First Amendment and tort law -- a twist
Volokh, Eugene
VOLOKH at law.ucla.edu
Mon Apr 3 12:54:23 PDT 2006
I wonder whether one can indeed quickly dismiss, on tort law "no duty" grounds, the possibility that the NAACP (or some other march organizer) might be held liable for the actions of racist thugs who come out to break up the march but also injure bystanders (or owners of neighboring stores). Imagine that a state follows Restatement (Second) of Torts § 302B, which says that "An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal," and takes especially seriously subitem H, "Where the actor acts with knowledge of peculiar conditions which create a high degree of risk of intentional misconduct" and illustration 15:
"15. The employees of the A Railroad are on strike. They or their sympathizers have torn up tracks, misplaced switches, and otherwise attempted to wreck trains. A fails to guard its switches, and runs a train, which is derailed by an unguarded switch intentionally thrown by strikers for the purpose of wrecking the train. B, a passenger on the train, and C, a traveler upon an adjacent highway, are injured by the wreck. A Company may be found to be negligent toward B and C."
A state court then says: Like A Railroad, the NAACP knows that there are thugs who are willing to commit vandalism and even violence in response to its (the NAACP's) actions. This violence generally consists of attacking NAACP parades, which foreseeably creates a risk of harm not just participants but to bystanders. The NAACP failed to adequately guard its parade, which was attacked by racist thugs who were hostile to the parade's message. Plaintiff, like C, was injured in the attack. The NAACP may thus be found to be negligent towards C.
Let's set aside the question whether we agree with this interpretation of the Restatement as a matter of substantive tort law; for my purposes, I think it's enough to say simply that a state court might plausibly interpret negligence law this way, even if we wouldn't do the same ourself.
Say that the state court does indeed do this. May the NAACP be held liable for the violent hecklers' actions? Would such liability be preempted by the First Amendment? Would we say that failure to impose liability should be treated as the government's providing a "subsidy" (following Mark Tushnet's argument) to the NAACP? If so, then could the court system impose liability on the theory that it has no obligation to subsidize the NAACP's speech?
Eugene
> -----Original Message-----
> From: Frank Cross [mailto:crossf at mail.utexas.edu]
> Sent: Sunday, April 02, 2006 3:04 PM
> To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> Subject: RE: First Amendment and tort law -- a twist
>
>
>
> I think that's getting closer. The owner would have a lesser
> duty here,
> insofar as it is not a commercial seller. But you could
> suppose it is,
> with its own bookstore. But it's still not terribly troubling to me,
> because it is at least remotely analogous to the "fire in the
> theater"
> exception. Where speech proximately causes health harm, I'm
> not terribly
> troubled by burdening it, at least slightly, as necessary to
> reduce that harm.
>
> And it's just not clear how big a burden this is; the
> absolute cost of
> security is not the measure of the burden. As I noted earlier, the
> security also provides a benefit to the seller. It will find it much
> easier to attract workers and buyers if it supplies a
> workplace that is
> safe from risks to health.
>
>
> At 04:30 PM 4/2/2006, Volokh, Eugene wrote:
> > Well, I hypothesized a state law rule that has a broad
> > understanding of such a duty, which encompasses users of
> public property
> > as well as owners of private property; I don't think this
> is such an
> > implausible hypothesis.
> >
> > But if you prefer, how about the same hypothetical
> involving
> > an
> > NAACP office that is also used as a place where the NAACP
> speaks. Assume
> > that NAACP offices had been bombed before, with damage to visitors,
> > passersby, and neighbors. NAACP sets up a new office; it's
> firebombed;
> > injured parties sue the NAACP, on the theory that (1) the
> NAACP should
> > have known that, because some people were violently opposed to its
> > politics, such attacks could happen, (2) the NAACP had a duty to
> > visitors, passersby, and neighbors to hire more guards who
> could prevent
> > such attacks, and (3) because the NAACP failed to hire
> those guards (or
> > failed to hire enough guards), it was liable.
> Constitutionally permissible?
> >
> > > -----Original Message-----
> > > From: Frank Cross [mailto:crossf at mail.utexas.edu]
> > > Sent: Sunday, April 02, 2006 2:24 PM
> > > To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> > > Subject: RE: First Amendment and tort law -- a twist
> > >
> > >
> > >
> > > I don't think this example works, because I don't think the NAACP
> > > would have a cognizable duty.
> > > Borders has such a duty, as a premises owner.
> > >
> > > Under conventional law, a sign might not suffice. But
> the absence
> > > of a sign would provide an additional claim for failure to warn.
> > >
> > >
> > > At 04:01 PM 4/2/2006, 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?
> > > >
> > > > Of course, if you prefer, you can replace the
> NAACP with
> > > > speakers espousing whatever other viewpoint may
> foreseeably lead
> > > > to violent reaction. (For instance, we might imagine a
> Mohammed
> > > > Cartoons Anti-Censorship March that sought to protest the
> > > > attempted
> > > suppression of
> > > > the cartoons by publicly displaying the cartoons.)
> > > >
> > > > Eugene
> > > >
> > > > > -----Original Message-----
> > > > > From: conlawprof-bounces at lists.ucla.edu
> > > > > [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
> > > > > sghosh2 at buffalo.edu
> > > > > Sent: Sunday, April 02, 2006 7:32 AM
> > > > > To: CONLAWPROF at lists.ucla.edu
> > > > > Subject: Re: RE: RE: RE: First Amendment and tort law
> -- a twist
> > > > >
> > > > >
> > > > > 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
> > > > > > > basic>>
> > > > > > > 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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> > > **********************************************************
> > >
> > > Frank Cross
> > > McCombs School of Business
> > > The University of Texas at Austin
> > > 1 University Station B6000
> > > Austin, TX 78712-1178
> > >
> > >
> >_______________________________________________
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>
> **********************************************************
>
> Frank Cross
> McCombs School of Business
> The University of Texas at Austin
> 1 University Station B6000
> Austin, TX 78712-1178
>
>
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