Rethinking Free Speech and Civil Liability

freespeech3.jpgWhen does civil liability for speech trigger First Amendment protections?

Recently, Professor Neil Richards and I posted on SSRN our new article exploring this question: Rethinking Free Speech and Civil Liability, 109 Columbia Law Review (forthcoming 2009).

Surprising, the issue of when civil liability for speech triggers First Amendment scrutiny is governed by two totally contradictory rules. Since New York Times v. Sullivan, the First Amendment applies to tort liability for speech, including defamation and invasion of privacy.

But in other contexts, the First Amendment does not apply to liability for speech. 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 restrict speech.

In a large range of situations, however, these rules collide. Tort, contract, and property law overlap to a substantial degree, so formalistic distinctions between areas of law will not adequately resolve when the First Amendment should apply to civil liability.

This conflict is vividly illustrated by the law of confidentiality. We pose the following hypothetical in the article:

Suppose an attorney representing a client in a highly-publicized case discloses the client’s confidential information. The client sues under the breach of confidentiality tort. The attorney claims that she was engaging in free speech and that the First Amendment protects her right of expression. Does the Sullivan or Cohen rule apply? One could argue that the Sullivan rule applies because breach of confidentiality is a tort. On the other hand, breach of confidentiality remedies a contract-like harm. Even if never expressed orally or in writing, an implicit agreement exists between the attorney and client that the attorney will maintain the confidentiality of the client’s information. Perhaps this situation should fall under the Cohen rule because the breach of confidentiality claim more closely resembles an action for promissory estoppel rather than an action for public disclosure of private facts. If this were the case, then the First Amendment would not apply.

In our article, we explore how this problem can be resolved. We survey the way that existing doctrine and theories attempt to address the conflict between the Sullivan and Cohen rules, and we demonstrate why such approaches are lacking. We aim to develop a coherent approach for resolving when the First Amendment applies to civil liability for speech. To find out our solution, take a look at our article and let us know what you think.

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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.