First Amendment and tort law -- a twist
crossf at mail.utexas.edu
Thu Mar 30 17:18:02 PST 2006
It's an interesting hypothetical, but I doubt it's a First Amendment
issue. Consider the economic consequences
Option A: Store may be liable absent security. This means that the store
would have to either hire more security or suffer risk of liability, some
market penalty for content based on the government rule.
Option B: Store may not be liable. This means that patrons have an added
risk. Some who might want to be present and hear or buy the speech will
decline to do so because of the risk. This is functionally a market
So the real penalty wouldn't be the cost of security, it would be the
degree to which the cost of security exceeds the benefit of providing
security. Which is a pretty uncertain amount.
But what about a duty to warn? What if the law simply compels the store to
provide a prominent warning of the risk of presence at the time of
controversial speech? A large "Beware" sign. The costs of that would be
pretty de minimis. I think most stores would prefer the cost of added security.
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