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Tort Liability and the Original Meaning of the Freedom of Speech, Press, and Petition


Eugene Volokh


University of California, Los Angeles (UCLA) - School of Law

June 17, 2010

Iowa Law Review, 2010
UCLA School of Law Research Paper No. 10-15

Abstract:     
Does the First Amendment limit common-law tort liability? New York Times Co. v. Sullivan said yes, but some argue this is a modern innovation. The Court’s turn to original meaning, including in free speech cases, may make the issue significant again.

This short article argues that constitutional constraints on speech-based civil liability have deep roots, going back to the Framing era. That aspect of the New York Times v. Sullivan holding is entirely consistent with original meaning. The Framers likely did view the proper scope of libel liability more broadly than recent First Amendment precedents allow. But this was because of a substantive judgment about which speech restrictions (civil or criminal) should be permitted -- not because of a judgment that civil liability simply didn’t constitute state action, or that tort law was categorically immune from First Amendment scrutiny.

Number of Pages in PDF File: 12

Keywords: Freedom of Speech, Freedom of the Press, First Amendment, Original Meaning, State Action

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Date posted: June 19, 2010 ; Last revised: September 23, 2010

Suggested Citation

Volokh, Eugene, Tort Liability and the Original Meaning of the Freedom of Speech, Press, and Petition (June 17, 2010). Iowa Law Review, 2010; UCLA School of Law Research Paper No. 10-15. Available at SSRN: http://ssrn.com/abstract=1626294

Contact Information

Eugene Volokh (Contact Author)
University of California, Los Angeles (UCLA) - School of Law ( email )
385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
310-206-3926 (Phone)
310-206-6489 (Fax)
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