Defamation Law in the Age of AI with Lyrissa Lidsky | Hoover Institution

Quick Overview

The Restatement (Third) of Torts: Defamation and Privacy project, led by reporter Lyrissa Lidsky, seeks to modernize defamation law by eliminating the outdated distinction between libel and slander, and the project lays groundwork for addressing novel issues arising from generative AI, although it cannot alter established First Amendment constitutional principles.

Key Points: The Restatement (Third) of Torts aims to eliminate the complex, artifact-of-history distinction between slander (oral defamation) and libel (written defamation), which the internet has rendered obsolete. The Restatement process involves drafting by reporters, feedback from an advisory board, approval by the ALI Council, and final vote by the 2000+ ALI membership, ensuring rigorous vetting. Courts heavily rely on the Restatement, especially federal judges, to fill gaps in state law by looking to its "most articulate, well reasoned statement of what most states do." The Restatement cannot change constitutional law, meaning it must accept the backdrop of New York Times v. Sullivan requirements that public officials and public figures must show knowing or reckless falsehood to win defamation suits. The discussion explored whether courts should revisit the rule that mental state (actual malice) is judged only at the moment of initial posting, despite the low cost of removing content online later, which differs from expensive newspaper retractions. The group anticipates that defamation claims against LLM chatbot companies will press the issue of liability, noting Section 230 immunity likely does not apply because AI generates content rather than merely hosting user-generated content. Lidsky proposes reforming damages by eliminating 'presumed damages' absent proven harm, aligning defamation with other dignitary torts, allowing only nominal damages unless specific damages are proven.

Context: The discussion features Eugene Volokh and Jane Bambower interviewing Lyrissa Lidsky, a reporter for the Restatement (Third) of Torts: Defamation and Privacy project, about the process and the significant substantive issues arising in modernizing this body of law, particularly in light of technological changes like the internet and generative AI.