Philosophy professor, attorney, and former journalist Jeff Helmreich (son of the late sociologist William B. Helmreich) writes in 2024:
Holy Land was a thriving grocery chain in Minneapolis, owned and operated by a Palestinian American family. One of them, the CEO’s 25-year-old daughter, served as its catering director. She had also lately become a progressive activist, joining in the city’s Black Lives Matter protests shortly after the George Floyd killing. An observer who knew her name, and who may have been irked by her newly
prominent politics, unearthed some posts from a retired Instagram account she had used 10 years earlier, when, at age 14, she went through a radical phase. The 9th grader had then posted racist and anti-Semitic statements, which the observer now reposted on a variety of social media sites, effectively publishing them as current news.
The business became the target of nearly daily protests and threats of boycotts, ultimately losing thousands of dollars in catering contracts and the lease of one of its newer stores. The owner ceremoniously fired his daughter, even though she had demonstrably shed these hateful ideas long ago. In the shadow of this public vilification, she struggled to find new employment.
Paul McMullan, features writer for the celebrity gossip-oriented News of the World in England, wrote a detailed story of the stormy life of actor Denholm Elliott’s daughter, Jennifer, who was otherwise unknown to the public. Jennifer Elliott, he wrote, had fallen on hard times many years ago, turning not only to drugs but, at one brief point, to prostitution.
Within days of the publication, Jennifer took her own life, an act McMullan self-critically attributes to his article: “I humiliated her, I destroyed her, and it wasn’t necessary.”
In February 2008, the advertising blog Agency Spy ran a brief, incendiary post on the management style, or mismanagement style as they might have called it, of ad executive Paul Tilley, Creative Director of DDB in Chicago, quoting and criticizing brief excerpts from internal memoranda he had sent to subordinates. The post was followed by a dozen or so anonymous comments about him as a boss, most of them harshly critical. Less than three days later, Tilley jumped to his death from a window at the Fairmont Chicago Hotel.
These three episodes share several features. First, they all involve what used to be known as defamation—the act of damaging the reputation of others by spreading denigratory claims about them. Second, the defamers knowingly inflicted great harm, precisely the sort involved in standard tort defamation cases today. And yet, third, the victims (or their families) would have no basis to sue for defamation. They
could not recover for their losses in court, at least not for having been defamed.
Helmreich’s background as a journalist fits the paper better than anything in his acknowledgments page. Look at who his villains are. The News of the World writer who printed true facts about Jennifer Elliott. The blog that quoted Paul Tilley’s real memos. The observer who dug up a teenager’s deleted posts and reposted them as current news. His cases are press cases. The man is prosecuting his old trade.
It explains the moral heat. “Monstrous” is not the word a tort scholar reaches for. It comes from someone who watched the work up close and could not stomach it. The paper has the tone of a confession turned indictment. He saw editors find the one true devastating fact and run it, and he saw the cover story every time: the public has a right to know.
He has heard that defense in the room, watched it dressed on stories that served no one but the traffic, and he no longer credits it. The Hayekian case for diffuse true information is also the newsroom’s house justification. A man who left because the justification rang hollow will not pause to rebut it. He thinks he already knows what it covers for.
This strengthens the diagnosis. His feel for how a single true fact gets weaponized, stripped of context, given outsized weight before strangers, reads now as reporting, not theory. He watched it happen and he is describing it from the inside.
It also weakens his neutrality on the hard cases. A convert distrusts the thing he fled. The genuine instances where exposure protects people, the predator whose pattern only surfaces because someone printed the true ugly fact, sit at the edge of his vision. He files them under exceptions and moves on. His bracketing of public figures saves him from the worst of this. He is not naive about powerful men. But the apparatus he distrusts is the same apparatus that surfaces them, and he never sits with that.
So the biography does not make the legal proposals work. Garrison still bites. The “almost no worthy purpose” test still dissolves under a clever lawyer. What the biography supplies is the source of conviction and the reason for the one large silence. He is not failing to see the counterargument. He has seen too much of it to take it seriously, and that is a different posture than ignorance, and a less defensible one in a paper that asks the reader to weigh the costs honestly.
Helmreich has hold of something real. The three opening cases do the work he needs them to do. A grocery family loses contracts over a fourteen-year-old’s deleted posts. An actor’s daughter takes her life days after a tabloid prints true facts about her past. An ad executive jumps from a hotel window after a blog quotes his real memos. Each victim told no lie about anyone, suffered enormous harm, and has no defamation claim. The phenomenology is sound. Accurate denigration can ruin a man, and the law has no name for the wrong.
The strongest stretch runs through his treatment of reputation as good standing. His best move comes when he attacks the reputation-as-earned-credit view. Strangers hold only a few facts about you. So each public fact carries weight far beyond what it would carry in a full life, shorn of the context that would let anyone weigh it. Publishing a sordid fact from long ago upends the order by which people come to know one another. That observation is sharp and original, and the “fresh start” claim built on it is the durable part of the paper. It survives the law-review framing and stands as a point about how reputation works at all.
