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Free Speech and Tort Lawsuits Over Attacks on Bookstores:

Here's a tort law / constitutional law question, by the way, though please answer it only if you are a lawyer or legal researcher who is knowledgeable enough in the doctrine -- I'm not looking for abstract generalities, but concrete arguments based on current American legal rules:

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) (emphasis added), 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.

Stan (mail):
I'm a tort lawyer... I would think it would be the same analysis through which criminal sanctions would be considered as when a movie goer yells "fire" in a crowded theater. I don't know the standard, but the right to speech should not provide for the right to knowingly cause harm. My 2c.
3.30.2006 12:51pm
M. Stack (mail):
Doesn't Virginia v. Black 538 U.S. 343 (2003) aide in the efforts to invalidate a tort claim made against a "Borders" or NYU?
3.30.2006 1:02pm
John Castiglione (mail):
Well, as to the First Amendment argument:

The Forsyth Co. case wouldn't apply here. In Forsyth, the First Amd. problem was due to the government requiring the "parade tax." In your hypothetical, there is no state action - the Constitution generally only applies to actions by the government (The Civil Rights Cases). It is hard to see in your hypothetical where the government action, the "state action" is - would it be in enforcing a judgment for liability based on a finding of negligence? While government enforcement of judgments involving private conduct has occassionaly been grounds for constitutional cases (in cases involving racially restrictive covenants), I have never heard of such thing in the First Amendment context. Maybe it would make for an interesting law review article, but I don't think it works here.

As to the tort case, I find it exteremely unlikely that a court would allow liability to be assessed against the bookstores; while a jury might be convinced that the stores should have hired additional security, I find it hard to believe that as a matter of law a court would allow a judgment to stand that basically requires a private party to ensure against wanton violence that may break out by random outsiders.
3.30.2006 1:03pm
David M. Nieporent (www):
It is hard to see in your hypothetical where the government action, the "state action" is - would it be in enforcing a judgment for liability based on a finding of negligence? While government enforcement of judgments involving private conduct has occassionaly been grounds for constitutional cases (in cases involving racially restrictive covenants), I have never heard of such thing in the First Amendment context. Maybe it would make for an interesting law review article, but I don't think it works here.
Isn't that the premise behind the Supreme Court's modern jurisprudence on defamation? Although one could argue that Times v. Sullivan was quasi-state action because the plaintiff was a public official, the Sullivan rationale has been extended to mere public figures. Hustler v. Falwell is an obvious example, for instance. If there were no "state action" in enforcing a judgment, then the First Amendment wouldn't have come into play in that case -- but in fact it did.
3.30.2006 1:09pm
Some Guy (mail):
Don't see why normal negligence rules wouldn't apply. If the danger was forseeable to a reasonable man and the proprietor failed to take reasonable steps to avert it, they would be liable. The First Amendment only applies to actions by the Federal government (and to the states by the 14th).

There was a case on building security that this reminded me of in New York in the 1960's or 70's involving a mob hit in a building lobby. There, as I recall, the court found the management company liable because a reasonable man would have forseen some sort of violence in a building lobby open all night. Also, as I recall, they had taken some steps to provide security (showing they understood the problem), yet they hadn't had security available on the night in question. I don't recall whether the court ever got into the details as to whether any mall cop type security guard could ever reasonably be assumed to be capable of stopping a mob hit, but as I remember it, the court did find the management company liable on some dang fool theory.
3.30.2006 1:13pm
Eugene Volokh (www):
John Castiglione: David Nieporent is right -- there surely is state action when a court enforces a tort judgment against a speaker. See New York Times v. Sullivan; Hustler v. Falwell; NAACP v. Claiborne Hardware; Time v. Hill; etc.

Courts have indeed held that property owners are liable for not protecting customers against foreseeable crimes. The tort law question, I think, is whether this sort of property owner qualifies, and whether the legal requirement of "foreseeability" is satisfied here.
3.30.2006 1:15pm
Arthur (mail):
This tort lawyer would argue that a book distribution is comparable to a musical performance, and promoters can be liable for foreseeable violence where there is inadequate security at a concert, even where there is a political element to the music, e.g. some kinds of rap.
3.30.2006 1:22pm
The Original TS (mail):
While government enforcement of judgments involving private conduct has occassionaly been grounds for constitutional cases (in cases involving racially restrictive covenants), I have never heard of such thing in the First Amendment context.

