Most lawyers, including me, would have argued that you could not, under the First Amendment, presume damages.
But then they would have had to deal with 200 years of precedent permitting juries to presume damages to reputation.
Courts do not usually presume damages from slander as they do with libel.
Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger.
Presumed damages to reputation might have been prohibited, or limited, as in Gertz.
After trial, the jury returned a verdict in favor of respondent and awarded $50,000 in compensatory or presumed damages and $300,000 in punitive damages.
After trial, the jury returned a verdict in respondent's favor and awarded both compensatory or presumed damages and punitive damages.
Rape was a crime only when it was perpetrated against an unmarried virgin; even then, it was a crime against her father, whose property was presumed damaged.
Although there was much talk in Gertz about liability without fault and the unfairness of presuming damages, all of this, as was the case in New York Times, was done in the name of the First Amendment, purportedly to shield the press and others writing about public affairs from possibly intimidating damages liability.
The commercial context does not increase the need for presumed damages, but if anything reduces the need to presume harm.
And in a remark that must surely apply to many of the unaccountable things that rogue governments and rogue corporations still do, he writes: "For it is only criminals who presume to damage other people nowadays without the aid of philosophy".
