First Amendment and tort law -- a twist

J. Noble jfnbl at
Sun Apr 2 17:49:00 PDT 2006

At 2:01 PM -0700 4/2/06, Volokh, Eugene wrote:
>	Hmm; imagine the following scenario.  An NAACP march goes 
>through a neighborhood.  Racist thugs start a riot, and in the 
>process some bystanders are injured by the thugs, and some local 
>stores are damaged.  The bystanders and store owners sue the thugs 
>on an intentional tort theory, and the NAACP for negligence:  They 
>argue that the NAACP had known that such violent and damaging 
>reactions have happened in the past; the NAACP could have foreseen 
>(and perhaps even did foresee) that such damage would happen here; 
>yet the NAACP nonetheless relied on the modest police presence as 
>the only protection, and didn't hire guards of its own to provide 
>extra protection for bystanders and neighboring stores.
>	Imagine that under the state's tort law, this is a viable 
>negligence claim, because the harm was foreseeable and in fact 
>foreseen, and because the state takes an aggressive view of the duty 
>of actors to take steps to control the acts of criminals whose 
>presence causally flows from the actors' actions.  Would it be 
>constitutional to hold the NAACP liable,


>or would it violate Forsyth County and the general "heckler's veto" principle?

Yes. You are assuming the speaker's duty to protect the public that 
the court in Forsyth rejected.

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