John, the Court in NYT v. Sullivan ruled squarely on this.

The first is the proposition relied on by the State Supreme Court - that "The Fourteenth Amendment is directed against State action and not private action." That proposition has no application to this case. Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only, though supplemented by statute. See, e. g., Alabama Code, Tit. 7, 908-917. The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised.

Sullivan, of course, dealt with a libel action brought by a public official.

That doesn't completely answer the question, of course. Sullivan dealt with a state rule of law that directly impinged on speech, libel. A negligence action, however, is facially neutral with respect to speech. I wonder if you could import the rule from Oregon v. Smith and argue that, since negligence is a rule of "general application" and facially neutral with regard to speech, it does not implicate the First Amendement even if the effect of allowing a negligence action is to substantially interfere with free speech.

To approach this another way, suppose the bookstore arranges a special promotion and gets 1000 copies of the next Harry Potter book. The bookstore announces it will give them away free a week before the general release. The bookstore makes no arrangements whatsoever for additional security. In the ensuing, and entirely forseeable, riot, several middle-aged parents are severely injured. Can the parents bring an action for negligence?

Negligence turns, in part, on forseeability. I don't see Eugene's hypo as analytically any different than a rock concert promoter who organizes a concert featuring a band with lots of distinctly un-mellow fans. If the promoter doesn't provide any security, he's asking to get sued. Music is no less protected by the First Amendment, after all, than cartoons.
3.30.2006 1:38pm
The Original TS (mail):
Crap. I need to type faster and/or stop taking calls while reading Eugene's blog. I see that David &Arthur "stold" my examples!
3.30.2006 1:42pm
Eugene Volokh (www):
The Original TS: Hustler v. Falwell and NAACP v. Claiborne Hardware set aside speech-based verdicts even though they involved "rule[s] of 'general application'" that were "facially neutral with regard to speech." For more on why even such generally applicable rules raise First Amendment problems when applied based on the content of speech see Part I of Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-Altering Utterances," and the Uncharted Zones, 90 Cornell Law Review 1277 (2005).
3.30.2006 1:44pm
dweeb:
This tort lawyer would argue that a book distribution is comparable to a musical performance, and promoters can be liable for foreseeable violence where there is inadequate security at a concert, even where there is a political element to the music, e.g. some kinds of rap.


Question from a non-lawyer - is this any different because the speech in question is controversial? For instance, extraordinary security burdens are created by a concert when the music is extremely popular (think the Who concert in Cincinnatti where people were trampled) or a sporting event where extra rowdiness is reasonably expected (like the Indians-Rangers game that brought an end to nickel beer night.)
3.30.2006 1:55pm
Wrigley:
Isn't another distinction between the hypo and Forsyth County the fact that Forsyth County "parade tax" acted as a sort of prior restraint? It's possbile that Forsyth County might have come out differently if the ordinance required parade organizers to reimburse the county for expenses taken in response to actual unrest caused by the parade. I'm not in favor of such a regime (and I would argue that it would still violate the First Amendment) but the temporal aspect is distinguishable.
3.30.2006 1:55pm
cirby (mail):
Of course, if the argument is that Borders will not carry the magazine because of the threat of violence from one group, then they really set themselves up for legal problems when any of the other thousand groups who could be offended by other publications they carry do something violent or stupid.

"Well, you took action on that Mohammed cartoon issue, why didn't you stop carrying The Satanic Verses or books on abortion or The Last Temptation of Christ on DVD?"
3.30.2006 2:10pm
Wrigley:
Perhaps copyright law presents another analogue here. The content of one's speech can easily trigger copyright liability, yet (with some exceptions) there are no First Amendment issues. I guess that begs the next question: Should there be a fair-use-esque exception to negligence law?

