'Duty-Defining Power' and the First Amendment's Civil Domain
William & Mary Law School
January 14, 2010
William & Mary Law School Research Paper No. 09-27
Columbia Law Review - Sidebar, Vol. 109, No. 116, 2009
In Rethinking Free Speech and Civil Liability, 109 Colum. L. Rev. 1650 (2009), Daniel Solove and Neil Richards seek to map coherent boundaries for the First Amendment’s vast civil domain. Currently, different rules apply to civil liability for speech depending on whether the liability arises in tort, contract, or property. Solove and Richards claim that these boundaries are unworkable, under-theorized, and in some cases destined to collide. They develop a framework for mapping the First Amendment’s civil domain that is based upon a distinction regarding the type of power the state exercises in various civil liability contexts. This brief response critically examines the choice and meaning of power, and the boundaries that a power-defining approach would draw.
Number of Pages in PDF File: 11
Keywords: civil liability, freedom of speech
Date posted: January 16, 2010
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