Her Own Good Name: Two Centuries of Talk About Chastity Lisa R
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Maryland Law Review Volume 63 | Issue 3 Article 3 Her Own Good Name: Two Centuries of Talk About Chastity Lisa R. Pruitt Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlr Part of the Torts Commons Recommended Citation Lisa R. Pruitt, Her Own Good Name: Two Centuries of Talk About Chastity, 63 Md. L. Rev. 401 (2004) Available at: http://digitalcommons.law.umaryland.edu/mlr/vol63/iss3/3 This Article is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. MARYLAND LAW REVIEW VOLUME 63 2004 NUMBER 3 © Copyright Maryland Law Review 2004 Articles HER OWN GOOD NAME: TWO CENTURIES OF TALK ABOUT CHASTITY LISA R. PRUITJT* ABSTRACT Since the earliest days of U.S. legal history, women have sought legal redress for statements about their sexual behavior or otherwise about them as sexual beings. These female plaintiffs have typically employed defamation law to sue on the basis of communications that undermined their reputationsfor sexual propriety, which the law re- ferred to as chastity. In this Article, Professor Pruitt tracks women's use of defamation law from the earliest recorded cases to the turn of the twentyfirst century, noting how changing society and evolving legal doctrines have alteredjudicial responses to these claims. Defamation law was historically highly responsive to injuries resultingfrom such communications, but the ways in which the me- dia portray and undermine women are constantly shifting. Professor Pruitt focuses in particular on late twentieth-century defamation cases related to chastity and sexual portrayals. She observes that courts still recognize injury to a woman's reputationfrom a straight- * Lisa R. Pruitt 2004. Professor of Law, University of California, Davis, Martin Luther King, Jr. School of Law. [email protected]. Thanks to Diane Marie Amann, Randall Bezanson, Alan Brownstein, Martha Chamallas and David Herbert for comments on earlier drafts. I am grateful to the research assistants who identified, read, and organized literally every reported defamation case ever brought by a female plaintiff: Kelly Bowra, Jennifer Haffner, Cary Huxsoll, Becca Jackson, KC King, Eli Makus, Lisa Tang, and Seth Goldstein. Julieta Lerner, Heather Pear- son, John Rosenthal, and Jennifer Stoughton also provided editorial and research assis- tance. The UC Davis librarians were, as always, enormously helpful. Particular thanks go to Erin Murphy. Any errors are my own. 402 MARYLAND LAW REVIEW [VOL. 63:401 forward assertion of adultery, prostitution, or certain sexually "devi- ant" behaviors. Contemporary defamation fails, however, to acknowledge or provide redress for many other statements that ridi- cule and demean women in relation to their sexuality. Professor Pruitt's analysis illustrates how constitutional doctrines associated with defamation law, such as the fact-opinion dichotomy and the related protection of rhetoricalhyperbole, defeat women's legal claims and obscure the dignitary injuries they suffer. As a solution to this legal oversight, Professor Pruitt arguesfor recognition of a new tort for technically false statements that demean or ridicule. She explains how such a tort is consistent with first amendment jurisprudence, and she discusses how it is preferable to defamation law in terms of its candid characterizationof injury as one to dignity, rather than to reputation. While she acknowledges that her proposed solution is not foolproof (and risks continuing le- gal regulation of women's sexuality), Professor Pruitt argues that it is nevertheless preferable to provide a remedy that women may invoke rather than to leave them entirely without the option of legal redress. 2004] Two CENTURIES OF TALK ABOUT CHASTITY I. A GENDERED PERSPECTIVE ON THE LAW OF DEFAMATION ............................................ 409 II. THE NINETEENTH CENTURY: ALL ABOUT CHASTITY ........ 419 III. TURN OF THE CENTURY: BRIDGING PRIVATE TO PUBLIC IN THE AGE OF YELLOW JOURNALISM ........................ 431 IV. THE CONTEMPORARY ERA: OF WHORES AND HYPERBOLE... 446 A. Contemporary Media Portrayals of Women .............. 446 B. DoctrinalStumbling Blocks in the "New Chastity" Cases ............................................... 449 1. The Fact-Opinion Dichotomy, Rhetorical Hyperbole, and Imaginative Expression ......... 449 2. Truth and Falsity ............................... 453 C. Women as Defamation Plaintiffs in the Contemporary Era ................................................. 458 1. Old Chastity Cases in a New Era ................ 461 2. Epithet-Based Cases ............................. 464 3. The "New Chastity" Cases ....................... 