This discussion is like a a drinking habit. It makes my head hurt (because Prof. Volokh has raised a very interesting and tricky question), but I can't seem to turn away from it. If I get fired from my job for paying too much attention to VC, can I bring an action against Prof. Volokh for, I don't know, tortious interference with employment relations? Would he have a First Amendment defense?
3.30.2006 2:11pm
The Original TS (mail):
Eugene,

Thanks very much for the link to your law review article. I look forward to reading it and, from the title, it does seem disturbingly on point!

Two observations. First, both Hustler v. Falwell and Claiborne Hardware predate Oregon v. Smith. Oregon v. Smith was something of a bombshell in First Amendment law and any tension between it and existing precedents has yet to be resolved -- and I think there is some tension there.

Secondly, IIRC, (it's been a while) didn't Hustler turn, in large part, on the fact that Falwell was a public figure and that the caricature was fair comment on an issue of public interest? In your hypo, the cartoons are, of course, a matter of great public interest but the plaintiffs would be ordinary citizens, not public figures. True, it is more problematic to apply that distinction in this context, but doesn't Hustler leave open the possibility of bringing an IIED claim by an ordinary citizen subjected to what Falwell suffered? It would be a little odd if a plaintiff could (at least theoretically) sue for the emotional distress caused by the speech itself but not for injuries suffered in the riot caused by the speech.
3.30.2006 2:12pm
John Herbison (mail):
I'll take a stab at this, albeit without having researched the issue. Forsyth County is plainly distinguishable: imposition of a permit requirement and/or fee as a condition of free expression raises prior restraint issues which are not present in an after the fact damages action among private litigants.

This kind of injury is foreseeable enough to present a jury question. In a comparative fault jurisdiction, the appoirtionment of fault among the exhibitor of the cartoons who failed to provide adequate security, the assailant(s) who directly inflicted harm and the injured person(s) (to whom foreseeability would also apply) would be interesting.

If state law authorized punitive or exemplary damages under these facts, First Amendment concerns might come into play, in that punitive damages are somewhat analogous to a tax or fee. For example, in defamation cases punitive damages are precluded except upon a showing of actual malice. A court could conclude that a similar chilling effect would arise from an award of punitive damages here.
3.30.2006 2:20pm
John Herbison (mail):
I'll take a stab at this, albeit without having researched the issue. Forsyth County is plainly distinguishable: imposition of a permit requirement and/or fee as a condition of free expression raises prior restraint issues which are not present in an after the fact damages action among private litigants.

This kind of injury is foreseeable enough to present a jury question. In a comparative fault jurisdiction, the appoirtionment of fault among the exhibitor of the cartoons who failed to provide adequate security, the assailant(s) who directly inflicted harm and the injured person(s) (to whom foreseeability would also apply) would be interesting.

If state law authorized punitive or exemplary damages under these facts, First Amendment concerns might come into play, in that punitive damages are somewhat analogous to a tax or fee. For example, in defamation cases punitive damages are precluded except upon a showing of actual malice. A court could conclude that a similar chilling effect would arise from an award of punitive damages here.
3.30.2006 2:20pm
John Herbison (mail):
I'll take a stab at this, albeit without having researched the issue. Forsyth County is plainly distinguishable: imposition of a permit requirement and/or fee as a condition of free expression raises prior restraint issues which are not present in an after the fact damages action among private litigants.

This kind of injury is foreseeable enough to present a jury question. In a comparative fault jurisdiction, the appoirtionment of fault among the exhibitor of the cartoons who failed to provide adequate security, the assailant(s) who directly inflicted harm and the injured person(s) (to whom foreseeability would also apply) would be interesting.

If state law authorized punitive or exemplary damages under these facts, First Amendment concerns might come into play, in that punitive damages are somewhat analogous to a tax or fee. For example, in defamation cases punitive damages are precluded except upon a showing of actual malice. A court could conclude that a similar chilling effect would arise from an award of punitive damages here.
3.30.2006 2:20pm
Eugene Volokh (www):
(1) Forsyth was not decided on prior restraint grounds; the Court treated it the same way that it would treat other content-based speech restrictions.

