Liability for negligently false publications

[Volokh, Eugene]

        I wonder whether example 1 is really quite on point.  It seems
to me quite a different matter to (A) hold someone who sells a product
that's not protected by the 1st Am (a car) to any promises that he makes
than (B) penalize someone who sells a 1st Am-protected product (a book)
for negligent misstatements in the book.  The former seems to me
primarily an attempt to hold someone to his contracts (or
quasi-contracts), a la Cohen v. Cowles Media.  Not so, it seems to me,
with the latter.

        Just to see the analogy a bit further, recall that warranties --
like contracts generally -- are binding even without any negligence.  If
I perfectly reasonably believe that my product will do X, I tell you so,
you buy the product in reliance on my representation, and the product
then turns out not to do X, I will be quite properly held strictly
liable for breach of contract.  But I take it that most of us will agree
that strict liability for misstatements in a book, at least
misstatements on matters of public concern, would be inappropriate.
This shows, it seems to me, that warranties about products really are
something quite different from statements in books.

        Example 2 is a closer analogy; but it's not entirely obvious to
me that it's a killer hypo rebutting 1st Am protection.  At the very
least, it seems to me that imposing liability here should be
controversial public policy -- the consequence of such liability, I'd
guess, is an even greater reluctance of businesses to give *any*
recommendations for past employees.  If 1st Am protection for negligent
statements in books leads down the slippery slope to 1st Am protection
for negligent recommendations praising employees, I wouldn't be that
upset.  Moreover, it seems to me that example 2 also differs from the
book in that it seems to touch (in the usual case) on a matter of
private concern, not on a matter of public concern (cf. Dun &
Bradstreet).

        Are the libel cases at all instructive?  Negligently false
statements on matters of public concern *are* actionable -- though not
subject to punitive damages -- if they libel private figures.  On the
other hand, such statements are not actionable, absent recklessness or
intent, if they libel public figures.  It seems to me one or the other
analogy would be helpful -- but which one?

J.D. Droddy writes:

> Without having researched this issue (dangerous move, I know), it
> seems to
> me that a general ban on negligent statements cannot be supported by
> the
> First Amendment.  Two examples come to mind:
>
> (1) Tire manufacturer advertises tire as safe at speeds up to 100 mph
> (and
> believes same to be true).  Turns out that the tire is safe at speeds
> up to
> 75 mph, after which it has a tendency to come apart, which the
> manufacturer
> should have know had it conducted the proper tests.  Not only might
> the
> manufacturer be liable on a product liability claim if someone gets
> hurt
> (irrespective of advertising claim), surely it can be liable on a
> breach of
> express warranty claim (based on advertising claim).
>
> (2) [perhaps more relevant here] Former employer is asked for
> reference by
> prospective employer.  Personnel manager of former employer, going
> from
> memory, gives glowing recommendation.  Had personnel manager checked,
> he or
> she would have discovered in former employee/applicant's personnel
> file a
> record of workplace violence.  Applicant is hired, then causes harm
> through
> workplace violence.  Former employer may be liable -- at least,
> liability
> not banned by 1st Amendment.
>
> JD Droddy
> Western Kentucky University