger believes, at least reckon with the fact that Milton is arguing explicitly for such anti-Catholic libels to be printed—while also arguing that the state should intervene to prohibit Catholic writing from being printed: “I mean not tolerated popery,” Milton insists, “and open superstition, which, as it extirpates all religious and civil supremacies, so itself should be extirpate…[but] that also which is impious or evil absolutely against faith or manners no law can possibly permit, that intends not to unlaw itself.”88xShuger, Censorship and Cultural Sensibility, 42–43. John Milton’s “Areopagitica: A Speech for the Liberty of Unlicensed Printing to the Parliament of England,” can be read at Project Gutenberg, https://www.gutenberg.org/cache/epub/608/pg608-images.html. Milton’s tract is often held up as a “defense of free speech” or a “defense of a free press”—it is neither. Rather, it is a classic case, in the political-partisan mode, of what Nat Hentoff famously called “free speech for me, but not for thee.”99xNat Hentoff, Free Speech for Me—but Not for Thee: How the American Left and Right Relentlessly Censor Each Other (New York, NY: HarperCollins, 1992). Milton shows no interest in restraining pamphlets that, through bald-faced lies, incite frenzied, murderous hatred of Irish Catholics. But we might well wonder whether censorship would have been justified in such a case.
Social Media and the Honor Declaration
I suspect that everyone who has read this far will be thinking of contemporary analogues to the stories and themes I have been tracing—indeed, I am writing this essay precisely in order to prompt such comparisons. When Shuger published her book, just sixteen years ago, she could confidently and rightly say that earlier scholars had been incurious about the personal and social damage early modern censorship had been designed to prevent because “our instincts are on the side of contestation and dissent.”1010xShuger, Censorship and Cultural Sensibility, 55. But that was 2006, and within the scholarly world; in 2022 “our instincts” are not so predictable. And the legal themes I have described here take on a new resonance in an era of social media and Internet journalism.
The legal issues surrounding distinctively political speech will develop in the coming years in ways I cannot predict, but it seems almost certain that the events in Washington, DC, of January 6, 2021, will shift at least some of our attention from the rights of speakers to the rights of those affected by speech—and as I illustrated in my overview of early modern English law, that means not just those lied about but also those lied to. Some of the injustices that led up to January 6 will surely be addressed by existing libel and slander laws, but not all of them; and it is impossible for me to imagine that Section 230 of the Communications Decency Act, which effectively absolves the big social media companies of responsibility for the words and images that appear on their sites, will survive unchanged the barrage of lawsuits now already in process.
About the suffering of individual persons, I am less confident that legal redress will be forthcoming, but the legal models from the early modern period explored in this essay illuminate in powerful ways the morally diseased world of social media. Consider, for instance, the case of Amanda Knox.
In 2007, Knox, a twenty-one-year-old American studying in Italy, was arrested for the murder of another young woman, an English student named Meredith Kercher. Knox, along with a friend, was convicted of Kercher’s murder in 2009. But after several years of overturned verdicts, retrials, and convictions on lesser counts, Knox was finally declared innocent by Italy’s highest court in 2015. The 2021 film Stillwater is “loosely based” on her story—though many reviews forget the “loosely” and treat it as a straightforward representation of the events surrounding Knox’s conviction.
When the movie was released, Knox wrote on Twitter that some media outlets were saying that the film was “directly inspired by” the “Amanda Knox saga.” She went on from there to make several key points. First, that she had nothing to do with the making the film. Second, that her name was the one always mentioned in relation to Kercher’s murder—even when Kercher herself remained unnamed, which meant that “15 years later, my name is the name associated with this tragic series of events…which I had zero impact on.” One prominent film website even referred to the movie as the story of a convicted murderer, though the fact that Knox was ultimately acquitted was later added to the review—not when she requested the correction, but only after her tweetstorm went viral. Again and again, her story has been told in various media—articles, books, TV, film—without any input from her. “Malcolm Gladwell’s last book, Talking to Strangers, has a whole chapter analyzing my case,” Knox said. “He reached out on the eve of publication to ask if he could use excerpts of my audiobook in his audiobook. He didn’t think to ask for an interview before forming his conclusions about me.”1111xAmanda Knox expanded her original series of tweets into an essay, “Who Owns My Name?”, posted on Medium.com, July 29, 2021, https://amandamarieknox.medium.com/who-owns-my-name-93561f83e502.
Amanda Knox is asking for something that five hundred years ago would have been seen as essential to a just outcome for people falsely accused: Ehrenerklärung—an acknowledgment by the public that the accusations against her were indeed false; a restoration of her “honor,” that is, her status as a law-abiding member of society—or at least as a nonmurderer. But Ehrenerklärung is not one of the options offered by our social media culture.
Consider also the case of Monsignor Jeffrey Burrill, whose use of the dating app Grindr and visits to gay bars were recently exposed by a crusading Catholic website; the revelations forced him to resign as the top administrator of the Conference of Catholic Bishops.1212x“Pillar Investigates: USCCB Gen Sec Burrill Resigns after Sexual Misconduct Allegations,” PillarCatholic.com, July 20, 2021, https://www.pillarcatholic.com/p/pillar-investigates-usccb-gen-sec. Burrill himself, as his title indicates, is not a bishop, and was not a public figure before the exposure. Exposés like this are often defended by appeals to “the public’s right to know,” but does the public have any right to know what Burrill did as a private citizen? And if there are some public claims upon this knowledge, can they weigh more heavily than the shame and humiliation and loss of employment experienced by Monsignor Burrill as the inevitable result of his “defaming”? I think I know what would happen if I were to find the people who exposed Burrill and put to them Martin Luther’s questions: “Do you not love your neighbor as yourself? And yet you think his failings…should be exposed, and yours shouldn’t?” They would surely reply, “We are not his neighbors. We are journalists.”