(2) Smith is irrelevant to this issue, for reasons I describe in my Cornell piece. The short answer is that it certainly does not purport to overrule Hustler and Claiborne -- and Cohen v. California and all the other cases I cite as examples in the Cornell piece -- and I know of no-one who has interpreted it this way.

(3) That Hustler involved a public figure is irrelevant, too. Speech on public issues that don't involve a particular person (or, if you prefer, that involve a centuries-dead highly public figure named Mohammed) is at least as protected as speech on public issues that involves a public figure.
3.30.2006 2:25pm
Tom Holsinger (mail):
I haven't researched the issue for this post, but as a California trial court research attorney I get about 1-2 files a year involving this sort of security issue.

Standard tort principles of forseeability apply. In the absence of a known threat, there is no liability. The case authority I recall all involves general criminal activity to a specific location and the risks created by that. That is not the fact situation you describe. You postulate a threat to all storesd - hundreds or thousands of them.

So bang! goes foreseeability. Which bookstore is at risk? Tort law in this field flat out does not recognize a threat of criminal acts against hundreds of wildly disparate locations.

Unless there is a specific threat to a specific store, there would be no liability under existing California law.

I won't get into the public policy issues.
3.30.2006 2:33pm
raj (mail):
Both Borders and NYU are private institutions, so I'm not sure what relevance cases involving government "taxation" of free speech might have. It may be possible for a tort plaintiff to fashion a theory involving, for example the theory that people who attend the distribution are "invitees." If memory serves--it has been a long time since my real property class--invitees are entitled to an enhanced duty by the property owner to protect against injury, provided the injury is reasonably foreseeable. If a jury determines that the violence was reasonably foreseeable, and that the Borders or NYU failed to provide security that would likely to have been sufficient to contain the violence, a plaintiff who had been injured might prevail.

One issue regarding NYU is that, since it is a private not-for-profit charitable institution, it may have protection under state law. I don't know NY State law, but here in Massachusetts there is a state law limitation on tort damages that may be levied on not-for-profit charitable institutions.
3.30.2006 2:56pm
FXKLM:
This tort lawyer would argue that a book distribution is comparable to a musical performance, and promoters can be liable for foreseeable violence where there is inadequate security at a concert, even where there is a political element to the music, e.g. some kinds of rap.

To me, this is analogous to saying that a bookstore is liable when a book falls on a customer's head even when the book contains politically controversial views. In both cases, the political controversy is not the cause of the danger.
3.30.2006 2:59pm
John Castiglione (mail):
Thanks for setting me straight, everyone. One last thing, slightly astray - aside from the legal subtleties, do we really think that a judge (at either the trial or appellate level) would allow a judgment against a bookstore for failing to turn their stores into an armed camp because rioters don't like the content of their boooks?

Even if we assume forseeability (which I still think as a matter of law a judge would not find, absent a specific targeted threat to a particular store, and perhaps not even then), I just can't see a bookstore getting slapped with damages because mauraders didn't like the content of their books. This seems like an instance where a judge would do whatever he could to assure damages would not be awarded. Maybe this is just wishful thinking, but I'd like to think a judge would see things the same way, and work out the doctrinal details later. A bit jurisprudencially suspect, but it's been done before.
3.30.2006 3:14pm
Tom Holsinger (mail):
John Castiglione,

There are crucial liability differences between "specific targeted threats to a particular store" and a "general risk of criminal activity to a particular store". The degree of risk in the latter affects whether there might be liability. There are many published cases on the latter.

Public policy issues get involved in the former - "specific targeted threats to a particular store". Furthermore that was not the fact situation postulated by Professor Volokh, which was general threats to non-specific, i.e., mulitple locations based on a product carried by that type of store.

An analogy to his fact situation would be a threat by some nutball anti-abortion group to all pharmacies carrying the RU-486 immediate post-impregnation abortion drug. Or by militant vegetarians/animal-rights nutters to butcher shops in every grocery store in the country.

