First Amendment and tort law -- a twist

J. Noble jfnbl at earthlink.com
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,

No.

>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.



More information about the Conlawprof mailing list