Tort, Speech, and the Dubious Alchemy of State Action

17 University of Pennsylvania Journal of Constitutional Law, No. 4, pp. 1117-1182, 2015

66 Pages Posted: 26 Aug 2015

See all articles by Cristina Tilley

Cristina Tilley

University of Iowa - College of Law

Date Written: April 1, 2015

Abstract

Plaintiffs have historically used private law torts like defamation, privacy, and intentional infliction of emotional distress to vindicate their dignitary interests. But fifty years ago in New York Times v. Sullivan, the Supreme Court took an unprecedented approach to state action doctrine in order to recast these causes of action as public-private law hybrids that explicitly privileged speech over dignity. In constitutional challenges to private law disputes, the Court had for decades defined the state action under review to include just the contested verdict at issue. In Sullivan, it broke with that practice and defined the relevant state action to include the entire body of private law that had produced the verdict. This approach aggrandized the Court’s authority to replace state generated common-law tort rules with its own quasi-statutory scheme that tied tort liability to the identity of the plaintiff. The less public the plaintiff, the less important the speech about him was presumed to be, and the greater the tort recourse for injuries that the speech caused. This Article suggests the Sullivan scheme is failing. As the boundaries of the “public” plaintiff category have expanded, tort liability for genuine speech injuries has grown elusive and private law is increasingly understood to signal that speakers have no duty of care towards those they discuss. Further, the Court’s desire to create more robust civic speech has been thwarted as the media has used its constitutional latitude to fixate on celebrity coverage at the expense of hard news. The Article concludes that a more modest state action approach in Sullivan could have prohibited the judicial enforcement of verdicts that imposed local community speech norms onto the nation without destabilizing centuries of dignitary tort law to dubious effect.

Keywords: tort, state action, private law, public law, privacy, intentional infliction of emotional distress, First Amendment

Suggested Citation

Tilley, Cristina, Tort, Speech, and the Dubious Alchemy of State Action (April 1, 2015). 17 University of Pennsylvania Journal of Constitutional Law, No. 4, pp. 1117-1182, 2015, Available at SSRN: https://ssrn.com/abstract=2648280

Cristina Tilley (Contact Author)

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

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