There just isn't even arguable liability in those situations. A duty to protect arises only concerning known risks of harm at known locations, and then there is only a duty to take reasonable care. Surrounding a 7-11 with 459 armed guards is not reasonable.
3.30.2006 3:52pm
RHD (mail):
In NY, it seems doubtful that there would be any tort liability on the hypo you posed. The legal standard in NY makes the "foreseeability" inquiry turn on specific prior criminal conduct threatening store patrons:
"While a landlord … has a common-law duty to take minimal precautions to protect … users of the facility from foreseeable harm, including the criminal conduct of third parties [citation omitted], this duty arises only when such party 'knows or has reason to know that there is a likelihood that third persons may endanger the safety of those lawfully on the premises [citation omitted], as where the landlord … is aware of prior criminal activity on the premises.'" Florman v. City of New York, 293 A.D.2d 120, 741 N.Y.S.2d 233, 237 (1st Dep't 2002). "The landlord had no duty to safeguard tenants from neighborhood crime as such. The duty to protect against criminal intruders only arises when ambient crime has seriously infiltrated the premises or when the landlord is on notice of a serious risk of such infiltration." Evans v. 141 Condominium Corp., 258 A.D.2d 293, 685 N.Y.S.2d 191, 193 (1st Dep't 1999).

For purposes of measuring a landlord's duty of care, NY has abolished the old common law distinctions among invitees, licensees and trespassers, and instead has substituted a single standard of "reasonable care in the circumstances." The NY Court of Appeals defined that standard as follows: "A landowner must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk." Basso v. Miller, 40 N.Y.2d 233, 241 (1976) (citation and internal quotation omitted). That duty extends to all persons whom the landowner should reasonably expect to be on the premises. Peralta v. Hernriques, 100 N.Y.2d 139 (2003). As the Court has sometimes paraphrased the test, the issue is whether the landowner "should reasonably have foreseen that, under the conditions which prevailed, it was only a matter of time until someone might be injured." Quinlan v. Ceccini, 41 N.Y.2d 686, 690 (1977).

Even though I don't think the claim would ultimately succeed in NY as a matter of substantive tort law, it would have a fair chance of surviving a motion to dismiss (depending on what the plaintiff could fairly allege about the prior threats, etc.).

I don't think the "burden on speech" idea would work to give rise to an affirmative defense under the First Amendment here. The duty to protect patrons, and to incur such additional expense as is necessary to comply with that duty, is not itself a restraint on speech. It is quite possible, as earlier commenters have noted, that a court would treat the tort duty of care here as a neutral principle applicable to all landlords, and thus not itself a threat to any First Amendment values. Even if a court didn't take that approach, the speech (and the hostile reaction to it) giving rise to the danger to store patrons and bystanders in this hypo, and thus triggering (at least in the putative plaintiff's view) the store owner's duty of care, does not involve a direct burden on speech. I think the campaign finance cases going back to Buckley v. Valeo provide an a fortiori analogy. Public safety is at least as important a public policy in this context as were the policies supposedly furthered by the campaign finance restrictions upheld by the Court. Yet the campaign finance cases involved direct restraints on political speech (accepting the Court's equation of campaign spending and the ability to speak) at the heart of the First Amendment, whereas in this hypo the restraint on speech is entirely secondary. I don't think the libel cases (NY Times v. Sullivan, etc.) would change that analysis. Those cases strike me as sui generis, and concerned with the chilling effect of possibly large libel verdicts on speech. Whatever chilling effect may arise in this hypo is only remotely connected to the store owner's duty of care. It's not so much that the logic of NY Times v. Sullivan and those cases couldn't be extended to this hypo, but rather that the context is sufficiently different and the interests in play much less of a threat to First Amendment values, that it wouldn't make sense to follow that logic blindly here.
3.30.2006 4:21pm
The Original TS (mail):
(2) Smith is irrelevant to this issue, for reasons I describe in my Cornell piece. The short answer is that it certainly does not purport to overrule Hustler and Claiborne -- and Cohen v. California and all the other cases I cite as examples in the Cornell piece -- and I know of no-one who has interpreted it this way.

