First Amendment and tort law -- a twist

[J. Noble]

I completely agree. I'm just trying to get past the 12(b)(6) motion. 
You're going to get summary judgment or JNOV on the incitement claim, 
except in Riyadh, but it throws a new light on the failure to provide 
security. Consider the claim of a tenant injured in an apartment 
building fire. The claim only gets better, doesn't it, if the fire 
was caused by a JDL fire-bombing after the landlord allowed the 
American Nazi Party to rent a ground-floor office and hang a swastika 
on the front of the building. Whatever risk might or might not 
obligate the landlord to install smoke detectors and a sprinkler 
system just becomes more foreseeable, and no less culpable. I think 
Borders should win your hypothetical (and the landlord might win 
mine) on proximate cause and foreseeability grounds, but I don't 
think a judgment would violate the First Amendment.

John Noble


At 2:35 PM -0800 3/30/06, Volokh, Eugene wrote:
>	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.
>>  >_______________________________________________
>>  >To post, send message to Conlawprof at lists.ucla.edu
>>  >To subscribe, unsubscribe, change options, or get password, see
>>  >http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>  > >
>>  >Please note that messages sent to this large list cannot be viewed
>>  >as private.  Anyone can subscribe to the list and read messages that
>>  >are posted; people can read the Web archives; and list members can
>>  >(rightly or wrongly) forward the messages to others.
>>
>>
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see 
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed 
>as private.  Anyone can subscribe to the list and read messages that 
>are posted; people can read the Web archives; and list members can 
>(rightly or wrongly) forward the messages to others.