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Copyright (c) 1990 Tennessee Law Review Association, Inc.
Tennessee Law Review

ARTICLE: OPINION AND DEFAMATION: THE CAMEL IN THE TENT

SUMMER, 1990

57 Tenn. L. Rev. 647

Author

By Jerry J. Phillips *

Excerpt

I. Introduction

The writer hopes that the reader will forgive him for commencing a law review article with a triple dose of poetry, and further forgive him for lumping William Shakespeare together with Thomas Brown and Lydia Sigourney. There is method in this madness, however, for each excerpt of poetry concisely expresses a major point of this article.

Taking Ms. Sigourney first, her admonition about the camel's nose captures the main point. That little statement, that dictum, that camel's nose in Gertz v. Robert Welch, Inc. 1 , if carried to its logical extension, may well spell the demise of the law of defamation. "We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas." 2

How many times has the scientist seen an entire theory collapse because of an intractable exception that ultimately swallowed the rule? How many times has the lawyer seen the same occurrence in the law? The camel of opinion, and not just its nose, is likely to already be in the tent leaving no room for the law of defamation, but we have not yet recognized what has happened. 3

Thomas Brown expresses a basic problem with the Restatement approach to opinion. William Shakespeare provides the explanation of why any distinction between fact and opinion -- regardless of whether ...
 
 
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