Well, I'm not married to the Smith idea, it's just something that occurred to me. Nonetheless, when you think abou it, the core holding of Smith must apply in free speech cases on some level. I'm dubious that things like Fire Codes or parking restrictions must be subject to strict scrutiny whenever they happen to infringe on free speech. I suppose you could classify many of these as time, place and manner restrictions, though.


(3) That Hustler involved a public figure is irrelevant, too. Speech on public issues that don't involve a particular person (or, if you prefer, that involve a centuries-dead highly public figure named Mohammed) is at least as protected as speech on public issues that involves a public figure.

Now that I've gone back and read Hustler again, it more-or-less comports with my fuzzy memory of it. Hustler effectivily imported the NYT v. Sullivan standard into a claim for IIED. Note that it doesn't say that a public figure can never bring a claim for IIED, it merely tightens the cause of action as it applies to speech. I suppose the analogy for your hypo would be to allow the plaintiffs to bring a "negligence" claim only if the the bookstore where reckless in failing to provide security.

I am still not convinced that this is the correct result. Requiring proper security is more like a time, place and manner restriction. Let us suppose, for example, that you held a rally in a private building. You had a very popular political speaker and knew that you would have a huge turnout. Nonetheless, to save money, you rented a small venue and packed them in, ignoring maximum occupancy restrictions, fire codes, etc. As a result of this overcrowding, a balcony collapses and people get killed. Why wouldn't there be a cause of action against the organizer? How is this any different from your hypo? You know that there is a danger of injury based on the content of the speech you are offering (it's very popular) but you neglect to take steps to prevent the danger and injury results.

BTW, just to be clear, I think Borders ought to be scourged from pillar to post until they reverse this craven policy. The best way we can support the Danes is to fight the good fight here. I hope this outrage lights up the blogosphere like nothing that has gone before.
3.30.2006 4:43pm
none_:
In addition to forseeability, standard negligence principles of causation would apply. I think it would be hard to find NYU or Borders distribution of books to be the cause-in-fact of an injury caused by the activity of an unknown third party.
3.30.2006 5:19pm
David M (mail):
An analogy to his fact situation would be a threat by some nutball anti-abortion group to all pharmacies carrying the RU-486 immediate post-impregnation abortion drug. Or by militant vegetarians/animal-rights nutters to butcher shops in every grocery store in the country.

There just isn't even arguable liability in those situations. A duty to protect arises only concerning known risks of harm at known locations, and then there is only a duty to take reasonable care. Surrounding a 7-11 with 459 armed guards is not reasonable.

I hope you're right, Tom. If a tort were awarded in such a case, the effect on individual liberty could be devastating. Essentially, the message sent to fanatical protesters would be: If you want a product banned but fail to do so legally, all you'll need do is threaten enough violence to make carrying said product cost prohibitive. Our every economic choice would be subject to the whims of radicals.
3.30.2006 5:38pm
Joshua (www):
Two more angles that have to be considered:

1) Exactly how do you define "reasonable precautions" against a potential enemy (for lack of a better word) who is capable of acting out in any number and manner of ways that most reasonable people would not have considered until after the fact? The North Carolina Muslim student who plowed his car into a group of other students as a protest comes to mind. Before that incident occurred, the risk of a similar incident occurring in the parking lot of a Borders bookstore where the cartoons were being distributed probably would have been considered beyond the realm of "reasonable precautions." Does that change once an actual incident of that nature has occurred? And what about an attack originating off of store property, like stealing a Cessna and flying it into the store as a suicide attack? Does that fall under the rubric of "reasonable precautions" in the post-9/11 world? If so, then the expense and effort involved would be so great that Borders would have little choice but simply not to carry the magazine.

