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Rethinking Free Speech and Civil Liability

58 Pages Posted: 10 Mar 2009 Last revised: 24 Nov 2009

Daniel J. Solove

George Washington University Law School

Neil M. Richards

Washington University in St. Louis - School of Law; Yale Information Society Project; Stanford Center for Internet and Society

Abstract

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.

Keywords: First Amendment, civil liability, tort, contract, property, free speech, confidentiality, privacy, defamation, unconstitutional conditions, government employment

JEL Classification: K10, K11, K12, K13

Suggested Citation

Solove, Daniel J. and Richards, Neil M., Rethinking Free Speech and Civil Liability. Columbia Law Review, Vol. 109, 2009; GWU Legal Studies Research Paper No. 465; GWU Law School Public Law Research Paper No. 465. Available at SSRN: https://ssrn.com/abstract=1355662

Daniel Solove (Contact Author)

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-9514 (Phone)

HOME PAGE: http://danielsolove.com

Neil Richards

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

Yale Information Society Project ( email )

New Haven, CT 06520
United States

Stanford Center for Internet and Society ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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