Publications that Incite, Solicit, or Instruct: Publisher Responsibility or Caveat Emptor?

34 Pages Posted: 26 Mar 2015

See all articles by Terri Day

Terri Day

Barry University - Dwayne O. Andreas School of Law

Date Written: 1995


This article illustrates how tort principles and First Amendment jurisprudence conflict in cases involving publications which contain violent depictions or “how to” instructions. Most courts faced with a negligence claim against a publisher for injuries allegedly caused by its publication have concluded that the First Amendment bars such a claim. However, the First Amendment does not preclude publisher liability based upon negligence. In refusing to consider a publisher's culpability in some of these cases, courts may be giving greater protection to speech than is necessary to ensure protection of First Amendment principles.

This article explains that while the publications at issue enjoy First Amendment protection, these cases do not involve matters of public concern in the sense of core First Amendment speech. It goes on to argue that the state has an important interest in safeguarding persons from physical harm. To deny recovery in these cases lessens publishers' incentive to remove from the marketplace material that is dangerous and leads unwitting users to injure themselves, their property, or others. The article concludes that a more reasoned approach to these cases is to apply a balancing test in which the state interest sought to be protected by imposing tort liability is balanced against the level of First Amendment interest embodied in the challenged communication. Although the Supreme Court's First Amendment jurisprudence favors broad rules of general application, the Court has implicitly recognized the need to apply a balancing test when faced with a novel issue.

Keywords: Tort law, First Amendment, claims, foreseeability, negligence, speech, freedom of speech, morality and justice, burden, balance, societal interests, dangerous, physical harm, safeguarding, liability, case, protection, recovery

Suggested Citation

Day, Terri, Publications that Incite, Solicit, or Instruct: Publisher Responsibility or Caveat Emptor? (1995). Santa Clara Law Review, Vol. 36, No. 1, 1995, Available at SSRN:

Terri Day (Contact Author)

Barry University - Dwayne O. Andreas School of Law ( email )

6441 East Colonial Drive
Orlando, FL 32807
United States

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