Rescuing the Dignitary Torts from the Constitution

Abstract

The rights of individuals to recover for dignitary torts has been withering for the past forty years, since the Supreme Court constitutionalized the state common law tort of defamation in New York Times v. Sullivan in 1964. The Court announced in that case that the First Amendment required it to impose high standards for individual defamation claims in order to protect robust speech. As that principle has taken hold, it has in effect squeezed the rights of individuals to recover for invasion of privacy and intentional infliction of emotional distress as well as defamation. Just last Term, the Court held in Snyder v. Phelps that the free speech rights of funeral protesters barred an intentional infliction recovery by a grieving parent, a result dictated by the Constitution’s ostensible choice to vault speech interests over individual dignitary interests. The Article questions whether that ordering is constitutionally compelled by examining whether the Ninth Amendment provides a textual counterweight to the First. That provision, which specifies that enumerated rights should not be construed to “deny or disparage” “rights retained by the people,” may prohibit a constitutional trampling of the dignitary torts if they vindicate rights “retained by the people.” Given the lengthy history of the dignitary torts, traceable to Roman law, dignitary rights are properly classified as rights retained under most theories of the Ninth Amendment.

Keywords: intentional infliction of emotional distress, defamation, invasion of privacy, dignitary tort, First Amendment, Ninth Amendment