Assistant Dean and Associate Professor, Thomas M. Cooley Law School. Indiana University B.A. 1984; University of Michigan Law School J.D. 1987.
With what Supreme Court Chief Justice William Rehnquist would later label his "customary clarity," Justice Potter Stewart in a concurrence in the 1966 defamation case Rosenblatt v. Baer put the basis for tort law right where it has always been: The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being-a concept at the root of any decent system of ordered liberty.1
As Justice Stewart put it, the "concept" which is both "basic" to and "the root of" tort law's ordered liberty is none other than "the essential" "worth" of being. Tort laws are rooted in the intrinsic value of universal and individual being. Tort law is above all the great law of care-not care for efficiency, not care for liberty, not care for self-expression (though those attributes are certainly of value to the extent that they promote that which tort law also promotes)-but care for human life itself.
Tort law's duty of care is fully justified by the extent to which it promotes good to being because being has an essential worth beyond the measure of anything else of value. How must the law constrain us to think of one another's value? What is your measure of worth, and how must the law regard it? History judges the laws of nations on how they value life. The laws of Stalin's Soviet Union or Amin's Uganda seem not to have valued life at all, whereas the laws of Hitler's Germany regarded the lives of some as supremely valuable but the lives of others without any value- the laws of those nations properly being judged by history as abhorrent. The value of being is as undeniable to law as it is to medicine, art, literature, philosophy, and all other legitimate pursuits and professions. Good to being is at the root of tort law as surely as it is in any other field. As Justice Stewart's words above suggested, the charity, the benevolence, or, more prosaically the valuing of the good of being which define care, is the ends on which tort law depends for its justification. Page 96
Unfortunately, Justice Stewart has not had the Supreme Court's last word on tort law. The Supreme Court has, in two more recent tort cases since Rosenblatt v. Baer, rejected care for one another as the foundation of tort law and the intrinsic good. In care's place, the Supreme Court has made liberty the intrinsic good. The first such case, Bose Corp. v. Consumers Union in 1984, protected false commercial expression with the Court saying that "the freedom to speak one's mind is . . . a good unto itself . . . ."2 The second such case, Hustler Magazine v. Falwell in 1988, protected intentionally severely distressing pornographic depiction, quoting Bose Corp. and repeating that "the freedom to speak one's mind is . . . a good unto itself . . . ."3
The Supreme Court thus conceives of expression-not merely the false commercial expression in Bose Corp. v. Consumer Union but also the intentionally severely distressing pornographic expression in Hustler Magazine v. Falwell-as the ultimate (intrinsic rather than instrumental or conditional) good. This exaltation of the self over duties to one another echoed again even more recently in Lawrence v. Texas's "transcendent" "autonomy."4
Increasingly to the Court, self-expression is the intrinsic good and personal liberty the fundamental value, displacing the care tort law would ordinarily require of us for one another. The ghostly presence of the expressive self, as one writer has called it,5 more and more haunts the corridors of justice.
Of course such claims of an unconstrained and self-defining man, governed by "do for your self" rather than by "do unto others as for yourself," are hardly new. After all, destructive self- definition ("I will be like God") in violation of a simple command given by the supremely beneficent authority was man's first independent act. We are forever challenged by and enamored of liberty. Even within the law, liberty is at once both the caged and singing bird-caged because without restraint liberty might pluck the eyes from any one of us, but singing because of the role self- Page 97 determination plays in our ends and purposes. An unfettered liberty would be just as much the justifier of the grotesquely arch villain Jeffrey Dahmer as of the saint Mother Teresa. But the will to choose one path or the other seems a necessary ingredient in determining the obvious value (one good, one bad) of either.
