First Amendment and tort law -- a twist
Volokh, Eugene
VOLOKH at law.ucla.edu
Thu Mar 30 16:23:12 PST 2006
But isn't Forsyth County relevant then? The government's theory
in Forsyth was that the Nationalist Movement parade might lead to
violent retaliation, and therefore the police had to provide extra
security; so the Movement should pay for that extra security, up to
$1000. No dice, the Court said -- that's an unconstitutional
content-based burden on speech.
Your tort theory, assuming proximate cause and foreseeability
would be satisfied, is that the presence of the Nazi Party office might
lead to violent retaliation, and therefore the landlord has to provide
extra security, which presumably would be factored into the Party's
rent; so the Party should pay for that extra security, quite possibly
for much more than $1000. Or, in the Borders example, Borders' exercise
of its free speech rights in choosing to distribute cartoons might lead
to violent retaliation, and therefore Borders has to provide extra
security; so again Borders should pay for that extra security, quite
possibly for much more than $1000. Can that be consistent with Forsyth?
Eugene
> -----Original Message-----
> From: J. Noble [mailto:jfnbl at earthlink.com]
> Sent: Thursday, March 30, 2006 3:56 PM
> To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> Subject: RE: First Amendment and tort law -- a twist
>
>
> 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.
> >> >_______________________________________________
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