Monday, June 16, 2014
Volokh Conspiracy has a post, “The First Amendment protects a right to engage in adultery?: on Rothrock v. Cooke (N.C. Super. Ct. June 11, 2014). Judge John Craig is being an activist and a sloppy lawyer here. He has eliminated two torts, alienation of affections and criminal conversation, on the grounds of violation of the 1st amendment rights of freedom of speech and freedom of association as incorporated by the 14th amendment. It’s commonplace, if wrong, to incorporate the 1st amendment via the 14th, but it’s going a bit far to say that private sexual acts count as free speech, no matter what judges may say about them if they're done publicly in exchange for admission fees. (Or perhaps I'm wrong on that--- if the couple charges admission, does that make it commercial speech and hence subject to almost no 1st amendment protection?)
Here’s what the 2nd Restatement of Torts says about the two torts:
@ 683 ALIENATION OF SPOUSE'S AFFECTIONS. One who purposely alienates one spouse's affections from the other spouse is subject to liability for the harm thus caused to any of the other spouse's legally protected marital interests.
@ 685 CRIMINAL CONVERSATION WITH A SPOUSE. One who has sexual intercourse with one spouse is subject to liability to the other spouse for the harm thus caused to any of the other spouse's legally protected marital interests.
Note that these are distinct torts. Mothers in law have been sued for alienation of affections, and a rapist would be liable under the action of criminal conversation.
Alienation of affections is akin to tortious interference with contract; the tort is to act so as to cause someone to violate legal rights established by previous agreement. In tortious interference, the tortfeasor causes the third party to break a contract, which is illegal in the sense that it gives him a cause of action. In alienation of affections, the tortfeasor causes the third party (say, the husband) to deny the plaintiff the affection to which marriage entitles her---- though of course it is not unlawful for a husband to be emotionally cruel to his wife. Freedom of speech could be involved in alienation of affections since, as in tortious interference and many conspiracy cases, the unlawful action takes the form of words and the communication of ideas. It’s hard to see how criminal conversation is freedom of speech, though, since it can be carried out in complete silence and without communicating anything except, perhaps, an unpleasant disease.
At any rate, this attracted my attention because I am the chief (because the only) scholar of the law and economics of adultery that I know, as a result of my article on the subject, "An Economic Approach to Adultery Law," Chapter 5, pp. 70-91 of Marriage and Divorce: An Economic Perspective, edited by Antony Dnes and Robert Rowthorn, Cambridge: Cambridge University Press, 2002, http://rasmusen.org/published/Rasmusen_02.BOOK.adultery.pdf. It has a lot of law and history in it, with a focus on Indiana as an example (did you know Indiana was the divorce mill state of the 19th century, to which New York couples would travel for easy divorces?)