Indeed, in few cases did the liberty animal show both its sides so clearly than in the Supreme Court's Hustler Magazine v. Falwell case. Though not the cannibal murderer Dahmer, the defendant Hustler pornographic magazine publisher Flynt fabricated as purposeful, disgusting, and injuring an attack on reputation as human imagination could muster.6 Though not Mother Teresa, the plaintiff school founder Falwell was yet remarkably accomplished. He was certainly without the passing reproach of figures like Bakker and Swaggart with whom some might have mistakenly associated him. We had in other words a remarkably light and an equally remarkably dark knight, both of whom had chosen to exercise their quite different liberties in the manner their wills (or perhaps in Flynt's case a part of the anatomy somewhat lower) compelled them.
Among the many law commentators who have treated the Hustler Magazine v. Falwell case, it is not surprising to find opposing camps, one generally approving of the Supreme Court's decision7 and one generally disapproving.8 There are arguments to be made for either. What is more interesting for our purposes, Page 98 though, is how the case reveals the underlying values and suppositions. The purpose of this writing is not to add another voice to either side along the traditional lines of the legal and cultural debates, so much as it is to examine a key assumption made by the Supreme Court and see how that assumption might have affected or yet affect other tort cases. To be more frank, the purpose here is to point out a fundamental fallacy in the Court's opinion which (together with its corollary) tends to plague law generally and tort law more particularly-a fallacy which the Court just recently amplified and extended in Lawrence.
The fallacy which the Court accepted in Bose Corp. and Falwell and extended in Lawrence is that liberty is a "good unto itself." Part I of this article explores what the Court and commentators have likely meant when describing liberty as an intrinsic good. In truth though, liberty is not a good unto itself but rather an instrumental or conditional good. Liberty is as much an attribute of murder, mayhem, and other vices as it is of the virtues of care and their corollaries. Thus Part II of this article argues that the law must clearly regard liberty as an instrumental or conditional good. In this view this writer is not alone. Indeed commentator Robert Post attributes the current disarray in the Court's First Amendment jurisprudence to precisely that error.9
This article is however not primarily regarding First Amendment issues. It is instead written by a tort law commentator, professor, and practitioner. Thus Part III describes a corollary error that liberties are (and ought to be) balanced against and overriding of the care required of us by tort law. It is not merely that the Court's First Amendment jurisprudence is in disarray because of the Court's having mistakenly granted liberty an intrinsic value. Tort law, too, is much affected by the same misconception. Finally, Part IV suggests that the law should regard liberty not as opposed to and having to be balanced with care but rather as found in care as liberty's author and definer. This latter premise-still not original in the broader field but yet surprisingly absent from or suppressed within the law-is the contribution offered by this writer.
The above introduction is not an exaggeration or misreading of Bose Corp. and Falwell-nor could it be insofar as it relies solely Page 99 on Bose Corp.'s and Falwell's single quote that "the freedom to speak one's mind" is a "good unto itself."10 The Supreme Court quite plainly declared speaking one's mind to be an intrinsic good. It takes no parsing of the Court's opinion to reach that conclusion, for the Court said it itself. One might think the Court's choice of words "speaking one's mind" (rather than "speech" or "self expression") to be a bit curious. This writer is not a lexicographer, but "speaking one's mind" does carry with it a schoolmarm-like flavor as if one is about to receive a "good tongue-lashing." And perhaps such a lexicographic limitation would make more palatable the Court's equating the liberty to speak one's mind with an intrinsic good. Rebuke from a sound authority figure is indeed much to be cherished.
But the Falwell case itself permits no such limitation. Flynt at least is no schoolmarm. Apparently when the Court equated speaking one's mind with an intrinsic good, it meant to include speaking a filthy and vindictive mind as much as any other, for that was clearly Falwell's context. Flynt had testified on deposition that his purpose in publishing that Falwell had several times had sexual intercourse with his mother in an outhouse was to "assassinate" Falwell-to destroy and silence him.11 It would be unfair to infer that any members of the Supreme Court personally approved of Flynt's sophomoric linguistic style and incredibly base proclivities-which only makes the Court's equating of speaking such a mind with intrinsic goodness all the more pronounced and surprising.
The extent to which the...