Roman Law and the Legal World of the Romans

Social Control

context of freedom-of-speech law), that is, language so power fully shaming or insulting that it is likely to, or inevitably will, lead to violence. There is a community interest in not getting to that point. (It must be admitted, however, that while Roman society placed great weight on personal honor and shame, it seems never to have developed a dueling culture.) Comparison with the modern law of defamation shows two important gaps in our knowledge of how the Roman law worked. First, in modern American law, truth is an absolute defense to charges of libel and slander. That is, as long as what you say is true, it is irrelevant how insulting your words are or why you uttered them. You cannot have committed libel or slander (though you might conceivably have liability on some other grounds). Did Roman law have such a defense? There is certainly not one written in those terms, and in general Rome lacked the modern commitment to freedom of speech. On the other hand, to constitute iniuria , an activity had to be “con trary to good morals.” So, for instance, engaging in a certain degree of disrespect to “correct” an ex-slave was considered normal and appropriate, even if the same “correction” applied to a free-born person might spawn a lawsuit. It is possible that the issue of truth could arise in this context, but seemingly not in a decisive way. Second, “public figures” have dimin ished protections under American law. They have to show that the defamer knew his words were false or disregarded signifi cant evidence to that effect. The goal here is again the protec tion of free speech in general; application of the regular law of defamation to public figures would create too many incidental

71