First Amendment and tort law -- a twist

[sghosh2 at buffalo.edu]

I cannot help but think that the element of negligence distinguishes 
the Borders hypo from Forsyth County.  Unlike the fee in Forsyth 
County,  Borders' liability does not rest solely on the content of its 
speech, but on steps it took or it didn't take to prevent harm to 
parties to whom it owed a duty.  If Borders banned Free Inquiry and a 
group of enthusiastic secular humanists protested resulting in a 
similar riot,  I am not sure why Borders would have a First Amendment 
defense against its negligence  under this alternative scenario, 
however empirically implausible it might be.  

Quoting Mark Tushnet <tushnet at law.georgetown.edu>:

> I'm not sure that the Borders hypothetical is different from the >
> "taxpayers subsidize marchers" problem (if it is one -- I've
> kept >
> saying that it's my students who don't like the subsidy
> analysis, >
> not me), except in a way that makes the problem arguably more >
> troubling.
>
> If Borders can defeat liability to the injured passersby because of
> >
> the Forsyth County principle, the result is that the passersby >
> subsidize Borders and the magazine (that is, they bear the costs >
> occasioned by Borders' and the magazine's First Amendment >
> activity).  Even if the First Amendment requires that the taxpayers
> >
> subsidize free speech activity (either in my version or in the
> "First >
> Amendment baseline" version), is it attractive to have a random
> >
> assortment of passersby do so?  (This is a version of a point >
> Fred Schauer made with respect to First Amendment limitations >
> on liability for libel, in an essay in the Columbia Law Review.)
>
> ----- Original Message -----
> From: "J. Noble" <jfnbl at earthlink.com>
> Date: Saturday, April 1, 2006 4:22 pm
> Subject: RE: RE: RE: First Amendment and tort law -- a twist
>
> > Forsyth is inapposite because the marchers owed >
> > no duty to the third parties ostensibly put at >
> > risk. Borders, on the other hand, does:  "A >
> > possessor of land who holds it open to the public >
> > for entry for his business purposes is subject to >
> > liability to members of the public while they are >
> > upon the land for such a purpose, for physical >
> > harm caused by the accidental, negligent, or >
> > intentionally harmful acts of third persons or >
> > animals, and by the failure of the possessor to >
> > exercise reasonable care to (a) discover that >
> > such acts are being done or are likely to be >
> > done, or (b) give a warning adequate to enable >
> > the visitors to avoid the harm, or otherwise >
> > protect them against it. Restatement (Second) of >
> > Torts ¤ 344.
> > >
> > I think it highly unlikely that Borders would be >
> > held liable on your hypothetical, but if it was >
> > (and apparently their lawyers are nervous), it >
> > would be for the failure to exercise reasonable >
> > care to discover and/or warn of the harmful acts >
> > of third parties. The liability is without regard >
> > to Borders' exercise of its First Amendment >
> > rights. The only significance of the protected >
> > speech is as evidence of foreseeability. Some >
> > associate in a Park Avenue law firm may have >
> > billed an hour before advising Borders that they >
> > could cover their ass with a sign on the door >
> > that said, "Warning: Free Inquiry is for sale >
> > here and contains cartoon depictions of Mohammed, >
> > which have provoked violence around the world. >
> > Enter at your own risk. Report unattended >
> > packages, and be on the look-out for suicide >
> > bombers." That is the extent of the burden on the >
> > exercise of their First Amendment right. They >
> > have a right to engage in provocative speech, but >
> > not a right to endanger their customers without >
> > warning. They might alternatively undertake to >
> > "otherwise protect" their customers against the >
> > foreseen danger instead of warning them, which is >
> > what they did (like Walmart refuses to sell CDs >
> > with sexually explicit lyrics, while other stores >
> > put warning labels on them). The original >
> > question supposed a duty to enhance security, at >
> > significant expense, to provide the protection >
> > required in lieu of a warning, but the futility >
> > of that option against terrorist attack would >
> > only establish liability for the failure to warn.
> > >
> > Does that work for you?
> > >
> > As an aside, the real First Amendment stake here >
> > belongs to the publishers of Free Inquiry, which >
> > probably doubled its press run on the Borders >
> > announcement. You can order your copy of the >
> > current issue for $5.95 at >
> > http://www.secularhumanism.org.
> > >
> > John Noble
> > >
> > >
> > At 11:09 AM -0800 4/1/06, Volokh, Eugene wrote:
> > >	I think both Marks have raised excellent points in the
> debate
> > >over whether police protection for a march is a government >
