“Defamation, Bankruptcy, and the First Amendment” by Christopher D. Hampson, published in the Journal of Free Speech Law.

In recent years, high-profile defamation cases have increasingly found their way into bankruptcy courts, involving notable figures such as Rudy Giuliani, Alex Jones, and Cardi B. This trend is partly attributed to the growing impact of social media in a polarized society, which amplifies harm through statements that may lead to defamation claims. Defendants are now filing for bankruptcy more frequently and at earlier stages in litigation, seeking relief from daunting financial liabilities arising from such claims. However, this misconception exists among some that filing for bankruptcy acts as a "magic wand" to eliminate all debts. The reality is that certain types of defamation debt may be deemed non-dischargeable under the Bankruptcy Code, specifically those classified as "willful and malicious," complicating the relief sought by these defendants.

While consumer bankruptcy attorneys are familiar with the common exceptions to discharge, recent developments indicate that some courts are beginning to apply these exceptions to small businesses reorganizing under subchapter V of the Bankruptcy Code. This change comes to the forefront in high-profile cases like that of Alex Jones’s InfoWars, which emphasizes how intertwined defamation law is with bankruptcy proceedings today. The confluence of these legal areas raises important questions about how defamation debts are treated within bankruptcy courts. It opens the door for substantive and procedural rules to address these debts, particularly when First Amendment defenses, as established in pivotal cases like New York Times Co. v. Sullivan, become relevant.

The intersection of defamation law, bankruptcy, and First Amendment protections presents a complex legal landscape for both litigants and practitioners. Understanding how these areas interact becomes crucial, especially when considering the differences between individual and corporate entities facing defamation claims. The article seeks to provide comprehensive guidance on navigating through these legal waters, emphasizing the various considerations that lawyers must account for when advising clients. The legal implications of speech that causes harm, and the balance between compensating victims and allowing offenders a chance at reformation, sit at the heart of this discussion.

The debate surrounding defamation and bankruptcy raises reflective questions about the adequacy of our current bankruptcy policies, especially with regard to the "fresh start" ideology. When considering individual defendants burdened with defamation debt, one must ask if the relief provided by bankruptcy is sufficient, or if it is excessively lenient. This is contrasted against the backdrop of business entities, which face scrutiny due to the potential for Chapter 11 bankruptcy allowing them to shed liabilities without fully addressing the harm caused to victims or altering potentially harmful behaviors. Such scenarios reinforce the notion that while bankruptcy can offer a path forward for debtors, it may inadvertently shield bad actors from facing genuine consequences.

Both theoretical and practical implications necessitate that attorneys remain vigilant when it comes to providing advice in the face of insolvency. As defamation debts make their way through bankruptcy courts, legal practitioners must understand the nuances involved and the evolving interpretations of the bankruptcy code as applied to defamation-related cases. This includes a thorough examination of past rulings and an anticipation of how courts may apply First Amendment protections when adjudicating these complex disputes.

Overall, the article underlines that the intersection of defamation, bankruptcy, and constitutional law demands a heightened level of attentiveness from legal professionals. By thoroughly understanding these relationships, attorneys can better advocate for their clients while navigating a landscape that increasingly integrates aspects of tort, contract, civil procedure, federal law, and constitutional rights. As the relevance of social media in shaping public discourse grows, the implications of defamation cases on bankruptcy law are likely to become even more significant, thus warranting continued scholarly exploration and practical engagement within the legal field.