'Duty-Defining Power' and the First Amendment's Civil Domain

11 Pages Posted: 16 Jan 2010

Date Written: January 14, 2010


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.

Keywords: civil liability, freedom of speech

Suggested Citation

Zick, Timothy, 'Duty-Defining Power' and the First Amendment's Civil Domain (January 14, 2010). William & Mary Law School Research Paper No. 09-27, Columbia Law Review - Sidebar, Vol. 109, No. 116, 2009, Available at SSRN: https://ssrn.com/abstract=1536538

Timothy Zick (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States
757-221-2076 (Phone)

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