“Private” Lawsuits:

A reader writes:

The idea of the right to publish is only a prohibition against government interference. It does not give protection against non-government actions such as lawsuits. . . .

I often hear this argument, but it’s mistaken. Lawsuits aren’t “non-government actions.” A lawsuit is decided by a government actor. If the plaintiff wins, he gets to enforce the award using the government’s coercive power. And the law that is being applied is government-made law. That’s why the Supreme Court is absolutely right to conclude that private lawsuits based on speech are subject to the First Amendment. Some such lawsuits may be permissible; libel law, for instance, still exists, though it has been cut back by the Supreme Court because of First Amendment concerns. But they are permissible only because the speech on which they’re based falls within an exception to First Amendment protection (e.g., the “false statements of fact” exception, which allows lawsuits or even criminal punishments for deliberate lies).

This also makes sense functionally as well as formally. If lawsuits were immune from First Amendment scrutiny, then the legislature could effectively suppress a great deal of speech simply by authorizing private lawsuits. Want to suppress racist speech, anti-government speech, anti-war speech, etc.? Pass a law authorizing anyone who’s offended by speech to sue.

Ah, some might ask, but what if a property owner sues protesters for trespassing on his property? Wouldn’t the reasoning above make that lawsuit “state action,” and subject to the Constitution?

Sure. The trespassing lawsuit is definitely state action (the legal idiom) or government action (the more precise term). But trespassing law doesn’t focus on speech because of its content; in fact it doesn’t focus on speech at all. The property owner might be suing the protesters because of their speech, but the law is indifferent to their speech or even to whether they were speaking. And this sort of content-neutral, speech-neutral law is constitutional under First Amendment law, even if it happens to be applied at times to speech. But legal rules that apply to speech because of what it says (libel law, intentional infliction of emotional distress law, the disclosure of private facts tort, and so on) are subject to serious First Amendment scrutiny, and often can’t constitutionally be applied to speech, because of the First Amendment.

So, as the Supreme Court held in New York Times v. Sullivan (1964), “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.” If a legal rule makes people legally liable for their speech, the First Amendment is implicated, whether or not the party that starts the litigation is the government.