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.