Now the trouble. The thesis rests on “all else equal” and “presumptive wrong,” and those phrases carry too much. Almost any act is wrong all else equal. The interesting question is when a countervailing interest defeats the presumption, and he keeps deferring that question to a later page that never arrives. He establishes a presumption, then concedes that competition, self-defense, protection, and public concern can all override it. By the end the thesis has shrunk to: true defamation can be wrong, and sometimes is monstrous. Few would deny that. The harder claim, that it is wrong as such, he gestures at more than he earns.
Two of his harm arguments pull against each other. The fresh-start argument says the harm comes from distortion: an old isolated fact gets outsized, misleading weight. The cyberbullying argument says the harm comes from accuracy: the bully finds the one devastating true fact that lands. These are different injuries. The first concedes that a fact weighed in proper context might be fine, which undercuts any claim that the trouble lies in truth-telling. The second is closer to a privacy or cruelty claim than a reputation claim. He wants both and the pair sits uneasily.
He also smuggles privacy intuition into a paper about defamation. Jennifer Elliott and the surgery photographs move us because they are intrusions, not because they damage standing. His one clean case of defamation without privacy is Tilley, the manager criticized for his memos. But Tilley is also the case where the speech looks most like fair workplace commentary. So his purest example of the wrong he wants to name is his weakest case for liability. That should worry him more than it seems to.
The legal proposals are the soft part, and he half-knows it. His malice route through Noonan v. Staples runs into Garrison v. Louisiana, which he cites against himself. A tort keyed to the speaker’s bad purpose chills well-meaning speakers, who must now worry that a court will impute ill will. His narrower proposal, liability for true defamation that serves “almost no end other than to ruin a private person’s reputation,” dies on his own admission that one can always find some worthy end and some thread of public concern. A competent defense lawyer manufactures that hook every time. Eugene Volokh (b. 1968), whom he thanks and cites, has spent years showing how purpose-based speech restrictions metastasize. The paper does not answer him.
The deepest gap is one he never opens. True negative facts about people circulate because strangers need cheap ways to judge whom to trust. The outsized weight of a few facts, which he treats as a bug, is also how reputation does its job. His “right to a fresh start” reads, from the other side, as a subsidy to the wrongdoer paid by every future counterparty denied the information. He files this under “protective defamation” as an exception. It belongs at the center. Warning others is not a side use of circulating true bad facts. It is the point of having reputations at all. A Hayekian would say the diffuse circulation of true reputational information is a public good, and the burden falls on the man who wants to suppress it. Helmreich never argues with that man.
One historical note cuts against his sympathies. “The greater the truth, the greater the libel” grew up in seditious-libel soil, where truth about the powerful was the thing the Crown most wanted buried. The old regime he half-admires protected rank. And his own Croswell story, with Alexander Hamilton (1757–1804) arguing for a free press chasing unpleasant truths, shows the shift to truth-as-defense came from principle, not accident. He wants to say the moral question went unconfronted. His evidence shows it confronted and decided the other way.
Where he lands is better than where he reasons. The contribution is lexical, not doctrinal. We have lost a word for a real wrong, and losing the word lets people tell themselves there is nothing amiss in destroying a private man’s name so long as every word is true. Augustine (354–430) had it right that naming a thing a lie or a theft puts the burden on the doer. Helmreich wants that burden restored for cruelty dressed as honesty. The naming project I find persuasive. The lawsuit he wants to build on top of it, less so. Robert Post (b. 1947), whose good-standing and civility work he leans on throughout, gave him a richer theory of the wrong than the remedy he proposes can carry.
What Helmreich wants is the world where reputation moves slow. You meet a man, you learn the plain things first, the harder things later, the old sins last of all, if at all. The community holds him in good standing until he gives real reason to lose it, and even then it can decide to let an old thing fade. That order is real. It existed. It still exists in pockets. And his whole apparatus, good standing, fresh start, the gradual order of acquaintance, presupposes it.
That order is a product of closure and scale and repeated dealing. A small bounded group where everyone knows everyone, where you will see the same faces next year, where membership is controlled through kinship and shared norms rather than through the thin public record. You can have that in a homogeneous village and you can fail to have it in one too. The variable he is mourning is not sameness of blood or creed. It is smallness, stability, and a community that controls its own membership well enough that it can afford to forgive.
The forgiving community is not the merciful one by nature. The closed community is the cruel one. In a village where everyone knows everyone, a true bad fact is a life sentence. There is nowhere to go and no stranger to start fresh with. That is why the very traditions Helmreich reaches for, the Jewish prohibition on lashon hara and the Catholic prohibition on detraction, exist at all. They are commands against speaking ill of a man. You do not need to command what comes naturally. Those laws arose because the tight community would otherwise destroy a man with true facts, and the community knew it, and bound itself by religious law against its own appetite.
