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124 Chapter 4 Defamation Handbooks: J. H. Lipsius, Das attische Recht und Rechtsverfahren (Leipzig 1905–­ 15) 646–­ 51; D. M. MacDowell, The Law in Classical Athens (Ithaca, NY 1978) 126–­ 29; S. C. Todd, The Shape of Athenian Law (Oxford 1993) 258–­ 62; R. W. Wallace, “Law, Attic Comedy, and the Regulation of Comic Speech,” in The Cambridge Companion to Ancient Greek Law, ed. M. Gagarin -­ D. Cohen (Cambridge 2005) 357–­ 73. Studies: L. Gernet, Recherches sur le développement de la pensée juridique et morale en Grèce (1917, repr. Paris 2001) 238–­ 44; E. Ruschenbusch, Untersuchungen zur Geschichte des athenischen Strafrechts (Köln 1968) 24–­ 27; M. Hillgruber, Die zehnte Rede des Lysias (Berlin 1988); S. Halliwell, “Comic Satire and Freedom of Speech in Classical Athens,” JHS 111 (1991) 48–­ 70; R. W. Wallace, “The Athenian Laws against Slander,” in Symposion 1993, ed. G. Thür (Köln 1994) 109–­ 24; A. H. Sommerstein, “Comedy and the Unspeakable,” in Law, Rhetoric, and Comedy in Classical Athens: Essays in Honour of Douglas M. MacDowell, ed. D. L. Cairns-­ R. A. Knox (Swansea 2004) 205–­ 22. Although the Classical Athenians prided themselves on the freedom of speech (parrhêsia) that they considered characteristic of their city (e.g., Demosthenes 9.3), Athenian law placed restrictions on the defamation of persons. According to Plutarch (68), the code of laws that Solon promulgated during his archonship (594/3: 6b [Arist.] Ath. Pol. 7.1) included provisions against defaming the dead and against defaming the living in specified locations. The penalty for the latter was a fine of 5 drachmas, of which 3 were paid to the victim and 2 to the state; the penalty for the former may have totaled 10 drachmas (see below). Plutarch does not explain what constituted illegal defamatory speech under the laws he cites, but it is probable that at least some items in the category mentioned by the orators under the rubric ta aporrhêta (“the unmentionables” or “the forbidden words”) were already prohibited in the Archaic period. In Defamation • 125 the time of the orators, there was a dedicated private lawsuit for defamation, the dikê kakêgorias (33 Dem. 54.17–­ 19; 75, 79, 81), which applied against a person who used against another, whether living (71, 77) or dead (72, 74), any of the terms prohibited by law; these were sufficiently familiar to Athenians that speakers could refer to “the forbidden words” in passing and without explanation (69, 77, 80). Lysias 10, our most informative source for the Classical dikê kakêgorias (71), yields a list of “dirty words” that includes the nouns androphonos (“killer”), patraloias (“father-­ beater”), and mêtraloias (“mother-­beater”) and the verb apobeblêkenai (with stated or understood object tên aspida: “to have thrown away” one’s shield, this being the archetype of cowardice in battle: cf. 64c Aeschin. 1.28–­ 30, 32). The truth of the matter asserted served as an affirmative defense against a charge of defamation arising from the use of these words (71d, 73). By the middle of the fourth century the dikê kakêgorias also lay against one who reproached a citizen for working in the agora (76); it is generally assumed that in this case the accuracy of the allegation was irrelevant. In the fourth century, the dikê kakêgorias normally came under the supervision of the Forty, who in the first instance assigned the case to a public arbitrator (75; p. 36). (When a slave was accused of defaming a free person, the case came before the thesmothetai: 79.) If either litigant contested the arbitrator’s finding, the case went to trial in a regular jury-­ court (dikastêrion: p. 26). The penalty imposed upon a convicted defendant was a monetary fine that was fixed by statute. Several sources state the penalty as 500 drachmas (69, 71c; cf. 81), but when Meidias lost a dikê kakêgorias to Demosthenes he had to pay 1,000 drachmas (75), and according to a lost oration of Hypereides the fine was 500 drachmas for defamation of the living and 1,000 drachmas for defamation of the dead (81). One reasonable and popular reconstruction of the history of penalties for defamation holds that, between the promulgation of the allegedly Solonian laws cited by Plutarch and the time of the orators, all the fine amounts were multiplied by 100: thus, in the Classical period, the total fine for defaming a living person was 500 drachmas (of which...

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