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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.

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