Tort Liability and the Original Meaning of the Freedom of Speech, Press, and Petition

• Author: Eugene Volokh
• Position: Gary T. Schwartz Professor of Law, UCLA School of Law
• Pages: 249-259

Eugene Volokh. 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.

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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,¹ 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 constitutionalPage 250 constraints.³ The Supreme Court’s turn to original meaning, including in free-speech cases,⁴ makes the question significant again, especially since the Sullivan Court justified its decision as a matter of policy and logic, not of history.⁵

This Article argues that constitutional constraints on speech-based civil liability have deep roots, stretching back to the Framing era. That aspect of the Sullivan holding is thus entirely consistent with original meaning. ThePage 251 Framers likely did view the proper scope of libel liability more broadly than recent First Amendment precedent does. But this was because of a substantive judgment about which speech restrictions (civil or criminal) should be permitted—not because of a judgment that civil liability simply didn’t constitute state action, or that tort law was categorically immune from constitutional scrutiny.

II Late 1700s and Early 1800s Cases

Tort liability was at issue in the very earliest cases that protected speakers based on state constitutional analogs to the First Amendment, long before the constitutional provisions were first used to set aside injunctions⁶ or to strike down criminal statutes.⁷ In 1802 and 1806, the highest courts of Vermont and South Carolina reversed libel verdicts for the plaintiffs, holding that the state equivalents of the Petition Clause generally barred recovery for alleged libels in petitions to the legislature.⁸

The South Carolina court reasoned,

Though the conduct of [defendant] may have been unreasonable and malicious, yet, in petitioning the legislature against a public officer of the State, he was in the exercise of a constitutional right. . . . Every citizen has a right to petition the legislature for a redress of grievances, and even on account of grievances which do not exist, if they are supposed to exist, although in doing so, the feelings of individuals, or their reputations, should be wounded.⁹

Likewise, the Vermont decision stressed that the Vermont Constitution’s Declaration of Rights protected the right to petition; the court said that “[t]his declaration of the right . . . might seem to decide the question litigated,” but went on (because “the point is new” and “a question of interest to the community at large”) to also rebut the policy arguments against such an interpretation.¹⁰

So the imposition of tort liability was seen as state action and thus limited by the right to petition; and, unsurprisingly, it was treated as equally state action when it came to the right of free speech. In 1818, the South Carolina Constitutional Court of Appeals applied the constitutional guarantee of the freedom of speech in rejecting a lawsuit brought by a failedPage 252 congressional candidate who claimed to have been slandered by allegations of mental illness:

The ordeal of public scrutiny, is many times, a disagreeable and painful operation. But it is the result of that freedom of speech, which is the necessary attribute of every free government, and is expressly guaranteed to the people of this country by the constitution. The same may be said of the freedom of speech, as of the press: “That among those principles deemed sacred in America; among those sacred rights considered as forming the bulwark of their liberty, which the government contemplates with awful reverence, and would approach with the most cautious circumspection, there is no one of which the importance is more deeply impressed on the public mind. That this liberty is often carried to excess, that it sometimes degenerates into licentiousness, is see and lamented, but the remedy has not yet been discovered. Perhaps it is an evil inseparable from the good with which it is allied; perhaps it is a shoot which cannot be stripped from the stalk without wounding vitally the plant from which it is torn.”¹¹

The quoted passage was not attributed by the court, likely because it was so familiar that it needed no attribution. It had been written by John Marshall, a few years before he was appointed Chief Justice, in a famous rebuke to the French foreign minister (Talleyrand) who had demanded that the United States government silence alleged “calumnies against the [French] Republic, its magistrates and its envoys.”¹² And it was then quoted by James Madison in the Address of the General Assembly to the People of the Commonwealth of Virginia condemning the Sedition Act.¹³ In both instances, the freedom of the press was relied on as a constraint on criminal liability; but the South Carolina court freely cited the same passage in an argument for constraining civil liability. This further shows that freedom-of-expression provisions were seenPage 253 as applying to tort liability imposed by juries much as the provisions applied to criminal liability defined by legislatures.

To be sure, in these cases the same state courts were both defining the underlying tort and deciding what a constitutional provision requires. The courts therefore developed the tort rules in light of the constitutional provisions, rather than having to decide whether the constitutional provisions trumped the tort rules.

It was only when the Supreme Court incorporated the First Amendment against the states in the 1920s that courts had an opportunity to take a tort rule as given (since federal courts had no power to substantively redefine state tort rules) and then decide whether that rule violated a constitutional provision. Still, the early state-court decisions I mention do show that early American courts saw tort law as implicating the freedom of speech, press, and petition, and saw those freedoms as limiting the permissible scope of tort law.

In other early cases, courts acknowledged that the freedom of speech and press may apply to civil lawsuits as well as to criminal prosecutions, but reasoned that libelous speech was a constitutionally unprotected abuse of the freedom and could thus lead to civil liability as well as to criminal punishment. We see this in cases from the Pennsylvania Supreme Court in 1799 and 1803,¹⁴ the Michigan Supreme Court in 1829,¹⁵ and a Massachusetts court in 1836.¹⁶

For instance, in the 1799 case, the court’s jury instruction in a libel lawsuit quotes the Pennsylvania Constitution’s free expression guarantee, but goes on to stress that libel liability is permissible because the guarantee provides that the speaker ought to be “responsible for the abuse of that liberty.”¹⁷ This is precisely the way Pennsylvania judges understood thePage 254 freedom of expression when it came to criminal cases¹⁸ and to judicially imposed good-behavior bonds aimed at preventing future libels.¹⁹ And an 1807 opinion by Pennsylvania’s Chief Justice likewise described the guarantee as providing “that a man may freely speak, write and print, at his own peril, being responsible either to the public, or any individual whom he may injure”²⁰ —evidence that the constitutional provision was seen as applying equally to criminal liability (responsibility “to the public”) and civil liability (responsibility to “any individual whom he may injure”).

In 1808, the Massachusetts Supreme Judicial Court likewise held that state legislators’ freedom of speech and debate²¹ could bar civil liability for slanderous statements made “while discharging the duties of [the legislator’s] office,” though the court held that the particular speech in that case was outside the legislators’ duties and thus potentially actionable.²² And in 1811, a Pennsylvania court relied on “the freedom of the press” in instructing the jury that a defendant in a libel case should not be found liable if his statement, even if false, was republished from a credible source and made without malice.²³

Government officials brought some of these cases—but they sued as citizens defending their private rights, not as government officials. And other cases were brought by private citizens.²⁴ The premise of these court decisions must be that judicial action imposing liability for speech is covered by constitutional free-expression provisions, regardless of whether the plaintiff himself was acting for the state.

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III Late 1700s and Early 1800s Commentators and Related Constitutional Provisions

Early commentators—Luther Martin,²⁵ Chancellor Kent,²⁶ Justice Joseph Story,²⁷ and others²⁸ —likewise treated civil liability in the same manner as criminal punishment when it came to constitutional speech and press protections. The commentators concluded that libel was generally constitutionally unprotected, both against civil liability and criminalPage 256 punishment. But their conclusion rested on a judgment that defamation didn’t merit constitutional protection, whether against civil liability or criminal punishment. Their reasoning did not rest on any view that damages liability involved no state action and was thus immune from constitutional constraints.

Justice Story, in particular, argued against an absolutist view of the freedom of the press by arguing that any such view would forbid tort liability for libel as well as criminal liability: “If to publish without control, or responsibility be [the] genuine meaning [of the liberty of the press]; is...