471 V. RECONCEPTUALIZING THE INJURY AND CRAFTING A REM EDY ................................................. 489 A. False Light Invasion of Privacy as an Alternate Rem edy .............................................. 490 1. The Law ........................................ 490 2. The Theory ..................................... 503 B. Lessons from Burton v. Crowell Publishing Co ........ 507 C. A New Dignitary Tort for Technically False Speech that Ridicules or Demeans ................................. 512 1. Widespread Publication ......................... 513 2. Highly Offensive ................................ 515 3. Causing Emotional Distress or Reputational H arm ........................................... 515 4. Actual Malice or Negligence with Respect to Technical Falsity ................................ 516 D. Keeping it Constitutional: Non-Literal Meaning and Technical Falsity ..................................... 517 1. Milkovich, Falwell, and the Misunderstanding about Rhetorical Hyperbole .............................. 519 2. Milkovich, Hepps, and Proving Truth ............ 529 VI. CONCLUSION ............................................ 531 MARYLAND LAW REVIEW [VOL. 63:401 Our society has long been preoccupied with women's sexual pro- priety, and that preoccupation has naturally led to talk. For several centuries, women in the United States have turned to defamation law when seeking legal redress for injuries caused by such talk, whether by neighborhood gossips or the mass media. Historically, defamation law was highly responsive to lawsuits brought by women on the basis of statements that undermined their reputations for chastity.' These cases frequently arose from straight- forward assertions of adultery and other "improper" sexual behavior,2 and female plaintiffs frequently won their defamation actions.' In re- cent decades, however, the type of statement giving rise to chastity- related defamation suits has changed, as has the law's response.4 While contemporary women sometimes still sue on the basis of statements that allege or imply inappropriate sexual behavior,5 other defamation cases arise from statements that ridicule women in rela- tion to their sexuality or otherwise portray them in sexually degrading ways.6 Such contemporary portrayals are the basis for what I call the "new chastity" cases. In contrast to those suing based on a straightfor- ward assertion of sexual misconduct, a plaintiff bringing a new chastity claim seldom succeeds. The new chastity plaintiff is thus often left with no relief. Using the label "new chastity" for these cases is admittedly a mis- nomer because the statements that give rise to them are hardly, if at 1. See Lisa R. Pruitt, "On the Chastity of Women All Property in the World Depends": Injury from Sexual Slander in the Nineteenth Century, 78 IND. L.J. 965, 984 (2003) (noting that due to the permissive nature of the per se standard, women frequently won sexual slander cases based on allegations of unacceptable sexual conduct); see also, e.g., Walmsley v. Kopczynski, 195 N.Y.S. 699, 700 (App. Div. 1922) (holding that a statement that a woman was a whore was defamation per se justifying a verdict for the plaintiff); Emmerson v. Marvel, 55 Ind. 265, 267 (1876) (upholding a verdict for the female plaintiff where the defamation in- volved words intended to suggest the unmarried plaintiff had engaged in improper sexual conduct). 2. See AndrewJ. King, Constructing Gender: Sexual Slander in Nineteenth-Century America, 13 LAw & HisT. REv. 63, 74 (1995) (examining representative cases from Indiana and New York and concluding that most slander cases brought by female plaintiffs were based on implications of sexual misconduct). 3. See Pruitt, supra note 1, at 1018 (discussing the increase in victories by female plain- tiffs in sexual slander cases due to the per se standard). 4. See infra Part IV (noting a trend of media defendants in modern sexual defamation suits and plaintiffs' diminished success in court). 5. Such behavior includes adultery, prostitution, the contraction of a sexually trans- mitted disease, or the procurement of an abortion, among others. See infra Part IV.C.1 (describing contemporary cases based on traditional sexual slander claims). 6. See infra Part IV.C.2, .3 (discussing contemporary cases that explore non-traditional forms of sexual defamation). For specific examples of sexually degrading portrayals, see DEBORAH L. RHODE, SPEAKING OF SEX: THE DENIAL OF GENDER INEQUALITY 73-76 (1997). 2004] Two CENTURIES OF TALK ABOUT CHASTITY all, about chastity. They are about portrayals that demean and de- grade, inflicting a dignitary injury. Nevertheless, I refer to them as "new