Rethinking Free Speech and Civil Liability
Daniel J. Solove
George Washington University Law School
Neil M. Richards
Washington University in Saint Louis - School of Law
Columbia Law Review, Vol. 109, 2009
GWU Legal Studies Research Paper No. 465
GWU Law School Public Law Research Paper No. 465
One of the most important and unresolved quandaries of First Amendment jurisprudence involves when civil liability for speech will trigger First Amendment protections. When speech results in civil liability, two starkly opposing rules are potentially applicable. Since New York Times v. Sullivan, the First Amendment requires heightened protection against tort liability for speech, such as defamation and invasion of privacy. But in other contexts involving civil liability for speech, the First Amendment provides virtually no protection. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires scrutiny when property rules limit speech.
Both of these rules are widely-accepted. However, there is a major problem - in a large range of situations, the rules collide. Tort, contract, and property law overlap significantly, so formalistic distinctions between areas of law will not adequately resolve when the First Amendment should apply to civil liability. Surprisingly, few scholars and jurists have recognized or grappled with this problem.
The conflict between the two rules is vividly illustrated by the law of confidentiality. People routinely assume express or implied duties not to disclose another's personal information. Does the First Amendment apply to these duties of confidentiality? Should it? More generally, in cases where speech results in civil liability, which rule should apply, and when? The law currently fails to provide a coherent test and rationale for when the Sullivan or Cohen rule should govern. In this article, Professors Daniel J. Solove and Neil M. Richards contend that the existing doctrine and theories are inadequate to resolve this conflict. They propose a new theory, one that focuses on the nature of the government power involved.
Number of Pages in PDF File: 58
Keywords: First Amendment, civil liability, tort, contract, property, free speech, confidentiality, privacy, defamation, unconstitutional conditions, government employment
JEL Classification: K10, K11, K12, K13
Date posted: March 10, 2009 ; Last revised: November 24, 2009
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