Academic

Solove & Richards on Free Speech and Civil Liability

By Lawrence Solum

Daniel J. Solove and Neil M. Richards (George Washington University Law School and Washington University School of Law) have posted Rethinking Free Speech and Civil Liability (Columbia Law Review, Vol. 109, 2009) on SSRN. Here is the abstract:

ne of the most important and unresolved quandaries of First Amendment jurisprudence involves when civil liability for speech will trigger First Amendment protections. When speech results in civil liability, two starkly opposing rules are potentially applicable. Since New York Times v. Sullivan, the First Amendment requires heightened protection against tort liability for speech, such as defamation and invasion of privacy. But in other contexts involving civil liability for speech, the First Amendment provides virtually no protection. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires scrutiny when property rules limit speech.

Both of these rules are widely-accepted. However, there is a major problem - in a large range of situations, the rules collide. Tort, contract, and property law overlap significantly, so formalistic distinctions between areas of law will not adequately resolve when the First Amendment should apply to civil liability. Surprisingly, few scholars and jurists have recognized or grappled with this problem.

The conflict between the two rules is vividly illustrated by the law of confidentiality. People routinely assume express or implied duties not to disclose another's personal information. Does the First Amendment apply to these duties of confidentiality? Should it? More generally, in cases where speech results in civil liability, which rule should apply, and when? The law currently fails to provide a coherent test and rationale for when the Sullivan or Cohen rule should govern. In this article, Professors Daniel J. Solove and Neil M. Richards contend that the existing doctrine and theories are inadequate to resolve this conflict. They propose a new theory, one that focuses on the nature of the government power involved.

And from the text:

The civil liability system uses government power to enforce duties people owe to each other. Enforcement power is certainly significant in all its forms, for it employs the government?s vast strength, resources, officials, and machinery. Nevertheless, not all enforcement of duties is the same. Some forms of duty enforcement employ government power to shape social conduct in ways defined by the state. Other forms of duty enforcement serve to lend government power to private parties to enforce aims they have designed on their own accord.

One form of government power involved in the civil liability system is what we call ?duty-defining.? By this, we mean the use of government power to specify the content of duties that private actors owe to each other. When the government uses tort law to establish substantive rules of social conduct that members of society all must follow, it is defining the content of the duties owed. The person subject to such a duty cannot voluntarily escape from it unless she is released by another. For example, under the law of tort, Alice has a duty not to negligently injure Bill. Alice cannot elude this duty unless Bill waives it. Likewise, Alice has a duty not to defame Bill, a duty Alice cannot escape from unless Bill allows Alice to defame her. The government, through statute or the civil liability system, defines the nature and content of these duties. In this way, the civil liability system becomes a way for the government to regulate social conduct by defining the duties and having private parties serve as civil ?prosecutors? to enforce them.

The other form of government power, which we call ?non-duty-defining,? merely establishes a machinery to facilitate relationships and commerce between parties who wish to create and enforce duties with each other. In such cases, the duties of relationships are established by private parties between each other, and the government merely stands behind such agreements to give them binding force. In these cases, the government does not set the terms of the duties, but rather supports the social contexts by ensuring that transactions and agreements can be made and enforced. By creating a forum for people to resolve disputes with each other, non-duty-defining power enables people to enforce promises and agreements which would otherwise be weak and ineffectual without an enforcement mechanism. Private parties, to a large extent, define the content and substance of the duties owed to each other, not the government. The use of government power is to enforce the duties that private parties have created.

When civil liability rules restrict speech, we contend that duty-defining power should trigger the First Amendment, but non-duty-defining power should not. Civil liability implicates the First Amendment when the government is mandating the duties not to speak that private parties owe to each other. If the government directly imposes a duty on a party that others can sue the party for breaching and that the party cannot escape from, then this serves as an imposition on that party?s First Amendment rights.

Highly recommended.  I wonder about the application of their principle to Marsh v. Alabama, the company town case.  Here is the hypo: the company restricts political speech in the company town in a way that would clearly violate the freedom of speech if the action had performed by municipality: "No person shall distribute literature for the Green Party in Companyville."  Smith distributes such literature, and then is subject to a civil action--for an injunction or damages.  The governmental power involved seems to be non-duty-defining.  (Solove & Richards discuss Marsh as a state action case, but (on my quick read) do not appear to explicitly discuss the free speech issue.

Read Solove & RIchards!

Full post as published by Legal Theory Blog on March 11, 2009 (boomark / email).