Originally posted 2010-12-01 20:08:13. Republished by Blog Post Promoter

Defamation and reputation management are issues of intense interest at LIKELIHOOD OF CONFUSION®. Obviously cultural context means a lot when considering these two related topics. Here Daniel Solove reviews Professor Lawrence Friedman‘s Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy:

Friedman focuses much of his book on the Victorian era of the nineteenth century. The key phenomenon in his book is what Friedman terms the “Victorian compromise.” The Victorian era is famous for its staunch moral code and sense of propriety. Throughout history, Western society has had periods of licentiousness and reticence, and the Victorian era is the symbol for being buttoned-up and prudish. In England and America, this was a period of strong laws against countless forms of disfavored sex, from adultery to sodomy. But Friedman notes that a lot of vice was, in fact, tolerated during this period. According to the Victorian compromise:

Vice at least was tolerable, although only in small amounts and only if discreet and under a good deal of control. Hence a kind of double standard evolved. A prime example was the so-called red-light zone or district. These zones flourished in city after city. Houses of prostitution, gambling dens, and all sorts of vice were rampant in these districts. The law — and the police — winked at them and accepted them as part of urban life. . . . This double standard was the essence of the Victorian compromise. It stands in sharp contrast to the attitude and behavior in (say) Puritan Massachusetts Bay, in the colonial period, with its policy of zero tolerance toward vice and illegal sex. (p. 67) . . .

In a chapter on blackmail, Friedman observes that the blackmail laws fit with the Victorian compromise — they were designed to help elites protect their public reputations, to help prevent them from being threatened and extorted by the often poorer individuals who were blackmailing them (their illicit lovers or servants). He notes that “the blackmail statutes began to appear roughly about the same time and with the same underlying ethos as the other laws that made up the Victorian compromise.” (p. 99). . . .

Thus, the Victorian compromise operated to maintain a facade of respectability in public while sin occurred in the dark recesses of the private sphere. It’s ok to do it, the ethos of the age said, just be sure to hide it. The Victorian compromise “depended on privacy and secrecy.” (p. 215)

Solove highly recommends Friedman’s book. Hypocrisy has always has a role in a society in which sin cannot be eradicated — i.e., any society, including ours, and ones far more ancient than the Victorians (though like so much they may have elevated it to a very high art!). Hypocrisy is the “tribute vice pays to virtue.” I’m not so clear how this has changed, besides the fact that defamation today is widespread and the law, stunned like a deer in the headlights of a swollen First Amendment jurisprudence, acts more or less as if it has no power to prevent it.

By Ron Coleman

LIKELIHOOD OF CONFUSION blog author Ron Coleman is a member of Dhillon Law Group in their New York City and Montclair, New Jersey offices. He is a graduate of Northwestern University School of Law and Princeton University.