About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

96 Iowa L. Rev. 249 (2010-2011)
Tort Liability and the Original Meaning of the Freedom of Speech, Press, and Petition

handle is hein.journals/ilr96 and id is 251 raw text is: Tort Liability and the Original Meaning of the Freedom of Speech, Press, and Petition Eugene Volokh* I. INTRODUCTION ................................................ 249 II. LATE 1700S AND EARLY 1800S CASES ...... ........................... 251 III. LATE 1700S AND EARLY i 8ooS COMMENTATORS AND RELATED CONSTITUTIONAL PROVISIONS ...................... .......... 255 IV. THE FIRST AMENDMENT AND THE FEDERALIZATION OF FREE-SPEECH PROTECTIONS .............................................. 257 V. CONCLUSION ................................................... 259 I. INTRODUCTION Does the First Amendment constrain common-law tort liability? The U.S. Supreme Court in New York Times Co. v. Sullivan said yes,' 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 * Gary T. Schwartz Professor of Law, UCLA School of Law (volokh@law.ucla.edu). Many thanks to Stuart Banner and Michael McConnell for their help. 1. 376 U.S. 254, 269 (1964). 2. For cases applying the First Amendment to other common-law torts, see, for example, Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (intentional infliction of emotional distress); NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (interference with business relations); Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977) (right of publicity); Cantrell v. Forest City Publ'g Co., 419 U.S. 245 (1974) (false light invasion of privacy); Winter v. G.P. Putnam's Sons, 938 F.2d 1033, 1036-37 (9th Cir. 1991) (products liability); Herceg v. Hustler Magazine, Inc., 814 F.2d 1017, 1023-24 (5th Cir. 1987) (negligence). The Court is now considering Snyder v. Phelps, 130S . Ct. 1737 (2010) (No. 09-751), grantingcert. o 580 F.3d 206 (4th Cir. 2009), another case that turns on the limits the First Amendment imposes on the common-law intentional-infliction-of-emotional-distress tort. 249

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most