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

Abstract

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