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Monday, November 16, 2009

Free Speech and Civil Liability

Dan Solove and Neil Richards have just published a terrific article, Rethinking Free Speech and Civil Liability, 109 Columbia Law Review 1650 (2009) (SSRN version here).  My response to the article has been posted at the Columbia Law Review Sidebar site. 

Solove and Richards propose a new test for determining when the First Amendment applies to the imposition of civil liability, an issue that has confounded courts and commentators.  The issue has not received nearly the attention it deserves.  The First Amendment intersects with civil laibility in a variety of contexts, including contract (enforcement of confidentiality agreements, speech-restrictive housing covenants, and government contracts), tort (defamation, privacy, and public disclosure), and property (enforcement of civil trespass laws).   

Solove and Richards claim that the key to the free speech-civil liability puzzle lies in the type of power the government is exercising.  When the state, rather than the parties, defines the content of a mandatory social duty, they claim that the First Amendment applies.  The essence of my brief response is that not all mandatory duties pose substantial First Amendment threats.  Thus, the nature or character of the social duty is critical to determining whether the First Amendment is imperiled by the imposition of civil liability.  I focus on examples from tort liability to make this point.

While I might draw some different boundaries than Solove and Richards, I find much to praise in their approach.  Among other things, it avoids getting bogged down in the unhelpful state action doctrine, highlights a distinction between power-as-regulation and power-as-facilitation, reminds us that civil liability can be as dangerously suppressive as other forms of government regulation, and appropriately preserves ample space for speaker autonomy and choice.  I enthusiastically recommend the article, in particular to those interested in First Amendment issues but also to anyone who teaches a course in torts, property, or contracts. 

Posted by Tim Zick on November 16, 2009 at 09:34 PM in Daniel Solove, First Amendment | Permalink


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Well, lets see: The tension, largely unexplained, between Sullivan and Cohen; the uncertainty regarding which rule (Sullivan or Cohen) ought to apply in any given context; the (at least) six different approaches by scholars to this issue; and a sufficient number of inconsistent court decisions to suggest the lack of any coherent framework. Yep, confounding. If youre skeptical, that seems further reason to read the Solove and Richards article.

At 07:40 PM 11/17/2009, you wrote:
Date: Tue, 17 Nov 2009 16:40:20 -0800
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Posted by: Tim Zick | Nov 18, 2009 9:22:14 AM

"[A]n issue that has confounded courts and commentators"


This hasn't produced all that many cases, there aren't a lot of inconsistencies in the case law, and New York Times v. Sullivan alone has resolved a surprisingly large share of the cases in a surprising stable way, either directly, or in a number of business tort cases, by analogy. Section 230, by pre-empting liability in many of the most plausible contexts on the Internet has further simplified the matter.

First Amendment issues like the establishment clause, the boundaries of content neutral time-place-manner limitations, and the appropriateness and scope of injunctive relief have all produced considerable confusion for courts and commentators by comparison.

The case that there is something broken in this part of constitutional law that needs to be rethought is really quite weak. And, the muddiest issues have involved the intersection of intellectual property rights and free speech, as a statutory fair use determination informed by the First Amendment, rather than through direct conflicts between First Amendment and common law civil liability.

Posted by: ohwilleke | Nov 17, 2009 7:40:18 PM

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