I'm not sure I understand the expressive association theory. Is
it that the legal system has a positive obligation to make actionable
false statements about others' associations? I had not thought that the
First Amendment *obligates* the government to punish private speech
(even false speech).
Damage to reputation is, as I understand it, the very premise
behind defamation law. A statement can be defamatory only if can be
presumed to harm another's reputation (for instance, if it accuses
someone of crime) or if it is shown to have actually harmed the person's
reputation. False light invasion of privacy law allows people to
recover without a showing of injury to reputation; injury to feelings is
enough. But there the statement has to be highly offensive to a
reasonable person.
As to whether the matter should be decided by the judge or the
jury, I leave that to experts in defamation and false light law (or,
better yet, Florida defamation and false light law).
Eugene
Louise Weinberg writes:
Could one argue that the court in this case in effect coerced
this association upon the plaintiff, in disregard of her freedom of
expressive association? And in effect perhaps coerced a confession of
faith which is not hers, in disregard of her religious freedom?
You raise the interesting question of damages to reputation. I
did not understand that this was an element of the tort ~ I had always
thought nominal damages could be awarded. But I don't know much about
tort law. If you are right, arguably there could still be substantial
injury to reputation in such a case. It might even be defamatory to
call someone in this country an "atheist," depending on the factual
setting (suppose plaintiff is running for office). To a radical
Islamist, I am told, "Christian" = "infidel" = one of the gravest
insults known to Islam, which might place the "infidel" at some risk for
her safety. Or, if the woman plaintiff in this case were an extremely
traditional Jew, her friends might treat her as one dead to them, and,
even having heard her protestations to the contrary, might never again
regain full confidence in her. But would it, perhaps, be the better
rule to regard such questions as questions of fact for the jury, not to
be determined as a matter of law? Among the relevant facts, I should
think, might be how "core" not subscribing to the ascribed faith might
be to the traditions of one's own. Among some Jews, I have been told
that a "core" item of their idea of Jewishness is not believing in
Jesus.
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