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69 Brook. L. Rev. 755 (2003-2004)
First Amendment Limitations on Tort Law

handle is hein.journals/brklr69 and id is 765 raw text is: ARTICLES
First Amendment
Limitations on Tort Law*
David A. Anderson'
Most First Amendment law has developed in response
to restraints on speech imposed by statute, local ordinance, or
agency regulation. Typically, the restriction arises from the
words of a statute or rule, and therefore is relatively fixed,
specific, and readily identifiable. It usually issues from the
executive   or  the   legislature  -  government     actors   who
historically have been the villains in the great dramas that
produced our free speech traditions. Because some entity of the
state is normally a party to the litigation in which the
restriction is challenged, the state is present to offer its
interpretation of the restriction, explain its objectives, and
answer objections to the means it has chosen. When the
challenged restraint is a tort judgment, though, the situation is
rather different. The threat exists not within the corners of a
document, but in the operation of the common law, the
articulation  of which     is  scattered, incomplete, possibly
changing, and sometimes contradictory. Often the content and
effect of the common law is itself being contested in the very
proceeding in which its constitutionality is to be decided. The
© 2004 David A. Anderson. All Rights Reserved.
Fred and Emily Marshall Wulff Centennial Chair in Law, University of
Texas. The author thanks April Lucas, Ajay Mago, and Shaun Rogers for research
assistance, and Michael Chesterman, Patrick Keyser, David Kohler, Douglas Laycock,
Lyrissa Lidsky, Scot Powe, Bill Powers, Larry Sager, Eric Barendt, and colloquia
participants at Australian National University, Melbourne University, Murdoch
University, and the University of Texas for helpful comments.

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