First Amendment Imperialism and the Constitutionalization of Tort Liability

69 Pages Posted: 15 Aug 2019

See all articles by Kenneth S. Abraham

Kenneth S. Abraham

University of Virginia School of Law

G. Edward White

University of Virginia School of Law

Date Written: August 14, 2019

Abstract

To what extent does the First Amendment impose limits on the permissible scope of tort liability? Until recently, the clear answer would have been, “only under very limited circumstances.” During the last few decades, however, the First Amendment has been so greatly expanding its empire that giving this answer is no longer possible. “All bets are off” would be a more accurate answer, because the forms of speech to which the Supreme Court has extended First Amendment protection have become impressively broad. Although existing First Amendment restrictions on the permissible scope of tort liability currently are limited, the very existence of those restrictions confirms that many torts involving speech potentially are subject to First Amendment protection. And many torts do involve speech – the duty to warn about the dangers of prescription drugs, fraud, and even some forms of simple negligence are just a few examples.

If the First Amendment of the future limited all or even many of these different constitutionally unprotected forms of tort liability, then its scope would be pervasive. We contend, however, that neither existing First Amendment doctrine nor sensible constitutional policy supports extending free speech protection to torts that are accomplished through speech, except in extremely narrow circumstances. Extending First Amendment protection to such torts would aggravate what we argue are two of the principal risks posed by First Amendment imperialism: the erosion of the cultural distinction between truth and falsity, and devaluation of the status of speech about matters of public concern. Our contention is that most of the forms of speech involved in torts that are accomplished through speech currently are, and should remain, excluded from First Amendment protection. To support this contention, we examine the First Amendment’s extension to previously unprotected forms of speech over the last three-quarters of a century, compare the new First Amendment protections to the doctrinal elements of a series of torts that always or often are accomplished through speech, and argue that it would make little sense, as a matter of tort or constitutional law, to restrict liability for those torts on First Amendment grounds.

Keywords: First Amendment, Tort Liability

Suggested Citation

Abraham, Kenneth S. and White, G. Edward, First Amendment Imperialism and the Constitutionalization of Tort Liability (August 14, 2019). Texas Law Review (Forthcoming); Virginia Public Law and Legal Theory Research Paper No. 2019-44. Available at SSRN: https://ssrn.com/abstract=3437289

Kenneth S. Abraham (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-3616 (Phone)
434-982-2845 (Fax)

G. Edward White

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
(434) 924-3455 (Phone)

HOME PAGE: http://www.law.virginia.edu/lawweb/faculty.nsf/PrF

Register to save articles to
your library

Register

Paper statistics

Downloads
94
Abstract Views
496
rank
275,952
PlumX Metrics