So the thing Helmreich yearns for is the religious law the society needed to survive its own cruelty. He wants the prohibition on lashon hara to run in a society of strangers, where the law has no congregation to enforce it and no shared sacred norm to give it teeth. He reaches for the command and leaves behind the community that generated it and the God who backed it. That is why the remedies fail. He is trying to put the duty of detraction into secular tort, where the only enforcer is a judge applying a malice test, and a malice test cannot carry a sacred prohibition. The weight is wrong for the vessel.
He cannot argue for a closed moral community under shared law, because he does not want one either. He is a liberal academic at a public university citing the Talmud as moral evidence and the First Amendment as a constraint he must respect. He wants the mercy of the covenant without the covenant. He half-knows the covenant community was the merciless one that had to be restrained, since he cites the very restraints. And he cannot say the part out loud, which is that the internet’s refusal to forget is the price of a society of strangers, and that you do not get the slow forgiving order back by writing a tort. You get it back, if at all, by rebuilding the small bound communities that made it work, and he will not propose that, because the bound community asks more of a man than he is willing to ask.
Helmreich yearns for a thick moral community with the power to forgive, and the only such communities he can name are the religious ones he has left behind. That is a more defensible charge and a sadder one. The man is homesick for an authority he no longer accepts.
Citizenship is the thin bond. Citizens are strangers who agree on procedure. They owe each other equal treatment and the truth and not much warmer than that. The First Amendment is the citizen’s charter. Among citizens true speech runs free, because a citizen has no claim on another citizen’s mercy. He can demand you not lie about him. He cannot demand you bury a true thing or hold him in good standing while he earns his way back. The citizen’s law is built for men who do not love each other and do not have to.
Brotherhood is the thick bond. Brothers do not publish each other’s sins. A brother extends the presumption of good standing as a gift, not a procedure. He gives the fresh start because the other man is one of his own and the name he protects is half his own name. The prohibition on lashon hara is a law for brothers. It assumes the man whose name you guard belongs to the household with you. The Catholic ban on detraction runs inside the body. Both are fraternal laws. They govern men who are more than fellow voters.
So set the paper in that light and the trouble comes clear. Helmreich’s good standing is brotherhood wearing the citizen’s clothes. He wants the law of brothers to govern a city of strangers. He keeps walking into the First Amendment because he is asking the charter written for strangers to enforce the duties owed only among brothers, and it will not, because it was drawn for the opposite relation. Every time he defers to the free-speech value he must respect, he is bowing to the citizen’s law while reaching for the brother’s mercy. The two do not sit at one table. He half-knows it and cannot say it.
Now the price. The brotherhood that guards a man’s name is the same brotherhood that decides who is a brother. Fraternal mercy has a wall around it. You owe your brother the protection of his name. You do not owe it to the stranger or the enemy outside the gate. The reason brothers can forgive and forget is that they have already drawn the line that says who is in. The mercy is bought with the boundary. There is no warmth without the wall.
That is what Helmreich wants and cannot ask for. He wants the inside, the covering, the slow forgiving order of men who are kin, and he wants it for every private stranger on the internet at once. He wants universal brotherhood. But brotherhood is made of not being universal. Extend the brother’s protection to all mankind and you have dissolved the thing that gave it force. You are left asking the law of brothers to run with no brothers in it, which is the citizen’s world again, only now pretending to be something warmer.
The longing is honest and very old. Aristotle (384–322 BC) said the city aims past justice at friendship, that the best polis is a community of friends and not a contract among strangers. Most men feel the pull. We traded the city of brothers for the city of strangers because the city of brothers, when a man falls out of favor, knifes him with the truth and casts him past the wall, and because the wall keeps out everyone who was not born inside it. The liberal bargain erased the wall and called every man a citizen. Thinner, colder, and open to all. Helmreich feels the loss and reaches back for the warmth and will not touch the wall. So he writes a tort, and the tort cannot carry it, because what he is grieving is not a missing law. It is a missing brother.
Brother and citizen, covenant and strangers, corporate and individualist. One line drawn three times. Relationship first, or agreement first. Status, or contract.
Henry Maine (1822–1888) put it as the one law of social change in Ancient Law. The movement of progressive societies, he said, has been from status to contract. A man once stood where his birth placed him, inside a family, a clan, a body, and his relations came fixed with his station. Then the man’s bonds became the bonds he made. His agreements, not his place. Maine called it progress. Helmreich feel the cost.
