The normative effect of immunizing dangerous speech from tort liability has been to encourage harmful speech production and irresponsible marketing, manifested in part by producers targeting children in advertisements for the very products that they found inappropriate and potentially harmful to children. (147) Lower courts have responded to the current jurisprudential imbalance by carving out exceptions in extreme cases of irresponsible and dangerous publications, resulting in a piecemeal jurisprudential matrix that is analytically incoherent. An analytical approach that is more consistent with scientific knowledge of causation and the nature of the fault is both conceivable and desirable. A properly tailored negligence paradigm would strike a liability balance that avoids chilling speech while also encouraging social responsibility.
EVIDENTIARY FRAMEWORK FOR CONSTITUTIONALIZING TORTS
To enforce freedom of speech in disregard of the rights of others would be harsh and arbitrary in itself. (148) The Supreme Court's divided opinions in speech-tort cases underscore the difficulty in balancing the conflict of interests presented by tort liability for speech. (149) This Part briefly reviews the Court's opinions concerning tort liability for speech generally for the purpose of identifying the policy considerations that have animated the Court's speech-tort jurisprudence and the methods by which the Court has reconciled tort and constitutional policies. The Court has stressed its "narrow" holdings in some of these opinions, indicating that reconciling free speech and tort liability is a very fact-intensive and case-specific endeavor. (150) Nonetheless, the Court's evidentiary tailoring method of constitutionalizing speech-torts in various cases is instructive on how courts could constitutionalize the tort of negligence relative to unreasonably dangerous speech.
New York Times v. Sullivan
In New York Times v. Sullivan, (151) the Supreme Court first recognized that the First Amendment limits a state's police power to award tort damages for defamation--a category of speech previously assumed to be unprotected by the First Amendment. The lawsuit arose from statements made by the newspaper that inferentially criticized a public safety commissioner's official conduct and contained some false statements of fact. (152) The Court specifically rejected a categorical approach to the issue of whether defamatory false statements of fact constitute unprotected speech, finding that speech cannot claim "talismanic immunity from constitutional limitations" merely because it is labeled as "libel." (153) The Court also rejected Sullivan's attempt to categorize the paid advertisement as "commercial speech," (154) finding that the speech was political in nature. (155) The Court explained that political speech must be fiercely protected and given "breathing space" to avoid chilling robust debate concerning self-government. (156) Since erroneous statements are "inevitable in free debate," the Constitution requires protection of insignificant false statements of fact to protect core political speech, mandating constitutional limits to states' police power to punish even untrue statements contained in political speech. (157)
The Court concluded that the First Amendment requires evidentiary modifications to a prima facie case of defamation arising from speech critical of the government and created a narrowly tailored prima facie case of political speech defamation to meet constitutional scrutiny. The Court raised the level of fault necessary to establish the claim from negligence or strict liability (158) to "actual malice," meaning the defendant actually knew that the speech was false or published it with reckless disregard concerning its veracity. (159) The actual malice standard shifted the burden of proof that the speech was false onto the plaintiff, instead of the common law rule that truth was a defense. (160) The Court also raised the level of proof required to establish fault from the general tort burden of a "preponderance of evidence" to a heightened burden of "clear and convincing evidence." (161) Ultimately, the Court held that even untrue and defamatory speech that was historically unprotected must be shielded from tort liability to safeguard core political speech in the absence of clear evidence of the speaker's substantial fault. Nonetheless, the Court recognized that political speech is not immune from defamation liability. (162)
Supreme Court Speech-Tort Precedent: The Evidentiary Tailoring Method
Supreme Court cases subsequent to New York Times v. Sullivan used an interest-balancing approach to resolve the conflict between the First Amendment interest in protecting speech and states' and individuals' interest in tort liability. In these cases, the Court often modified the elements of tort claims to render them sufficiently protective of speech to meet First Amendment scrutiny. (163) The Court's decisions created three levels of evidentiary tailoring in defamation cases, (164) applied the actual malice standard to public figures' emotional distress claims, and identified three dominant policy considerations to determine how to reconcile free speech with tort liability.
First, private citizens generally receive more state law protection from dignitary or emotional harm than public figures because private individuals are more vulnerable to injury and have not assumed the risks that attend fame. Second, whether the speech is "of public concern" or of a "truly private nature" is the most critical factor in determining its level of constitutional protection. Third, the state has a greater interest in using tort liability to protect some values over others, with emotional or dignitary harm representing the nadir of the state's interest in punishing speech. (165)
Narrow Tailoring of Tort Claim Elements for Speech That Causes Dignitary or Emotional Harm to Public Figures & Broad Protection For Accurate Republication of Public Records and Public Forum Political Speech That Cannot Be Characterized as "False"
Shortly after New York Times v. Sullivan, the Court clarified that the level of constitutional tailoring necessary to constitutionalize a claim for defamation turns in part on the plaintiff's status as a public figure or a private individual and extended the actual malice standard to all "public figures. (166) Public figures presumably have less need for, and are less deserving of, state protection from defamatory speech, warranting their higher actual malice burden of proof to establish a claim. Public figures take affirmative action to inject themselves into the public spotling with "exceedingly rare" exception, and thereby assume the risk (167) of public criticism and even "sharp attacks" on their character and integrity. (168) In addition, the fame that accompanies public figure status provides access to the media for purposes of counter-speech, and public figures can therefore engage in "self-help" to protect their reputation. (169)
The actual malice standard, including the plaintiff's burden of establishing factual falsity, was extended to a public figure's intentional infliction of emotional distress claim in Hustler v. Falwell, (170) and almost certainly applies to public figures' false light invasion of privacy (171) claims as well. (172) In Bartnicki v. Vopper, the Court rejected altogether a privacy claim against a radio station that broadcast an intended private cell phone conversation that had been intercepted illegally by an unknown third party, stating that "privacy concerns give way when balanced against the interest in publishing matters of public importance." (173) The parties to the cell phone conversation were characterized as "limited public figures" because they were public school union negotiators and the speech was a matter of public concern, warranting a very high level of constitutional protection. (174) It was undisputed that the taped conversation was accurate, so the Court had no reason to discuss the actual malice standard. Still, the Court's decision essentially converges with its reasoning in Hustler v. Falwell in terms of denying liability for emotional or dignitary claims as to public figures or limited public figures where speech of public concern cannot be characterized as "false."
The Supreme Court recently dealt with a very controversial speech-tort case in Snyder v. Phelps, where, again, the injurious speech was incapable of being characterized as "false," rendering chilling concerns palpable, and motivating the Court to deny tort liability. (175) In Snyder v. Phelps, the Court found that political speech communicated by means of picketing on a public sidewalk could not form the basis for emotional or dignitary tort liability where the speech could not be proven untrue and there was no personal animus directed at the plaintiff, even though the plaintiff was not a public figure. (176) In this case, church members whose mantra was "God Hates Fags" and who purported to believe that God punishes the United States for its tolerance of homosexuality picketed the funeral of a fallen marine with highly offensive signs aimed at the marine, causing his father to suffer severe emotional distress. (177) A jury awarded the father nearly eleven million dollars for emotional distress, invasion of privacy, and punitive damages, but the Court determined that the verdict could not stand on the picketing alone. (178) The Court demonstrated more concern about punishing speech that was political in nature and disseminated via traditional grass-roots "self-government" than the plaintiff's status as a public figure or private individual because, as a whole, the "dominant theme" of the picketing was political speech. (179) In addition, a jury's discretion concerning the "outrageous" element of a claim for intentional infliction of emotional distress could become an "instrument for the...