Should the Courts More Frequently Use Public Opinion Polls in Defamation Cases?

A press release from the National Communications Association on my article that has just been published in the journal First Amendment Studies:

These days, there seems to be a public opinion poll on every topic, from presidential approval ratings and consumer product use, to knowledge about current events and views of celebrities. However, while polls became ubiquitous in the 20^th century, they were not used at all as evidence in court cases until the early 1950s. While polls are now frequently used in court, they are rarely used in defamation cases. In a new article in the NCA journal First Amendment Studies, Eric P. Robinson, attorney and Assistant Professor in the School of Journalism and Mass Communications at the University of South Carolina, outlines the history of using public opinion polls as evidence in defamation cases, and argues that the courts should use them more.

In a defamation lawsuit, a legal claim is based on harm to the plaintiff’s reputation. According to Robinson, the “law conceives of reputation, and damage to reputation, as a social phenomenon.” A defamatory statement lowers the plaintiff in the estimation of the community or deters third persons from associating or dealing with him. To accurately measure the opinions of others, Robinson strongly recommends using public opinion polls.

Robinson rounds up the eight defamation trials that have used public opinion polls as evidence, including Newton v. NBC (1981), Rudin v. Dow Jones & Co., Inc. (1983), Stern v. Cosby (2009), and Beef Products, Inc. v. American Broadcasting Companies, Inc. (2017). Robinson acknowledges that while the courts have become more accepting of social science evidence in the last century, “their approaches to free speech issues are often in direct conflict with results of social science research on the same questions.” Moreover, when the judge and jury are proxies for public opinion, they don’t represent the general public, and therefore present a narrow, subjective view of the case.

While opinion polls need to be examined closely for methodology, sample size, demographics, and the questions asked, Robinson argues that “It is time to use proven methods to determine the impact of alleged defamatory statements on actual people.”