Rethinking Free Speech and Civil Liability

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2 Responses

  1. A.W. says:

    I would say the simplest rule is this: if you are making a deal, that deal can include the sale of your right to free speech (leaving aside what the government may ask of you). The only touchy part is when you say that by entering into certain professions you enter into that deal automatically. I think in the specific case of lawyers, okay, except, a lawyer should be able to contract around that.

  2. C.T. says:

    I only had a moment to skim the article — but I found the discussion of the inconsistency in the law to be very compelling.

    With that said, I do think that your argument invites certain criticisms. Broadly speaking, I think it is very difficult to assess whether an implied contract arises in many situations. Although the examples you give the article are clear cut, practical application of the principle will be much more difficult. For instance, is there an implied contract between friends not to disclose one another’s secrets…even if no explicit promise of confidentiality is made? If there is an implied contract in these sorts of situations, I think the “propertization” of information raises significant First Amendment concerns… concerns your test would not redress through First Amendment review.

    I suppose however, this is not troubling if you believe that the newsworthiness doctrine satisfies First Amendment challenges to the tort of public disclosure…. a position I am not wholly adverse to, so long as “newsworthy” is interpreted broadly. But, an overly broad interpretation of “newsworthy” opens the door to another can of worms, potentially rendering the tort meaningless.