Academic

Volokh on Tort Liability & the Original Meaning of the First Amendment

By Lawrence Solum

Eugene Volokh's Tort Liability and the Original Meaning of the Freedom of Speech, Press, and Petition is available on the Internet. Here is a taste from the introduction:

Does the First Amendment constrain common-law tort liability? The U.S. Supreme Court in New York Times Co. v. Sullivan said yes,1 in a decision that focused on libel law, but applies likewise to other torts.2 But some argue that this is a modern innovation and that historically such liability was not seen as constituting the state action required to trigger constitutional constraints.3 The Supreme Court?s turn to original meaning, including in free-speech cases,4 makes the question significant again, especially since the Sullivan Court justified its decision as a matter of policy and logic, not of history.5

This Article argues that constitutional constraints on speech-based civil liability have deep roots, stretching back to the Framing era. That aspect of the Sullivan holding is thus entirely consistent with original meaning. The Framers likely did view the proper scope of libel liability more broadly than recent First Amendment precedent does. But this was because of a substantive judgment about which speech restrictions (civil or criminal) should be permitted?not because of a judgment that civil liability simply didn?t constitute state action, or that tort law was categorically immune from constitutional scrutiny.

Full post as published by Legal Theory Blog on November 12, 2010 (boomark / email).