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

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.

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