First Amendment and tort law -- a twist

[J. Noble]

Forsyth interposes state action with the licensing requirement, but 
your hypothetical calls to mind the incitement cases. Rice v Paladin 
Enterprises is the extreme, coming to the 4th Circ. on stipulations 
that amounted to intentional aiding and abetting, but a quick Westlaw 
search turned up mere negligence claims that survived dismissal on 
First Amendment grounds where there were questions of fact as to 
foreseeability and proximate cause (a couple of them below).

The hypothetical also suggests an interesting aspect of the "fighting 
words" doctrine -- by what cultural touchstone do we assess whether 
particular speech constitutes an incitement to imminent violence? A 
judge in Riyadh might read Chaplinsky ("God damned racketeer" and "a 
damned Fascist"), and find the case against Borders is a fortiorari. 
If the incitement itself might be actionable, even if it finally 
fails, the failure to provide foreseeably necessary security is only 
an alternative claim that allows the appellate court to uphold the 
judgment while giving short shrift to its more remote First Amendment 
implications. Rice v. Paladin, for example, was wrongly decided in my 
opinion, but if the claim had been framed as a breach of a duty to 
warn, it would be far less troubling.

John Noble

Court of Appeals of Georgia.SHANNON et al.v.WALT DISNEY PRODUCTIONS, 
INC., et al.No. 60145.Argued June 6, 1980.Decided Nov. 21, 
1980.Certiorari Granted Dec. 18, 1980.
  Plaintiffs appealed from an order of the Fulton Superior Court, 
Eldridge, J., granting summary judgment in favor of television 
production and broadcast companies in a negligence action brought on 
behalf of an eleven-year-old child who sustained an injury to his eye 
while mimicking a sound effect demonstration shown on a children's 
program. The Court of Appeals, Smith, J., held that: (1) material 
issues of facts existed as to the foreseeable risk of harm presented 
by the airing of the program, and as to child's contributory 
negligence, precluding summary judgment for companies, and (2) the 
First Amendment did not constitute an absolute defense to the action.
  Reversed.
  Judgment reversed, 276 S.E.2d 580.

Risenhoover v. England
936 F.Supp. 392
W.D.Tex.,1996.
Apr 02, 1996 (Approx. 19 pages)
  Wrongful death suit for injuries to law enforcement agents was 
commenced, alleging that newspaper, television station, and ambulance 
service negligently disclosed impending raid upon sect compound to 
execute search and arrest warrants by dispatching reporters and 
photographers to scene. Defendants moved for summary judgment. The 
District Court, Walter S. Smith, Jr., J., held that: (1) First 
Amendment did not immunize newspaper or television station from 
liability for negligence associated with news gathering activities; 
(2) all individuals, including media, had duty to not warn sect of 
impending raid; (3) whether defendants proximately caused injuries to 
agents was fact question; and (4) whether law enforcement agency's 
decision to continue with raid was intervening cause of injuries was 
fact question.
  Granted in part and denied in part.

At 9:40 AM -0800 3/30/06, Volokh, Eugene wrote:
>The AP reports, at
>http://www.sfgate.com/cgi-bin/article.cgi?file=/news/archive/2006/03/29/
>national/a163611S00.DTL:
>
>"Borders and Waldenbooks stores will not stock the April-May issue of
>Free Inquiry magazine because it contains cartoons of the Prophet
>Muhammad that provoked deadly protests among Muslims in several
>countries.
>
>"'For us, the safety and security of our customers and employees is a
>top priority, and we believe that carrying this issue could challenge
>that priority,' Borders Group Inc. spokeswoman Beth Bingham said
>Wednesday...."
>
>Here's my question:  Say that Borders or NYU decides to distribute the
>cartoons, or allow a meeting that displays the cartoons; and say that
>thugs respond with violence, which injures a patron or a student.  (I
>set aside for the sake of simplicity injuries to employees, since, to my
>knowledge, damages claims against employers over such incidents would
>generally be governed by worker's compensation plans rather than tort
>law.)
>
>Should Borders and NYU be held liable based on the theory that they
>negligently failed to employ extra security to protect against?  Or
>should they have a First Amendment defense, because the tort theory
>underlying that lawsuit essentially imposes a tax on those who
>distribute highly controversial speech?  Cf., for whatever it's worth,
>Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992), which
>struck down a policy under which parade organizers had to pay a permit
>fee (of up to $1000) based in part on the expected policing costs that
>stemmed from how controversial the parade would be:
>
>The county envisions that the administrator, in appropriate instances,
>will assess a fee to cover "the cost of necessary and reasonable
>protection of persons participating in or observing said . . .
>activit[y]." In order to assess accurately the cost of security for
>parade participants, the administrator "'must necessarily examine the
>content of the message that is conveyed,'" estimate the response of
>others to that content, and judge the number of police necessary to meet
>that response. The fee assessed will depend on the administrator's
>measure of the amount of hostility likely to be created by the speech
>based on its content. Those wishing to express views unpopular with
>bottle throwers, for example, may have to pay more for their permit.
>
>Although petitioner agrees that the cost of policing relates to content,
>contends that the ordinance is content neutral because it is aimed only
>at a secondary effect -- the cost of maintaining public order. It is
>clear, however, that, in this case, it cannot be said that the fee's
>justification "'ha[s] nothing to do with content.'"
>
>The costs to which petitioner refers are those associated with the
>public's reaction to the speech. Listeners' reaction to speech is not a
>content-neutral basis for regulation. Speech cannot be financially
>burdened, any more than it can be punished or banned, simply because it
>might offend a hostile mob.
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