Put his paper on that corporate vs individual axis and the law makes sense, even where he hates it. American defamation law is the law of the contract pole. Among sovereign strangers the only duty owed is the duty not to deceive. Lying is fraud, a broken term in the one relation strangers have, which is the relation of honest dealing. So false defamation is actionable. It breaks the only promise the individualist order recognizes. True defamation runs free because among strangers no prior relationship forbids telling the truth about a man. There is no body that owes him the cover of his name. The law is faithful to its society. Helmreich calls it monstrous because he is judging a contract law by a status morality. He wants the body’s duty enforced in a country that dissolved the body.
In the corporate country you do not negotiate your standing, which is the warmth. You also cannot renegotiate it, which is the cage. Born inside, you are covered. Born low, you stay low. The relationship that guards your name is the same relationship that fixes your place and will not let you leave it. The individualist country makes you negotiate everything, your work, your bonds, your station, and now your reputation too. You manage your own name like a sole proprietor, you sue for your own defamation, you do your own reputation repair, because no body does it for you. Exhausting and cold. Also the only order where a man can walk out of the family that would define him and bargain his way into a new place. The freedom and the loneliness are the same thing.
Look back at his cases through this. The Holy Land family had a body, the family firm, and the body fired its own daughter to survive the pressure from outside. The corporate bond cracked under the individualist storm and threw out its own member to live. Tilley stood alone, an executive in a contract world, with no body to absorb the blow to his name. These are not stories of bad law. They are stories of men and women who had to negotiate everything, including who they would be taken to be, with no relationship standing behind them. That is the condition Helmreich grieves. He calls it a missing tort. It is a missing status.
He yearns for the country where the relationship comes first. He cannot ask for it, because the country where the relationship comes first also tells you where to stand and never lets you move, and he is a free man of the negotiated world who would not give up the exit. He wants the cover without the cage. The protection of the body without the assignment of the body. And a tort cannot give it, because a tort is a contract-world instrument, a thing you negotiate in court, and the cover he wants was the one thing the old order gave without negotiation, to those it claimed as its own.
In the populist-nationalist MAGA vision, we are one people. Only in a pluralist multi-cultural society can elites rule via coalition.
I don’t think Helmreich is MAGA but he wants the benefits of that united people.
The one people is the body at national scale, relationship first, a single will. The pluralist society is the contract order spread across many groups. Where the people are many, the broker is necessary. No faction can rule alone, so someone must assemble the coalition, hold it together, arbitrate among parts that trust each other less than they trust him. That broker is the elite. His power comes from the division. James Madison (1751–1836) sold faction against faction as the dispersal of power in Federalist 10, and Robert Dahl (1915–2014) gave the polite name, polyarchy, rule by many minorities. The populist answer is that the dispersal is a cover story. What disperses among the groups concentrates in the hand that coordinates them. Where the people are one, the coordinator has no trade. He is unnecessary, and worse, he is exposed, because a single people can see plainly whether a man serves it or stands outside it. So the elite has every reason to prefer a fractured many it can broker to a whole it would have to obey or face. That much is true, and it is the strongest thing the populist has to say.
The one united people is a claim, not a fact. No nation was ever one undivided people. The people is always made, by a language, a myth, an enemy, a leader who names it. So the man who stands up and says we are one people and the broker is illegitimate is, more often than not, building a coalition of his own and calling it the whole. He rules a faction too. He simply denies the others are part of the people at all. He has no word for the minority except enemy of the people, because his legitimacy rests on there being no real division to broker. The pluralist elite rules a coalition and admits it. The populist elite rules a coalition and calls it the nation. Caesar is an elite. The man who says I am the people governs a coalition while denying coalitions exist, which can be the more total rule, because it leaves the excluded with no standing and no name.
So it is not that pluralism alone permits elite rule by coalition. Both orders are run by elites assembling coalitions. The difference is whether the coalition rules in the open, as one minority bargaining among others, or in disguise, as the voice of a unity it has defined to fit itself. The honest broker and the man who is the people are both ruling the many. One confesses it. The other consecrates it.
The coalition-broker profits from disunity and will work to keep the groups from ever finding the common ground that would make him unnecessary. That is a real reason to distrust the pluralist managerial class, and the populist who calls for one people is trying to dissolve its franchise. Whether he delivers self-rule or only a new and more concentrated master depends on whether the institutions of his unity, the citizen army, the common law, the shared tongue, the parliament, hand power down or gather it at a new center. History runs mostly toward the new center. Not always.
The one body that needs no broker is the one body with no room for the man who does not fit. The whole that obeys a single will has no place for the dissenter who is not an enemy, no minority that is not a problem to be solved, no exit. The pluralist coalition order is broker-ridden and cold and it is also where the odd man finds air, because no single people there claims to be all of it. The warmth of the one people is bought with the same wall as the warmth of the brotherhood and the cover of the body. The unity that frees you from the broker is the unity that will not let you stand apart from the people once it has decided who the people are.