> > subsidy.  I
> > >want to note, though, that this doesn't really dispose
> of th> e >
> > question>that started this thread -- whether the tort system
> may >
> > hold speakers
> > >civilly liable for damage caused to third parties by thugs who
> >
> attack
> > >the speakers.  If Borders chose to carry magazines that >
> contained the
> > >Mohammed cartoons, radical Islamist criminals firebombed a
> >
> Borders >
> > store>and injured some patrons or passersby, and the injured
> >
> people >
> > then got a
> > >damages award against Borders for negligent failure to protect
> >
> them
> > >against such criminal attack, the court system wouldn't be
> jus> t >
> > denying>Borders a subsidy; it would be taking Borders'
> property>  >
> > because of
> > >violence caused by the content of its speech.
> > >
> > >	This is not to criticize Mark Tushnet's and Mark
> Scarberry's
> > >posts:  The question they deal with a very interesting
> one.  B> ut >
> I do
> > >want to stress that even if Forsyth County is wrong because
> it
> > >improperly obligates the government to subsidize speech, >
> Forsyth's >
> > basic>insight -- which is that government-imposed burdens on >
> > speakers based on
> > >the violent reaction to the content of their speech are >
> presumptively
> > >unconstitutional -- seems to apply to the Borders
> situation.
> > >
> > >	Eugene
> > >
> > >  -----Original Message-----
> > >  > From: conlawprof-bounces at lists.ucla.edu
> > >>  [conlawprof-bounces at lists.ucla.edu] On Behalf
> Of Ma> rk >
> Tushnet
> > >>  Sent: Thursday, March 30, 2006 8:00 PM
> > >>  To: Scarberry, Mark
> > >>  Cc: 'CONLAWPROF at lists.ucla.edu '
> > >>  Subject: Re: RE: RE: First Amendment and tort law
> -- > a twist
> > >>
> > >>
> > >>  I interpolate comments/answers to Mark Scarberry's >
> questions.
> > >>
> > >>  Is a government subsidy involved when the government >
> enforces
> > >>  the law to protect those who are vulnerable or likely to
> be >
> > victims>>  of lawless conduct (with a resulting higher cost
> of la> w
> > >>  enforcement for protecting them than for protecting those
> >
> who do
> > >>  not need protection)?
> > >>
> > >>  MT:  I would think, "Yes," at least where the
> incre> ase in the >
> > risk of
> > >>  victimization results from choices by the potential
> victim an> d >
> the
> > >>  potential victim can reduce the risk of victimization by
> othe> r
> > >>  choices, such as hiring security guards.
> > >>
> > >>  Or is that just a cost of providing an environment in
> which >
> rights
> > >>  can be exercised equally by those who wish to exercise >
> them?
> > >>
> > >>  MT:  The notion of "exercised equally" here must be
> a >
> disparate
> > >>  effect notion, which, ion general, signals that
> there i> s indeed >
> a
> > >>  subsidy involved.
> > >>
> > >>  I suppose another way to ask the question is that, if
> the
> > >>  government wishes citizens to behave lawfully, may the
> > >>  government impose on the unpopular speaker the cost of
> > >>  preventing the lawlessness by requiring him or her either
> to >
> be
> > >>  silent or to pay for added police?
> > >>
> > >>  Suppose the government just said, "Well, you can
> have y> our
> > >>  march, and we'll have the regular police presence
> that we> 'd >
> have
> > >>  for any other group, and if there is violence we'll
> do wh> at we
> > >>  always do when violence occurs--we'll call for backup
> and >
> we'll do
> > >>  the best we can to protect law abiding citizens. Of
> course >
> the
> > >>  backup may get there too late to save you from being >
> beaten up."
> > >>  If that is the government's uniform position with
> regard to>  >
> > marches>>  of all kinds for all causes, does it violate the
> 1st>  >
> Am?
> > >>
> > >>  MT:  Again FWIW, this is the precise example that
> elicits>  the
> > >>  student reaction I reported -- that saying that the >
> government's
> > >>  decision violates the First Amendment describes a -- to
> the
> > >>  students -- troubling form of public subsidy to speech.
>  >
> (Could >
> > the>>  government charge demonstrators a cost-justified fee
> for >
> the
> > >>  excess clean-up costs associated with litter after a >
> demonstration
> > >>  ["excess" here meaning, as in Mark S's
> example, t> he costs
> > >>  beyond those the government would ordinarily bear for >
> cleaning
> > >>  up the locale overnight, when there was no
> demonstration >
> > there]? >
> > >>  My students' instinct is, "Yes," particularly
> when > I say that >
> the
> > >>  demonstration is organized by Ross Perot.  [And when
> it'> s >
> not,
> > >>  that is, when the demonstrators establish that they
> can't>  pay >
> the
> > >>  excess clean-up costs, and students say, "Taxpayers
> hav> e >
> to
> > >>  pay those costs," the subsidy is obvious.]  How
> are e> xcess
> > >>  security costs different?)
> > >>
> >
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