Practicing Tactful Inattention
In a footnote to Censorship and Cultural Sensibility, Debora Shuger cites a 1989 article in the California Law Review by Robert C. Post—an article that in turn alerted me to Melvin v. Reid. Strange are the ways of Providence. As I read more about that odd case, my thoughts began to take shape.1313xRobert C. Post, “The Social Foundations of Privacy: Community and Self in the Common Law Tort,” California Law Review 77, no. 5 (October 1989): 957–1010.
Post’s powerful argument begins with the fact that much American privacy law at the time of Melvin v. Reid stemmed from an 1890 article in the Harvard Law Review called “The Right to Privacy,” by Samuel Warren and Louis Brandeis. Warren and Brandeis conceive of privacy in strictly individual terms, but the justices who decided Melvin v. Reid thought in strongly social terms. What mattered to them was that Mrs. Melvin had become (or so they thought, anyway) “a respected and honored member of society,” and that deprivation of this status, this Ehren, was a serious injury. Moreover, Post goes on to show, judges dealing with similar cases are often concerned not with the actual suffering people experience when their privacy is violated, but with the suffering that that useful legal fiction, the “reasonable person,” would experience in the situation at hand. That is—and this is my point, guided by Shuger, rather than Post—the justices in Melvin v. Reid were groping toward a set of legal criteria for assessing iniuria that had no real place in privacy law post–Warren and Brandeis. And the key among those criteria is, oddly but clearly enough, charity.
Post is less interested in early modern law than in modern sociological theory, and so to establish his understanding of the relation, in privacy law, between individuals and society, he turns to the “dramaturgical theory” of social interaction developed by Erving Goffman. (Post quotes from one of his essays, but Goffman developed this theory in detail in his influential book The Presentation of Self in Everyday Life.)1414xThe essay by Erving Goffman that Post cites is “The Nature of Deference and Demeanor,” American Anthropologist 58, no. 3 (June 1956): 473–502. The Presentation of the Self in Everyday Life was published in the United Kingdom in 1956, but appeared in revised form in the United States in 1959 (New York, NY: Doubleday). This apparent detour turns out to be quite significant for those of us who want to address the deformations in our current social order.
Goffman sees individuals as social actors whose behavior is largely determined, or at least guided, by “rules of conduct” that can take substantive or ceremonial form. The little ceremonies of everyday life involve both deference to others—nodding to acknowledge a passerby, apologizing when you bump into someone—and the maintenance of a certain demeanor—forms of dress and deportment that inform others of how you wish to be seen and expect to be treated.
Goffman did field research on these matters in mental hospitals, on the (wholly convincing) grounds that “a logical place to learn about personal proprieties is among persons who have been locked up for spectacularly failing to maintain them.”1515x“The Nature of Deference and Demeanor,” 473. His attention was drawn to the various ways in which we deviate from the expected norms of deference and demeanor. For instance, he writes about the various ways in which one can be rude, some of which are unmistakable and demand a response—striking a person, for instance—some of which are subtler, not overtly damaging, not requiring an immediate and clear response. As he pursued his research, Goffman became less preoccupied by those who break or ignore the typical rules of conduct, and more attentive to the various ways in which the obedient among us respond to such violations. Indeed, in an environment in which the inhabitants “have been locked up for spectacularly failing to maintain” the proprieties, an immediate and clear response is not always the best option; one does well to ignore whatever one can. Later in his career—The Presentation of Self in Everyday Life was his first book—Goffman wrote often about what he called “civil inattention” or “tactful inattention”—the subtle art of knowing when to pay no mind to code violations. People exhibit such tact when they perceive that anything else leads to escalation, and that the costs of such escalation will inevitably far exceed any potential benefits.1616xErving Goffman, Behavior in Public Places: Notes on the Social Organization of Gatherings (New York, NY: Free Press, 1963). It seems to me that Goffman’s analysis helps us to respond socially, rather than legally, to at least some of the everyday acts of insult and defamation that our current legal order doesn’t know how to address—and that it is perhaps not well suited to address.
Our current social media platforms, especially Twitter and Facebook, are best understood as madhouses in which we have incarcerated ourselves. It is wise to check yourself out if you possibly can, but if you cannot, then your best strategy for maintaining your own mental equilibrium and aiding in the restoration of healthy social proprieties is to practice this tactful inattention. Do not acknowledge the more vocally assertive of the lunatics. Transfer your attention, instead, to those who have been wounded by defamatory speech, and, if you cannot induce the offending speakers to apologize or recant, you can at least do your part to restore the honor of the injured parties. The law will do what the law will do, but we must do what we can, in all possible charity, for our neighbors, our larger social order, and our own sanity. Drawing equally on the imperatives of a bygone legal system and on the best practices of visitors to madhouses, we must develop social strategies to help us repair the human wreckage created by social media.