During the nomination hearings for now-Justice Brett Kavanaugh, considerable attention was drawn to a high school friend’s memoir featuring a fellow student named “Bart O’Kavanaugh.” By the memoir’s account, “O’Kavanaugh” in one episode blacked out—apparently from alcohol—on his return from a party. For any number of possible reasons, Justice Kavanaugh did not bring a libel suit against the book’s author. If he had, however, a crucial threshold issue—preceding questions of falsity and intent—would have been whether the memoir’s portrayal of “O’Kavanaugh” amounted to a false depiction of Kavanaugh himself. In the parlance of defamation doctrine, Justice Kavanaugh would have to establish that the descriptions of O’Kavanaugh’s behavior were “of and concerning” the Justice himself.
Though Kavanaugh did not bring such a suit, the outcome of many other libel cases has hinged on whether expression that does not explicitly refer to the plaintiff can nonetheless be treated as defamatory. Much of this litigation arises from works that authors and publishers describe as fiction but which plaintiffs contend contain defamatory representations of them. Another frequent source involves members of a group who claim that, because they have been collectively tarred, they have also been individually defamed. In these and other cases where plaintiffs contend that the defendant’s description of repugnant conduct is tacitly about them, courts must first determine whether a jury could rationally find that a reasonable reader would ascribe that conduct to the plaintiff.
This Article argues that the law should expressly recognize a more dominant role for courts in resolving the issue of plaintiff identity. Courts should not merely screen for minimum plausibility in plaintiffs’ claims that derogatory expression falsely casts them in a harsh light even though it does not purport to describe them. Rather, courts should assertively employ First Amendment doctrine and a range of evidentiary tools to ensure that only genuinely ambiguous questions of plaintiff identity are submitted to the jury. A specific mechanism by which to effectuate this proposal would be to require by statute that allegedly defamatory statements clearly refer to a plaintiff as a substantive condition for liability. Such a change would reduce opportunities for dubious and practically unreviewable jury findings that a defendant has libeled the plaintiff in all but name. This approach may also promote judicial economy and relieve some of the scholarly criticism that judicial methods of ascertaining plaintiff identity have lacked clarity and coherence.