First Amendment and tort law -- a twist

[Volokh, Eugene]

	Hmm -- as I understand it, Shannon and Risenhoover are outliers.
Shannon is one of the copycat cases; almost all of them rejected the
negligence claims either on tort law grounds or on First Amendment
grounds.  Risenhoover is one of a kind, and a troubling one at that, no?

	Eugene

> -----Original Message-----
> From: J. Noble [mailto:jfnbl at earthlink.com] 
> Sent: Thursday, March 30, 2006 2:22 PM
> To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> Subject: Re: First Amendment and tort law -- a twist
> 
> 
> 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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