Brown University newspaper advertisement

John Noble jnoble at DGSYS.COM
Tue Mar 20 14:00:02 PST 2001


At 10:39 AM -0500 3/20/01, Mark Tushnet wrote:
>I have a collateral question about events reported over the weekend.
>According to the report, Brown University's student newspaper published
>an advertisement for a book by David Horowitz, the advertisement
>enumerating reasons against reparations for African Americans.  The
>student newspaper is (apparently -- but assume that it is) available at
>no charge.  A number of students who objected to the advertisement,
>apparently followed the newspaper's delivery routes and picked up all
>copies of the newspaper as they were dropped off.  Now, the collateral
>question:  Did the students do anything that violated (general) legal
>standards?  (I put aside the possibility that there might be some
>specific criminal regulation directed at this behavior.)  Or, more
>generally, is it an offense to take an unreasonable number or amount of
>material that is made available without charge?


Horowitz, other advertisers and the University have a pretty good
tortious interference claim. You could get past Rule 11, if not
summary judgment, with a trespass to chattels claim based on the
future possessory interests of other students if you can allege that
they were "entitled" to a copy of the paper. I'm not sure the fact
that the paper was free bars a conversion claim by the publisher.
Brown is in RI, where "an action for conversion lies in the
defendant's taking the plaintiff's personalty without consent and
exercising dominion over it inconsistent with the plaintiff's right
to possession." The argument is that the pubisher did not expressly
consent to anyone taking all the papers, and the implied consent was
limited.

The best claim is tortious interference, but actionable interference
must be "wrongful," and it comes with broad justification defenses.
Do the students, who clearly viewed their action as a "protest," have
(ironically) a First Amendment defense?

John Noble



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