2) What about off-site retaliatory violence? (Keep in mind that most of the violent protests against the Mohammed cartoons occurred in locations far away from Denmark.) Say Borders carries the magazine with the cartoons, and takes all "reasonable precautions" (however you define them) to protect its own customers, but then violence breaks out at the Starbucks across the street, Starbucks customers get hurt, and when arrested the perps say it's to protest the cartoons being distributed at Borders. Is Borders liable for the Starbucks customers' injuries? Is Starbucks liable? And again, once such a precedent for off-site violence has been established, does it fall under the rubric of "reasonable precautions" even if it didn't before?
3.30.2006 5:56pm
TKBC (mail):
The dilemma is a natural and predictible result of expansive tort liability. I am referring to the erosion of the doctrines of of intervening and superceding cause as a defense to liabilty in tort. Specifically, the erosion of a premise owner's ability to defend itself on the basis that the criminal act of others superceded any negligence that may otherwise be attributable to the property owner.

Granted, holding a premise owner liable for not maintaining security adequate to prevent foreseeable crimes has appeal, especially to those who do not mind seeing Wal Mart's ox being gored. However, as we now see, businesses are now being forced to choose between: 1) freely expressing constitutional rights or, 2)suppressing free expression and legitimate business pursuits for fear of ruinous tort liabilty.

Now that the persistant march towards ever expanding liability has threatened constituionally protected activities, maybe its time to return to placing blame solely on criminals, and holding the proper authorities responsibilty for maintaining security.
3.31.2006 2:42pm
Paul Gowder (mail):
I think I'll chime in on this one.

1. The state action issue: seems unclear to me. I don't know that New York Times v. Sullivan would extend quite so far, just because the tort in question (negligence) is not nearly as close to direct state regulation of speech as is defamation law. There's numerous cases where the court has permitted private enforcement of state tort/property law notwithstanding First Amendment defenses, Lloyd Corp v. Tanner, 407 U.S. 551 being only the most obvious.

Eugene, I think your reliance on Hustler v. Fallwell is a little misplaced. The fact that Fallwell was using intentional infliction of emotional distress to sneak libel in under the back door was obviously the motivating factor in the Court's decision.

On the other hand, Claiborne is much closer to on point. Were I representing the plaintiffs in the hypothetical, I'd distinguish on the ground that the suit you propose isn't targeted directly at the speech, but rather at the negligent failure to provide security for same, and also that the alleged damages in Claiborne came directly from the political speech (the boycott) rather than from secondary, third-party effects, hence a rule of negligent security in the hypothetical would be less likely to create a chilling effect on much speech.

An extension of the Noerr-Pennington doctrine might be worth a look. Ordinarily, the Noerr-Pennington doctrine only immunizes speech made to public officials (petition clause activity), and to my knowledge has only been applied to business torts (originally antitrust, now often stuff like interference with contract). Still, I don't think it's beyond the pale to expand it to core political speech generally and all torts.

2. Fighting words?

3. Honestly, I'm not sure that the tort case would fly. To what extent does a business owner have to protect customers from the violence of third parties? I know this breaks down differently in different states, the only state of which I'm aware, Virginia, has a fairly strict standard for liability. How foreseeable is it that a display of the comics would cause violence?
3.31.2006 4:11pm
Tom Holsinger (mail):
As someone whose day job is to make calls in premises liability cases involving security issues, I repeat:

There must be a known risk of harm at a particular location. Not any of a number of locations. A particular location.

I am not aware of ANY case involving risks of harm at multiple locations, none of which have involved any past injuries, of which one location happens to be where the injury occurs - it being the very first injury of that sort.

Find us a case involving multiple locations and we'll talk. Until then this is just blowing smoke.
3.31.2006 9:19pm
Jeff Neely (mail) (www):

Now that the persistant march towards ever expanding liability has threatened constituionally protected activities, maybe its time to return to placing blame solely on criminals, and holding the proper authorities responsibilty for maintaining security.



Thankyou. A lack of this type of thinking is what is the real problem and should be the real issue.
4.1.2006 5:07am
pdxnag (mail) (www):
How many state treasurers have purchased stock in Border's on behalf of the state or public employees?

One could argue that this ownership interest would supply the state action.

I would argue that it is not a content neutral ban, just as with an open forum at a public school.
4.1.2006 3:14pm