Thursday, April 8, 2010
Tort liability for speech raises important concerns about federalism, self-government, and autonomy. The Supreme Court has resolved the free speech-tort law conflict in a number of cases by balancing the nature of the speech subject to tort liability against the nature of the state'’s interest in imposing tort liability, then "constitutionalizing" the tort to meet First Amendment demands by raising the burden of proof to establish a prima facie case. The Supreme Court has repeatedly denied review of tort liability for speech based on a theory of negligence, and most lower courts have adopted a categorical approach to immunize violent and other allegedly negligent speech from tort liability unless it falls within a category of unprotected speech, instead of balancing the competing interests in accordance with Supreme Court precedent. The lower courts' rules are internally inconsistent and can be socially counterproductive, which has led to a number of results-oriented exceptions that are unrelated logically or doctrinally. Speech Torts reviews nearly a century of decisional law concerning tort liability for speech and concludes that the lower courts' prevailing immunity rules for negligent speech should be replaced by a balancing test to determine the proper level of constitutional scrutiny of laws imposing liability for negligent speech. Speech Torts concludes with suggested prima facie cases of "constitutionalized negligence" to meet strict, intermediate, and relaxed review of negligent speech tort liability.
Download the paper from SSRN at the link.