Rethinking Free Speech and Civil Liability

Daniel Solove
Founder of TeachPrivacy

Free Speech and Civil Liability

When 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.

Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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